Supreme Court New South Wales Medium Neutral Citation: Williams, Robert Lee Anthony v Director of Public Prosecutions (NSW) [2011] NSWSC 1085 Hearing dates: 5 September 2011 Decision date: 20 September 2011 Before: Harrison AsJ Decision: (1) The order made by his Honour Magistrate Linden on 28 July 2010 at Kyogle Local Court convicting the first plaintiff of the offence of hinder police under s 546C the Crimes Act 1900 is set aside. (2) The order made by his Honour Magistrate Linden on 28 July 2010 at Kyogle Local Court in relation to the second plaintiff is set aside. (3) There is no order as to costs. Catchwords: Appeal - civil - judgment or order; whether Magistrate wrongly found that the elements of the charge of hindering police under s 546C of the Crimes Act had been made out - whether Magistrate should have considered section 99(2) of the Law Enforcement (Powers and Responsibilities) Act 2002 in conjunction with s 99(3) of that Act in the circumstances - held that prima facie case against plaintiffs was not made out because police were not acting in the execution of their duty when conducting an arrest - plaintiff's conviction set aside. Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1900 Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 Coleman v Power (2004) 220 CLR 1 Donaldson v Broomby (1982) 60 FLR 124; 40 ALR 525; 5 A Crim 160 DPP v Armstrong [2010] NSWSC 885 McLiney v Minister [1911] VLR 347 Texts Cited: Criminal Practice and Procedure NSW Law Enforcement (Powers and Responsibilities) Bill, Hansard, NSW Parliament, 17 September 2002 Category: Principal judgment Parties: Robert Lee Anthony William - First Plaintiff Gloria May Williams - Second Plaintiff Director of Public Prosecutions (NSW) - Defendant Representation: J Manuell SC _ Plaintiffs A Mitchelmore - Defendant Aboriginal Legal Service (NSW/ACT) Ltd Public Prosecutions Office of the DPP File Number(s): 2010/282695 Decision under appeal Date of Decision: 2010-07-28 00:00:00 Before: Linden LCM Judgment 1HER HONOUR: This appeal concerns the construction of s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("the LEPR Act ") in relation to when a Police Officer can effect an arrest without a warrant. 2By summons filed 24 August 2010, the plaintiffs seek firstly, that the order of his Honour Magistrate Linden made on 28 July 2010 at Kyogle Local Court convicting the first plaintiff of the offence of hinder police, under s 546C of the Crimes Act 1900, be set aside; and secondly, that the order of his Honour Magistrate Linden made on 28 July 2010 at Kyogle Local Court convicting the second plaintiff of the offence of hinder police, under s 546C of the Crimes Act 1900 be set aside. 3The first plaintiff is Robert Lee Anthony Williams. The second plaintiff is Gloria May Williams. The defendant is now the Director of Public Prosecutions (NSW) ("the DPP"). The facts are not in dispute. 4On 27 November 2009 at 4.20 pm, the Police, namely Senior Constable McCormack and Sergeant Reid wanted to speak to Joel Williams, who is the son of Gloria Williams and the brother of Robert Williams, in relation to a shoplifting offence allegedly committed three weeks earlier. The Police attended outside the Masonic Hall in Stratheden Street, Kyogle. While Senior Constable McCormack and Sergeant Reid were arresting Joel Williams, both Robert Williams and Gloria Williams were yelling that the Police had no right to arrest him. Gloria and Robert Williams attempted to pull the Police Officer's hands off Joel, so as to facilitate his release. 5Both plaintiffs were charged with hindering police under s 546C of the Crimes Act . The elements of the s 546C of the Crimes Act offence are that, (i) Robert Williams and Gloria Williams hindered; (ii) a Police Officer; (iii) while the Police Officer was acting in the execution of his duty. So if the Police Officer was not acting in the execution of his duty, then the third element of the offence is not satisfied and the charge is not proved. 6At the conclusion of the prosecution case, the plaintiffs submitted that the evidence did not establish a prima facie case against them. While it was not in issue that, Robert Williams and Gloria Williams hindered Police Officers Sergeant Reid and Senior Constable McCormack as they arrested Joel Williams on 27 November 2009, the plaintiffs submitted that the Police Officers were not acting in the execution of their duty at the time of their intervention because they had no reasonable suspicion in the terms of s 99(3) of the LEPR Act . 7The Magistrate was satisfied that there was a prima facie case. His Honour stated that it was clear from the evidence that the officers were hindered and in each matter the offence was proved. So far as Gloria Williams was concerned, the Magistrate found the offence proved but did not proceed to a conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 . So far as Robert Williams was concerned, he was convicted and fined $150 plus ordered to pay $75 in court costs. 