District Court New South Wales Medium Neutral Citation: William Norman George v R [2016] NSWDC 59 Hearing dates: 20 April 2016 Decision date: 29 April 2016 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Appeal dismissed Catchwords: All grounds appeal; police powers of arrest. Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Law Enforcement (Powers and Responsibilities) Act AustLII Summary Offences Act 1988 Cases Cited: AG v Director of Public Prosecutions [2015] NSWCA 218 Charara v R [2006] NSWCCA 244 Dearing v Passi, Supreme Court of New South Wales, unreported, 4 November 1994 Director of Public Prosecutions v Horwood (2009) 78 NSWLR 32 Fitzgerald v Montoya (1989) 16 NSWLR 16 Johnstone v New South Wales [2010] NSWCA 70 Zaburoni v R [2016] HCA 12 Category: Principal judgment Parties: William Norman George (Appellant) Director of Public Prosecutions (Crown) Representation: Counsel: A McMahon (Appellant) A Lynch (Crown) Solicitors: File Number(s): 15/93849 Publication restriction: Nil Judgment on ALL GROUNDS APPEAL 1. The appellant appeals his conviction and the severity of sentence imposed on 27 November 2015, at the Wagga Wagga Local Court, on the following two offences: 1. Sequence 1 – Obstruct vehicle in a public place pursuant to s 6 of the Summary Offences Act 1988. 2. Sequence 2 – Resist an officer while in the execution of his duty pursuant to s 58 of the Crimes Act 1900. 1. The appellant was convicted of both offences. In respect of sequence 1, the charge was dismissed pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 ("the Act"). In respect of sequence 2, he was fined the sum of $1,000.00 and sentenced to be on a bond to be of good behaviour for a term of 12 months pursuant to s 9 of the Act. 2. The matter proceeded by way of a rehearing, based on the transcript of evidence before the Local Court – see Charara v R [2006] NSWCCA 244 per Mason P at [18]. I am conscious of the natural limitations that exist where a review is undertaken on the record, and the advantages held by the learned Magistrate in the evaluation of each witness' evidence – see also AG v Director of Public Prosecutions [2015] NSWCA 218. 3. I have read all of the evidence and the learned Magistrate's reasons delivered on 27 November 2015. Factual background to the offending 1. A fair summary of the evidence established that at approximately 1.40am on 20 February 2015, Leading Senior Constable Parsons and Constable Todd were patrolling Wagga in a police vehicle, when Senior Constable Parsons observed the appellant standing on the footpath at the intersection of Morgan and Peter Street, Wagga. Senior Constable Parsons was a passenger in the police vehicle and he asked Constable Todd to stop the vehicle adjacent to where the appellant was standing. 2. Senior Constable Parsons said to the appellant, "Are you okay?". The appellant came over to the police vehicle and leaned inside the front passenger window. The appellant was asked to step back off the road, three or four times, but ignored those requests. 3. Senior Constable Parsons opened the passenger door to the police vehicle and caused the appellant to move back towards the footpath. When the appellant stepped back, Senior Constable Parsons said to Constable Todd, "Let's go", indicating for him to drive off, and Senior Constable Parsons put his window up. 4. Constable Todd commenced to drive off and at that point the appellant commenced to run alongside the vehicle and opened up the passenger door while the vehicle was moving. 5. That conduct of the appellant was not in issue at the trial or on appeal. 6. What occurred next is the basis for the appellant's submission that the police officers then acted outside the execution of their duty, and therefore the subsequent arrest of the appellant was unlawful. That argument was not accepted by the learned Magistrate, and her Honour's decision not to accept that argument is the error of law identified by learned counsel on behalf of the appellant that warrants setting aside the conviction on both charges. 7. The vehicle had moved approximately 5-10 metres when Senior Constable Parsons asked Constable Todd to stop the vehicle. As soon as the vehicle stopped, Senior Constable Parsons exited the vehicle and approached the appellant, who had moved off the roadway and was standing on the footpath. 8. Senior Constable Parsons asked for the appellant to produce some ID. When asked why, he answered: "A: Because he'd just committed an offence in my eyes by opening up the car door – obviously quite dangerous – as we're driving off." 1. Senior Constable Parsons observed that the appellant was intoxicated by the way he was speaking, slurring his speech and he could smell alcohol on his breath. He asked the appellant to sit down on the ground and the appellant refused to produce identification and sit down on the ground. 2. The appellant asked Senior Constable Parsons what he had done wrong, and Senior Constable Parsons told him that he had opened up the police vehicle as it was driving off. Senior Constable Parsons then gave evidence that he asked for some identification and that if he did not provide it, he would have committed an offence. 3. It was then Senior Constable Parsons decided that, as he did not know who the person was, and he had committed an offence, that he would arrest the appellant. When asked what his justification was for that arrest, he answered: "A: Initially for committing the offence of opening up the vehicle, the police – the door to the police vehicle, and then not producing the identification." 