DPP v Armstrong [2010] NSWSC 885

New South Wales Supreme Court

CITATION : DPP v Armstrong [2010] NSWSC 885

HEARING DATE(S) : 26 July 2010

JUDGMENT DATE : 27 August 2010

JURISDICTION : COMMON LAW

JUDGMENT OF : Davies J

DECISION : (1) Extend time for the filing of the Summons up to 17 May 2010. (2) The appeal is allowed. (3) The judgment of the Local Court of 29 March 2010 dismissing the Informations is set aside. (4) In lieu thereof, order that the proceedings be remitted to the Local Court to be heard and determined according to law by another Magistrate. (5) The Defendant is to pay the Plaintiff's costs of this appeal. (6) The Defendant is to have a Certificate under the Suitors' Fund, if otherwise so entitled.

CATCHWORDS : APPEAL – from Local Court – powers of arrest without warrant – rights to arrest for breach of the peace not affected by s 99 Law Enforcement (Powers and Responsibilities) Act 2002 – Magistrate's credibility findings based on error of law considering powers of arrest – matter remitted to Local Court for hearing by another Magistrate.

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Law Enforcement (Powers and Responsibilities) Act 2002 Supreme Court Rules 1970

CATEGORY : Principal judgment

Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 Fortune Food Manufacturer Pty Ltd v K Young Trading Pty Ltd [2010] NSWSC 407 CASES CITED : State of NSW v Bitsikas & State of NSW v Pabi Holdings Pty Ltd [2010] NSWSC 773 Sellers v Marchant [2008] NSWSC 120 US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178

PARTIES : Department of Public Prosecutions (Plaintiff) Andrew John Armstrong (Defendant)

FILE NUMBER(S) : SC 2010/121950

COUNSEL : A Mitchelmore (Plaintiff) T Evers (Defendant)

SOLICITORS : Director of Public Prosecutions (Plaintiff) GP Legal (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : H39334782

LOWER COURT JUDICIAL OFFICER : O'Shane LCM

LOWER COURT DATE OF DECISION : 29 March 2010

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DAVIES J

27 AUGUST 2010

2010/121950 DPP v ARMSTRONG

JUDGMENT 1 The Defendant, Andrew Armstrong, was charged with 4 offences, being:

(1) behaving in an offensive manner in a public place;

(2) assault police officer in the executing of his or her duty, and (3) two counts of resist a police officer while in the execution of his or her duty. 2 The proceedings were heard by her Honour, Magistrate O'Shane, on 29 March 2010. On that day, her Honour dismissed the Informations. 3 The DPP has appealed under s 56(1)(c) Crimes (Appeal and Review) Act 2001.

