JH v R

1. [1]

   The appellant, JH, appeals to the Supreme Court against a finding by Judge Johnstone, President of the Children’s Court, that he had resisted police in the execution of their duty contrary to s 546C of the Crimes Act 1900 (NSW). His Honour found the offence proven but did not proceed to convict the appellant. Rather he placed him on a bond under s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW).

2. [2]

   Although the prosecution in the Children’s Court was conducted by a police prosecutor, a section 9 notice was filed under the Director of Public Prosecutions Act 1986 (NSW) and the DPP took over the carriage of this matter.

3. [3]

   JH was 16 years old at the time of the offence and was referred to as “the young person” in the Children’s Court. I propose to refer to him in the same manner in these reasons unless the context requires otherwise.

4. [4]

   The usual avenue of appeal to this Court from the Local Court is under either s 52 or s 53 of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”). Section 52 of the CAR Act relevantly provides that any person who has been convicted by the Local Court may appeal to the Supreme Court against the conviction “but only on a ground that involves a question of law alone”. Section 53 of the CAR Act relevantly provides that any person who has been convicted by the Local Court may appeal to the Supreme Court against the conviction on a ground that involves either a question of fact, or a question of mixed law and fact, but only by leave of the Court.

5. [5]

   The Children’s Court is deemed to be included in the definition of “Local Court” for the purpose of the CAR Act: s 3(1).

6. [6]

   The young person does not bring this appeal under either s 52 or s 53 of the CAR Act. Rather, the appeal is brought under Part 3 of the CAR Act which concerns appeals from the Local Court to the District Court. Section 11 of the CAR Act provides that any person who has been convicted by the Local Court may appeal to the District Court against the conviction. Section 18 provides that such appeals are to be by way of rehearing on the evidence. Section 18 is in these terms:

7. [7]

   Section 19(1)(2) of the CAR Act provides:

8. [8]

   Section 20(1) of the CAR Act provides:

9. [9]

   The young person is unable to bring his appeal to the District Court as the decision appealed against is that of the President of the Children’s Court. A person is qualified to be appointed as the President only if the person holds office as a Judge of the District Court: Children’s Court Act s 6A(2). Judge Johnstone holds such office. It follows that an appeal from the President of the Children’s Court cannot be made to the District Court and instead lies to this Court. The statutory basis for that is as follows.

10. [10]

    Section 22A of the Children’s Court Act 1987 (NSW) provides:

11. [11]

    Rule 6(1) of the Children’s Court Regulation 2014 (NSW) provides:

12. [12]

    Accordingly, this appeal is to be heard in the Supreme Court.

13. [13]

    Another relevant statutory provision to note is s 3(2)(a) of the CAR Act which provides that the word “conviction” in relation to appeals from the Children‘s Court encompasses findings of guilt.

Factual background

1. [14]

   The evidence adduced in the Local Court was of narrow compass and was largely not in dispute.

2. [15]

   The young person did not dispute that he had resisted the police officers in the execution of their duty. The only element of the offence in dispute was that the police officers were in the execution of their duty at the relevant time. That is, it was the young person’s case that the arrest of him was unlawful.

3. [16]

   The prosecution relied upon the evidence of Leading Senior Constable Ryan Dare and Constable Zoe Barrett. Their police statements were tendered and they were cross-examined. This evidence can be summarised as follows.

4. [17]

   At about 11:25 pm on Saturday, 2 December 2017 Senior Constable Dare and Constable Barrett were patrolling the area of the Corso in Manly when they saw the young person leaving a hotel and walking about 10 metres away from it.

5. [18]

   The evidence as to the identification of the offender by the police officers was as follows.

6. [19]

   In his police statement Senior Constable Dare stated, “I saw a male who I believed was [JH]”.

