VW v R [2021] NSWDC 208

District Court New South Wales

Medium Neutral Citation: VW v R [2021] NSWDC 208 Hearing dates: 21 April 2021 Date of orders: 21 April 2021 Decision date: 21 April 2021 Jurisdiction: Criminal Before: Hunt DCJ Decision: Appeal is allowed and all orders of the magistrate are set aside Catchwords: CRIMINAL LAW – Judgment – Conviction appeal from Children's Court – Unlawful arrest – Vulnerable arrest – Proper execution of police duties Legislation Cited: Children and Young Persons (Criminal Proceedings) Act Crimes (Appeal and Review) Act. LEPRA Act Supreme Court Act Cases Cited: Dyason v Butterworth [2015] NSWCA Engelbrecht v DPP (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 at para 28. Jankovic v DPP [2020] NSWCA 31 Category: Principal judgment Parties: VW The Crown Representation: Legal Aid Commission – the appellant. Director of Public Prosecutions – the respondant.

Solicitors: File Number(s): 2019/292615 Publication restriction: There is to be no publication of the name of the appellant or of any material which may tend to identify the appellant.

Judgment 1. VW appeals against determinations by a Children's Court magistrate finding two offences that she assaulted police officers in the execution of their duty. The young person is accompanied by a caseworker and represented by Ms Bleasel, and the Crown is represented by Mr Belcher. 2. I have had the benefit of considering exhibits that were relevant portions of exhibits that were filed in the Children's Court and had the benefit of some careful written submissions by both parties, which have been enlivened by oral submissions today. 3. It is appropriate that I briefly say something about the nature of a conviction appeal to this Court. The nature of the appeal is contained in s 18 of the Crimes (Appeal and Review) Act. Section 18 relevantly provides: "1. An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by s 19." 1. Section 19 does not arise for the current purposes. 2. The nature of the rehearing which this Court holds when a conviction appeal is considered from the Children's Court has been considered by a number of cases in the Court of Criminal Appeal and the Court of Appeal generally in relation to Local Court proceedings. I propose to take the approach that the appeal, as outlined in Dyason v Butterworth [2015] NSWCA 52 and implicitly confirmed by Engelbrecht v DPP (NSW) [2016] NSWCA 290. 3. The appeal is not a hearing de novo. The approach to be taken on a s 18(1) rehearing is analogist to a civil appeal taken under s 75A of the Supreme Court Act, as explained in Fox v Percy (2003) 214 CLR 118 at para 28. 4. I am to form my own judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court. Whilst the magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place. 5. The powers of a District Court on s 18(1) rehearing are exercisable where the appellant demonstrates that the order, the subject of the appeal, is the result of a legal, factual or discretionary error, in which event the appellate court can substitute its own decision based on the facts and law as they then stand. I am to form my own judgment of the facts and then determine whether the evidence before the magistrate made out the offences beyond reasonable doubt. 6. Whilst there has been some debate about the nature of a conviction appeal in this Court amongst some judges in the Court of Appeal, I consider the principles that I have set out above to encapsulate the approach that I am required to take in a conviction appeal. In accordance with those principles I have read the relevant parts of the transcript and considered the relevant parts of the exhibits, as well as the written and oral submissions of the parties. 7. Ms Bleasel appeared for the young person before the Children's Court and took a preliminary point on which there was a voir dire hearing. Although the parties differ on some matters of interpretation of the evidence, the parties join in the fact that the Court should first determine whether the magistrate was right or not effectively, or whether I substitute a different view on the voir dire issue as to the lawfulness of the young person's arrest. Given the officers executing in the proper execution of their duty is an element of the offence, it rather matters not whether if I determine that the arrest of VW was not lawful, it matters not really whether it is then the case that the prosecution cannot prove one of the vital elements of each of the two charges, or alternatively whether the balance of the evidence is not admissible on the basis of the illegality for the purposes of s 138. For brevity I am going to prefer the first of those two approaches. 8. It is recognised that it is necessary for a police officer to turn his or her mind to the provisions of s 99 of the LEPRA Act. Although in the course of examination in chief and cross examination the relevant arresting officer, Constable Field, developed some other potential basis for his arrest of the young person, I have had some principal regard in assaying the balance of the evidence from what the witness said in his police statement before he was on notice that there was an issue about the legality of the search and from his early evidence in chief. 