Andreas Andreou v Raymond Neilson-Scott
[2020] NTLC 4
•20 MARCH 2020
CITATION:ANDREAS ANDREOU V RAYMOND NEILSON-SCOTT [2020] NTLC 04
PARTIES:ANDREAS ANDREOU
V
RAYMOND NEILSON-SCOTT
TITLE OF COURT: LOCAL COURT
JURISDICTION: CRIMINAL
FILE NO(s):21928151
DELIVERED ON: 20 MARCH 2020
DELIVERED AT: DARWIN
HEARING DATE(s): 30 - 31 JANUARY, 3 & 28 FEBRUARY 2020
JUDGMENT OF: JUDGE ARMITAGE
CATCHWORDS:
CRIMINAL LAW: Police - Assault by police officer – police duties - “acting in the execution of duty” - “acting in the course of duty” - “acting in the ordinary course of duty” – reasonableness – defences – ss 27, 29 & 208E Criminal Code Act 1983 NT
Criminal Code Act 1983 (NT) ss 27, 29, 188, 43BQ-43BX, 208E
Criminal Reform Amendment Act (No2) 2006
Gardiner v Marinov (1998) 7 NTLR 181; Sinclair v Burgoyne (2007) 208 FLR 101; Prior v Mole [2015] NTSC 65; R v Gehan [2019] NTSC 91; Innes v Weate [1984] Tas R 14; R v K (1993) ALR 596; Perkins v The County Court of Victoria (2000) 2 VR 2; Hamilton v Halesworth (1973) 58 CLR 369; R v Whittington (2006) 17 NTLR 235; R v Whittington (2007) 19 NTLR 83: considered
Director of Public Prosecutions (NSW) v Weinstein (2010) NSWLR 666; Re A Solicitor [1945] K.B.368; George v Rockett (1990) 170 CLR 454: applied
Dr Stephen Gray, “You can’t charge me I’m a cop: should police, corrections staff and law enforcement officers be immune from criminal liability for actions carried out against vulnerable people in the course of their duties?” (2018) 41(3) UNSW Law Journal 670
REPRESENTATION:
Counsel:
Complainant: Ms Mary Chalmers
Defendant:Mr Peter L Hanlon
Solicitors:
Complainant: Director of Public Prosecutions
Defendant:
Judgment category classification: A
Judgment ID number: 04
Number of paragraphs: 143
IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21928151
BETWEEN
ANDREAS ANDREOU
Complainant
AND
RAYMOND NEILSON-SCOTT
Defendant
REASONS FOR JUDGMENT
(Delivered 20 March 2020)
CORAM: ARMITAGE J
1. The defendant in these proceedings, Senior Constable Raymond Neilson-Scott, is a serving police officer in the Northern Territory Police Service. He joined the police in June 2007 and has been stationed in the Katherine region on general duties, in the Territory Intelligence Division, in Strike Force Trident, in Casuarina General Duties, and in Darwin Traffic Operations.
2. At about 12:30 am on the 23 March 2019 the defendant was conducting traffic duties with his off-sider Senior Constable Tyrone Smithers. They responded to a police radio call-out to an incident at Crerar Road, Berrimah. It was reported that Mr Solomon Mamarika was threatening to stab his daughter with a knife[1]. The defendant and Senior Constable Smithers were the first police to arrive at the location. There were three people present: Mr Solomon Mamarika, his wife Ms Wendy Lalara, and their daughter (who has since deceased and at the parents’ request is to be referred to as) Mamarika.
3. Shortly after attending the location the defendant used force against Mamarika, Ms Lalara and Mr Solomon Mamarika. The defendant was charged with aggravated unlawful assault on Mamarika and Ms Lalara, in each case the circumstances of aggravation being that they suffered harm, and they were female and the defendant was male[2]. He was charged with unlawful assault on Mr Solomon Mamarika[3].
4. The defendant contested all of the charges and relied on a defence specific to “law enforcement officers” that is found in s 208E of the Criminal Code Act1983 (NT) (the Criminal Code). Although ultimately not relied on by the defence, defensive conduct[4] and an excuse arising under s 27 Criminal Code[5] were also raised on the evidence.