7. [20]

   In his evidence in the Children’s Court he clarified this evidence and stated the following:

8. [21]

   When he was later asked if he was aware of JH’s age (JH was 16 years old at the time) Senior Constable Dare replied:

9. [22]

   Constable Barrett stated in her police statement that when she saw the young person she “believed [him] to be [JH]” and she said to Senior Constable Dare:

10. [23]

    Constable Barrett was asked about whether she thought that the young person may have had a curfew at that time to which she responded:

11. [24]

    In his police statement Senior Constable Dare stated, “I believed he had current bail conditions”. He then stated that “as I began walking towards him I saw him light a cigarette up”. He went on to state, “I approached [JH] with the intention of speaking to him about the offence he had committed in regards to smoking on The Corso and also to check on his bail conditions”.

12. [25]

    It was common ground that the Manly Corso is a smoke-free area. Council signs in the area provide that smoking cigarettes is not permitted in that area. The offence of acting contrary to notices erected by councils carries a maximum penalty of 10 penalty units: Local Government Act 1993 (NSW) s 632(1).

13. [26]

    When Senior Constable Dare was re-examined in the Children’s Court he was asked why he had not approached the number of other persons smoking cigarettes in the Corso and replied:

14. [27]

    Once the two police officers approached the young person the following exchange occurred:

15. [28]

    Senior Constable Dare described the young person as constantly moving around the place and becoming agitated and that he was using an aggressive tone. Senior Constable Dare then asked him to prove that he was Timothy Ovenden by showing him his identification. The young person then gave him a drivers’ licence in the name of Timothy Ovenden. There was no issue taken but that the person depicted in that license was not the young person. The following final exchange then took place:

16. [29]

    Constable Barrett gave a similar account of this conversation in her statement. The only difference being that she described Senior Constable Dare as simply saying to the young person “you are under arrest”. She adhered to that evidence in the Children’s Court and then the following exchange took place in cross-examination:

17. [30]

    The police prosecutor asked Senior Constable Dare some questions in his examination-in-chief. Significantly, he asked the following question and received the following answer:

18. [31]

    After his cross-examination Senior Constable Dare was re-examined at some length. He was asked by the prosecutor why he had arrested the young person and he said:

19. [32]

    He was later asked in re-examination asked about his search of the young person after he was arrested and he provided the following answer:

20. [33]

    In her police statement Constable Barrett stated that after a support person came to collect the young person from Manly Police Station she said to the young person:

21. [34]

    Although this explanation by Constable Barrett as to her intention cannot be attributed to Senior Constable Dare’s state of mind, it is consistent with Senior Constable Dare’s reason for approaching the young person in the first place. As for the evidence as to why police required identification from young person, Senior Constable Dare gave the following answers in cross-examination in relation to his demand for identification before the young person was arrested:

22. [35]

    Senior Constable Dare was also asked why he did not simply ask the young person his name before he required him to produce identification and he replied that “occasionally people lie to us”.

23. [36]

    After he was arrested the young person was handcuffed and told that he would be taken to Manly Police Station so police could work out who he was. As the two police officers walked him along the Corso, Senior Constable Dare was holding his right arm and Constable Barrett was holding his left arm. About 10 metres from where they commenced walking, the young person suddenly wrenched his arm from Constable Dare’s grasp and threw both his arms towards Constable Barrett’s head. Constable Dare grabbed him and took them to the ground in an effort to control him. The young person was moving all over the place and Constable Dare was on top of them trying to hold him down. After about 10 seconds the young person calmed down and was assisted back to his feet.

24. [37]

    After walking another five metres, the young person again wrenched Constable Dare’s arm and violently twisted his body around and he was again taken to the ground. At that stage assistance was called for by radio. After about 15 seconds the two officers were able to get the young person under control again but after they started walking he again wrestled his arms from their grasp and started shouting at them and was taken to the ground yet again. He kicked his legs and struggled until he was placed in a nearby cage truck. Senior Constable Dare had some minor cuts on his right hand as a result of the wrestle. There was no dispute that these events occurred.

25. [38]

    The evidence before the court was that the young person was not on bail at the time.

