Citation: Director of Public Prosecutions v Coe [2003] NSWSC 363
Court: Supreme Court of New South Wales, Common Law Division
Date: 1 May 2003
Judge(s): Adams J
Background
Three charges arose from a single incident in the early hours of 27 January 2002 in Kings Cross. A uniformed constable approached a group of men after observing one of them, Raymond Munro, bleeding and apparently injured. Despite hostile responses from Munro, the constable persisted with questions and briefly touched Munro's arm in an attempt to calm him. The defendant then punched the constable from behind, knocking him to the ground, and Munro proceeded to kick the constable in the head. The constable suffered a severe laceration requiring six stitches.
The defendant faced charges of assault occasioning actual bodily harm, assaulting a police officer in the execution of duty occasioning actual bodily harm, and common assault. In the Local Court, Magistrate O'Shane found that the constable had unlawfully detained (or attempted to detain) Munro before the assaults occurred. On that basis, she excluded all of the constable's evidence about the assaults under s138 of the Evidence Act 1995 and dismissed all three informations.
The Director of Public Prosecutions appealed to the Supreme Court under s109(a) of the Justices Act 1902, arguing that the magistrate had erred in excluding the evidence and exercising the discretion under s138 in the way she did.
Legal Issues
- Whether the constable's conduct amounted to an unlawful arrest or detention of Munro, making it an impropriety for the purposes of s138 of the Evidence Act 1995.
- Whether the constable's evidence of the subsequent assaults was "obtained" in contravention of an Australian law (within the meaning of s138), given the alleged impropriety preceded rather than produced the evidence.
- How the discretion under s138 should be exercised, and whether the magistrate's balancing exercise was so unreasonable as to constitute legal error.
Decision
On whether there was an unlawful detention: Adams J accepted, for the purposes of the appeal, that it was reasonably open to the magistrate to find that the constable had engaged in at least a technical unlawful detention of Munro. However, the constable had been struck from behind without warning during what was, at most, a minor misjudgment in a difficult situation. There was no evidence that he had intentionally or recklessly flouted the law.
On whether the evidence was "obtained" improperly: The court examined the causal connection required by s138. For evidence to have been "obtained" in contravention of a law, there must be a meaningful causal link between the impropriety and the evidence sought to be excluded. Here, the constable's evidence of the assaults was not produced by the unlawful detention; the assaults were independent acts of violence committed against the constable, not evidence discovered through or because of any impropriety.
On the exercise of discretion: Even assuming s138 was engaged, Adams J found the magistrate's balancing exercise to be so unreasonable as to reveal a significant error of law. The impropriety, if any, was at the most technical end of the spectrum: no force was used, no threat was made, and the constable was attempting to assist an injured person and investigate a suspected serious assault. The seriousness of the subsequent assault on the constable, and the public interest in prosecuting it, were not adequately weighed against what was at best a very slight irregularity. Applying the appellate standard from House v The King (1936) 55 CLR 499, the court inferred that a substantial wrong had occurred in the exercise of the discretion.
Orders Made
- The order dismissing the information is quashed.
- A new hearing is to take place before a different magistrate.
Key Takeaways
- Under s138 of the Evidence Act 1995, evidence must have been "obtained" in contravention of a law before the exclusionary discretion is engaged. A causal connection between the impropriety and the evidence is required; evidence of a subsequent independent act (here, a serious assault) may not satisfy that requirement.
- Where the link between an alleged impropriety and the evidence sought to be excluded is remote or technical, the balancing exercise under s138 must reflect that. A minor departure from lawful conduct does not automatically warrant exclusion of significant probative evidence.
- The seriousness of the alleged offence is a material consideration in the s138 balancing exercise. The Supreme Court found that excluding all evidence of a serious, unprovoked assault on a police officer based on a technical irregularity in questioning a third party failed to properly weigh the public interest in admissibility.
- Appellate courts will intervene in the exercise of a discretion under s138 where the outcome is so unreasonable that it bespeaks a failure to exercise the discretion properly, even if the precise nature of the error is not readily identified, consistent with the House v The King standard.
- In quashing the dismissal, Adams J directed that the matter be heard afresh by a different magistrate, reflecting the significance of the error in the original proceeding.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), s138
- Justices Act 1902 (NSW), s109(a)
Cases
- Bunning v Cross (1978) 141 CLR 54
- DPP v Carr [2002] 127 A Crim R 151
- Haddad & Treglia (2000) A Crim R 312
- House v The King (1936) 55 CLR 499
- Lobban (2000) 112 A Crim R 357
- R v Inwood [1973] 2 All ER 645
- R v Ireland (1970) 126 CLR 321
- R v Ridgeway (1995) 184 CLR 19; 79 A Crim R 307
- Robinett v Police (2000) 78 SASR 85; 116 A Crim R 492