8The issue is whether an arrest can only be carried out in compliance with s 99 of the LEPR Act and if so whether the Magistrate properly construed the section. The position at common law 9At common law, an arrest must only be made according to law otherwise it is unlawful. Arbitrary arrest has been labelled the "hallmark of tyranny". In Donaldson v Broomby (1982) 60 FLR 124; 40 ALR 525; 5 A Crim R 160, Deane J stated (at [1]): "An arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable." 10Counsel for the plaintiffs submitted that a person subject to unlawful arrest is entitled to use reasonable force to resist that arrest. In McLiney v Minister [1911] VLR 347 Madden CJ stated (at 351): "... it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has a perfect right to use reasonable efforts to beat him off and get out of his custody." 11Where an arrest is unlawful, the consequent offence of resisting or hindering arrest cannot be established. In Coleman v Power (2004) 220 CLR 1, a case involving a demonstrator who was arrested and charged with resisting arrest, McHugh J stated (at [117]): "... It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K , after reviewing the authorities on the scope of an officer's duty, the Full Court of the Federal Court said: The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein." The LEPR Act 12In the Second Reading Speech on the introduction of the Law Enforcement (Powers and Responsibilities) Bill , Hansard, NSW Parliament, 17 September 2002, the Attorney General said: "I turn now to powers relating to arrest. Part 8 of the bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of part 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person's attendance at court. Clause 99, for example, clarifies that a police officer should not make an arrest unless it achieves the specified purposes, such as preventing the continuance of offence. Failure to comply with this clause would not, of itself, invalidate the charge. Clauses 107 and 108 make it clear that nothing in the part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution or summons or another alternative to arrest. Arrest is a measure of last resort. The part clarifies that police have the power to discontinue arrest at any time." 13The Attorney General clarified that Part 8 of the LEPR Act was enacted to codify the common law powers of arrest. 14Section 99 of the LEPR Act reads: "99 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. ..." 15While the parties in this appeal agree that the common law does not apply in light of the factual circumstances of this case, it worth noting the decision in DPP v Armstrong [2010] NSWSC 885, where Davies J considered that s 99 was not the only source of power for a Police Officer to arrest a person without a warrant. His Honour stated at [23] to [26]: "23 The Magistrate's undoubted error in relation to the arrest in s 99 was assuming that s 99 was the only source of power for a police officer to arrest a person without a warrant. It is not disputed that the police retain a power outside s 99 to arrest a person for breach of the peace. Section 4(2) of the Act expressly preserves police powers with regard to breaches of the peace. 24 Mr Armstrong accepts that s 99 is not the sole source of power for police to arrest a person without a warrant, and he accepts that the police retain the power to arrest a person for a breach of the peace. He submits, however, that the Magistrate's findings concerning the police evidence meant that the Magistrate did not accept the evidence about their concern for a public order incident. Hence, he submits, there was no basis to arrest for a breach of the peace. 25 The problem is, however, that the Magistrate made no findings about whether there was or might have been a public order incident, or whether the police were justified in arresting Mr Armstrong for a breach of the peace. She did not do so because she was under the misapprehension that s 99 was the sole source of the arrest power. On the other hand, her limited remarks concerning the public order incident and her view that Constable Ayling (in fact, Williams) was colouring his evidence, do not suggest that her Honour made a positive finding that the police officers did not apprehend a public order incident. Indeed, her comment that there was no rush to attend on the part of officers who might have been informed "that there was a public order incident apprehended or in fact already underway" suggests that her Honour did not entirely discount that evidence from the 2 police officers. 26 The result is that the Magistrate was in error in finding that the arrest was unlawful based only on applying s 99. If the unlawfulness of the arrest justified the dismissal of the Informations, it was incumbent upon the Magistrate to determine whether the arrest was lawful at common law and, in particular, for a breach of the peace." 