1. Senior Constable Parsons then said words to the effect, that he was under arrest for failing to produce the ID and went to take him by the arm when the appellant commenced to resist the arrest. He did that by raising his arms to deflect Senior Constable Parsons' attempts to try to grab him. Senior Constable Parsons asked the appellant to stop resisting and told him that he was under arrest, and then performed a leg sweep on the appellant to place him on the ground. Constable Todd came to assist Senior Constable Parsons, however, the two officers and the appellant engaged in a violent struggle on the ground. The officers were unable to restrain the appellant and Senior Constable Parsons stood up off the ground and advised Constable Todd to do the same. Senior Constable Parsons then issued the appellant with a burst of what is known as capsicum spray in the face, upon which the appellant ran away. The appellant was chased by the police officers and again they attempted to restrain him, and again performed a leg sweep to place him on the ground. The appellant again managed to escape and ran in a northerly direction along Peter Street. 2. Senior Constable Parsons called for assistance and eventually Senior Constables Baker and Doubleday arrived and restrained the appellant. The appellant was handcuffed and again told that he was under arrest for opening the police vehicle door, and for failing to produce his ID. 3. The appellant was taken back to the Wagga Police station, but was not offered an interview because Senior Constable Parsons formed the view that he was affected by alcohol. The Crown submissions 1. The Crown submitted that the evidence established that Senior Constable Parsons held a belief at the time of issuing a request for the appellant's identification, that he had just committed an offence. That offence was wilfully obstructing the lawful execution of the duties of the police, pursuant to s 58 of the Crimes Act. The fact that he was not later charged with this offence, did not render the police power to request identification unlawful, pursuant to s 11 of Law Enforcement (Powers and Responsibilities) Act ("LEPRA") Further, the failure to produce identification upon request, pursuant to s 11, was an offence pursuant to s 12 of LEPRA. 2. It was submitted that if the court was not satisfied that the police had a power to request identification pursuant to s 11, that in itself did not render unlawful the arrest of the appellant. It was submitted that the appellant refused to provide his full name or identification to the police. The police, in those circumstances, had no means of issuing the appellant with a Court Attendance Notice or Summons. The only option available to them therefore, was to arrest the appellant, and police had power to do so pursuant to s 99 of LEPRA. 3. It was irrelevant whether Senior Constable Parsons had power to request identification, or whether he was correct in telling the appellant that failure to produce identification was an offence. The appellant's arrest was for opening the car door while the police vehicle was in motion, and it was a valid and lawful arrest. It was submitted that an arrest did not become illegal because some later offence is in fact charged, relying on Dearing v Passi, Supreme Court of New South Wales, unreported, 4 November 1994. 4. It was submitted that if Senior Constable Parsons had not formulated the exact Act or section which had been contravened by the appellant, that did not invalidate the arrest of the appellant. Had the appellant provided his details to the police, the entire situation could have been avoided. 5. It was further submitted by the Crown that if the police officer acted in contravention of Australian law, by advising the appellant that he was under arrest for failing to provide identification, which was not conceded, then that contravention was so minor that the evidence should be admitted on the basis that its probative value is extremely high. The police were at all times acting within the execution of their duty and the evidence of their conduct ought not be excluded. The elements of the offence pursuant to s 6 of the Summary Offences Act 1988 was made out beyond reasonable doubt. The appellant's submissions 1. Learned counsel for the appellant provided a detailed written outline. Essentially, the appellant's contentions were as follows: "Sequence 2 (i) The evidence does not establish to the criminal standard that the Appellant was ever told that he was under arrest for conduct in the nature of obstructing the police vehicle. (ii) The evidence does establish that he was told that he was being arrested for conduct in the nature of failing to produce his ID – however, as there was no valid request pursuant to s 11 of LEPRA, his arrest for non‑compliance was unlawful. Sequence 1 (iii) The evidence does not establish to the criminal standard that the act of opening the door prevented the free passage of the police vehicle. (iv) The evidence does not establish to the criminal standard that the appellant had the necessary specific intention to prevent the free passage of the police vehicle." 1. It was submitted that the Crown argument that the arrest was lawful, based on the failure of the appellant to provide his identity, pursuant to s 12, was not the basis upon which the case was argued before the Magistrate, nor was it the basis for the learned Magistrate's finding, that the appellant was guilty of resisting police as alleged in sequence 2. 2. It was submitted that the evidence could not satisfy the Court beyond reasonable doubt, that the police officers were acting in the execution of their duty. It was submitted that there was no evidentiary basis for a suspicion by the police officers based on reasonable grounds, as to an offence pursuant to s 58 of the Crimes Act, as argued by the Crown. 