26. [39]

    Section 546C of the Crimes Act 1900 (NSW) provides:

27. [40]

    The Court Attendance Notice (“CAN”) was in these terms:

28. [41]

    No issue was taken on behalf of the young person as to the inclusion of both of the police officers in the same CAN.

Primary judgment

1. [42]

   In Charara v R [2006] NSWCCA 244 Mason P with whom Kirby and Hoeben JJ agreed) observed at [23]–[24]:

2. [43]

   Consistent with this approach, I have read the reasons of the President for his decision. His Honour noted the submission made on behalf of the young person that the police were not acting in the exercise of their duty at the time of the arrest and in rejecting that submission made the following findings:

Nature of the appeal

1. [44]

   In Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Gaudron, McHugh, Gummow and Hayne JJ held at [23]:

2. [45]

   In Gionoutsis v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137 McClellan CJ at CL confirmed that an appeal “by way of rehearing” provided by s 18 of the CAR Act does not involve a hearing de novo. At [31] his Honour explained:

3. [46]

   At [39] his Honour held:

4. [47]

   In Charara v R Mason P (with whom Kirby and Hoeben JJ agreed) held at [17]–[22] that the judge on appeal is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record.

5. [48]

   In AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 Basten JA expressed disagreement with McClellan CJ at CL’s statement in Gionoutsis v Glykis extracted above. His Honour held the statement is not consistent with authorities suggesting that appellants must demonstrate some legal, factual or discretionary error for the appeal to succeed.

6. [49]

   As was pointed out by counsel for the young person, the argument as to whether some error needs to be established is an arid one in this matter as the basis for the appeal against Judge Johnstone’s finding was that his Honour erred in finding that police were acting in the execution of the their duty at the relevant time.

Other relevant legislation

1. [50]

   Section 19 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) provides police with the power to request proof of identity. It is in these terms:

2. [51]

   Section 99(1) of LEPRA is in these terms:

3. [52]

   Section 201(1) of LEPRA provides:

4. [53]

   The power to arrest a person is a relevant power to which that Part 15 of LEPRA applies.

5. [54]

   Section 77(1) of the Bail Act 2013 (NSW) provides:

Consideration

1. [55]

   There was no dispute as to the relevant law governing the power for police to arrest without a warrant. Section 99(1)(b)(iii) of LEPRA provides that a police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and the police officer is satisfied that the arrest is “reasonably necessary” to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false.

2. [56]

   In NSW v Randall [2017] NSWCA 88 Basten JA observed at [10] that under LEPRA the validity of an arrest without warrant turns on the satisfaction of three criteria. First, the officer must suspect on reasonable grounds that the person is committing or has committed an offence. Secondly, the officer must be satisfied that it is “reasonably necessary” to arrest the person for any one of the matters outlined in 99(1)(b) of LEPRA. Thirdly, s 202 of LEPRA requires that a person arrested be informed of the reason for the arrest.

3. [57]

   His Honour went on at [13] to state (footnotes omitted):

4. [58]

   More recently in Robinson v State of New South Wales [2018] NSWCA 231 (“Robinson”) McColl JA (with whom Basten JA agreed, Emmett AJA in dissent) held that the power to arrest exists for the purpose of bringing the person arrested before a justice as soon as reasonably practicable. It was held that if there has not been a decision made as to whether to charge a person at the time of arrest then the arrest has not been made for the purpose of commencing the criminal process and is unlawful. McColl JA observed the following in obiter remarks at [70]: “… the s 99(1)(b)(iii) power enabling inquiries to be made to establish a person’s identity is arguably only necessary to obtain that information if it is proposed that the arrested be charged” (emphasis added).

5. [59]

   The young person contended both in the Children’s Court and on appeal to this court that his arrest was unlawful but in this court he took a different approach as to why the arrest was said to be unlawful. The three reasons for contending the arrest was unlawful in the Children’s Court were: first, that it was not “reasonably necessary” to arrest the young person to establish his identity as the officers already knew who he was; second, the only power to make a request for identity is in s 19 of LEPRA which only pertains to indictable offences; and third, that it was not “reasonably necessary” to arrest the young person as they could have ascertained his identity by other means.

6. [60]

   In this court the young person embraced the evidence that the police officers expressed doubt as to the young person’s identity. It was contended in this court that the arrest was unlawful because it was for the purpose of obtaining the young person’s identity to check whether he was in breach of any bail conditions rather than to charge him with smoking cigarette on the Corso and no decision had been made at that stage as to whether to charge him with smoking the cigarette.

7. [61]

   The transcript discloses that it was not squarely suggested to Senior Constable Dare in the Children’s Court that the reason for the arrest was to verify the young person’s identity for the purposes of a bail check, rather than for issuing a CAN for smoking a cigarette on the Corso. It will no doubt often be the case that an appellant may run a different argument in the District Court on an appeal under s 18 of the CAR Act to that which was run in the Local Court. I can find nothing in the terms of Part 3 of the CAR Act, nor the principles derived from decisions concerning such appeals, that would preclude such a course being taken per se but questions of procedural fairness may often arise. In appropriate cases it may be necessary for the appellant or the prosecution to seek leave to call further evidence to meet any new arguments raised on appeal. Section 18(2) of the CAR Act provides that the Court may grant leave for fresh evidence to be given at such an appeal but only if the Court is “satisfied that it is in the interests of justice that the fresh evidence be given”. In some cases an appellant may be precluded from raising a new argument on the appeal which is not able to be addressed on the Local Court evidence unless application has been made to adduce such necessary evidence on appeal.

8. [62]

   The young person’s submissions were filed on 31 January 2019 and the Crown submissions were filed on 13 February 2019. The DPP was on clear notice since the date of the appellant’s written submissions of how the argument was to be framed on appeal to this court. It was not suggested on behalf of the DPP at any time before me that there was any prejudice to the prosecution by the young person’s argument in this court, nor was it suggested that any further evidence needed to be adduced to meet the new argument. In fact at the commencement of the hearing the solicitor appearing for the DPP stated

9. [63]

   I am satisfied that it is appropriate to consider the young person’s new case regarding the unlawfulness of the arrest on the current state of the evidence. It is for the prosecution to establish beyond reasonable doubt that the young person’s arrest was lawful. If the arrest was not lawful the officers were not acting in the execution of their duty and an element of the offence is not established beyond reasonable doubt.

10. [64]

    I have considered the evidence and the competing arguments as to how it ought to be interpreted and I am not satisfied of the lawfulness of the arrest on the state of the evidence before for the following reasons.

11. [65]

    First, it was common ground that when the two police officers first decided to approach the young person it was in order to ascertain whether he was in breach of any bail conditions, in particular, a curfew condition. At that time neither of the two police officers was certain of the identity of the young person and thus both were also uncertain as to whether he was in breach of any curfew condition. I am satisfied that the reason for approaching the young person was to obtain his identity for this reason.

12. [66]

    Second, it was also common ground that it was only after the two police officers had already decided to approach the young person to verify his identity that the two police officers observed him to be smoking a cigarette in the Corso, in breach of signs clearly posted in the area advising that such conduct was forbidden.

13. [67]

    Third, it was common ground that Senior Constable Dare’s stated purpose for approaching the young person was to “speak” to him about “the offence he had committed in regards to smoking on the Corso and also to check on his bail conditions”. There was no evidence that his purpose for approaching the young person was to issue him with a CAN.

14. [68]

    Fourth, it was common ground that when the two police officers approached the young person the first thing Senior Constable Dare said to him was “hey mate, just so you know you are not allowed to smoke on The Corso”, which was followed immediately by the question, “Have you got some ID on you?” (emphasis added).

15. [69]

    At this time Senior Constable Dare made no mention of wishing to issue the young person with a field CAN or a future CAN for smoking a cigarette in the Corso. After letting him know that he was not allowed to smoke on the Corso, he proceeded to request his identification, consistent with his initial purpose for approaching the young person to verify his identification for the purpose of a bail check.

16. [70]

    Fifth, once the young person refused to provide identification to Senior Constable Dare, he was informed that he had committed an offence “but if you give me some ID we will leave it at that” (emphasis added). It was submitted on behalf of the Crown that the words “we will leave it at that” should be construed as meaning that the officer intended to obtain the young person’s identity to consider the commencement of proceedings in relation to the offence and leave the present conversation with the young person “at that”.

17. [71]

    In support of the construction for the words “leave it at that” advanced by the DPP, reliance was placed on Senior Constable Dare’s evidence in re-examination when he stated that after the young person was arrested and searched his intention at that time (after the arrest) was to “… see if he had ID, because at that point if we’d found ID we would have dealt with him and released him, there was no resist at that point. We’d have found his ID and made determinations at that time as to what to do with him” (emphasis added). This evidence does not assist the prosecution. It suggests that after the young person was arrested and searched, police had still not decided whether to issue him with a penalty notice for smoking a cigarette on the Corso or not as Senior Constable Dare was yet to “make determinations at that stage as to what to do with him”. The decision in Robinson makes clear that the purpose of arresting a person is to charge them. Contrary to the DPP submission, this evidence favours an interpretation that the purpose for the arrest was to ascertain his identity in order to see if he was in breach of bail.

18. [72]

    I am unable to give the words “we will leave it at that” the meaning advanced on behalf of the DPP. It is tolerably clear that the police officer was offering an exchange: if the young person gave him his identity he would be left alone in that the smoking offence would not be pursued. I cannot accept that the assertion by Senior Constable Dare that police would “leave it at that” means that they would then commence proceedings against him for smoking a cigarette on the Corso.

19. [73]

    Sixth, the next thing that Senior Constable Dare said to the young person was that if he did not provide him with identification he would “end up getting arrested which is ridiculous”. Senior Constable Dare gave evidence in which he agreed that at this stage the young person was “left with no misapprehension” from him that if he did not produce some identification, Senior Constable Dare would not let him go and that he was at that stage detaining the young person for the purpose of getting his identification.

20. [74]

    There was no power for Senior Constable Dare to direct the young person to provide his identification in order to ascertain whether he was in breach of bail conditions, unless the police officer already had reasonable grounds to suspect that the person may be in breach of his bail. Section 77 of the Bail Act provides police with certain powers in relation to persons suspected of being in breach of their bail, but the police officer must first believe on reasonable grounds that there has been a breach of bail. The DPP did not place any reliance upon s 77 of the Bail Act as being a relevant source of power in this case. No doubt this was because Senior Constable Dare was not even sure who the young person was and thus whether in fact he was on bail at that time. It follows that Senior Constable Dare could not have had reasonable grounds to believe that the young person was in breach of his bail.

21. [75]

    On behalf of the Crown it was contended that the young person was being detained to provide identification so that a penalty notice or field CAN could be issued for the smoking offence. The difficulty with advancing that explanation for what occurred is that at no stage did the police ever state to the young person that that is what he were doing and the state of the evidence does not permit me to infer it.

22. [76]

    I have had regard to the fact that neither of the police officers informed the young person that they believed he may be in breach of his bail. This is not surprising. On the evidence of both officers there was sufficient doubt in each of their minds as to the identity of the young person such that neither of them was in a position to suggest to the young person that he may in fact be in breach of his bail. I do not consider the fact that the question of bail was not raised with the young person as probative of any finding that that was not in fact the intention of the officers when they first approached him. On the contrary, both officers clearly state that the reason they first approached him, even before he was seen to be smoking the cigarette, was to ascertain his identity to see if it was in breach of bail conditions.

23. [77]

    Seventh, the next thing to occur was the young person produced false identification. It was at that stage that Senior Constable Dare told him he was under arrest for “smoking on The Corso”. Constable Barrett’s account of this arrest in her police statement differed to that of Senior Constable Dare (see above at [29]). She did not make any mention of the fact that Senior Constable Dare had told the young person what he was being arrested for. This omission may have had some significance had not Constable Barrett conceded in (somewhat surprising) cross-examination on behalf of the young person in the Children’s Court that it was “possible” he had told the young person the purpose for the arrest.

24. [78]

    On behalf of the DPP it was submitted that it can be inferred from the exchanges extracted above at [27] that it was always the intention of Senior Constable Dare to issue a field CAN against the young person for smoking a cigarette on the Corso and that was the reason for the demands for his identification. I am unable to accept that submission on the current state of the evidence, particularly as I am satisfied that when Senior Constable Dare told the young person that if he produced his identification police would “leave it at that” he meant to convey that nothing would happen to him after that.

25. [79]

    On the evidence before me I am satisfied that, after advising the young person that he was not permitted to smoke on the Corso, all questions thereafter as to his identity were directed at ascertaining his identity for the purpose of a bail check. This is consistent with the stated purpose for approaching the young person in the first place, even before they saw him light up the cigarette. It was also consistent with Senior Constable Dare’s stated intention for arresting the young person, namely: “My intention was to figure out exactly who he was, whether it was him or his brother. I was 50/50”.

26. [80]

    If the evidence before me had satisfied me that after the police officer warned the young person that he was not permitted to smoke on the Corso and then clearly sought his identification in order to issue him with a penalty notice/field CAN the situation may well have been different. If the young person had then refused to do so then the police would have potentially had the power to arrest him in order to obtain those details under s 99(1)(b)(iii) of LEPRA, presuming it was considered “reasonably necessary” to do so. But the evidence does not go this far in the police statements nor was it clarified in the viva voce evidence.

27. [81]

    For these reasons I do not believe that the arrest of the young person was lawful. Although the police officer told the young person he was being arrested for smoking on the Corso, I am not satisfied that the purpose of the arrest was to charge the young person; the evidence of Senior Constable Dare is that he had not made a decision as to “how to deal” with the young person at a time after the arrest. The weight of the evidence is that Senior Constable Dare wished only to check the young person’s bail conditions and if there had been none he would have let him go. Regrettably, things escalated when the young offender refused to provide his identification to police and then provided false information instead.

28. [82]

    In all of the circumstances I am not satisfied that the arrest of the young person without a warrant was authorised under s 99(1)(b) of LEPRA. I am satisfied that Senior Constable Dare had observed the young person to be smoking a cigarette contrary to Council signs but I am not satisfied that Senior Constable Dare was satisfied that it is “reasonably necessary” to arrest the young person to obtain his identity in relation to that offence as opposed to for the purpose of checking his bail conditions.

29. [83]

    I have had regard to Basten JA’s observations in NSW v Randall extracted above at [56] and the fact that a challenge to whether Senior Constable Dare was satisfied it was “reasonably necessary” to arrest the young person requires a finding that the officer’s state of satisfaction was manifestly unreasonable, in the sense in which that term is used in administrative law cases. Despite the fact that it was never suggested to Senior Constable Dare in the Children’s Court that he was in fact arresting the young person to check on his bail, I am able to arrive at this conclusion based on the evidence before me.

30. [84]

    Turning to the elements of the charge, although I am satisfied beyond reasonable doubt that Senior Constable Dare and Constable Barrett were both police officers at the time that the young person struggled violently with them, I am not satisfied beyond reasonable doubt that they were acting in the course of their duty at the time.

31. [85]

    I make the following orders:

    1. (1)

       Appeal allowed

    2. (2)

       The finding of guilt on 14 June 2018 for the offence of resist police in execution of their duty contrary to s 546C of the Crimes Act 1900 is set aside.

    3. (3)

       The order made by the President of the Children’s Court pursuant to s 33(1)(b) of the Children (Criminal) Proceedings Act 1987 on 14 June 2018 is vacated.