New South Wales Supreme Court CITATION : Wilson v DPP [2002] NSWSC 935 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12228/02 HEARING DATE(S) : 30/09/02 JUDGMENT DATE : 10 October 2002 PARTIES : Mervyn James Wilson (Plaintiff) Director of Public Prosecutions (Defendant) JUDGMENT OF : Cripps AJ LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Hamilton LCM JUDICIAL OFFICER : COUNSEL : C B Craigie SC (Plaintiff) R A Hulme (Defendant) SOLICITORS : P Bugden (Plaintiff) S E O'Connor (Defendant) CATCHWORDS : Arrest on charges of assault police and resist arrest - whether the learned magistrate was bound to exclude the evidence by reason of s 138 of the Evidence Act 1995. Summary Offences Act 1988, s 4A(1) LEGISLATION CITED : Evidence Act 1995, s 138 Director of Public Prosecutions Act 1986, s 9 Justices Act 1902 (As Amended), s 104(4) CASES CITED : DPP v Carr [2002] NSWSC 194 R v Bozatsas & Spanakis (1997) 97 A Crim R 296 DECISION : (1) Application for leave to appeal dismissed (2) Plaintiff to pay the defendant's costs. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIPPS AJ Thursday, 10 October 2002 12228/02 - MERVYN JAMES WILSON v DIRECTOR OF PUBLIC PROSECUTIONS JUDGMENT 1 CRIPPS AJ: On the 29 March 2002 Mr Wilson was charged with using offensive language in a public place in contravention of s 4A(1) of the Summary Offences Act 1988. He was also charged with two offences under the Crimes Act 1900, s 58 that: "(i) On the 29 March 2002 at Liverpool did resist Senior Constable Hunter and Constable Ezzy being Constables for police in the execution of their duty and (ii) That on the same day and at the same place did assault Constable Ezzy being a Constable of the police in the execution of his duty." 2 The matters came on for hearing before Magistrate Hamilton at Liverpool Local Court on 18 July 2002. Mr Wilson pleaded guilty to the offence under the Summary Offences Act. Although not expressly stated in the transcript it appears to be assumed that the learned magistrate also commenced hearing the two charges under s 58 of the Crimes Act. 3 Senior Constable Hunter and Constable Ezzy had made statements concerning events alleged to have taken place at the Liverpool Railway Station on 29 March 2002. 4 Mr Patel appearing for Mr Wilson informed the Magistrate that he would be objecting to the court receiving the evidence of the two police constables. His application was founded on s 138 of the Evidence Act 1995 and he sought a hearing on the voir dire as to the admissibility of any evidence of the two police officers of events that took place after Mr Wilson was told by one of them he was under arrest. 5 Statements of Senior Constable Hunter and Constable Ezzy were tendered. Senior Constable Hunter gave evidence and was cross-examined by Mr Patel. Constable Ezzy did not give evidence it being assumed, apparently, that if the relevant evidence of Senior Constable Hunter was not to be admitted into evidence the same result would follow in the case of Constable Ezzy. 6 At the conclusion of the voir dire hearing the learned magistrate expressed his conclusion, and gave reasons for it, that s 138 of the Evidence Act did not operate to exclude the evidence referred to above because he was not satisfied that the conduct of the police (in arresting Mr Wilson at the Liverpool Railway Station on 29 March 2002) was improper. He expressed the opinion that if he were wrong in that conclusion he was of the opinion that the desirability of admitting the evidence would outweigh the undesirability of admitting it. 7 After being told by Mr Patel that his decision would be challenged in the Supreme Court the learned magistrate adjourned the proceedings. 8 On 13 August 2002 Mr Wilson commenced proceedings against Senior Constable Hunter in the Supreme Court seeking orders that the order of the learned magistrate made on 18 July adjourning the proceedings be quashed, that the two charges against the plaintiff under s 58 of the Crimes Act should be dismissed and, presumably in the alternative, that the two charges against the plaintiff under s 58 of the Crimes Act should be permanently stayed. 9 On 22 August 2002 the Director of Public Prosecutions filed a notice pursuant to s 10 of the Director of Public Prosecutions Act 1986 that he had, pursuant to s 9 of the Act, taken over as the defendant in the appeal. 10 The matter came on for hearing on Monday, 30 September 2002. An amended summons was filed, by consent, seeking orders that leave to appeal be granted, the appeal be allowed and the matter be remitted to the learned magistrate to be heard and determined according to law. The grounds specified in the amended summons are as follows: "1. (As to leave). The learned magistrate adjourned the proceedings in order that his interlocutory ruling in relation to the admission of certain evidence be tested in this Court. 