O’Connell v Director of Public Prosecutions (NSW)

The plaintiff, Colman O’Connell, filed an amended summons on 11 November 2021 seeking leave under s 53(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”) to appeal against his convictions, imposed in the Local Court with respect to three offences.

The sole ground of appeal is that the Local Court Magistrate “erred by failing to give adequate reasons for his determination of the guilt of the plaintiff”. The plaintiff, while initially seeking to appeal as of right pursuant to s 52(1) of the CAR Act with respect to the same ground, accepted in response to the defendant’s submissions that the error alleged raises a question of mixed law and fact and thus leave was required: see Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [130]; Ange v Contos [2020] NSWSC 64 at [67]; and see more generally the discussion in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [31]ff. The defendant did not oppose leave being granted. In these circumstances, and having regard to the merits of the matter, leave should be granted.

Whilst an order was initially sought pursuant to s 55(1)(a) of the CAR Act that the convictions be set aside with no further order, at the hearing of the matter this was not pressed. Instead the plaintiff sought what had been pleaded as alternative relief, that is, an order pursuant to s 55(1)(b) setting aside the convictions and remitting the matter to the Local Court for determination.

On 25 January 2021 the plaintiff was convicted of the following offences, each of which was particularised as having occurred at 1:23 am on 8 December 2019 at Bondi Beach:

The plaintiff was sentenced to a $300 fine (seq 1); a conditional release order with conviction recorded for a period of 12 months (seq 2); and a Community Correction Order for a period of 18 months (seq 3).

As noted above, he subsequently sought leave to appeal to this Court with respect to those convictions. He does not seek to appeal against the sentences.

The evidence and submissions before the Local Court were tendered in this Court and are summarised below.

On 8 December 2019 the plaintiff attended the Beach Road Hotel in Bondi, NSW with a friend. When that venue closed between midnight and 1am a security guard, Mr Abdelhamid, asked the plaintiff, his friend, and the other patrons (who were at this time already outside) to move up the street so as not to bother the neighbours. The plaintiff and his friend were about “40 or 50” metres away from the premises when they stopped moving in accordance with Mr Abdelhamid’s directions. They subsequently returned to the front of the premises and were, on Mr Abdelhamid’s evidence, being “aggressive” and refusing to move along. He believed the plaintiff and his friend were then told to leave the front of the premises. A staff member at the Beach Road Hotel called police who attended the premises.

Sgt Peter Wilkes arrived at the Beach Road Hotel and observed a group of security guards standing with two men. He spoke to the hotel licensee who told him that a group of men had left the hotel after being asked but then returned and attempted to re-enter.

Sgt Wilkes observed one of the males to “aggressively lash out” at security while yelling. He approached the male and announced his name and rank. The plaintiff asked Sgt Wilkes why he was being arrested and Sgt Wilkes said words to the effect that he was not being arrested. The plaintiff then allegedly became “physical” towards Sgt Wilkes and was placed under arrest for “failing to quit”. A scuffle ensued in which the plaintiff was pushed to the ground and handcuffed. The plaintiff’s arrest was captured on the body-worn cameras of Sgt Wilkes and Constable Starr.

The plaintiff’s case was that the arrest was not a lawful arrest in accordance with s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). It was thus submitted that sequences 2 and 3 could not be established as the prosecution could not prove beyond reasonable doubt that the officers were acting in the lawful execution of their duty. In the alternative the plaintiff relied on inconsistencies between the police officers’ accounts and the contents of the body-worn camera footage. In relation to sequence 1, it was submitted there was a reasonable doubt as to whether the elements of the offence were established.