3. It was submitted that the Magistrate's reasons disclosed that her Honour found the appellant had been arrested for the offence of obstructing the vehicle and had been told as much. The learned Magistrate held the arrest to be justified by the failure of the appellant to provide identification. It was submitted that those findings should not have been made, based on the evidence before the learned Magistrate, to the criminal standard. 4. It was the appellant's case that the demand for identification was not a valid demand pursuant to s 11 of LEPRA. A lawful demand pursuant to that section would disclose why the identification was required and what was being asked, namely, the appellant's name and address, relying on Director of Public Prosecutions v Horwood (2009) 78 NSWLR 32, per Fullerton J at [36]. Because the demand made by Senior Constable Parsons for identification was not a valid demand pursuant to s 11, it followed that there could be no arrest on reasonable grounds for not complying with s 12 of LEPRA. It was submitted that it therefore followed that non-compliance was not a valid or true reason for the arrest, relying on Johnstone v New South Wales [2010] NSWCA 70 at [71]. 5. It was further submitted that the late arrival of police officers Baker and Doubleday, did not assist the Crown case, because even if they were acting in good faith, they were not acting in the execution of their duty if in fact they were making an unlawful arrest. 6. It was submitted, in respect of sequence 1, that the evidence did not establish that by opening the vehicle door it prevented the free passage of the police vehicle. Secondly, the evidence did not establish the specific intention required pursuant to the section, namely, to prevent a free passage of a vehicle. In respect of the required mens rea, the appellant relied on Fitzgerald v Montoya (1989) 16 NSWLR 16, where the court held that in respect of the previous legislation, which was in identical terms to s 6 of the Summary Offences Act, that the offence required intention to cause a specific result. 7. Counsel referred to s 428C of the Crimes Act and submitted that the evidence established that the appellant was substantially affected by alcohol. He was slurring his speech, and smelt of alcohol and the police would not interview him because of his intoxication. It was submitted that the court could have regard to intoxication as to whether it was his intention to impede the vehicle's free passage. Such an action was more equivocal than, for example, conduct such as standing in front of the vehicle. Therefore, it was submitted, there must be some doubt as to whether it was his purpose and intention to prevent the free passage of the vehicle. In respect of the intention required, the appellant referred to the recent High Court decision in Zaburoni v R [2016] HCA 12. 8. On sentence, it was submitted that in respect of sequence 2, where the learned Magistrate imposed both a fine of $1,000.00 and a s 9 Bond for a period of 12 months, that the appellant was entitled to rely on his previous good character. It was noted that the only prior matters were traffic offences, and the court, in the exercise of its discretion, could consider either reducing the fine or eliminating it. It was noted, however, that at the time of the offending, the appellant was on a s 10 Bond to be of good behaviour. Determination 1. Section 11 of LEPRA provides as follows: "11 Identity may be required to be disclosed (1) A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred. (2) A police officer may request a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place. 12 Failure to disclose identity A person who is requested by a police officer in accordance with section 11 to disclose his or her identity must not, without reasonable excuse, fail or refuse to comply with the request." 1. The evidence established beyond reasonable doubt that after first moving the appellant away from the police vehicle, the police vehicle drove away and within a short distance, the appellant was running alongside the vehicle and opened up the front passenger door where Constable Parsons was seated. The vehicle stopped, and Constable Parsons got out of the vehicle and asked the appellant to sit on the ground and to produce "some ID". When asked why he asked to produce some ID, the Constable said: "A: Because he'd just committed an offence in my eyes by opening up the car door – obviously quite dangerous – as we're driving off." 1. The appellant refused to produce any identification and did not sit down on the ground. He asked the police officer what he had done wrong, and the Constable Parsons told him that he had opened up the police vehicle as they were driving off. Constable Parsons then asked him for some identification again, and told him that if he did not produce it, he would have committed an offence. At that point, Constable Parsons decided to make an arrest, and when asked what his justification for that arrest was, he said: "A: Initially for committing the offence of opening up the vehicle, the police – the door to the police vehicle and then not producing the identification. Q: So what did you say to him? A: So I said words to the effect of that he was under arrest for failing to produce the ID, so then I've gone in to make the arrest and went to take him by the – sort of the arm, the upper-arm/shoulder, and then he's – that's when he's basically began to resist the arrest." 1. In cross-examination, Constable Parson denies that the appellant told him when asked for identification, "William George, that's all you need to know", and when it was put to him that he did not ask for his name, Constable Parsons said: "A: No, I don't recall if I asked for his name, but definitely asked for identification." He was then asked: "Q: You in fact told him you must produce identification or he's be committing an offence, which is wrong. You'd agree with that? A: I agree that's what I've asked him to do. Q: Do you agree that it was wrong? A: No, under the circumstances I – yeah, he'd committed an offence, I needed to prove his identity." 