Local Court of New South Wales CITATION: P v Patrick BUCKELY [2010] NSWLC 8 JURISDICTION: Criminal PARTIES: NSW Police Patrick BUCKELY FILE NUMBER: H38955287 PLACE OF HEARING: Albury Local Court DATE OF DECISION: 04/19/2010 MAGISTRATE: Magistrate Lerve CATCHWORDS: Lawfulness of arrest – whether there was arrest – accused being made aware of reasons for arrest – use of means other than arrest. LEGISLATION CITED: Law Enforcement (Powers & Responsibilities) Act 2002 DPP –v- AM (2006) 161 A Crim R DPP –v- CAD & Ors [2003] NSWSC 196 CASES CITED: DPP –v- Carr [2002] NSWSC 194 DPP –v- Coe State of New South Wales –v- Delly [2007] NSWCA 303 TEXTS CITED: REPRESENTATION: Sgt. A. Seccull, Police Prosecutor Mr. M. Sheehan, Solicitor for and with the accused ORDERS: 1. The accused is charged as follows: 1. That (he) on 2 May 2009 at Albury in the State of New South Wales, did use offensive language, in the hearing of a public place (namely) Albury Police Station foyer and entrance area, contrary to section 4A(1) of the Summary Offences Act, 1988, and 2. That (he) on 2 May 2009 at Albury in the State of New South Wales, did resist Peter Owen, being a Sergeant of Police executing his duty, contrary to section 58 of the Crimes Act 1900; and 3. That (he) on 2 May 2009 at Albury in the State of New South Wales, did resist Matthew Clayton being a Senior Constable of Police, executing his duty. 2. A plea of not guilty was entered to each of the three charges on 19 May 2009, that is, the date the matters were first before the Court. A number of interlocutory matters such as arguments on subpoenas had to be attended to. The matter was fixed for hearing on 28 October 2009 and evidence was taken that day. At the conclusion of the proceedings on that date it was thought by both parties (and the court) that two further hearing days would be required. The matter was adjourned to be heard on 28 and 29 January 2010. Thereafter a timetable was set for written submission and on 22 March 2010 I indicated that I would give my decision on the matter on 19 April 2010. 3. The facts are in short compass. Each charge arises out of events that occurred late at night on 2 May 2009 in the public foyer and entrance area of the Albury Police Station. Essentially it is alleged that the accused repeatedly used offensive language, he was initially removed from the foyer area, he re-entered that area and when Sergeant Owen and Constable Clayton attempted to arrest the accused he resisted both officers. Sgt. Owen eventually used a "taser" to subdue the accused. Mr. Sheehan argues on behalf of the accused that the arrest was unlawful and it was the conduct of police, particularly Sgt. Owen that brought about the conduct of the accused. It is further argued that the accused was lawfully entitled to resist that unlawful arrest. The events in the foyer of the police station that are the subject of this litigation were captured on the video that records events within that foyer. Facts 4. The main prosecution witness is Sgt. Owen. His statement was tendered without objection and became exhibit "2" in the proceedings. The following is a summary of the prosecution case, drawing from the statements of Sgt. Owen and other witnesses, the oral evidence, the security footage of the foyer area and a view I conducted during the course of the hearing on 28 October 2009. My description of the layout of the foyer area, placed on the record after the "view" appears at p.29 of the transcript. 5. Sgt. Owen was on duty at the Albury Police Station on the night of 2 May 2009. At about 10.55pm he was in an interview room located at the western side of the foyer interviewing a Mr. Matthew Simon over an incident that had occurred earlier that night. Coincidentally Mr. Simon was the complainant in that matter is a member of the Victoria Police Force. Sgt. Owen became distracted by noise from coming from the public area of the foyer. Initially it was Constable Clayton who was dealing with the accused. 6. Sgt. Owen heard a male say in a loud voice, "My mother got fucking bashed because you copper cunts didn't turn up on time". Constable Clayton, who was initially dealing with the accused, directed the accused to leave the police station. Sgt. Owen approached the accused and also directed the accused to leave. There was an issue at the hearing as to precisely where Sgt. Owen came before he directed the accused to leave. However, given what is shown on the footage and the uncontested evidence of Mr. Simon (given by way of tender of a statement, on which there was no cross-examination) I am satisfied beyond reasonable doubt Sgt. Owen did come from that interview room. 7. Upon being directed to leave the accused did not move. Issue was taken in cross-examination (see p. 46 lines 9-44) as to whether this amounted to a direction. Indeed, it was put by Mr. Sheehan that it was an invitation. The circumstances are that Sgt. Owen approached the accused and said bluntly, "You've been asked to leave, leave". In the circumstances, I am satisfied that the words could not have amounted to anything other than a direction. Sgt. Owen took hold of the accused (see pp. 43-44 transcript) and escorted him from the foyer of the police station. The accused walks backwards and the officer escorts him out. The officer was of the opinion (p. 48 lines 5-6) that there was an imminent danger of a breach of the peace. Sgt. Owen had been distracted from what he was doing with Mr. Simon because of the volume at which the accused was speaking. It was not suggested to Sgt. Owen in cross-examination that the accused was speaking loudly. The general demeanour of the accused is obvious on the footage of the foyer. In all of the circumstances, I am satisfied that the concern held by Sgt. Owen that there was an "imminent danger of a breach of the peace" was real and legitimate. 