2. The learned magistrate erred in law as to the evidence of s 138 of the Evidence Act 1995 in declining to Exercise his discretion under s 138(2)(a) to exclude evidence obtained in consequence of the Plaintiff." [sic] 11 The present proceedings were brought to this Court pursuant to s 104(4) of the Justices Act 1902 (As Amended) which provides as follow: "A defendant or any informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a magistrate in summary proceedings, on the ground that it involves a question of law alone, but only with the leave of the Supreme Court." The essence of the case advanced by the plaintiff is that the learned magistrate erred in law in ruling that he would allow the evidence of the police constable to be admitted into evidence and that that decision was an "interlocutory order" and was a decision that no magistrate understanding his function could reasonably have made. 12 The plaintiff has argued that, notwithstanding the factual differences between this case and DPP v Carr [2002] NSWSC 194. Carr's case mandates that the arrest of a person in circumstances where a Field Court Attendant's Notice ("FCAN") could and should have been issued constitutes improper conduct enlivening s 138 of the Evidence Act. It is not submitted in the present case that the police acted illegally. It is that by placing Mr Wilson under arrest they acted improperly which had the consequence that no evidence could be adduced concerning the charges of resisting arrest and assaulting a policeman in the execution of his duty. That is to say it is assumed that if the police had acted improperly (as opposed to unlawfully or illegally) the conduct of the plaintiff consequent upon the exercise of the police officer of powers of arrest and reasonably connected to it could not be the subject of evidence to sustain charges based on that conduct. It appeared to be assumed that the prosecution case would be confined to the evidence of the two police officers. 13 Leaving to one side, for the moment, the question whether the learned magistrate's ruling was an "interlocutory order" and, if it was, whether the court in the exercise of it's discretion would grant leave the plaintiff cannot succeed in these proceedings unless he establishes that it was not open to the learned magistrate to conclude otherwise than that the police officers acted improperly when they arrested him. The learned magistrate, as I have said, indicated that even if impropriety were established he would, in the exercise of his discretion admit the evidence but I prefer to deal with this matter by reference to what the learned magistrate decided and not by reference to what he said he might have decided if he were wrong in determining no impropriety. 14 In Carr the learned magistrate had excluded evidence pursuant to s 138 of the Evidence Act. The DPP appealed. The appeal was upheld and the matter remitted to the learned magistrate. The reason for remission was, essentially, that the learned magistrate took into account matters that he was not entitled to take into account without giving both parties, (particularly the DPP) the opportunity of responding to. However in the course of the judgment findings were made concerning the meaning and application of s 138 of the Evidence Act 1995 in the context of the exercise of discretionary powers of the police to arrest in circumstances where, it was said, court attendance could have been secured by what has been referred to above as a FCAN. 15 It is important to remember, in my respectful opinion, that Carr's case was concerned with whether it was open to the learned magistrate to exclude police evidence directed to resisting and assaulting police. There was no finding, for example, that had he acted in any other way his decision would necessarily have been bad in law. 16 I do not propose to elaborate on the material before the learned magistrate. It is sufficient to note that it was the police case that Mr Wilson was intoxicated and on a number of occasions used the word "fuck" and "fucking" in a loud voice on Liverpool Station. People were close by. One of the police officers asked him to stop swearing but he continued. He was asked to identify himself and he started to walk away. He then turned and continued to swear. Senior Constable Hunter then said: "That's enough you're under arrest for offensive language". After he was arrested he said: "Come on, I'm sorry, can't you let me walk away?" Senior Constable Hunter then said, in effect, that he had been given sufficient warning and that he was under arrest. After that the Mr Wilson began to struggle and he was placed on the ground. He was handcuffed behind his back. In the course of being restrained he tried to bite Constable Ezzy. 17 The submission on behalf of Mr Wilson by Mr Craigie SC, while acknowledging factual distinctions between Carr and the present case (for example, Carr's identity was known to the police) was that the police were bound to refrain from arresting Mr Wilson and that the sole and improper