1. The learned Magistrate held that Constable Parsons conceded that he was confronted by an unusual type of offence, that he knew that it was an offence, namely, opening the police car door, but he told the appellant that he was obstructing the vehicle. The learned Magistrate found that Constable Parsons was entitled to ask for identification, and in circumstances where there was a refusal by an intoxicated person who had behaved most unusually, the police were entitled to arrest him on the basis of the offence he had committed. 2. The appellant argues that the arrest was unlawful on the basis that it was held in DPP v Horwood, supra, that the police officer was empowered under s 11 of LEPRA to require the defendant to provide information, expressly limited to the provision of his name and address. 3. I do not accept that submission. In the circumstances that pertained here, the police were empowered by s 11 to request the appellant to disclose his identity. There were reasonable grounds for Constable Parsons to suspect that an indictable offence had occurred, and in any event, the appellant had no reasonable excuse to refuse to comply with the request. It was therefore in breach of s 12 of LEPRA. 4. In the circumstances, the appellant was required to provide evidence of his identity and I accept the Crown submission that it is irrelevant that the appellant was not charged with the offence for which he was arrested, relying on Dearing v Passi, supra. 5. I reject the appellant's submissions that the Crown is not entitled to rely on the breach of s 12, being an offence warranting the arrest of the appellant, on the basis that that was not argued before the learned Magistrate. On a re-hearing under the Crimes (Appeal and Review) Act 2001, the court is entitled to make appropriate findings on the law that then applied. 6. I further reject the appellant's argument that the evidence could not satisfy the court that the police officers were acting in the execution of their duties. Initially, the police officers were acting out of a concern for the safety of the appellant, and in fact, removed him from the roadway when he was clearly in a state of intoxication. It was the appellant's actions in running alongside the police vehicle as it moved off and opening the front passenger door which led to the police officer asking for identification, which he was entitled to do. It was the appellant's refusal to provide that evidence which led to his arrest and subsequent offending. I am mindful that it is necessary to keep in mind that the "true reason" for an arrest has to relate to an offence or offences which the person either committed or is suspected of having committed, as held in Johnstone v State of New South Wales, supra, per Beazley JA at [71]. However, in the circumstances pertaining here where the appellant had refused to produce identification, the arrest was lawful. 7. I am further satisfied beyond reasonable doubt that the offence pursuant to s 6 of the Summary Offences Act 1988 has been made out. That section provides as follows: "6 A person shall not, without reasonable excuse (proof of which lies on the person), wilfully prevent, in any manner, the free passage of a person, vehicle or vessel in a public place." 1. The appellant has not established any reasonable excuse to bring him within the proviso in the section. It was submitted that the requisite mens rea had not been made out, and what must be shown is that the act complained of must not only have been done deliberately, but with knowledge and intention that will have the effect of preventing the free passage of the vehicle without a lawful excuse. It was submitted correctly that self-induced intoxication is relevant in determining whether or not the necessary intention exists, relying on s 428C of the Crimes Act 1900. It was established to the requisite standard that the appellant was moderately affected by alcohol here, and the learned Magistrate found that he was "reasonably intoxicated". 2. Intention may be derived from the conduct itself, all the surrounding circumstances and inferences that may be drawn therefrom. I am satisfied in all the circumstances that the appellant did have the requisite intention to wilfully prevent the free passage of the police vehicle, by pursuing the vehicle and opening the passenger side door, as the evidence established he did. 3. I am further satisfied beyond reasonable doubt that sequence 2 is made out and that the appellant is guilty of the offence of resisting an officer whilst in the execution of his duty, pursuant to s 58 of the Crimes Act 1900. Sentence 1. At the time of the offending the appellant was subject to a Bond to be of good behaviour pursuant to s 10 of the C(SP)A. The learned Magistrate sentenced him by way of a s 9 Bond to be of good behaviour for a period of 12 months, together with a fine of $1,000.00. It was submitted on the appellant's behalf that the fine could be reduced, or quashed, on the basis of his good character, notwithstanding that he had previous offences. Given the fact that the appellant was on conditional liberty at the time of the offending, the sentencing of the appellant was, in my view, within the Magistrate's discretion and reasonable in the circumstances. Orders 1. I make the following orders: 1. Appeal is dismissed. 2. Orders made by the learned Magistrate on 27 November 2015 are confirmed. ********** 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: 29 April 2016