8. The accused was not told he was under arrest at that point. Sgt. Owen gave evidence (pp. 75-6) that he was using a discretion to get him out of the police station. It was put to the Sgt. (p. 76 line 3) that he was going to take him outside and arrest him. That was denied, with the officer saying (line 4) "No. Have him go, just leave, stop your behaviour, go". At p. 77 lines 2-5 Sgt. Owen said, "well we were trying to show a little bit of leniency, I guess, just to stop this young bloke getting himself in further trouble, just get him out of there, 'stop your behaviour, go home'. But it continued and it escalated and we couldn't let it go any further". Sgt. Owen indicated a number of times in his evidence (see for e.g. p. 80 lines 24-28; p. 77 lines 15-18) that the conduct of the accused escalated when he got outside the police station. 9. Sgt. Owen was getting him out of the police station for what I consider to be the very legitimate concern of a further breach of the peace. Had the accused simply left the area at the doors of the police station rather than continuing on with his offensive conduct, that would have no doubt been an end of the matter. 10. At p. 57 line 5 it was suggested in cross-examination to Sgt. Owen that he "went straight out there and grabbed him". Any reasonable viewing of the footage will show that is not the case. I accept that Sgt. Owen directed the accused to leave, which direction was not obeyed. 11. Sgt. Owen gave evidence (see generally pp. 49-50) that he was of the opinion that "passive dialogue" would have only inflamed the situation. At the risk of repetition, there was no cross-examination to suggest that the officer's version of the conduct engaged in by the accused was not correct. Even if there had, the letter of apology from the accused to which I shall shortly refer, would enable any court to much prefer the evidence of Sgt. Owen on that aspect. The officer maintained that it was his 15 years experience as a police officer that enabled him to determine that passive dialogue would not have assisted. Given the demeanour of the accused and the evidence of the conduct by the accused I find that the opinion of the officer was genuine and realistic. 12. The accused was intoxicated – see p. 50 line 10. There was some immediate challenge to Sgt. Owen on that opinion. I am satisfied that the accused was intoxicated on the night of 2 May 2009. My notes indicate that the issue of intoxication was not raised with the other officers who gave evidence. For example, Constable Clayton maintained that there was a strong smell of alcohol from the accused. This observation was not challenged in cross-examination. Constable Thurston opines that the accused was moderately to well affected by liquor. Again, there was no serious challenge to this observation. 13. Once the accused is outside the foyer area of the police station he can no longer be seen on the security footage. Despite very probing and lengthy cross-examination it does not appear to be in dispute that the accused said words to the effect of, "You fucking cunts, youse are all fucking cunts, my mother got bashed because of you fucking cunts". With that, Sgt. Own said to the accused, "That's it, you've been told, that's enough. You're under arrest because of your language, in you come". Sgt. Owen took hold of the accused, who in turn began to pull away from the officer, yelling, "You fucking cunts". 14. The struggle between the accused and the police is clearly enough shown on the video footage. I am satisfied beyond reasonable doubt that the footage shows the accused constantly squirming, struggling and attempting to pull away from Sgt. Owen and other officers (Constables Clayton and Thurston) who were assisting Sgt. Owen. Sgt. Owen in a manoeuvre forced the accused to the ground. The accused continued to struggle with all officers. I am also satisfied beyond reasonable doubt that the accused was directed a number of times to place his hands behind his back, but he refused to do so, and in fact, continued to struggle with the officers. 15. What followed was the subject a significant amount of cross-examination. Sgt. Owen removed his police issue X26 Taser from its holster on his appointments belt and delivered what is known as a "drive stun" to the right hip area of the accused, for about one second. The accused immediately became compliant. The accused was arrested, processed and allowed to leave the police station. 16. It was put to Sgt. Owen (p. 65 line 42) that he said to the accused "You're fucked mate". That was denied. Given the letter of apology hand delivered the following day by the accused, and having observed Sgt. Owen under cross-examination for several hours, I am satisfied that he did not say that. The cross-examination was very intense and at times the atmosphere in court became quite heated. Sgt. Owen remained calm throughout and answered the questions put to him in what I considered to be a very impressive fashion. There was never an inappropriate reaction by the officer, nor was there the slightest hint of evasion at any point in his evidence. 17. I turn now to the letter. One of the issues that causes the accused considerable problems in the application that the evidence be excluded is the contents of paragraph 17 of Sgt. Owen's statement. There was no cross-examination on this aspect of the case. The accused hand delivered a letter to the police station that read: "To: Constable Maggenti, Senior Constable Clayton, Sergeant Owen, Constable Thurston. Following the incented (sic but read incident) that occurred last night at the Albury Police station, I would like to formally apologise to the above mentioned. The language used last night is totally out of character for me and for this I am totally disgraced in myself and I am deeply embarrassed and ashamed". 