motivation of the arrest was for the purpose of discouraging the continuation of the use of bad language. He submitted that the evidence of Senior Constable Hunter could lead to one conclusion only viz that Mr Wilson was arrested because he swore and he was intoxicated. He submits that although Mr Wilson had refused to identify himself he might have been persuaded later to have produced identification. These submissions, with the greatest respect to the argument of Mr Craigie, may be a view of the circumstances that Mr Patel wished to persuade the learned magistrate to adopt. However, the learned magistrate was not bound to adopt these submissions. As was stated in evidence Mr Wilson was arrested because he was continuing to swear, the police did not know his identity and he was intoxicated to the extent that Senior Constable Hunter was of the opinion that he was unable to understand the effect of an FCAN. In my opinion it was open to the learned magistrate to conclude that there was no impropriety associated with the arrest. 18 The DPP has submitted that the decision of the learned magistrate to admit the police evidence was not relevantly an "interlocutory order" within the meaning of s 104(4) of the Justices Act 1902. I accept that a judicial decision concerning the admissibility of evidence is not necessarily outside the ambit of the words "interlocutory order" (see R v Bozatsas & Spanakis (1997) 97 A Crim R 296. For example, an evidentiary ruling which has the effect of excluding the whole of the Crown evidence with the inevitable result of an acquittal can be relevantly characterised as an order. 19 However, in the present case the learned magistrate did not more than determine that the police evidence would be admitted. That decision did not conclude the case against the plaintiff notwithstanding that had his application been successful he would in all probability have been acquitted or discharged (at least on the material before me). Mr Craigie has submitted that the learned magistrate's decision effectively determined the outcome of the proceedings. That, of course, is not so. In my opinion the decision of the learned magistrate to admit the evidence of Senior Constable Hunter and, (presumably, Constable Ezzy) was not an "interlocutory order" as those words must be relevantly understood. I would characterise the decision as a ruling on admissibility of evidence that is, a decision that the learned magistrate was prepared to have regard to certain material in his determination of the matter. Moreover, I cannot ignore the possibility that he might review that decision in the course of the trial. 20 It was also submitted by Mr Hulme on behalf of the DPP that even if the learned magistrate's decision should be characterised as being relevantly an "interlocutory order" leave should not be granted. Had I concluded that the plaintiff had an arguable case as to whether the learned magistrate erred in law when making an interlocutory order rejecting the plaintiff's allegation of police impropriety I would not have granted leave. There are good reasons why this Court is reluctant to intervene in trials in progress and generally will not do so in the absence of exceptional circumstances. As I have said the admission of the police evidence would not inevitably lead to a conviction. Moreover, if the plaintiff were convicted he has a full right of appeal to the District Court and to the Supreme Court on a question of law (s 104(1)(a)), mixed fact in law (s 104(1)(b)) or on the ground that the conviction cannot be supported (s 104(1)(c)). 21 It appeared to be submitted that had I been required to exercise my discretion whether or not to grant leave I should have had regard to the circumstance that the learned magistrate adjourned the proceedings to seek, in effect, a ruling from the Supreme Court as to whether it was open to him to make the decision that he would admit the police evidence. With the greatest respect that circumstance would be irrelevant to the discretion I would be required to exercise. The reason why the learned magistrate thought leave should be granted (if he did) would not be relevant to my determination unless that reason happened to coincide with the reasons I independently reached. 22 In summary therefore: (1) I find the Court does not have jurisdiction to determine this question because the ruling of the learned magistrate was not an interlocutory order. (2) That even if it could have been characterised as an interlocutory order it would not have been appropriate for leave to be granted. (3) There was evidence before the learned magistrate entitling him to come to the opinion he did concerning the allegation of police impropriety. 23 Accordingly, the order of the Court is the application for leave to appeal is dismissed and the plaintiff is to pay the defendant's costs. ********** Last Modified: 10/14/2002 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.