Constable Starr said that upon arriving at the hotel he observed two males speaking to Sgt Wilkes and said they were “raising their voice[s] … and pacing back and forth near his vicinity”. He said that he observed the plaintiff to “shout at [Sgt Wilkes] and take a step forward towards him and then just pace around his personal space”. Constable Starr said that the plaintiff was “consistently flailing his hands around” and it was for that reason that he “felt that [Sgt Wilkes’] safety was in danger” and he ran over to assist. He said he saw Sgt Wilkes attempt to restrain the plaintiff’s arm to handcuff him and because he “observed the [plaintiff] push [Sgt Wilkes] with his arm”, he “attempted to restrain the [plaintiff]” with both his arms. The plaintiff was then said to have “push[ed] up against” Constable Starr in an attempt to break free, leading Constable Starr to push the plaintiff into a garden bed. Constable Starr stated that it was when the plaintiff was in the garden bed that the plaintiff “used his right leg to kick [Constable Starr’s] leg”. He described the kick as “a donkey kick where he kicked back”. Constable Starr said that the plaintiff’s heel made contact with his shin causing “immediate pain and slight bruising later on”. He did not take any photographs of this bruising.

In cross-examination Constable Starr was shown the body-worn camera footage from Sgt Wilkes. He confirmed that at the time of the events, he did not hear Sgt Wilkes tell the plaintiff that he was not under arrest. He was shown his original statement in which he described the plaintiff resisting Sgt Wilkes as Sgt Wilkes escorted him to a nearby vehicle. The statement went on to say that Constable Starr then also attempted to escort the plaintiff to a nearby vehicle whereupon the plaintiff further resisted and he pushed the plaintiff to the ground to handcuff him. He acknowledged that he did not put anywhere in his original statement that the plaintiff had pushed Sgt Wilkes’ arm and he agreed that it was important to accurately record events soon after they occurred.

Constable Laguzza gave evidence that the plaintiff was “very, very hyped up, aggressive” and that his “arms were going all in the air, like, his body language … his arms were coming too close to our duty officer.” She stated that she heard an officer tell the plaintiff to “move on” at which time “he’d obviously committed an offence because he was still staying there”.

Constable Laguzza recalled that there was “a bit of a scuffle” and that the plaintiff “like, kicked him – kicked Constable Starr and then I remember both of them falling towards the ground and then they were on the ground”.

Constable Drinias said that he saw the plaintiff and Sgt Wilkes “pretty much face to face and a bit of yelling from the [plaintiff] and Constable Starr was on top of the [plaintiff]”. The plaintiff was then pushed into a garden bed to be handcuffed as he did not give his arms freely.

Sgt Wilkes recalled attending the hotel and speaking to the licensee before going to speak to the two males. He said that he “saw one of the males become aggressive towards security” so he “walked up to speak with him and move him away”. He stated that the plaintiff “lashed out towards one of the security guards” and elaborated on this by saying he “[s]ort of pushed out, like, it looked like he was going to try to fight them”. He went on to say that the plaintiff “looked like … he was becoming argumentative, quarrelsome and increasingly violent” and that he saw the plaintiff “[strike] out with his right hand and appeared to try and strike one of the [security] guards”.

Sgt Wilkes said that he “took hold of him to move him away” and the plaintiff “lashed out at [him]”. He later described the movement as “he sort of scuffled and pushed out against me”. Sgt Wilkes then decided to arrest the plaintiff for failing to quit the premises.

Sgt Wilkes was shown the footage from his body-worn camera. He agreed that in the space of about five seconds the situation escalated from the plaintiff not being under arrest to the plaintiff being handcuffed. He said that he did not consider any options other than arrest in that time frame because “there possibly could have been other offences committed” and he believed arresting the plaintiff was the most appropriate course of action.

The body-worn camera footage from Constable Starr and Sgt Wilkes was tendered and, as noted above, the officers were cross-examined on it. That footage is at times unclear and it is difficult to discern all of what occurred. To the extent that matters can be discerned it appears that after speaking with the licensee, Sgt Wilkes approached the plaintiff and the plaintiff asked, “What are you arresting me for?”. Sgt Wilkes said, “No, I’m not. What’s your name?”. The plaintiff’s friend then approached Sgt Wilkes and stood very close to him, causing Sgt Wilkes to push him away with one hand. Constable Starr then approached the trio and grabbed the plaintiff’s right arm. Sgt Wilkes then said, “You’re under arrest for fail to quit”. A physical scuffle then appeared to ensue, following which the plaintiff is seen lying on the ground with his hands up. He is then pulled up and, after some resistance, handcuffed and taken to a nearby vehicle.