18. Some issue was taken (see p. 77 of the transcript) and inferentially towards the end of the written submissions that the conduct of the accused was not offensive. If that is the intention of the submissions, then that too, must be firmly rejected. The events occurred at the Albury Police Station. One could reasonably expect members of the public to be in the area. If it is necessary for the purpose of determining the application that the evidence be excluded, I am satisfied beyond reasonable doubt that the language of the accused and his general demeanour was in fact offensive. Prosecutor submits no objection taken 19. In the course of his helpful and comprehensive submissions the prosecutor maintains that his primary submission was that Mr. Sheehan took no formal objection to the tender of the police evidence, nor did he request for a voir dire examination to determine the admissibility of the evidence. The prosecutor is correct that no such objection was taken. It seems to me however, that it would be quite unhelpful to both parties for me to determine the issue on that technical basis. The attitude of the accused's counsel to the evidence was in my view quite clear. In any event, it seems to me to be in the interests of both parties to properly consider the issues raised. The accused's submissions 20. As I understand the comprehensive and helpful written submissions filed on behalf of the accused it is submitted that I would exclude the evidence of the conduct of the accused, and therefore dismiss the charges on the basis that the Sgt. Owen removing the accused from the police station amounted to an unlawful and improper arrest, that there should have been no arrest in that the officer should have taken the details of the accused and issued either an infringement notice or a court attendance notice, and that it was the conduct of Sgt. Owen that brought about the conduct of the accused outside the police station. Issue of Removal from Police Station counter being an unlawful arrest 21. I now turn to a number of matters raised in Mr. Sheehan's written submissions. It is put that the accused had no time to respond to the direction to leave before Sgt. Owen took hold of him. Clearly there was very little time between the direction being given and the officer taking hold of the accused. However, I am satisfied on the footage and on the evidence of Sgt. Owen that the accused had an opportunity to desist with his conduct and leave the police station. It is not the case that the officer took hold of the accused immediately after giving the direction to leave. 22. It is submitted that when the accused is being removed from the police station it is Sgt. Owen who is the aggressor. In my opinion, that submission must be firmly rejected. I do not accept that the accused was retreating: the accused was being removed from the police station foyer. It is submitted that the footage "shows graphically that Buckley is retreating and his demeanour is one of shock and apprehension". Such impressions are purely subjective, and they do not coincide with my impression of the accused on the video. 23. Further, it is submitted that considerable force was used. Some force was used, but in the circumstances, I am satisfied that the force was appropriate and proportionate, and could not reasonably be described as "considerable". 24. Mr. Sheehan, in his submissions maintain that the conduct of Sgt. Owen "in taking hold of the accused and using physical force to move him out of the foyer constituted an unlawful assault and unlawful imprisonment of which (the accused) was lawfully entitled to resist". The prosecutor maintains "the actions of Sgt. Owen in taking hold of the accused must be seen in the context of extreme fairness shown to the accused, minimal force is applied by Sgt. Owen and on his evidence he lawfully explains the contact". 25. It is not only the evidence of Sgt. Owen that must be examined on this aspect, as Sgt. Owen approached the accused only after the disturbance had commenced. Constable Clayton's statement is exhibit 3 in the proceedings. That officer detected a strong smell of alcohol from the accused. The initial exchange between Constable Clayton and the accused was not really challenged. The accused was inquiring about a friend who was apparently at the police station. The accused said to Constable Clayton, "you don't have to have that smug look on your face. There was no assault I was with him at the ATM". The officer then offered to get the accused's details, to which the accused replied, "My mother got fucking bashed because you copper cunts didn't turn up on time". It was then that Sgt. Owen came from the room in which he was interviewing Mr. Simon. The accused had already been told to leave by Constable Clayton before Sgt. Owen also directed him to leave. 26. One of the authorities referred to by Mr. Sheehan in his submission is State of New South Wales –v- Delly [2007] NSWCA 303. That case relates to damages for an unlawful arrest, and the factual situation is entirely different to the matter presently under consideration. The principles stated are however, of general application. In State of NSW –v- Delly the respondent was not told she was under arrest but was taken into custody and taken to a police station where she spent time in actual custody. 27. Ipp JA in State of NSW –v- Delly set out the legal principles at [3]-[17]: 3 As Adams v Kennedy (2000) 49 NSWLR 78 holds, Christie v Leachinsky [1947] AC 573 reflects the common law in New South Wales in regard to the obligation to notify an arrested person of the reasons for the arrest (see Priestley JA, with whom Sheller and Beazley JJA agreed, at 84, [24]). 