Although police powers have been increasing in legislation, the judges are still firmly upholding fundamental common law rights in the courtroom.
Just ask Mathews-Hunter, an eighteen year old who was recently in front of the NSW Supreme Court, after being caught red-handed drawing with a marker on a train window on the Central Coast.
After a transit officer saw him, Mathews-Hunter was immediately arrested and physically restrained by two transit officers.
Arrest is supposed to be a last resort, even according to NSW police guidelines, where police are urged to consider any possible alternatives to arrest.
But that is clearly not what happened here.
After Mathews-Hunter was arrested by the transit officers, they called the police. After the arrival of the police, and placed under arrest by the police, he was held with an arm behind his back. Mathews-Hunter was alleged to have made a headbutt motion towards an officer, but did not make contact.
This was considered by the police to be common assault. The police charged Mathews-Hunter with three things:
- Drawing on the train window with the marker
- Being in possession of the marker that he used to graffiti the window
- Common assault
In court, Mathews-Hunter was found guilty of the remaining graffiti charges and fined a total of $700.
However the evidence surrounding the alleged assault was excluded, because it was deemed inadmissible. This was because it was improperly obtained, as the arrest was unlawful.
Under the Evidence Act, evidence can be excluded from court if it was gained improperly or illegally.
The police appealed the magistrates decision to dismiss the charges of assault, and so this case found its way into the Supreme Court.
Here, Justice Fullagar found that the magistrate had not erred. He emphatically condemned the hasty arrest and agreed that evidence of the assault should not be admitted in court.
Arrest was not used as a last resort for the transit officer – it was used as a first response by the transit officer.
At hearing, the local court magistrate had found that there were alternatives open to the transit officers other than arrest and that arrest should be used sparingly. On appeal, Fullagar J agreed.
According to the Law Enforcement (Powers and Responsibilities) Act, arrest without a warrant should only be done when the officer suspects on reasonable grounds that the person has committed an offence and in order to:
- Stop the person committing another offence or repeating the same one
- Stop the person fleeing
- To establish the person’s identity
- To ensure the person appears in court
- To obtain property connected with the offence
- To preserve evidence or prevent the fabrication of evidence
- Prevent harassment or interference with witnesses who may give evidence
- To protect the safety and welfare of any person
- Because of the seriousness or nature of the offence
The judge asked the question: what could have been achieved by arrest that could not be achieved by a future court attendance notice?
Bail was the only thing that the judge believed could have been achieved with arrest.
The right to liberty has been characterised by judges as the most fundamental common law right. In contrast, arrest is a punishment in itself. It takes away a persons right of freedom as well as often resulting in fear or anger.
A wrongful arrest can lead to the situation escalating, resulting in resisting arrest or assaulting police.
Both of these could have been avoided if a court attendance notice was issued at a later time, instead of an arrest taking place.
Justice Fullagar notes that this pattern is all too familiar and urges police to take heed.
Resorting to powers of arrest, especially when there were alternatives available is clearly unacceptable.
The arrest was found to be illegal and improper, and on appeal the judge was not satisfied that the decision to exclude the evidence was erroneous.
The test for excluding evidence under section 138 of the Evidence Act is that improper or illegally obtained evidence is to be excluded unless the value of the evidence outweighs the undesirability of allowing in evidence gained improperly.
In short, all the prosecution grounds of appeal were dismissed.
This Supreme Court decision demonstrates that despite recent growth in police powers, courts will still not tolerate police breaking fundamental rules.
Arrest remains a last resort and this case emphasised that it should be treated as such.
The message is clear: if police act in a way that is illegal or improper, it may jeopardise the admissibility of any evidence they wish to bring.
This could result in charges being dismissed and effectively disincentivise acting improperly or illegally.
The judge pointed out that had the arrest not been made, the assault wouldn’t have taken place, either.
In this case the judge dryly noted that there is no such thing as a preventative arrest “yet,” – which is an indication of the extent to which the powers of police, particularly the powers to arrest, have expanded.
During the last few years, parliament has made dramatic changes to expand police powers. However, despite recent increases to police powers in legislation, this Supreme Court decision upholds fundamental common law rights, such as liberty and reiterates the principle that arrest should be used as a last resort.