The plaintiff sought to have the evidence obtained as a result of his arrest excluded pursuant to s 138 of the Evidence Act 1995 (NSW) on the basis that it was unlawfully obtained. Evidence of the prosecution witnesses was taken on the voir dire. The Magistrate found that the plaintiff’s arrest was lawful and the evidence was therefore admissible. The evidence taken on the voir dire was then admitted in the hearing proper without any further evidence being called and submissions were made.

In relation to count 1, the plaintiff argued that the “the direction to refuse admission” was given at a time after the plaintiff had left the venue. It was submitted that “no reference or observation [was] made to [the plaintiff] being intoxicated, violent, quarrelsome or disorderly, as set out in the offence provision”. This was a reference to s 77(2)(a) of the Liquor Act which provides that one of the various bases upon which a person may be refused admission to or turned out of a licensed premises by an authorised person is that the person is “at the time intoxicated, violent, quarrelsome or disorderly”. Implicit in this submission was that the plaintiff had not been refused admission or turned out of the premises within s 77(2), and, this being an element of the offence in s 77(8), as reflected in the form of the charge, the offence was not made out. I note at this point, it does not appear prosecution was asked to elect as to whether the plaintiff was “refused admission to” or “turned out of” the licensed premises.

It was also submitted that when Mr Abdelhamid told the plaintiff and his friend to move along he recalled that they were “maybe 40 metres, maybe 50 metres away from the venue”. This appears to have been a submission to the effect that the Magistrate could not be satisfied beyond reasonable doubt the plaintiff was in the vicinity of the licensed premises, which is defined in s 77(1) of the Liquor Act as within 50 metres of the premises, at least at that time. It is not, however, clear whether the prosecution case was based on his remaining in the vicinity at that particular time.

The plaintiff accepted that there was evidence he returned to the venue and was again directed to leave. In this respect the plaintiff may have been dealing with a separate and distinct factual basis in the evidence on which the offence might be made out, possibly based on a refusal of entry at this point, although it is not clear from the evidence of Mr Abdelhamid that the plaintiff sought to enter at this time. If this was the case, there was, arguably, duplicity in the charge and the prosecution ought to have been required to elect: see Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77 (a decision which is also factually apposite in the present context, insofar as it relates to persons leaving licensed premises). It is not appropriate to reach any final view as to this, given it was not the subject of argument either below or in this Court.

It was submitted that the evidence did not establish who asked the plaintiff to leave. It was submitted that given any evidence of such a direction was hearsay, it was “inherently unreliable”. The submission appears to have been that in these circumstances the Magistrate could not be satisfied the plaintiff was a person who had remained in the vicinity after he was “refused admission to, or turned out of, licensed premises” and the offence against s 77(8) of the Liquor Act was therefore not established.

In this regard I pause to note that the security guard gave evidence that the plaintiff had failed to comply with a direction to move along “from the vicinity of the venue”, however the plaintiff was not charged with breaching such a direction. Insofar as Mr Abdelhamid referred to patrons leaving at an earlier time, his evidence was very general, to the effect that the hotel had closed about 20 to 30 minutes earlier than the usual closing time of 1:00 am and that he was at that time involved with “moving off the patrons up the road”. That evidence did not establish that the plaintiff had been refused admission to or turned out of the premises. There was some hearsay evidence given by Sgt Wilkes of what he was told by the licensee. It is not clear from the evidence of Sgt Wilkes if this was first-hand or more remote hearsay or how he identified the plaintiff as one of the males that had been asked to leave but returned.

In relation to counts 2 and 3 the plaintiff submitted that the evidence of Officers Wilkes and Starr was “only partially corroborated by other police witnesses and to some degree [stood] in conflict with the body-worn camera footage”. It was submitted that Sgt Wilkes’ evidence did not establish a reasonable suspicion in relation to the failure to quit offence. The plaintiff’s solicitor then said:

In relation to Constable Starr’s evidence that as he walked up to the plaintiff, he observed him to be “violent and quarrelsome” towards security, the plaintiff’s solicitor noted that:

In relation to the description of the plaintiff assaulting Constable Starr while being arrested, it was submitted that:

Finally, the plaintiff submitted that the Court should “place paramount consideration on the body-worn camera footage”. It was also noted that many civilian witnesses were present who were not called. A “Mahmood direction” was requested in relation to those witnesses (Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1). It was submitted that:

As noted above, the sole ground of appeal relates to the adequacy of his Honour’s reasons.