4 In Christie, Viscount Simon said (at 587 to 588): "(1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, eg, by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very, important matter." 5 Lord Simonds said (at 591 to 593): "[I]t is a condition of lawful arrest that the man arrested should be entitled to know why he is arrested, and then, since the affairs of life seldom admit an absolute standard or an unqualified proposition, see whether any qualification is of necessity imposed upon it. ...[T]he law requires that, where arrest proceeds upon a warrant, the warrant should state the charge upon which the arrest is made. I can see no valid reason why this safeguard for the subject should not equally be his when the arrest is made without a warrant. The exigency of the situation, which justifies or demands arrest without a warrant, cannot as it appears to me, justify or demand either a refusal to state the reason of arrest or a mis-statement of the reason. Arrested with or without a warrant the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moment's delay, take such steps as will enable him to regain it. ... ... [I]t is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general proposition. It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The 'charge' ultimately made will depend upon the view taken by the law of his act. In ninety-nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary...This is I think, the fundamental principle, viz., that a man is entitled to know what, in the apt words of Lawrence LJ, are 'the facts which are said to constitute a crime on his part' [see [1946] KB 124 at 147]." 6 Lord du Parcq (at 600) stressed the need to tell the arrested person "with what offence he is charged". 7 There is a difference in the words used by Viscount Simon and Lord du Parcq on the one hand and Lord Simonds on the other. The former require the arrested person to be told the "charge" or the "crime" or the "offence" for which the arrest is made. The latter states that, while the arrested person must know the "reason of arrest", the arresting police officer need not "formulate any charge at all, much less the charge which may ultimately be found in the indictment". Lord Simonds points out that the "charge" will depend on a "view" that is taken at a later time. According to his Lordship, arrested persons are entitled to know what are the facts said to constitute the crime for which they are arrested. 8 Both approaches accommodate the proposition that it is not the law that an arrested person must be given detailed particulars of the case against him or her. "He must be told why he is being arrested. In some cases it will be necessary for the officer to give more facts than in others": Taylor v Chief Constable of Thames Valley Police [2004] 1 WLR 3155 (at 3166, [35]) per Clarke LJ (with whom Sedley LJ and Sir Andrew Morritt VC agreed). In Abbassy v Commissioner of Police of the Metropolis [1990] 1 WLR 385, Woolf LJ (with whom Mustill and Purchas LJJ agreed) said (at 392): "Whether or not the information which is given is adequate has to be assessed objectively having regard to the information which is reasonably available to the officer...[Doing what a reasonable person would have done in the circumstances] involves informing the person who is arrested in non-technical and not necessarily precise language of the nature of the offence said to constitute the crime for which he is being arrested." 9 The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation: see, for example, Christie (at 588) per Viscount Simon and (at 591 to 592) per Lord Simonds; Taylor (at 3162, [21]) per Clarke LJ. 10 For my part, I prefer the approach of Lord Simonds. The notion that the lawfulness of the arrest depends on the police officer specifying the charge (and not on informing the person being arrested of the facts which have given rise to the arrest) goes further than is necessary to protect the position of the person arrested. Further, in my view, the notion is impractical and ignores the practical reality that the arresting officer may not be qualified or in a position to formulate the appropriate charge. 11 The rationale for the rule is to enable arrested persons to know in substance what acts they are alleged to have perpetrated so that they can explain their conduct. That rationale is satisfied by Lord Simonds' requirements. The exception recognised by Viscount Simon, namely, that arrested persons need be given no information when the circumstances of the arrest are such that they should know why they are being arrested, is consistent with the notion that the particular offence need not be specified (as is implied by Lord Simonds' observations). In practice, moreover, the charge on which the arrested person faces trial is often formulated long after the arrest. 12 The approach of Lord Simonds has been followed in R v Kane [2001] NSWCCA 150. In that case a police officer informed the person he arrested: "Mr Kane, as I have already told you, I am Detective Sergeant Smith and this is Detective Perry. We are attached to the Major Crime Squad North at Chatswood. We are investigating the death of Mr Wayne Tonks, a 35 year old high school teacher who was murdered at his home unit in Artarmon on the weekend of the 19th, 20th May 1990. We have received information that you may have some knowledge of the death of Mr Tonks." In my judgment in that case (with which Handley JA and Greg James J agreed), I said (at [28]): "Accordingly, Smith made it quite plain to Kane that the deceased had been murdered, that the police had received information that Kane might have some knowledge as to his death (and, implicitly, the murder) and in view of that information Kane was being arrested. That being so, Kane knew, in substance, that he was being arrested on a charge of murder." 