16In this matter, the Magistrate in his ex tempore reasons stated at 15.50-16.20: "...The background was that the police officers were reasonably aware that another named person had committed an offence, that is stealing from a bottle shop. They were aware or believed they were aware of his identity and they attended some premises at the Masonic Hall earlier and were given a hostile reaction. They believed that this person was present at that hall, they returned later when they believed that what was going on in that hall, being a cultural event for Aboriginal people, had concluded. It was at that point they sought to confirm the identity of the person they were looking for and when that identity was not forthcoming they effected an arrest. It was then that these two defendants were said to become involved, making the officers' arrest process more difficult than it otherwise should have been. As I said it is a codification under s 99 in particular what I look at is subs (2) which provides that: ... That was clearly the case here, that is they effected an arrest for the purpose of the allegation of stealing from premises." 17It is fair to say that the Magistrate, in his ex tempore reasons, makes no reference to s 99(3) of the LEPR Act , although the transcript of proceedings at pages 6 to 7 (28 July 2010) shows that his Honour's attention was drawn to that sub section. The proper construction of s 99(3) is a matter of law. The plaintiffs are entitled to appeal their convictions on a question of law pursuant to s 52 of the Crimes (Appeal and Review) Act 2001. 18Because the Police Officers' evidence indicated that at the time of arrest, they intended to take proceedings against Joel Williams in relation to the shoplifting office, the operation of s 99(3) of the LEPR Act was triggered. The Police were required to be satisfied on reasonable grounds that they needed to arrest him for one of the purposes in s 99(3)(a)-(f). There was no evidence that the Police had concerns in relation to any of the matters addressed in those paragraphs. In this regard, the plaintiffs have submitted that: (a) The Police Officers clearly had no apprehension that Joel Williams would not attend Court once charged; he was subsequently charged by way of a Court Attendance Notice, without the imposition of bail conditions. (b) There was no allegation made that Joel Williams had committed further offences in the nearly three weeks after the alleged shoplifting offence. (c) There would have been no reasonable expectation on the part of the arresting Police Officers that, if Joel had committed the offence of shoplifting at the bottle shop, Joel's arrest nearly three weeks later was necessary to prevent the concealment, loss or destruction of evidence relating to the offence; and (d) There was no suggestion that the arrest was necessary to achieve the purposes of subsections 99(3)(d), (e) and (f). 19The DPP submitted that in dismissing the plaintiffs' application of, or a ruling that, there was no prima facie case, the Magistrate did not appreciate the significance of s 99(3) of the LEPR Act . In his reasons, the Magistrate only referred to s 99(2) as satisfying the requirement that the Police Officers were acting in the execution of their duty at the time the plaintiffs engaged in the impugned conduct. 20It was suggested by the DPP that there is an apparent ambiguity in the degree of intended reciprocity of operation between ss 99(2) and 99(3). Section 99(3) clearly relies on s 99(2), because it does not otherwise contain a conferral of power; but what is not so clear is whether the power in s 99(2) is constrained by s 99(3). If that were not the case, the broad power conferred by s 99(2) would be constrained only by a reasonable suspicion that a person committed an offence. If s 99(3) did constrain the power provided by s 99(2), subs (2) can only be exercised for the purpose of taking proceedings against that person, in which case the Police must also be satisfied on reasonable grounds that arrest is necessary to achieve one of the purposes in (a) to (f) of s 99(3). 21The DPP further submitted that the breadth of the terms of s 99(2) tells against that construction, as does the fact that two subsections were enacted when a combined provision would better have achieved that purpose. 