Factual background 4 Although there was considerable divergence in the detail of the evidence between the police officers and Mr Armstrong (to which I will come presently), the following appears to be the undisputed evidence. 5 Mr Armstrong had attended the Manly Wine and Food Festival on Sunday, 7 June 2009. At about 12.45am on 8 June, he was in Belgrave Street, Manly, near the intersection of Raglan Street endeavouring to get transport home. 6 He was standing on the roadway (there is a dispute precisely where) when a police paddy wagon drove along Belgrave Street. Mr Armstrong did not move off the roadway and the vehicle came to a stop. There were quite a number of other people in the area waiting to catch public transport, whether buses or taxis, to get home. Mr Armstrong refused to move and he was arrested and placed in the paddy wagon. There is considerable dispute surrounding the circumstances of that arrest. However, it was Mr Armstrong's behaviour at this time which formed the basis for the offensive behaviour charge and the first count of resist arrest. 7 The police then drove Mr Armstrong north along Pittwater Road to a park some distance away. They then directed him to get out of the vehicle. He was asked to produce identification, but he said he did not have any. An altercation subsequently followed, which led to the charges of assault and the second charge of resist arrest. 8 It is not necessary to set out all of the disputed factual evidence for the purposes of determining the outcome of this appeal. However, so the context of the argument can be understood, it is necessary to detail some of the facts alleged by the Police Officers Ayling and Williams. This background is taken from the written submissions of the DPP: 6. The evidence of the police officers was that they were patrolling Manly in a marked police caged vehicle in the early hours of 8 June 2009, with Constable Williams driving. A "Food and Wine Festival" had taken place in Manly on 7 June, 2008, resulting in many intoxicated people in the area (Ayling [5]; Williams [5]). 7. At approximately 12.40am, the officers were driving along Belgrave Street, Manly, when their progress was blocked by the defendant; he was standing in the middle of lane two of three lanes on the roadway, near a bus stop where on Constable Ayling's evidence some 80 people were waiting for public transport; Constable Williams estimated the crowd to be in the order of 100 people (Ayling [6], [8]; Williams [6]). 8. Constable Williams stopped the car, the vehicle's warning lights were switched on and the officers got out of the vehicle to speak to the defendant (Ayling [6], Williams [6]-[7]). Constable Ayling asked the defendant to step off the road but he refused and proceeded to yell at them about the lack of public transport (Ayling [7]-[8]; Williams [7]-[8]). The defendant admitted that he refused to leave the road and he admitted to raising his voice to the police, although he said that he was standing in the lane nearest to the footpath and was not blocking traffic (TS p 63-64). 9. After a short while Constable Ayling decided to try formal action by issuing a "Move On" direction to the defendant as he was obstructing traffic, but every time he tried to introduce himself and his place of duty the defendant continued to yell over him (Ayling [9]; Williams [10]). The crowd began to cheer the defendant on and he yelled for them to all join him on the road and take on the police - an allegation that the defendant denied (Ayling [9]; Williams [10]; cf TS 64.35). 10. Both Constables had concerns for their safety, and the potential for the situation to degenerate into a public order incident in which they would be seriously outnumbered. Accordingly they decided to call for urgent assistance and withdraw to the vehicle to wait for that assistance to arrive (Ayling [11]; Williams [11]).

11. While waiting for that assistance, the officers alleged that the defendant continued to yell things to the crowd, which he admitted (TS 65.21), although he denied yelling the words "Fucking pigs" as was alleged (TS 66.13; cf Ayling [12]; Williams [12]). He also admitted putting his hand down on the police vehicle (TS 66.22), although he denied hitting it as was alleged (TS 66.32; cf Ayling [12]; Williams [12]). A number of other persons also joined the defendant around the vehicle during this time.

12. Two further officers arrived on foot within a matter of minutes, and a decision was made to arrest the defendant for a breach of the peace in order to remove him from the scene (Ayling [13], TS 34.22; Williams [13], TS 44.8). Constable Ayling considered the defendant to be the catalyst of the incident and he did not want to tie up police resources while Manly was busy. His evidence was that he and the other officers approached the defendant; he and Leading Senior Constable Bourgault each took the defendant by an arm and he said (Ayling [14]): I am Constable Ayling from Manly Police. You are under arrest for a breach of the peace. 13. In the course of his cross-examination, Constable Ayling's evidence was as follows (p 36.14): I approached the accused and introduced myself. At this stage the accused did listen to me and I introduced my name, rank and station and I informed him that he is under arrest for a breach of the peace. 14. Constable Williams' evidence was that he was close to Constable Ayling when he told the defendant that he was under arrest for a breach of the peace (at [14]). He was not cross-examined on the arrest specifically, although in the course of being cross-examined about the conveyance of the defendant away from the scene, the following exchange took place (p 46.3-4): Q. So you conveyed him to take him away from people? A. As a breach of the peace, yes. 15. The defendant was placed in the police vehicle, on his evidence without resistance (TS 67.30). Constable Williams' evidence was that together with Leading Senior Constable Bourgault and Constable Ayling, he took hold of the defendant's right shoulder and walked him towards the police vehicle. The defendant resisted and reasonable force was used to push the defendant into the rear of the vehicle. As he got inside, the defendant kicked against the caged door, causing it to swing back at Constable Williams; and Constable Williams had to use all of his strength and bodyweight to force the door closed. Constable Ayling also gave evidence as to the defendant being difficult and kicking the door of the vehicle back at Constable Williams (Ayling [15]-[16]; Williams [14]-[15]).

16. Constable Williams, accompanied by Constable Ayling, drove the defendant to a nearby park in North Manly, where they decided to release him (Ayling [17]; Williams [17]).

… 9 It was particularly the behaviour of Mr Armstrong identified in paragraph 11 of the above summary that was said to constitute the behaviour that led to the charge of offensive behaviour. 10 The altercation, to which I have referred, that took place later at the park arose because when Mr Armstrong was being released, he was asked to provide some form of identification and refused to do so. The police officers allege that he approached one of them with his fists clenched. That led to a physical struggle with one of the police officers that ultimately led to his being put back into the paddy wagon and taken to the police station and charged. 11 Mr Armstrong's version, in short, was that he was standing in the lane of the road nearest the kerb protesting about the lack of public transport. He agreed that he did not move as the paddy wagon approached him. He agreed that he was asked to move off the road on more than one occasion by the police but he refused to do so. He agreed that he spoke loudly in one of the officer's face and that he was shouting out and yelling. He agreed that he put his hand on the police car but denied hitting it. He denied calling out to the crowd or calling the policemen "fucking pigs". He denied resisting arrest but said that he was caught off-guard when one of the policemen grabbed him from behind. 12 He claimed that when he told the police officer at the park that he had no identification, one of them stepped forward and pushed him over. As he fell he grabbed the officer who pushed him and they both fell to the ground.

The Magistrate's judgment 13 At the conclusion of the evidence, the prosecution addressed her Honour. When she had finished, the Magistrate said she did not wish to hear from Mr Armstrong's lawyer, and she proceeded to deliver judgment. She first made some opening remarks about the Manly Wine and Food Festival and the fact that there were "several persons" in the vicinity of the area seeking to catch public transport home. 14 The judgment then relevantly said this: I do not have any difficulty whatsoever about all of the evidence regarding his behaviour on the roadway , but indeed I understand that it was Officer Ayling's evidence that it was the fact that the accused was standing in the roadway and on his evidence, refusing to move, that constituted the offensive conduct. Funnily enough, he was not charged with offensive language.

In any event there is nothing in the circumstances that have been described in the evidence of all persons who have given evidence in these proceedings here today which could remotely lead the court to accept that the conduct of the defendant in standing in the roadway at that particular time amounted to offensive conduct.

Thereafter, I have to say I formed the view that Constable Ayling was certainly colouring his evidence. In particular I noted that he gave his evidence in general terms only and that he then started to attempt to bolster it by making certain observations of the accused in general terms such as aggressive, he managed to look at his eyes, he formed the view that there was the possibility of public order incident arising. According to him he called for back up, I notice that none of the officers who attended in answer to the call, of whom there were two I was informed at one point, apparently participated in any of the activity thereafter. Indeed, all of the evidence is entirely silent about these other two persons, but what is clear is that there was certainly no rush to attend on the part officers who might have been informed even by police radio that there was a public order incident apprehended or in fact already underway, so I have to discount that evidence.

There is one piece of evidence, of all the evidence I have heard today, which leads me to take the view that none of it is reliable, credible evidence, and it is this: and I refer to s99 of LEPRA. This relates to the power of police officers to arrest without warrant. S 99 subs (1) provides a police officer may without warrant arrest a person, if (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried.

Now I have not actually had a look at the provisions of the Roads and Traffic Act, but I am not persuaded that standing on the roadway is an offence, however that is actually not to the point. Subs (2) of the section provides a police officer may without warrant arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. That does not seem to have been suggested here in relation to the accused standing on the roadway.

When in fact this is near the bus stop or the cab rank, wherever want to place him (sic) he was on the roadway, somewhere near the intersection with Raglan Street and Belgrave Street. But subs (3) provides and this is the critical one for the purposes of these proceedings here today. A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person, unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes, (a) To ensure the appearance of the person before a court in respect of the offence. And I received no evidence to that effect and in any event I would have had some difficulties accepting that Constable Ayling in particular suspected on reasonable grounds that it was necessary to arrest the present accused to ensure his appearance before a court, (b) To prevent a repetition or continuation of the offence or the commission of another offence. And although Constable Ayling told the Court that he believed that the present accused would stay on the roadway at that time he did not in fact indicate that that is why he arrested him. (c) To prevent the concealment, loss or destruction of evidence relating to the offence which does not apply in the present circumstances, (d) To prevent harassment of or interference with a person who may be required to give evidence in proceedings in respect to the offence, not the situation prevailing in these matters, (e) To prevent the fabrication of evidence in respect of the offence. One must wonder at that particular matter, (f) To preserve the safety or welfare of the person. I heard not one word that these officers had any regard whatsoever or any concern for the safety or welfare of the present accused, far from it.

This madman who is standing in the middle of the roadway, so alleged, at 1 o'clock in the morning or very close to 1 o'clock in the morning, in circumstances where there are several people around, no buses and no cabs and apparently no other traffic except this police vehicle, it would be very difficult indeed for this Court to accept that in fact these officers as distinct from the accused himself, were concerned about their safety and welfare.

The Court has not been satisfied on any of the evidence that has been put before it today that there were reasonable grounds to warrant this arrest on this particular occasion. But in fact the situation got worse.

Subs 4 of s 99 provides that a police officer who arrests a person under this section must as soon as is reasonably practicable take the person and any property found on the person before an authorised officer to be dealt with according to law, and in fact, this is where the police case comes completely apart, because these officers did not even contemplate, if I understand their own evidence from this very witness box that they were intending to take him back to the police station, after they have effected an arrest to ensure that he would be taken before an authorised officer to be dealt with according to law as soon as reasonably practicable. Far from it. They determine that they are going to take him to a park which is off a roadway so that he does not get back on the roadway. Then, when they get to this park and this is where the prosecution submissions were completely off the mark. They say to him, "Get out, get out of the vehicle". Thereafter they want the court to accept that things became very heated. This madman then starts to tackle this police officers in a park some distance from the police station, where they have decided to release him, having arrested him because of his offensive conduct on the roadway some distance from this particular park.

In the course of whatever occurred in the park, he gets injured, but in fact we get this far down the track, these officers come to court and tell the Court, or purport to tell the Court and have the Court accept that this person then attacked Constable Ayling, when all they were trying to do was re-release him, but it is at that point of re-releasing him that they then ask him for identification. Frankly, the Court takes the view that it is a total fabrication and does not describe the events that occurred on that particular night, and then after that, they determine to re-arrest him, and it is then that they decide to take him to the police station. It is the fact of their evidence, regarding what they did, after the first purported arrest, taking him to a park some distance removed where there were no people and no vehicles on their evidence, and release him after an arrest. Completely, utterly, totally at variance with the law. As I say they brought their case entirely undone. The Court simply cannot accept that they are witnesses of truth in relation to exactly what occurred on that particular night. Certainly the Court is of the view that they had no warrant whatsoever to arrest the accused on that occasion. What followed thereafter was of their making.

THE INFORMATIONS ARE DISMISSED. (emphasis added)

15 It is unfortunate that the Magistrate has used somewhat intemperate language in her judgment. It can, however, be accepted that where on 2 occasions she refers to "this madman", she was purporting to be ironic in a way that tended to denigrate, in an inappropriate manner, the case put forward by the police.

Grounds of appeal 16 The Summons first sought an order pursuant to Part 51B, r 6(2)(a) SCR, extending the time for the bringing of the appeal. Since the decision of the Magistrate was made on 29 March 2010, the Summons ought to have been filed by 26 April 2010. It was, in fact, filed on 17 May 2010. 17 Affidavit evidence from a solicitor employed by the DPP explains that the delay was occasioned by the time it took to obtain the transcript of the evidence in the judgment from the Manly Local Court. 18 Mr Armstrong made no issue of the delay. In the circumstances, it is appropriate to extend the time for the filing of the Summons up to the date it was filed on 17 May 2010. 19 The grounds of appeal were identified as follows: (i) The Magistrate erred in law in dismissing the proceedings against the Defendant for "Offensive conduct in a public place" in that she wrongly regarded the prosecution as being entitled to rely only on the evidence to the effect that the Defendant stood in the middle of the road and had refused to move, and failed to take into consideration the other relevant evidence led to establish that offence.

(ii) The Magistrate erred in law in holding that Section 99 of the Law Enforcement (Powers and Responsibilities) Act (s 99) applied to the initial arrest of the Defendant, and erred in law in holding that that arrest was rendered unlawful by reason of non compliance with section 99.

(iii) The Magistrate erred in law in dismissing the proceedings for "Assaulting a police officer in the execution of his duty" and for the two counts of "Resisting a police officer in the execution of his duty" on the basis of an erroneous finding that the initial arrest of the Defendant was unlawful. 20 Pursuant to s 56 Crimes (Appeal and Review) Act 2001, a prosecutor may only appeal to the Supreme Court on grounds involving a question of law alone. I raised with counsel for the DPP at the outset whether ground (i) was available on the basis of it involving a mixed question of fact and law: US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 at [45]-[55]; Fortune Food Manufacturer Pty Ltd v K Young Trading Pty Ltd [2010] NSWSC 407 at [25]-[31]. After I reserved my decision in the matter, I received notification from the DPP that it does not press ground (i) of the grounds of appeal. 21 The argument at the hearing of the appeal principally turned on the Magistrate's view of s 99 Law Enforcement (Powers and Responsibilities) Act 2002, and the effect of her reliance on that section for her overall determination that the Informations should be dismissed. Was the arrest lawful? 22 Section 99 provides: 99 Power of police officers to arrest without warrant (cf Crimes Act 1900 , s 352, Cth Act, s 3W) (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law. 23 The Magistrate's undoubted error in relation to the arrest in s 99 was assuming that s 99 was the only source of power for a police officer to arrest a person without a warrant. It is not disputed that the police retain a power outside s 99 to arrest a person for breach of the peace. Section 4(2) of the Act expressly preserves police powers with regard to breaches of the peace. 24 Mr Armstrong accepts that s 99 is not the sole source of power for police to arrest a person without a warrant, and he accepts that the police retain the power to arrest a person for a breach of the peace. He submits, however, that the Magistrate's findings concerning the police evidence meant that the Magistrate did not accept the evidence about their concern for a public order incident. Hence, he submits, there was no basis to arrest for a breach of the peace. 25 The problem is, however, that the Magistrate made no findings about whether there was or might have been a public order incident, or whether the police were justified in arresting Mr Armstrong for a breach of the peace. She did not do so because she was under the misapprehension that s 99 was the sole source of the arrest power. On the other hand, her limited remarks concerning the public order incident and her view that Constable Ayling (in fact, Williams) was colouring his evidence, do not suggest that her Honour made a positive finding that the police officers did not apprehend a public order incident. Indeed, her comment that there was no rush to attend on the part of officers who might have been informed "that there was a public order incident apprehended or in fact already underway" suggests that her Honour did not entirely discount that evidence from the 2 police officers. 26 The result is that the Magistrate was in error in finding that the arrest was unlawful based only on applying s 99. If the unlawfulness of the arrest justified the dismissal of the Informations, it was incumbent upon the Magistrate to determine whether the arrest was lawful at common law and, in particular, for a breach of the peace. 27 One of the difficulties about the Magistrate's judgment is that she does not make appropriate findings of fact. These findings were particularly necessary where there was a wide divergence of evidence on the part of the police and Mr Armstrong. Nevertheless, if the Magistrate's statement that she does "not have any difficulty whatsoever about all of the evidence regarding his behaviour on the roadway" is a reference to the evidence given by the police officers, at least up to the point of Mr Armstrong's arrest, then it cannot be concluded that the arrest had to be unlawful. Since the Magistrate's conclusion is that the police officers had no warrant to arrest Mr Armstrong and what followed from that arrest was of their own making, there will need to be a further hearing to determine, at least, if the arrest was lawful. The effect of the Magistrate's error

28 The other issue is, however, whether it was the Magistrate's error in this regard that led her to the view that she could not rely on the evidence of the police, or whether she formed an independent view about their credibility unrelated to what she regarded as a wrongful arrest. Mr Armstrong submits that a proper reading of the judgment indicates that the whole of the Magistrate's opinion about the police evidence was not based on her misapprehension in relation to the arrest. This is, principally, because before she came to deal with s 99 in her judgment, she had already commented that she formed the view that Constable Ayling was colouring his evidence. 29 In my opinion, this submission should not be accepted for these reasons. First, a reading of the judgment overall suggests very strongly that it is what the Magistrate perceives to be the wrongful arrest contrary to s 99 that causes her not to believe the police officers. She says, "[t]here is one piece of evidence, of all the evidence I have heard today, which leads me to take the view that none of it is reliable, credible evidence, and it is this: and I refer to s99 of LEPRA." 30 A bit further on in the judgment, she describes subs (3) of s 99 as being "the critical one for the purposes of these proceedings here today". Having then quoted subs (3)(a), she immediately goes on to cast doubts on Constable Ayling's evidence. She next sets out paragraph (b) and subs (3), and again doubts an aspect of Constable Ayling's evidence. 31 Then she sets out subs (4) and says: …this is where the police case comes completely apart, because these officers did not even contemplate, if I understand their own evidence from this very witness box that they were intending to take him back to the police station, after they have effected an arrest to ensure that he would be taken before an authorised officer to be dealt with according to law as soon as reasonably practicable. Far from it. 32 Finally, she says that she could not accept they were witnesses of truth and added "[c]ertainly the Court is of the view that they had no warrant whatsoever to arrest the accused on that occasion. What followed thereafter was of their making". 33 Those references provide a clear indication that the Magistrate's reason for not accepting the evidence of the police officers was what she believed to be the wrongful arrest of Mr Armstrong. 34 Secondly, even if what appears in the judgment concerning Constable Ayling's evidence is regarded as separate to the s 99 issue, and was a consideration earlier in time than the s 99 issue, it does not deal with the whole of the prosecution evidence. It was, in fact, Constable Williams's evidence to which the Magistrate was referring. But at best, the Magistrate is saying that that police officer was colouring his evidence from a certain point. The Magistrate says nothing about the evidence of the other police officer (in fact, Constable Ayling) whose evidence largely corroborated the evidence of the police officer who the Magistrate thought was colouring his evidence. Accordingly, the only basis from which the Magistrate found that she could not accept any of the police evidence as reliable or credible was her mistaken view of the basis of the arrest of Mr Armstrong. 35 Thirdly, as I noted, the Magistrate said that she formed the view that Constable Ayling was colouring his evidence after a certain point. That point is identified by the Magistrate a little earlier as being the time at which the arrest took place. This is because the Magistrate says at an earlier point: I do not have any difficulty whatsoever about all of the evidence regarding his behaviour on the roadway, but indeed I understand that it was Officer Ayling's evidence that it was the fact that the accused was standing in the roadway and on his evidence, refusing to move, that constituted the offensive conduct. (emphasis added) 36 Assuming that this passage means that the Magistrate accepts the police evidence up until the time of his arrest, it must follow that it is her misapprehension about the police powers of arrest that have caused her to reject the remainder of the police evidence. On the other hand, if the portion of her judgment that I have italicised (para 14 above) is taken at face value, then none of the police evidence is found by her to be reliable or credible because of her view of s 99. Conclusion 37 Whether because the Magistrate has failed to make a finding based on a correct view of the law about the lawfulness of the arrest, or because her mistaken view about the police powers of arrest has wrongly coloured her assessment of the police evidence, the matter needs to go back to the Local Court for a fresh hearing. 38 The DPP submits that the matter ought to be remitted to the Local Court to be heard by a different magistrate. For reasons I discussed in Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 at [58]-[62], I consider that the discretion in s 59(2) of the Crimes (Appeal and Review) Act 2001 is not fettered by s 66 of that Act. There is, therefore, no prima facie rule or principle that the matter ought to be remitted to the magistrate who first heard the matter. 39 However, even if there was such a principle, I consider that the judgment of the Magistrate in the present case would enliven the undoubted discretion to depart from any such principle for similar reasons to those that I discussed in State of NSW v Bitsikas & State of NSW v Pabi Holdings Pty Ltd [2010] NSWSC 773 at [57]-[62]. 40 In the present case, the Magistrate had made a number of credibility findings against the police officers. She has reached an erroneous view of the law about the powers of arrest and either in part or in whole has based her credibility findings on that error. She has used intemperate language in a way that inappropriately denigrates the evidence of the police. Particularly by reason of what Price J said in Sellers v Marchant [2008] NSWSC 120 at [14] and what Young JA said in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178 at [121], the matter should be heard by a different magistrate. 41 I make the following orders: (1) Extend time for the filing of the Summons up to 17 May 2010.

(2) The appeal is allowed.

(3) The judgment of the Local Court of 29 March 2010 dismissing the Informations is set aside. (4) In lieu thereof, order that the proceedings be remitted to the Local Court to be heard and determined according to law by another magistrate.

(5) The Defendant is to pay the Plaintiff's costs of this appeal.

(6) The Defendant is to have a Certificate under the Suitors' Fund, if otherwise so entitled.

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