Taylor v R [2024] NSWDC 572

District Court New South Wales

Medium Neutral Citation: Taylor v R [2024] NSWDC 572 Hearing dates: 30 October 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) The appeal against the conviction is dismissed. (2) I confirm the penalty imposed by the magistrate. (3) Pursuant to s 68 Crimes (Appeal and Review) Act 2001 the Community Corrections Order imposed by the magistrate is to take effect from 5 April 2024. Catchwords: CRIME — Appeals — Appeal against conviction Legislation Cited: Crimes (Appeal and Review) Act 2001 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 R v Keenan [2009] HCA 1 State of New South Wales v Bouffler (2018) 95 NSWLR 521 Category: Principal judgment Parties: Rex (Crown) Luke Taylor (Appellant) Representation: Solicitors: Office of the Director of Public Prosecutions (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Appellant) File Number(s): 2023/195169 Publication restriction: None Decision under appeal Court or tribunal: Downing Centre Jurisdiction: Local Court Date of Decision: 5 April 2024 Before: Magistrate Quinn File Number(s): 2023/195169

Judgment 1. On 5 April 2024, Luke Taylor (the appellant) was convicted of an offence of larceny contrary to s 117 Crimes Act 1900, by her Honour Magistrate Quinn (the magistrate) sitting at the Sydney Downing Centre Local Court. The appellant brings an appeal as of right against the conviction. 2. The appeal turns on a legal argument. It is not necessary to set out the principles governing this kind of appeal and it can be dealt with in relatively short compass. 3. The appellant contended that the police unlawfully entered his room at a hostel and seized the stolen electric bike and clothing allegedly worn by the appellant when he was seen on CCTV footage to take the bike, and that the evidence about the seizure of those items from the appellant's possession should have been excluded because it was illegally obtained: s 138 Evidence Act 1995. The appellant submitted that without that evidence, the prosecution cannot prove the case beyond reasonable doubt. 4. The appellant's argument was that the arresting police officer, Constable Greaves, failed to properly satisfy herself that the appellant's arrest was "reasonably necessary" (s 99(3)) and thereby the power to arrest without a warrant under s 99 Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) was not enlivened and thereby the power to enter the appellant's room to arrest him under s 10 of LEPRA was also (and derivatively) not enlivened. 5. During the course of the argument on the appeal, reference was made to the Court of Appeal's decision in State of New South Wales v Bouffler (2018) 95 NSWLR 521, which dealt with the interaction between ss 10 and 99 of LEPRA in the context of a civil claim for trespass to land and trespass to the person arising from the entry of a large number of police into the respondent's residence to arrest him. 6. In Bouffler the Court stated at [224]-[227]: 224 Nor do we agree with the respondent's submission that entry pursuant to LEPRA, s 10 requires a lawful arrest under s 99. Section 10(1) permits a police officer to enter a dwelling to arrest a person. If a police officer enters premises for some other purpose which is not authorised, for example, pursuant to s 9, the entry onto the property constitutes a trespass. This is a different question from whether an arrest is lawful, which requires that s 99 must be satisfied. Because ss 10 and 99 have different spheres of application, it is possible that a person may enter a property to arrest a person and thus not commit a trespass, but the arrest not be lawful because the police officer may be found not to have the requisite state of mind for the purposes of ss 99(2) or 99(3). 225 This view can be tested by reference to the terms and application of ss 10 and 99. Section 10(1), on its express terms, applies to an officer who enters premises "to arrest a person" or to "arrest a person named in a warrant". Section 10(2) permits entry into a dwelling to "arrest … a person", whether that be with or without a warrant, "only if the police officer believes on reasonable grounds that the person to be arrested is in the dwelling". Section 99 is concerned only with the arrest of a person without a warrant. 226 It is apparent, therefore, that on the plain words of each section, there is no sense in which s 10 can be described as, or operate only as, a derivative of s 99. Entry under s 10 is not, therefore, contingent on the arrest of a person being lawful pursuant to s 99. Accordingly, we consider that his Honour's reasoning at [334] was flawed. As the respondent's submissions reflected his Honour's reasoning, it follows that they must be rejected. 227 Although we have found his Honour's reasoning to be flawed, and as we have found that the six officers did not purport to arrest the respondent, there remains a question as to the authority for these officers to be on the premises. As they did not enter with the purpose of arresting the respondent, their entry was not justified pursuant to s 10 which provides that a police officer "may enter … to arrest a person". The section does not provide that an officer may enter so that an arrest may be effected. 1. It is plain that the appellant's derivative argument fails on the Court of Appeal's analysis in Bouffler, if I am bound by it. In his supplementary submissions, the appellant contended that the quoted portion of Bouffler is not part of the ratio decidendi of the case and I am not bound to follow it. 2. For the reasons that follow, I am satisfied that the appellant's derivative argument fails because I am bound by the Court of Appeal's decision in Bouffler. 3. The doctrine of precedent provides that lower courts are bound by the decision of a court higher in the hierarchy and this extends to seriously considered dicta of higher courts: Farah Constructions v Say-Dee Pty Ltd (2007) 230 CLR 89 and R v Keenan [2009] HCA 1 at [35] (Kirby J). 4. In the quoted passage in Bouffler, the Court of Appeal was dealing with the issue of whether six of the police officers who entered the respondent's premises did so lawfully. The trial judge found that five of the six officers had entered the premises for the purpose of arresting the respondent in the purported exercise of their power in s 10 of LEPRA, but to do so they had to turn their minds to s 99 of LEPRA and none of them had done so. It followed that their subsequent arrest of the respondent was unlawful and that all six officers were trespassers. At [334] the trial judge held that all six officers had participated in the arrest unlawfully because they were trespassers. 5. In [226], the Court of Appeal found the trial judge's reasoning at [334] to be flawed and rejected the derivative argument and went on at [244] to uphold ground 4(b) of the appeal on this issue. 6. It is plain that the Court of Appeal's comments in the quoted passage dealt with an issue on the appeal and formed part of the ratio decidendi of the decision. Further, the quoted passage contains the Court of Appeal's interpretation of the relevant statutory provisions and this is also part of the ratio decidendi of the decision. I am satisfied that I am bound to follow the Court of Appeal's decision in Bouffler. 7. If I am wrong that those two elements are part of the ratio decidendi of the decision, I am satisfied that the quoted passage contains the considered dicta of the Court of Appeal and I am bound to follow it. 8. For these reasons the primary submission underpinning the appeal fails and there is no other basis relied on by the appellant to set aside the magistrate's decision. 9. I was told that there would be no severity appeal pursued, so I will confirm the orders of the magistrate on penalty.