13 The same approach was expressed by Weinberg CJ of the Supreme Court of Norfolk Island in R v McNeill (Ruling No 1) [2007] NFSC 2 (at [205]) when he said: "The right to be told of the reasons for arrest exists at common law: Christie v Leachinsky [1947] AC 573. At the same time, common sense dictates, and the authorities make clear, that the police are not required to use technical or precise language when informing a suspect of the reasons for arrest. It has never been necessary at common law to identify, in strict legal terms, the offence for which the person is being arrested. It has only been necessary to inform the person, in general terms, for what act he or she is being arrested." See also the remarks of Martin CJ in Clark v Trenerry (1996) 125 FLR 260 (Supreme Court of the Northern Territory). 14 In my view, s 352(2) of the Crimes Act 1900 (NSW) (as in force in 1998) is not helpful. The fact that, by that section, an arresting officer was required to suspect that the arrested person had committed an offence punishable under any Act does not necessarily lead to an inference that the officer was required to inform the person of the particular offence the officer had in mind. The difficulties of drawing such an inference are well illustrated by Gelberg v Miller [1961] 1 WLR 153. 15 In Gelberg , the appellant left his motor vehicle in a restricted street and refused to move it, even though he was requested by the Metropolitan Police to do so. When the police threatened to move it, the appellant removed the distributor, rendering the car immobile, and refused to give his name and address. He was, thereupon, arrested for obstructing a constable in the execution of his duty by refusing to move a motor vehicle and refusing his name and address. The arresting officer specified as a ground of arrest the offence of obstruction by refusing to move a motor vehicle. This form of words fitted both the offence of obstructing a constable in the execution of his duty (for which there was then no power of arrest) and obstructing a thoroughfare (for which there was such a power). The Queen's Bench Division held that the accused, by being told that he was being arrested for obstructing as above, was sufficiently apprised of the facts to render the arrest lawful. Lord Parker CJ (who wrote the main judgment) in discussing the question as to what exactly should be told as a prelude to arrest, asked (at 160): "Must it be the specific section or subsection of the Act of Parliament which it is said the offender has offended against, or is it to be just a broad statement of the nature of the offence? Or is it to be a statement of the facts, facts which may give rise to a number of offences, it being left to those responsible hereafter to say exactly what the charge should be?" After quoting from parts of Lord Simonds' speech in Christie (at 593), in which his Lordship said that police officers, at the time of arrest, need not formulate any charge, Lord Parker went on to say (at 161): "[I]t is clear from that that the mere fact that in this case the charge ultimately brought was not a charge under section 54 of the Metropolitan Police Act, 1839, is neither here nor there. The question is: Did the appellant know or was he told the alleged facts which would make him guilty of that offence? In this case, it is true, the respondent said to him that he, the respondent, was arresting the appellant for obstructing him in the execution of his duty, and there was no power of arrest under the Metropolitan Police Act, 1839, in respect of the misdemeanour of obstructing a police officer in the execution of his duty. However, the exact words which appear in the case are these: 'he told him he was going to arrest him for obstructing him in the execution of his duty by refusing to move his car and refusing his name and address'. To my mind it is clear that, by saying that he was arresting him for refusing to move his motor-car, he was informing the appellant of a fact which, in all the circumstances, amounted to a wilful obstruction of the thoroughfare by leaving his car in that position. It seems to me to matter not that the respondent also coupled with that the refusal to give his name and address or the allegation of obstructing him in the execution of his duty. May I test it in this way: supposing the respondent had said nothing but had just arrested him, could it really be said that the appellant did not know all the facts constituting an alleged wilful obstruction of the thoroughfare without having that particular charge made against him at the time? In my judgment, what the appellant knew and what he was told was ample to fulfil the obligation as to what should be done at the time of an arrest without warrant." 16 As Lord Parker CJ in Gelberg indicates, the circumstances of the arrest may be such that the arrested person will know full well of the reasons for the arrest. In such a case, the arresting police officer is not required to give any reasons for the arrest. In Christie , Viscount Simon stated in this regard (at 587): "The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained". Lord Simonds put it more colourfully (at 593): "I think it is clear that there is no need for the constable to explain the reason of arrest, if the arrested man is caught red-handed and the crime is patent to high Heaven". 17 I stress that it is the circumstances of the arrest that govern the issue, not the subjective knowledge of the arrested person as to how the crime was committed. In Christie , Viscount Simon (at 586 to 587) said: "The propositions laid down in the text books are supported by judicial decisions, to some of which I will briefly refer. What is particularly noteworthy is that in many of these decisions an exception to the general rule is explained and justified, and this indirectly establishes what the general rule is... In Rex v Howarth (1828) 1 Mood 207, it is laid down that there is no need to tell a man why he is being arrested when he must, in the circumstances of the arrest , know the reason already." [My emphasis.] 