New South Wales District Court CITATION: N T v R [2010] NSWDC 348 EX TEMPORE JUDGMENT DATE : 24 November 2010 JUDGMENT OF: Tupman DCJ DECISION: Appeal upheld, Convictions quashed CATCHWORDS: CRIMINAL LAW - Judgment - Conviction Appeal - evidence to found conviction Improperly Obtained - police arrested 13 yr old Aboriginal girl in her home believing she had committed an offence of Breach of Bail Condition - no offence in Bail Act of breaching bail condition - power exists to arrest without warrant for breach of bail condition but inappropriate where alternatives of obtain warrant or issuing summons not considered - breach minor, whereabouts known, escalation of situation foreseeable and unnecessary - police action not unlawful but fell below the minimum standards required - evidence excluded. Crimes Act 1900 - s58 LEGISLATION CITED: Summary Offences Act 1988 - s4A Evidence Act 1995 - s138 Bail Act 1978 - s50 CASES CITED: DPP v Carr [2002] NSWCCA 194 Fleet v District Court and Ors [1999] NSWCA 363 PARTIES: The Crown N T FILE NUMBER(S): 2010/65118 SOLICITORS: The Director of Public Prosecution Aboriginal Legal Service JUDGMENT 1 HER HONOUR: This is an appeal against conviction in relation to two charges that were before the Children's Court. One is a charge of resist officer in execution of duty and the other is using offensive language. One is contrary to s 58 of the Crimes Act and the second is contrary to s 4A of the Summary Offences Act. 2 I do not propose to canvass the facts of either of these two offences. For reasons that will be clear that will not become necessary. For what it is worth, however, it seems to me that had the evidence that was relied on been admissible, the offences were on their face very clearly made out by the circumstances relied on by the Prosecution. That was not in dispute before the Children's Court Magistrate. What is in dispute is whether or not the evidence relied on to prove each of these cases was admissible. The challenge to the evidence is made on the basis that it is said to amount to an impropriety. 3 Initially in the Children's Court a challenge was taken to the legality of the arrest, but that was not pursued after some evidence and argument. The issue taken in the Children's Court was whether or not the evidence was obtained improperly and a challenge to its admissibility was made under s 138 of the Evidence Act. 4 The factual circumstances relevant for this determination are found in the bundle of documents which include the fairly brief transcript before the Children's Court and exhibits there. The major exhibit is the statement of the arresting officer, Constable Sheils. 5 I accept that on 14 March 2010 at about 3.30 she was rostered to perform duty in a police vehicle with another police officer. At about 3.30 she was advised by another officer that the appellant in this case was to be arrested for breaching her bail the night before. The appellant is a thirteen year old girl who I infer was on some form of bail with conditions. The evidence of her bail, the conditions or the offence for which she was on bail is not before me. It would appear from this statement of Constable Sheils, that it was during the course of being rostered on in this police vehicle, just under two hours after receiving the advice that the appellant was to be arrested for breaching bail, she attended her address. 6 There appeared to be no suggestion that her address was unknown. The young person's father answered the door. It was 5.15. He was asked whether the appellant was home. He called out for her and she came to the door. The officer said something to the effect "We need to sort out you breaching your bail, come outside so we can have chat and sort this out". In reply to that the appellant denied breaching it, in colourful language, and also said "why didn't you come and get me last night then?" The officer said, "That's what we need to sort out, so step outside for me". 7 It was clear from the evidence she gave that the officer, despite those words that she used, had intended to arrest her in any event immediately, notwithstanding what she would have said. The officer, I accept from her evidence, mistakenly believed that the appellant had committed an offence, namely the offence of breaching a bail condition. There is no such offence under the Bail Act. The Bail Act under s 50 however, enables a police officer to arrest a person on bail, without warrant, in various circumstances including if it is believed that they have breached a condition of their bail. A further provision of s 50 of the Bail Act provides that the police may approach an authorised Justice to enable either a warrant for arrest for breach of bail to be obtained, or for a summons for breach of bail to be obtained and served. 8 There is other evidence in the statement, and evidence given by the police officer, but to cut to the chase, the police officer claims that she was of the view that the appellant might escape if she was informed she was under arrest. She asked her to step outside and sent for a police caged vehicle. At that stage she saw the appellant go inside to get changed and could hear her swearing at her mother, indicating she believed that they were going to take her to the Maroubra police station. The appellant then walked outside, pushed past the two police and said "Get out of my fucking way then". 9 Apparently this caused the police officer to take hold of the appellant to prevent her from running away and falling down the stairs. At that, the appellant thrashed her arms around in an attempt to break free. She tried to get away from the two officers. Constable Sheils then decided to handcuff this thirteen year old girl and according to the statement, "used the approved police technique of the arm bar take down" where she was taken to the ground to prevent her escape. The young person's father then picked her up and carried her across the road to the police vehicle. She was kicking and screaming. Sheils then said "You're under arrest for breach of bail". 10 At that stage however, although she had the lawful power to arrest without warrant for breach of bail, I accept from her evidence that the officer believed that she was arresting her for the commission of an offence, namely the offence of breaching bail. She cautioned her. Again the young person effectively denied that she had been in breach of bail and asked again "why they didn't get her the night before?" There were other activities then out in the street in which the appellant moved her hands to the front when the police were trying to handcuff her hands at the back. She swore, she used extremely unpleasant language, calling the police "You fucking dog cunts" and the like. 11 She was then ultimately taken to the back of a caged vehicle and taken to Maroubra police station. 12 The officer gave evidence in the proceedings and I accept from that, that the officer never turned her mind to the circumstances in which she was arresting the appellant without warrant. Arresting without warrant normally for a police officer should only occur when they believe an offence has been committed, is in the process of being committed, or is likely to be committed and to avoid the commission of that offence. It is clear that Constable Sheils believed that an offence had been committed, namely the offence of breaching bail and that that was the basis on which she was entitled to arrest. That is an error. There has never been an offence under the Bail Act of breaching bail. That does not stop a number of allegations of such an offence being committed being brought to Court, even the issuing of court attendance notices for the same. That is the situation that has pertained in New South Wales to the knowledge of this Court for at least twenty five to thirty years. In any event there is no offence under the Bail Act of breaching a bail condition. 