Williams v Director of Public Prosecutions (NSW) [2011] NSWSC 1085

In the matter of Williams v DPP, the Supreme Court of New South Wales this week handed down a hugely important decision clarifiying the arrest power of Police under s.99 of the Law Enforcement (Power and Responsibilities) Act ("LEPRA").

The Court was required to decide:

(1) whether the power of an officer to arrest without warrant on the basis of reasonable suspicion  - the power found in s.99(2) - is constrained by s.99(3), which states that arrest must be not be carried out unless Police suspect it is necessary to achieve one of the stated purposes in the subsection, examples of which include to ensure the attendance of the person at Court; and

(2) where an arrest does not comply with s.99(3) whether the arresting officer was acting "in the execution of duty".

Prior to LEPRA, an arrest could be challenged as being 'improper'-  rather than 'unlawful' - on the basis that arrest was unnecessary, for example, where the offence was trivial, where Police knew the person's name and address or had established their identity, and there was no concern they either would not attend Court, or continue to commit the offence. 

The principle relied upon is that arrest is a measure of last resort, and that, where appropriate, less intrusive mechanisms, such as the issue of a summons (or later Court Attendance Notice), should be employed to commence proceedings.

In Fleet v District Court of NSW and DPP v Carr the Supreme Court established clear authority for these propositions, which also appear in the NSW Police Handbook. However, the only available sanction against an improper arrest is the exclusion of evidence improperly obtained, via s.138 Evidence Act (NSW). 

Rather than 'real' evidence, the evidence sought to be excluded by defence practitioners following an improper arrest very often fell into the category of evidence concerning the commission of further offences such as resist arrest, assault police, and intimidate police. 

In order to succeed, defence would need to overcome the argument that even where Police make an improper arrest they generally do not set out to "obtain" evidence of subsequent offences committed against them

In Carr, Smart AJ applied a 'but-for' test to determine the issue: that is, if the Police had not improperly arrested the person, there would have been no subsequent offences committed against Police while the person was under arrest. His Honour also made clear that such a test should be confined only to the facts of that case. 

Following Carr, a series of further decisions by the Supreme Court, most notable among them DPP v Coe and DPP v AM, developed s.138(3) such that evidence of further offences might be said to have been "obtained" by an improper arrest where the commission of such offences either had been intended by the Police or assessed by the Court as having been objectively likely to have followed the improper arrest. 

Cases fought on this basis were won only because the evidence concerning the further offences was excluded, leaving no evidence on which prosecutions could rely.

An easier path to defeat the same sort of charges involving Police is found in the argument that Police were not acting "in the execution of duty" - an essential element of proof for each of the resist, assault and intimidate charges. However, to succeed in this argument, defence must establish that Police were acting "unlawfully" rather than merely "improperly". Provided an arrest was justified by reasonable suspicion, it would not be found to be "unlawful" simply by reason of it being unnecessary.

After the introduction of LEPRA, it has not been clear what consequences will flow from a failure to comply with s.99(3). Although the sub-section says police "must not arrest .. unless", a submission that failure to comply with the sub-section was unlawful - meaning Police were not acting in the execution of their duty - has been met with an inconsistent response from the bench.

However, with the decision of Williams it is now clear that an arrest found to be unnecessary with reference to the s.99(3) criteria may not only be improper in the Carr sense, but will also constitute an illegality and defeat a charge where "execution of duty" is an element.

Congratulations go to the Aboriginal Legal Service for carting the case from Kyogle Local Court to the Supreme Court. Just as they did with Carr, the ALS continue to push the boundaries of the law in this area.