The Magistrate provided reasons on 25 January 2021. He summarised in some detail the evidence of the police officers and noted that the body-worn footage was played and became exhibits 1 and 2. The questions asked in cross-examination about the footage and the officers’ answers were described.

His Honour, having recounted the evidence, noted that the plaintiff did not call any evidence and submissions were made by both parties. His Honour correctly directed himself as to the onus and burden of proof. He then concluded his reasons as follows:

The plaintiff submitted, and the defendant accepted, that the above passage constituted the totality of the learned Magistrate’s analysis (as opposed to recounting) of the evidence. It was submitted the reasons are deficient in various respects including a failure to deal with the plaintiff’s submissions based on the video evidence. The defendant, however, contended that the Magistrate had clearly seen the video evidence, referred to it in the context of the cross-examination of the witnesses, and may be inferred to have understood and rejected the plaintiff’s submissions based on it. It was submitted that this was inherent in the acceptance of the police witnesses. It was submitted this inference could more easily be drawn as the footage was of poor quality and did not clearly depict the precise actions of the plaintiff and the police witnesses at critical times. Given this, the defendant submitted there was a sound basis for rejecting the plaintiff’s arguments with respect to counts 2 and 3, as those arguments were premised on the assumption that that the video footage was inconsistent with the evidence of the police officers when this was not the case.

With respect to count 1 the defendant submitted that the recounting of the evidence of the security guard, Mr Abdelhamid, demonstrated an acceptance of his evidence and, implicitly, a rejection of the plaintiff’s arguments with respect to that count.

In Wainohu v State of New South Wales (2011) 243 CLR 181; [2011] HCA 24, French CJ and Kiefel J observed at [54] that the “centrality to the judicial function, of a public explanation of reasons for final decisions and important interlocutory rulings has long been recognised”, referring to Broom’s Constitutional Law, published in 1866. Insufficiency of reasons where it involves a failure to properly record the evidence, the decision arrived at and the reasons for arriving at that decision may amount to a failure to exercise the relevant jurisdiction, or in the case of a failure to examine all of the material relevant to the issue and record the steps taken in arriving at the result, an error in the process of fact finding: see Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 per Hayne J at [129]-[130].

The Court was assisted by the absence of any dispute between the parties as to the principles to be applied. These principles were very helpfully distilled by the plaintiff, by reference to the reasons of McColl JA in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 (“Pollard”) at [56]-[66]:

While all of the above observations are presently relevant, a number have a particular resonance in this case. In the present matter it must be remembered, the plaintiff did not produce any evidence in his own case. In a criminal context this is not unusual. His “case” was that the prosecution evidence was insufficient to prove the allegations to the requisite standard. Closely aligned with this submission, in the circumstances of the prosecution case on counts 2 and 3, was the submission that the learned Magistrate would not accept, to the requisite standard, critical aspects of the key police witnesses. The primary evidence available to the plaintiff in support of that submission was the body-worn camera footage. That footage was, therefore, on a practical analysis of the matter, the key plank in the plaintiff’s “case” (or perhaps more accurately, argument).

Consistent with the above, in commencing his submissions on the facts, the plaintiff’s solicitor observed that “the evidence of Officers [Wilkes and Starr] … is only partially corroborated by other police witnesses and to some degree does stand in conflict with the body-worn camera footage”. The plaintiff’s representative pointed out that the footage established that the plaintiff spoke to Sgt Wilkes, who told him (in response to the plaintiff’s enquiry as to what he was being arrested for) that he was not under arrest. It was submitted that the prosecution case did not make sense in that, “considered rationally” it was unlikely that the plaintiff would become aggressive and violent upon being informed he was not under arrest. In other words, the video footage suggested events did not unfold as suggested by the police witnesses. This submission had, to my mind, some logical force (although that does not mean the Magistrate was obliged to accept it).