22It is submitted that the explanatory memorandum for the LEPR Act (the Law Enforcement (Powers and Responsibilities) Bill 2002 Assented to on 29 November 2002) in relation to s 99 suggests that s 99(2) is a general power of arrest, in addition to the powers conferred in s 99(1), which is unconstrained by s 99(3) unless the officer arrests a person for the particular purpose identified in the subsection: " Clause 99 sets out the powers of police officers to arrest without a warrant. A police officer may arrest a person if that person is in the act of committing an offence, has just committed an offence, has committed a serious indictable offence for which the person has not yet been tried or if the police officer suspects on reasonable grounds that the person has committed an offence. A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the officer suspects on reasonable grounds that the arrest is necessary to ensure the person's attendance at court or for other purposes relating to the protection of evidence or preventing the repetition of an offence or another offence. An arrested person, and any property on the person, must, as soon as is reasonably practicable, be taken before an authorised officer to be dealt with according to law." 23In Attorney General for the State of New South Wales v Bar- Mordecai [2009] NSWSC 396, Smart AJ considered this part of the second reading speech and at [29] referred to and agreed with the views expressed by the authors of Criminal Practice and Procedure NSW that s 99(3) restricts the circumstances in which the power under s 99(2) may be exercised. Those authors stated at 626,002: "Before the enactment of s 99, it was said that the power of arrest for an offence should not be exercised unless it is necessary to ensure the accused's attendance before the court and only where a summons would not be appropriate: Fleet v District Court (NSW) [1999] NSWCA 363; BC9906539 ; (1999) 6 Crim LN 82 [1061]; Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 ; [2002] NSWSC 194; BC200201026 ; (2002) 9 Crim LN [1401]. See also Wilson v DPP [2002] NSWSC 935; BC200206024. Section 99(3) now confines the use of arrest for the purposes of taking proceedings for an offence to certain defined circumstances." 24In response to a question as to whether the police needed to arrest Joel Williams or whether they could, instead, have simply issued a Court Attendance Notice, Constable McCormick stated (T 8, 28 July 2010): "At that time it was - there was no chance of speaking to him at the scene due to the hostilities around us so we got him back to the police station and went by way of CAN there where it was - we were in our environment and we could do things the way we needed to." 25As discussed the evidence indicates an intention on the part of the police at the time of arrest to take proceedings against Joel Williams in relation to the shoplifting offence, thus triggering the operation of s 99(3) of the LEPR Act . There was no evidence that the police had concerns in relation to any of the matters addressed in those sub paragraphs (a) to (f). In these circumstances, it would seem that the elements of a lawful arrest were not made out and therefore an element of the s 546C offences cannot be established at any subsequent hearing of the charge against the plaintiffs. 26Without falling into the error of construing too strictly the unedited extempore remarks of the Magistrate in a busy court (see Acuthan v Coates (1986) 6 NSWLR 472 at 479) the substance of his Honour Magistrate Linden's decision does demonstrate an error in law because his Honour found that the offence of hinder police under s 546C of the Crimes Act was proven against the plaintiffs without finding that the requirements of s 99(3) of the LEPR Act had been met in respect of the arrest of Joel Williams by Sergeant Reid. His Honour erred in law by failing to apply s 99(3). 27The Director of the DPP agrees with the plaintiffs' submission that there is little utility in these circumstances in remitting the matter to the Local Court for redetermination. I agree the plaintiff seeks that this Court set aside the plaintiffs' convictions pursuant to s 55(1)(a) of the Crimes (Appeal and Review) Act , which states: "55 Determination of appeals (1) The Supreme Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by setting aside the conviction and remitting the matter to the Local Court sitting at the place at which the original Local Court proceedings were held for redetermination in accordance with the Supreme Court's directions, or (c) by dismissing the appeal." 28I make an order setting aside the conviction in relation to the first plaintiff. Although the Magistrate incorrectly found the offence was proved against the second plaintiff, no conviction was recorded. Hence, there is no conviction to set aside. However, relying on the inherent jurisdiction of this Court, I set aside the order made by the Magistrate in relation to the second plaintiff. 29The parties have agreed there should be no order as to costs. The Court orders that: (1) The order made by his Honour Magistrate Linden on 28 July 2010 at Kyogle Local Court convicting the first plaintiff of the offence of hinder police under s 546C the Crimes Act 1900 is set aside. (2) The order made by his Honour Magistrate Linden on 28 July 2010 at Kyogle Local Court in relation to the second plaintiff is set aside. (3) There is no order as to costs. ********** 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. Decision last updated: 21 September 2011