9. There is a live issue as to whether the police, at the time of the approach to the vehicle that VW and other young persons were in, had knowledge about whether the vehicle had been stolen. In exhibit 1 and exhibit 2, both of Constable Field and Constable Ford limit their recitation as to their knowledge that the vehicle had been stolen with no supplementary detail about the timing of that stealing or the location and the like. 10. Additionally, the way that Constable Field details events in exhibit 1 is that he opened the rear door of the vehicle, announced his identity, produced his identification, saw the young person who he recognised, confirmed her identity and then took hold of her and proceeded to physically arrest her. It follows that at the time that he commenced the arrest he already knew the identity of the young person. In his evidence he accepted that he knew that she was Aboriginal and that she was 15 years of age, and conceded that she might have been 14 years of age. 11. It is accepted that it is the state of mind of the arresting person at the time of the arrest and it is that there is also a degree of artificiality in both examining motivations, points of view and possible alternatives in a clinical courtroom environment. In making these determinations I am alive that it was about 8.30 at night that the police were approaching a vehicle that was partly fogged up and that there were multiple persons therein. 12. Turning to Constable Field's evidence in chief, his evidence at p 16, he was asked effectively how long the process took from approaching the vehicle and grabbing the young person out of the car, and at transcript 16.11 of the transcript of 2/11/20 the witness answered: "Within almost immediately we started moving towards it to obviously conduct the arrest once we determined that the car was stolen." 1. Thereafter he gave evidence about recognising the young person and identifying her. He gave evidence that he knew where the young person lived. 2. It is clear from the first passage there that once the vehicle was understood to be stolen, Constable Field formed a view at that point to arrest the occupants of the vehicle. He gave evidence that he did not change his mind about arresting, having recognised the young person, and he relied on the fact that there was still an offence being committed. 3. Although it is a proper basis if a police officer is satisfied under s 99(1)(B)(i) to stop the person from committing or arguably continuing to commit an offence, it is of some relevance that the offence here was benign; that is the occupation of a vehicle. It is not like the continuation of the offence was a continuation of a violent assault or robbery or the like. 4. Relevantly, given that the initial determination seems to have been a determination to arrest the occupants as soon as it was understood that the vehicle was stolen, Constable Field was then asked in chief: "Q. So you placed her under arrest, she's out of the vehicle. What was your intention then? A. The intention was to find out why they were in the vehicle, to get a version from Vxx and the people that she was with." 1. At p 27 under cross examination by Ms Bleasel, Constable Field was asked whether he had turned his mind to dealing with the young person by way of court attendance notice and at that point he says relevantly, "Yeah, that decision had not even been contemplated," which Mr Belcher relies on as being some antecedent consideration, but against that the witness continues to say, "We need to find out what's happened first." 2. The thrust of his principal answers suggest that the arrest was something that was automatic at the time that the vehicle was known, and to the extent that he turned his mind to a purpose, it was to investigate the offence. It is clear, consistent with Jankovic v DPP [2020] NSWCA 31 that arrest for the primary purpose of investigation is illegal. 3. Although the magistrate was ultimately persuaded that there was, if you like, a supplementary reason for arrest which was an investigation, I am not persuaded on all of the evidence that the police officer turned his mind to s 99(1)(B) and the factors there as he was obliged to. The evidence in my view discloses that there was no determination at that time to charge the young person, which is inconsistent with s 99(3) of LEPRA. 4. It is important to consider that on a proper construction of his police statement, he understood the identity, the age and the Aboriginality of the young person, or her age thereabouts, at the time he effected the arrest. With that in mind, s 8 of the Children and Young Persons (Criminal Proceedings) Act should have been activated in his mind and particularly when the most likely offence under investigation was a fine only offence. 5. Both Aboriginal people and young people have particular protections under LEPRA as "vulnerable" persons and it is pretty clear that Constable Field just failed to turn his mind to those considerations in the limited way, if at all, that he had any regard to s 99(1)(B) of the Act. 6. I am persuaded that the arrest was unlawful. Accordingly it flows that I could not be satisfied beyond reasonable doubt that the officers were acting thereafter in the proper execution of their duties for the purposes of the two s 61 charges, and accordingly the appeal is upheld and all of the orders of the magistrate are set aside.