13 The police do have the power to arrest without warrant, however, where a bail condition has been breached. 14 It seems to me, however, that the same provisions and considerations that apply, or ought to apply, in deciding whether or not to arrest a person on warrant for an offence, or deal with the matter by way of summons, ought equally apply to a decision how to deal with an allegation of breach of bail condition. There are alternatives available to police, one out of three of which does not involve the issue of a warrant and the taking of a person into police custody. The evidence in this case is that the police officer did not turn her mind to whether or not it would have been appropriate to approach an authorised Justice to issue a summons under s 50 of the Bail Act because she did not understand that that was an available option. 15 There is no evidence before the Court that any of those who instructed her or advised her to undertake the arrest turned their minds to it either, and given that this was a voir dire before the Magistrate in which no such evidence was called by the Prosecution I infer that they did not. I also infer, in the circumstances of this case, that whatever the breach might have been - and I emphasize no such evidence was called by the Prosecution on the voir dire to explain the seriousness or otherwise of the breach - I infer from the lack of that evidence that the breach was minor and certainly not sufficient to require immediate action at the time the breach was alleged to be occurring and for that matter not requiring immediate action on the part of Constable Sheils after receiving the message at 3.30. 16 In those circumstances, inferentially, something not requiring arrest without warrant would be the preferable option. Whether or not that amounts to an impropriety itself depends on the circumstances. This is a case in which the police were detaining in custody a thirteen year old Aboriginal girl, where they knew her address, where they knew she was then with her parents at that address at 5.15 in the afternoon, and where the possibility existed that she would not be re-released on bail after being taken into custody by them. The provisions of the Bail Act require that when there is an arrest without warrant for breach of bail that the person be taken as soon as possible before a Court. This was 5.15 on a Sunday afternoon. The possibility existed that a thirteen year old Aboriginal girl would have been kept in police custody overnight, until Monday morning in circumstances where on the evidence no police officer had turned his or her mind to the alternatives available to bring her before the Court on an allegation of breach of bail, which did not require going into custody, and further, where as I have found by inference, the breach, on its face, is not likely to have been serious. 17 In making those findings I do not suggest, nor is there any evidence to establish, that Constable Sheils was acting in any malicious way. She simply was doing what she believed was appropriate and available to her in the circumstances. Nor am I by making these comments, suggesting that her behaviour was not lawful. She was lawfully entitled to arrest without warrant, pursuant to s 50 of the Bail Act. 18 I do make a finding, however, that the use of handcuffs and the restraining techniques used on a thirteen year old girl in the circumstances was excessive and it is hard to imagine that two police officers could not have dealt with this situation in a less confrontational manner. 19 I refer to the decision of DPP v Carr, [2002] NSWCCA 194.a decision delivered on 25 January 2002. That decision in part relied on reference to the decision of the Court of Appeal in Fleet v District Court and Ors. With respect I refer to the dicta in that case in which this is stated; "Lawfulness of arrest is one thing, appropriateness is another." 20 And further, the comments of Acting Justice Smart, at para 35 of that case in which he said this; "This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time the statements of this Court were heeded." 21 It seems to me that this is exactly what happened in this case and in fact was foreseeable given that what was being dealt with here was the almost certainly foreseeable actions of a thirteen year old girl in the circumstances. 22 The test of impropriety does not depend on a dishonest state of mind on the part of the police officer, nor does it depend on the finding that the officer acted unlawfully or without integrity. Even in circumstances where, much like this one, the officer acted lawfully and honestly, a circumstance can nonetheless be improper. The test is whether the behaviour should be viewed to have fallen below the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement. 23 It seems to me that in this case they have fallen below those standards. First and foremost, not knowing that the alternative power of summons existed for breach of bail falls below that. Second, not determining to proceed by way of summons, or at the very least, approaching a third party, an authorised magistrate for a warrant to arrest falls below those. Contextually doing that in circumstances where what was being proceeded against was an alleged breach of bail, apparently minor, committed by a thirteen year old girl, and in circumstances where the possibility existed that she would remain in police custody overnight on a Sunday night, because no Court would then be available till Monday, in the circumstances, it seems to me, falls below the standards which we ought expect of those entrusted with powers of law enforcement. 24 The evidence giving rise to the two charges was collected in direct consequence of this impropriety and I then need to turn to whether or not, in the exercise of my discretion, despite the impropriety, it should be admitted. The probative value of the evidence is obviously high. It is the only evidence in fact capable of proving the offences. It is therefore important. The relevant offences themselves, it seems to me, are not, in relative terms, particularly serious and what is more, committed as a direct consequence of the impropriety. 25 It seems to me to constitute a relatively serious impropriety, albeit I stress, not committed intentionally or with knowledge or intention on the part of the police officer. None of the other provisions S138(3) seem to be relevant. 26 All in all, in undertaking the balancing exercise that now falls to me, having made a finding that it is an impropriety and that the evidence was gathered as a direct result of that impropriety, I have concluded that on balance the evidence ought be excluded. 27 The evidence is rejected and as such there is no evidence which is capable of proving the charges against the appellant. Therefore, the conviction appeal is upheld. The convictions and sentences are quashed. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.