Further submissions were made that an aspect of Constable Starr’s asserted observations as recorded on the audio on the footage, were, when held up to video footage simply “not true”. Submissions were made based on events that could be seen in the video. Submissions were made as to “an example of inconsistency with the body-worn camera footage” and with respect to another part of the evidence “the footage would speak for itself”. It was submitted it was not possible to negative self-defence beyond reasonable doubt, with the plaintiff’s solicitor stating, “[i]t’s significant on the footage before the Court”. Ultimately the submission was made that the Magistrate should “place paramount consideration on the body-worn camera footage”.

The learned Magistrate’s reasons did not, with respect, grapple with these submissions. Having regard to “the particular case under consideration and the matters in issue” (Pollard at [58]) it was, in my view, incumbent on his Honour to say something as to why the matters pointed to by the plaintiff’s solicitor in the video footage did not raise a reasonable doubt. While it might be true that the footage was not necessarily inconsistent with the police evidence this must be seen in the context of the onus and burden of proof. The plaintiff was not required to show that it was directly inconsistent and that the police could therefore not be believed. Rather, it was enough if the footage was sufficient to raise a reasonable doubt. In these circumstances it was “essential to expose the reasons” the footage did not create such a doubt, it being “a point critical to the contest between the parties” (Pollard at [58]). The failure to do so meant the reasons did not “do justice to the issues posed” by the plaintiff’s case (Pollard at [59]). It is not possible for the plaintiff to “identify the basis” on which his arguments were rejected (Pollard at [59]). If it was the case that the Magistrate did not regard the footage as “conflicting evidence of a significant nature” (Pollard at [62]), then, given the plaintiff’s case, it was necessary to explain why this was so (see also Pollard at [63]). Ultimately his Honour’s findings were, as submitted by the plaintiff, in the nature of “[b]ald conclusionary statements” (Pollard at [64]) with the result that there was no analysis undertaken of evidence competing with the evidence that was accepted such that, in my view the process of fact-finding miscarried (see Pollard at [66]).

The video footage was not directly relevant to count 1. Distinct submissions, not reliant on the video footage, were made with respect to this count. These have been set out above at [22]-[26]. As also set out above, the only thing said in relation to this count, after his Honour’s recounting of the evidence and the principles of law to be applied was:

This amounted to no more than a further recounting of the evidence. Clearly his Honour was prepared to accept that evidence. But it is not clear what “direction” his Honour was referring to. If it was a direction from Mr Abdelhamid that the plaintiff had to “move along” this was not sufficient to establish the charge. It was necessary to prove that the plaintiff was a person who had been “refused admission to, or turned out of, licensed premises” in accordance with s 77 of the Liquor Act. The reasons did not deal with this element at all, let alone the plaintiff’s submission that there was some unreliability with respect to the evidence of this element. For reasons largely similar to those with respect to counts 2 and 3, while not based on any submission as to conflicting evidence, the reasons of the Magistrate failed to adequately come to terms with the plaintiff’s case on count 1.

In coming to my conclusion with respect to this matter I am mindful of the significant burden placed on Magistrates by virtue of the volume of work in the Local Court. So too am I mindful of giving due allowance for the resulting pressures and the consequent need to avoid picking over the reasons for judgment with an unduly critical eye: see Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]-[18]. Nonetheless, having regard to the issues in this case I am of the view his Honour’s reasons were inadequate. This involved an error of law: Inghams Enterprises Pty Ltd v Lakovska [2014] NSWCA 194 at [2] per Basten JA. The orders sought should be granted and the appeal allowed.

The plaintiff’s success on his appeal should not be seen as a success in circumstances where the tribunal of fact was satisfied of his guilt beyond reasonable doubt, and therefore a success on a “technical” ground, quite removed from the substantive merits of the case. While made in a different context (that of trial on indictment by judge alone), the observations of Heydon J in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, are nonetheless apposite. There his Honour observed at [108] that the discipline of giving reasons serves:

It cannot, therefore, be assumed the result would have been the same had the learned Magistrate dealt with the arguments advanced by the plaintiff before him.

I note that no order was sought as to costs.

I make the following orders: