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Editors --- "DPP v Carr - Case Summary" [2002] AUIndigLawRpr 39; (2002) 7(3) Australian Indigenous Law Reporter 9

Court and Tribunal Decisions – Australia

DPP v Carr

New South Wales Supreme Court (Smart AJ)

25 January 2002

[2002] NSWSC 194; BC200201026

Criminal law — offensive language — resist arrest — assault police — police powers of arrest — natural justice — procedural fairness

Facts:

An application was made by the Director of Public Prosecutions in NSW pursuant to s 109(a) of the Justices Act 1902 (NSW) seeking an order to quash a magistrate’s dismissal of informations laid against Mr Carr for resisting police, assaulting police and intimidating police. A declaration was sought that the magistrate erred in law in the application of s 138 of the Evidence Act 1995 in refusing to exercise a discretion to admit evidence from the police. A further declaration was sought that the magistrate erred in law in dismissing the information. In Local Court proceedings, the magistrate found that the evidence relating to resist, assault and intimidate police following the arrest of Mr Carr for offensive language had been obtained improperly. The magistrate refused to exercise a discretion to admit the evidence on the basis that its probative value outweighed the prejudicial manner in which the evidence was obtained. The circumstances of the arrest were that police made inquiry of Mr Carr regarding rocks that had been thrown at a police vehicle. Mr Carr refused to tell them who had been throwing the rocks, and during the course of the discussion it was apparent that Mr Carr thought (incorrectly) that he was being accused of throwing the rocks at the police vehicle. Mr Carr was arrested for swearing at the police.

Held, quashing the order of the magistrate and remitting the matters to the magistrate to be dealt with according to law:

1. Per Smart AJ: The definitions of ‘improper’ and a finding of ‘impropriety’ pursuant to s 138(1) of the Evidence Act 1995 are matters of judicial discretion. The exercise of that discretion must take into account ‘conflicting concerns’ and ‘the wide variety of circumstances’ which arise in each case. The finding of the magistrate that the arrest was lawful did not preclude a finding that it was nonetheless improper. In the case of an arrest for minor offences and where the defendant’s name and address are known to police, it was more appropriate to issue a summons. The arrest of a person should not be undertaken as a matter of expediency simply because a summons involved the police in more work or might take more time. ‘The actions of the officer, as he must have realised would happen, escalated the incident and led to the alleged commission of further offences’: [31], [35], [37]. Ridgeway v the Queen [1995] HCA 66; (1994-1995) 184 CLR 19 and Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 considered.

2. The police have a discretion in the exercise of the power of arrest under s 352 Crimes Act 1900 (NSW) and s 100AD(4) Justices Act 1902 (NSW). The decision to arrest Mr Carr when uttering swear words occurred at the time he was moving away from the police. This was ‘a classic case for issuing a summons and not inflaming the situation’: [40].

3. Pursuant to the Justices Act 1902 (NSW), a Field Court Attendance Notice (FCAN) may be issued by the police at the point where an offender may otherwise be arrested and taken to be charged at a police station. The use of a FCAN is intended to reduce the number of people taken into custody, particularly in relation to some summary matters and where the incidence of arrest should be ‘confined to those cases where there was no other reasonably practical alternative and that generally the power of arrest should not be used for minor offences’: [43], [46].

4. The magistrate did not err in finding that evidence relating to the offences that followed Mr Carr’s arrest (resisting police, assaulting police and intimidating police) was obtained in consequence of an impropriety and that the arrest would not have occurred had the officer acted properly. Section 138 of the Evidence Act 1995 ‘contains a threshold which a defendant (party) must cross before the court proceed to cite whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in a way in which the evidence was obtained’. The application of the section may render inadmissible evidence of the commission of further offences following an improper act or omission by the police. In Mr Carr’s situation, ‘the offences and the evidence stemmed from the ill-advised and unnecessary arrest’: [63], [64], [68], [69], [70]. R v Haddad and Treglia [2000] NSW CCA 351 and Robinett v Police No.SCGRG-00-110 [2000] SASC 405 considered.

5. It was open to the magistrate to find, under s 138 (3)(e) of the Evidence Act 1995, that the impropriety of the arrest was either deliberate or reckless. The police should have considered, given the minor nature of the offence, the issuing of a summons or an FCAN. The disregard of these options was a failure to take into account the ‘appropriate procedure and the possible consequences of the actions’ and the police officer must have realised this ‘as an officer of five years experience dealing with a person who was moderately intoxicated’: [79].

6. Pursuant to s 138(3)(d) of the Evidence Act 1995, a court must consider the gravity of the impropriety. The arrest of Mr Carr rather than summons or issuing an FCAN was a serious impropriety. However in reaching the conclusion that the impropriety of the police arrest was serious the magistrate drew on material that purported to provide statistics and information generally about offensive language charges that had not been tendered in evidence; nor was this material brought to the attention of the prosecution or defence. The result was that the prosecutor was not alerted to the material that the magistrate took into account nor given the opportunity to address on it. Consequently the prosecutor was denied procedural fairness. This required, therefore, that the matter be remitted to the magistrate to further determine the matter in accordance with law and in conformity with the reasons given: [82], [85], [89], [90]. ?