28. Tobias JA also set out the principles at [46]-[50]. 29. In the matter presently under consideration the accused was creating a disturbance. He was intoxicated and he was being offensive. He had been directed by Constable Clayton to leave and thereafter Sgt. Owen directed him to leave. The conduct of the accused was such was that he was not giving the officers any time or opportunity to explain anything. It would have been blatantly obvious to any reasonable bystander and indeed the accused as to why he was being asked to leave. I am not satisfied that there was in fact an arrest of the accused as is urged upon me. 30. However, if I am incorrect in that and there was in fact an arrest, then for those same reasons the accused must have been aware of the reason for that arrest. In the circumstances of the conduct of the accused and the words used to Constable Clayton, given that it was the public foyer of a police station it is my opinion that the officers would have been perfectly entitled to arrest the accused. However, as Sgt. Owen indicated in his evidence extracted above within these reasons, he was attempting to be fair to the accused and to give him a chance of leaving the police station without further incident, trouble or actual charge. In my opinion Sgt. Owen is to be commended on this initial approach rather immediately arresting the accused, which is what may very well of happened years ago. The accused must take some responsibility for his conduct, both initially with Constable Clayton and later with Sgt. Owen. The accused must have been aware the reason he was being asked to leave was his use of offensive language in the police station foyer. The accused was actually told why he was arrested after the barrage of language at or near the doors to the entrance of the police station. 31. There is another point, which neither advocate raised in this context, on the issue of the Sgt. Owen taking hold of the accused being an arrest. If those actions did amount to an arrest it is my opinion that the Sgt. Owen and indeed the prosecution would be able to rely on s. 99(3)(b) (extracted at [37] of these reasons) of the Law Enforcement (Powers and Responsibilities) Act 2002, in that the officer was acting to prevent the continuation of the conduct of the accused, which had already commended with the use of offensive language to Constable Clayton. 32. For more abundant caution, if I am incorrect or in error on the approaches I have thus far taken on this issue, it would then fall for me to consider section 138 of the Evidence Act 1995 in that the evidence relating to the offensive language and resist police charges would have been illegally or improperly obtained. The probative value and the importance of the evidence should be obvious. The conduct of the accused is what is relied upon by the prosecution to prove its case. The charge of offensive language is relatively minor and carries a fine as a maximum penalty, although, the legislation does allow for a sentence of community service. The charge of assault police is more serious. The struggle and conduct of the accused is a relatively unremarkable example of those type of offences that routinely comes before the Local Court. I would consider in the circumstances of this case the contravention or impropriety was minor, given the stated intention of Sgt. Owen to remove the accused and to give him a chance. Nothing has been put to me concerning the ICCPR. I am uncertain as to whether any other proceedings is likely to be taken. So far as section 138(3)(h) is concerned, it is obvious that the accused had embarked upon the use of offensive language before the alleged impropriety or contravention. The accused had shown a reluctance to leave when directed so to do. Whether or not the accused would have continued with the offensive conduct without the intervention of Sgt. Owen is a matter of speculation. 33. In my opinion it is also relevant to refer to what Hall J. said in DPP –v- AM (2006) 161 A Crim R 219; [2006] NSWSC 348 at [45]-[47], namely: As Howie, J. stated in Cornwell (supra) at 87, an imperfection or defect in procedures utilised by law enforcement officers will not necessarily equate to impropriety within the meaning of s.138 of the Evidence Act. Similarly, in my opinion, not all inappropriate conduct of a law enforcement officer will necessarily be improper with the meaning of that term in s.138(1)(a). 46 In Robinson v. Woolworths Limited (supra), Basten, JA. at [36] stated:- "… in circumstances where there is no unlawfulness on the part of any law enforcement officer, mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety." 47 On the other hand, conduct involving a relevant failure by a law enforcement officer to comply with statutory obligations may constitute unlawfulness or impropriety or both for the purposes of the public policy discretion to exclude evidence: Robinett v. Police (2000) 78 SASR 85 at 95 per Belby, J. 34. The actions of Sgt. Owen in taking hold of the accused. may have amounted to an imperfection or defect in procedure. That will not automatically amount to a impropriety. For those reasons, even if there were on the part of Sgt. Owen the impropriety or contravention as alleged by the accused, noting the balance is shifted to the prosecution, I conclude that the desirability of the admitting the evidence outweighs then undesirability of admitting the evidence that has been obtained in the manner that it has (drawing from the judgment of Hall J. in DPP-v- AM at [33]), and I would still admit the evidence. Issue of requirement for arrest rather than other procedures 35. As the prosecutor correctly observed this has been the subject of considerable litigation, in particular DPP –v- Carr [2002] NSWSC 194; DPP –v- Coe [2003] NSWSC 363; DPP –v- CAD & Ors [2003] NSWSC 196 and most recently DPP –v- AM (2006) 161 A Crim R 219; [2006] NSWSC 348. These are of course, all decisions of single judges of the Supreme Court of New South Wales, and as such all are binding on me. 36. With unfeigned respect, I gratefully adopt what was said by Hall J. in DPP –v- AM (2006) 161 A Crim R 219; [2006] NSWSC 348 at [21]-[32]: In relation to this submission, the fundamental principle and approach is that identified by Barr, J. in Director of Public Prosecutions (NSW) v. CAD & Ors [2003] NSWSC 196, wherein it was stated (at paragraph [7]):- "The law about the arrest of and the commencement of criminal proceedings against persons, especially children, for minor offences is uncontroversial. Arrest should be reserved for circumstances in which it is clearly necessary: Lake v. Dobson (Supreme Court of NSW, Court of Appeal, unreported 19 December 1980). It is inappropriate to arrest when service of a summons will suffice: Fleet v. District Court [1999] NSWCA 363. It is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, where there is no risk of his departing and where there is no reason to believe that the summons will not be effective: Daemar v. Corporate Affairs Commission (Supreme Court of NSW, Court of Appeal, unreported 4 September 1990); Director of Public Prosecutions v. Carr [2002] NSWSC 194." 22 In CAD (supra), Barr, J. stated (at paragraph [8]) that these principles apply all the more when any person suspected of having committed an offence is a child. His Honour there observed that although it makes no reference to arrest and does not purport to limit the powers of arrest in a proper case, s.8 of the Children (Criminal Proceedings) Act provides that a criminal prosecution should not be commenced against a child other than by summons or attendance notice. (a) Meaning of the word "improper" 23 The term "improperly" in s.138 is not defined. In Regina v. Cornwell (2003) 57 NSWLR 82, Howie, J. stated at [17] that he agreed with the view expressed by Smart, AJ. in Carr (supra) that there was little purpose in attempting to define the terms "improperly" or "impropriety" , whilst, however, expressing reservation with Smart, AJ.'s observation that s.138(2) and s.139 of the Act "indicated the word 'improperly' and the phrase 'in consequence of an impropriety' should not be narrowly construed" . 24 Section 138(2) does, however, make specific provision as to the stated circumstances in which an admission made during or in the course of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly. That subsection does not, as expressly stated in it, otherwise limit s.138(1). 25 In Ridgeway v. The Queen (1994-1995) 184 CLR 19 at 37, Mason, CJ., Deane and Dawson, JJ., in relation to the conduct of police in the investigation of some types of criminal activity that necessarily involved subterfuge, deceit and the intentional creation of opportunities for the commission by a suspect of a criminal offence, stated that impropriety will be reached in the case of conduct which is not illegal in cases involving a degree of harassment or manipulation "… which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community" . 26 As Smart, AJ. observed in Carr (supra) at [22], the High Court was not, in Ridgeway , dealing with every set of circumstances that may raise questions of impropriety. His Honour there stated:- "… their statement was probably not meant to be exhaustive but it does indicate the degree of impropriety required where serious offences are involved. Ridgeway involved a serious drug offence. With minor offences, any impropriety is likely to be of a lesser order with lesser consequences. Nevertheless, it will be important. As the Justices pointed out, the enquiry is whether what was done (or not done) is inconsistent with minimum standards of acceptable police conduct in all the circumstances. The Justices did not attempt to define what 'improper' meant." 27 Accordingly, the High Court's judgment in Ridgeway (supra) is to be read within the context of the matters with which the Court was there concerned, namely, the existence of the discretion to exclude evidence procured by unlawful or improper conduct on the part of law enforcement officers of the kind to which I have made reference in paragraph [25]. (b) Common law origins of the discretion to exclude evidence - improperly or illegally obtained evidence 28 Senior counsel for each party referred to common law principles which they contended may be used as reference points and as informing the provisions of s.138. I will refer briefly to the two well-known High Court cases in which they were discussed. 29 In Regina v. Ireland (1971-1972) 126 CLR 321, the High Court held that certain photographs taken of the respondent's hand which were taken to assist a medical practitioner in the formation of an opinion that scratches on the right hand could have been caused by a knife, though relevant and admissible, nonetheless were obtained in circumstances whereby the trial judge had a discretion to reject them because of the manner in which they had been obtained. 