Roberts v Marks

1. [1]

   HIS HONOUR: The plaintiff, David Roberts, by summons filed on 6 May 2019, seeks orders pursuant to s 55(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CARA”), to set aside his conviction in the Local Court at Gosford on 8 April 2019 of resisting or hindering police contrary to s 546C of the Crimes Act 1900 (NSW) and failing to comply with a direction, contrary to s 199(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), and to have the matter remitted to the Local Court to be dealt with according to law. Alternatively, he seeks an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW), quashing the decision and remitting the matter to the Local Court to be dealt with according to law. The defendants are the informant, Senior Constable Hayley Marks (“the first defendant”) and the Local Court of New South Wales (“the second defendant”).

2. [2]

   The orders sought by the plaintiff in his summons are as follows:

3. [3]

   The plaintiff and first defendant have agreed a resolution of the proceedings on the basis that the Court makes orders remitting the matters as sought pursuant to s 55(1)(b) of the CARA, that the two charges be remitted to the Local Court at Gosford to be dealt with according to law by a different magistrate, that no order is made as to costs between the plaintiff and first defendant and that the second defendant pay the plaintiff’s costs.

4. [4]

   As the proceedings involve a statutory appeal in criminal proceedings, the Court is obliged to be satisfied that there is an error such as to require remittal of the matter and, if so, to give reasons explaining why the orders sought by the plaintiff will be made, albeit in a shorter form: see Director of Public Prosecutions (NSW) v Merhi [2019] NSWSC 1068 at [3]-[4].

5. [5]

   The evidence heard in the Local Court as to the circumstances surrounding the alleged offences may be relevantly summarised as follows.

6. [6]

   On 8 October 2018 at Woy Woy, at about 4pm, Ms Nadia Gray crashed her motor vehicle into a fence in the car park of the Woy Woy Bottle Shop. She gave evidence that the plaintiff approached her and said, “I’m going to call the police”, “You shouldn’t be driving” and “You should be off the road”. Senior Constables Duck and Marks attended the scene. Senior Constable Duck gave evidence that he spoke to the plaintiff and concluded that he was offering opinions rather than an eyewitness account. He formed the view that the plaintiff was affected by alcohol and told him “to go away”, saying “Mate, you’re basically hindering me in my investigation”. He gave his name, rank and station and said, “I’m giving you an official move on direction … If you fail to comply with this direction you may be committing an offence”. The plaintiff moved away, but returned 20 minutes later, again wanting to talk to Senior Constable Duck. He was warned:

7. [7]

   Senior Constable Duck said that the plaintiff said, “I’ve got to get my bike”, but did not leave, so he arrested him, taking hold of the plaintiff’s arm. The plaintiff started to pull away, so Senior Constable Duck put him in a hold that had the effect of causing him to hit his head on the ground. The plaintiff was bleeding from his face, so an ambulance was called. The plaintiff declined to go to hospital and Senior Constable Duck said to him, “If you’re refusing to go [to] a hospital, I now am giving you another direction to leave”. He then discontinued the arrest and the plaintiff left.

8. [8]

   In cross-examination, Senior Constable Duck said his intention in arresting the plaintiff was “to take him back to the police station, identify him, discontinue the arrest and send him out a future Court attendance notice”.

9. [9]

   Senior Constable Marks gave brief evidence corroborating that of Senior Constable Duck, which completed the prosecution evidence.

10. [10]

    At the outset of the hearing, the prosecutor and counsel for the defence had informed the magistrate that the “issue is going to be around the lawfulness of the arrest”. By agreement, the evidence in the prosecution case was led as evidence on the voir dire. Following the completion of the prosecution evidence, counsel for the defence submitted that there was no prima facie case in relation to the charges, because the arrest was unlawful pursuant to s 99(3) of the LEPRA.

11. [11]

    Sections 99 and 105 of the LEPRA are in the following terms:

12. [12]

    The plaintiff’s counsel submitted to the learned magistrate that on Senior Constable Duck’s evidence, at the time he purported to arrest the plaintiff, he did not intend to charge him and take him before a justice or bail officer to be dealt with according to law, contrary to s 99(3) of the LEPRA. Section 99 of the LEPRA and the legitimate purpose of the power of arrest was considered in Robinson v State of New South Wales [2018] NSWCA 231, with the majority (Basten and McColl JJA, Emmett AJA dissenting) determining that it was to be deployed for the purpose of bringing the suspect before a justice. Basten JA said, at [136]:

13. [13]

    The magistrate appeared to either not understand or ignore the submission, responding by reference to Senior Constable Duck’s evidence:

14. [14]

    The plaintiff’s counsel offered to hand up a copy of Robinson v State of New South Wales, but the offer was declined, the magistrate observing, “I am not interested for the reason that there is nothing unlawful about what has occurred here on the evidence”. Later, the magistrate said, “There is nothing unlawful about the way in which your client has been treated”.

15. [15]

    The magistrate concluded:

16. [16]

    It may be that the magistrate did not intend what he said; he had earlier indicated that he would be entitled to rely on the evidence of the senior constables “at the prima facie level”. The Court’s function in determining whether there is a prima facie case is only to determine whether there is sufficient evidence of each of the elements of the offences capable of proving them beyond reasonable doubt; it is not to consider whether the offences are proven: see Regina v XHR [2012] NSWCCA 247 per Beazley JA (Hall and S G Campbell JJ agreeing), at [11]-[18]. However, it is clear that the learned magistrate did not consider or respond to the submission put to him on the lawfulness of the plaintiff’s arrest.

17. [17]

    Immediately following the magistrate’s rejection of the no case submission, the case for the defendant was presented, which was exclusively the evidence of the plaintiff. He said that when he first approached Senior Constable Duck, he was told, “I don’t need your opinion, mate. I’ve done hundreds of these … You’re not helping me”, so he left. The second time he approached Senior Constable Duck, the Constable seemed agitated and said, “I don’t want your opinion” and, as the plaintiff recalled hearing it, “You’re trespass [sic] for 24 hours or you’ll be arrested”. The plaintiff said he “got a bit of a shock” and said, “I’ve got to go and get my bike”, but before he could do so, the constable grabbed him by his arm and:

18. [18]

    According to the transcript, following the plaintiff’s evidence, “Prosecutor and counsel addressed”. It is not disputed that in fact the prosecution did not address the learned magistrate. Counsel for the plaintiff addressed the magistrate, who immediately gave his judgment, which was, to say the least, succinct, comprising in its entirety a paragraph of the transcript, as follows:

19. [19]

    In Director of Public Prosecutions (NSW) v Merhi, Johnson J said, at [31]:

20. [20]

    These observations are as appropriate to the learned magistrate’s function on determining the “no prima facie case” submission at the close of the evidence for the prosecution, as they are to his final determination. It is apparent from the terms of that determination that he was feeling the pressures of a busy Court. The plaintiff was nevertheless entitled to have the criminal case against him heard and determined according to law.

Conclusion

1. [21]

   I am satisfied that it is appropriate to remit the matter to the Local Court to be dealt with by a different magistrate according to law.

2. [22]

   Accordingly, I make the following orders: