Holding the line at the Local Court

The line I mean is the line about arbitrary use by police of their powers.

There have been times when the line has almost totally been left up to the subjective beliefs of policemen. Even if that wasn’t the law as law, it was effectively the law as the result of the traditional magistrate’s question: “Why would the policeman lie?” – a line only finally disposed of in the High Court comparatively recently.

If you try to sue police for stepping over the line, at least in relation to lawful arrest, they still really have that benefit of the doubt, so long as they hold a genuine belief as to the need. The line is a little bit different when they themselves must rely on the reasonableness of their use of force.

To step back a bit further, from a legal realist perspective, you need to take into account the variations between (typically for such cases) magistrates, especially when one considers the permutations between readiness to accept the police view (and hence, one way or another, convict) on the one hand, and the subsequent severity or mildness of the punishment meted out.

It has suggested to me, for example, that David Heilpern, who has been the presiding magistrate for more than one police-powers-ish acquittal, can in other instances (though maybe not in such “police powers” cases) wield a possibly surprisingly firm sentencing hand. It’s hard to know what kind of generalization can be made by anyone about these sorts of things: the variables are so multiple.

Nevertheless, Magistrate Heilpern did deliver a stirring judgment at the beginning of this year on the subject. Mr Alkan was subdued by the use of tasers and then arrested, after which certain evidence was obtained from him. The court (ie, “Heilpern LCM” as we say in the trade) rejected that evidence, on the basis that it was obtained after an unlawful use of near-lethal force by the police. To be legal, such force and the arrest must be reasonable. In this case they were not. The evidence was rejected under section 138 of the Evidence Act (which relates to the exclusion of unlawfully obtained evidence), the charge in question could not be made out.

Here is an abridged extract from the judgment:

…. The officer must not arrest unless the police officer suspects on reasonable grounds that it is necessary to arrest.
54 It is uncontested, as submitted by the prosecution, that this officer formed the subjective opinion that the arrest of the defendant was necessary. Having viewed the CCTV and analysed the evidence, I have formed the view that there were no reasonable grounds for this opinion in the key period …. The courts, and indeed the parliament of this state have been saying loud and clear that arrest, the deprivation of liberty, is the last resort.
[citation of some cases; he had already referred to the relevant statute]
59 The higher courts in this state have spoken loudly and clearly. Parliament has spoken loudly and clearly. The Local Court has spoken clearly …The police, like every other citizen are bound by these laws. Whether at common law or by s99 of LEPRA [the legislation about powers of arrest], the arrest must be reasonably necessary.
60 In this case I am satisfied that on either the common law or s99 , on an objective view the arrest was unnecessary. The officer’s opinions were not reasonably formed, he did not act reasonably in arresting the defendant and there were no reasonable grounds for forming the view that arrest was necessary at the time he shot the defendant with the Taser.

I particularly like the little magistracial [is this a word? magisterial didn’t seem sufficient] distinction in:

The higher courts in this state have spoken loudly and clearly. Parliament has spoken loudly and clearly. The Local Court has spoken clearly

which I took to be just a tiny weeny joke, though you could just see it as becoming curial modesty. The Local Court can’t speak loudly.

I was doing my own bit to hold the line in the Local Court this week, though I did not score such a stunning result as Winston Terracini (Lyndon’s brother) did in R v Ali Alkan. No evidence was excluded, and there was no finding of unlawful force or arrest.

The defendant was charged with assaulting police officer when the officer was in the execution of his duty. (Section 58 Crimes Act. The maximum penalty in the Local Court is 2 years but the overall maximum penalty to which the Local Court is to have reference when setting any sentence up to the 2 years is, I think, 5 years. However, for an assault of this nature even if proved it is quite likely that on a first offence no conviction would be recorded.)

The assault alleged was that the defendant threw a hot [as opposed to potato-crisp] chip at the policeman’s back or the back of his head. Whoever threw the chip was out of shot on the CCTV, which did show the defendant being forcibly moved on by the police officer in question just before the chip appeared to have been thrown. The defendant swore he had done nothing and the policeman’s partner officer swore he’d seen the defendant throw it. It was oath against oath.

You have to wonder how the police justify bringing a prosecution for such a trivial offence: two police (one of whom had to come to Sydney from a station in the far west of the state) were tied up for the whole court-sitting day, and one court (basically 3 people in terms of staff) plus a prosecutor were employed for a full afternoon. That’s not counting the prior 2 court dates and the defendant’s own resources (including me, as it happened).

One Response to “Holding the line at the Local Court”

  1. David Heilpern throws the book, misses, and throws it again « Stumbling on melons Says:

    […] is a prominent   magistrate who currently presides on the north coast of NSW.  I have noted one  of his decisions before this blog.  He has also given courageous decisions concerning offensive […]

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