30 In that case, Barwick CJ. analysed the conceptual basis for the discretion to exclude and, in doing so, distinguished between facts or things "ascertained or procured" by means of unlawful or unfair acts. In general terms, actions by way of "procuring" evidence will usually involve elements of intention or purpose. Such elements ( "intention" or "purpose" ) will not necessarily exist where evidence in some cases, by reason of particular circumstances, is simply "ascertained" . This distinction is one discussed below. I will return to it in the context of the provisions of s.138(1). The Chief Justice in Ireland (supra) stated that evidence of facts or things ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. The exercise of the discretion to reject evidence and the competing public requirements which were required to be considered and weighed against each other were there identified (at p.335). 31 In Bunning v. Cross (1977-1978) 141 CLR 54, the evidence in question related to the result of a breathalyzer test administered in contravention of the requirements of the law. The joint judgment of Stephen and Aickin, JJ., included observations or propositions to the effect:- • The statement of principle in Ireland's case applies when the evidence is the product of unfair or unlawful conduct on the part of the authorities or as Dixon, CJ. expressed it in Wendo v. Regina (1963) 109 CLR 562, "unlawful or improper conduct" . • The main area of operation of the principle will be in relation to what might loosely be called "real evidence" , such as "articles found by search, recordings of conversations, the results of breathalyzer tests, fingerprint evidence and so on" (at p.75). • Relevant conduct may vary from overt defiance of the legislature or calculated disregard of the common law, on the one hand, to isolated and merely accidental non-compliance with statutory safeguards , on the other. In general, one may expect cases involving conduct of the former type to attract the discretion to exclude, whilst in cases involving such accidental non-compliance, it may be quite inappropriate to treat such conduct as a basis leading to the inadmissibility of the resultant evidence. 32 In Ridgeway (supra), it was observed that what has become known as the Bunning v. Cross discretion, seeks to ensure that those concerned with the enforcement of the law observe the law in the manner in which they secure evidence: Ridgeway (supra) per Toohey, J. at 56. It may also be said to apply to securing adherence to at least minimum standards applicable to law enforcement officers. 37. Further, in the matter presently under consideration section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) applied. Relevantly that section provides: Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law. 38. In the matter presently under consideration it is submitted on behalf of the accused that Sgt. Owen should have obtained the name and address of the accused and proceeded by means other than actual arrest. These methods are either a Field Court Attendance Notice (CAN) or a Further CAN. I note that in the matter under consideration the accused was released after processing. 39. It is to these issues that the evidence of Sgt. Owen being of the opinion that further passive dialogue and that there was a danger of a further breach of the peace is particularly relevant. I accept the evidence of Sgt. Owen that passive dialogue would have been pointless. One need only view the footage. However, there is also the unchallenged evidence of Constable Clayton and the other officers present, and also that of Mr. Simon. I accept the evidence of Sgt. Owen (p 77 lines 15-18; p. 80 lines 24-8) that the conduct of the accused escalated when he got outside. Again, the other officers present support Sgt. Owen in this regard. There was very little cross-examination directed to the other officers as to the conduct of the accused. 40. On this issue, one of the principle areas of cross-examination of the other officers was whether the accused was under control. I presume this goes to the issue of the use of the taser by Sgt. Owen. I am satisfied that on the evidence of Sgt. Owen, and the other officers that the accused was not under effective control at the time the taser was used. The accused was continually struggling and was refusing to comply with directions. In my opinion given the circumstances and conduct with which the police officers were met, no reasonable criticism could be directed to the officers for employing some method to bring the accused under effective control. 41. Given the evidence of Sgt. Owen, that I have accepted, about concerns about ongoing conduct and further breaches of the peace, I am also satisfied that Sgt. Owen was entitled to arrest the accused relying on section 99(3)(b) of LEPRA. On the issue of the ongoing conduct by the accused, Sgt. Owen is supported by Constable Clayton (paragraph 11) and Constable Thurston (paragraph 9). 42. To suggest that the police should have taken the name and address of this accused in the circumstances with which they were met ignores the practicalities of the situation. It is not disputed that the police did not know the identity of the accused or his address. The accused was offensive, intoxicated and aggressive. In my opinion, he had demonstrated very clearly that he had not the slightest intention of complying with any direction from any police officer. The evidence of Sgt. Owen that in his opinion further passive dialogue would have been pointless has considerable appeal to me. 43. For the sake of completeness, even if I am incorrect in these findings, again s. 138 of the Evidence Act 1995 would need to be considered. I would admit the evidence for the same reasons given when considering this issue when dealing with the issue of whether the removal of the accused from the police station was an unlawful arrest. Conclusion 44. For these reasons, the evidence is admitted. I will now hear the parties as to what course this case will now take. Gordon Lerve Magistrate, Albury Local Court 19 April 2010 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.