5. In the trial there was no issue as to there being three applications of force. The real issues were: the precise circumstances surrounding each application of force; and whether the raised defences had been negatived.
Section 208E of the Criminal Code Act1983 (NT) and the application of Part IIAA
6. Part VI of the Criminal Code deals with offences against the person and related matters including the offences of assault and aggravated assault, namely the offences charged against the defendant. Division 9 of Part VI creates two specific defences for offences under Part VI. One of those defences is s 208E, a defence specific to “law enforcement officers”. Section 208E and s 208F provide as follows:
208E Law enforcement officers
A person is not criminally responsible for an offence against this Part if:
(a) the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, correctional services officer or other law enforcement officer; and
(b)the conduct of the person is reasonable in the circumstances for performing that duty.
208F Evidential burden of proof
A defendant who wishes to deny criminal responsibility by relying on the provision of this division bears an evidential burden in relation to that matter.
7. Part IIAA of the Criminal Code applies to Part VI Division 9 defences[6] (but it does not apply to the offences of assault or aggravated assault which are not in Schedule 1 of the Criminal Code). Part IIAA Division 6 deals with onuses and burdens of proof. Division 6 provides as follows:
43BQ Legal burden of proof
The legal burden, in relation to a matter, is the burden of proving the existence of the matter.
43BR Legal burden of proof – prosecution
(1)The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged.
(2)The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof.
43BS Standard of proof – prosecution
(1)A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2)Subsection (1) does not apply if a law specifies a different standard of proof.
43BT Evidential burden of proof
The evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
43BU Evidential burden of proof – defence
(1)Subject to section 43BV, a burden of proof that a law imposes on a defendant is an evidential burden only.
(2)A defendant who wishes to deny criminal responsibility by relying on a provision of Division 3 or Part IIA bears an evidential burden in relation to that matter.
(3)A defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) bears an evidential burden in relation to the matter.
(4)The defendant no longer bears the evidential burden in relation to a matter if evidence sufficient to discharge the burden is adduced by the prosecution or by the court.
(5)The question of whether an evidential burden has been discharged is a question of law.
43BV Legal burden of proof – defence
A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly:
(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the contrary is proved.
43BW Standard of proof – defence
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
43BX Use of averments
A law that allows the prosecution to make an averment does not allow the prosecution to avert any fault element of an offence.
There are two limbs to the s 208E defence. First, the public officer must be “acting in the course of his or her duty” in this case as a police officer, and secondly, that “the conduct is reasonable for the circumstances of performing that duty”. Applying Division 6 of Part IIAA to s 208E, and noting s 208F, I find that:
(i)The defendant bears an evidential burden of proof only in respect of each limb of the s 208E defence. The defendant does not bear a legal burden of proof[7].
(ii)In order to discharge the evidential burden, any evidence adduced by the prosecution in addition to any evidence adduced by the defence (if any) may be relied on.
(iii)The question of whether an evidential burden has been discharged is a question of law.
(iv)If the evidential burden in respect of the defence is discharged, the prosecution bears the legal burden of disproving either one or both of the limbs of the defence.
(v)In order to negative the defence, the prosecution must negative one or both limbs of the defence beyond reasonable doubt.
Section 208E was introduced into the Criminal Code as part of the Criminal Reform Amendment Act (No2) 2006. I understand the section has not yet received judicial consideration. The Explanatory Statement to the Criminal Reform Amendment Bill (No2) 2006 is as follows:
“Division 9 Defences - This clause inserts a new Part VI Division 9 to include the general Model Code defences against offences in the new Part VI, of: Section 208E Law enforcement officers- Where the person is, at the time of the offence, a public officer acting in the course of his or her duty as a police officer, prison officer or other law enforcement officer, and the conduct is reasonable in the circumstances performing that duty.
As Part II of the Criminal Code will not apply to schedule offences, this provision is necessary to provide a defence for police and prison officers in circumstances involving a scheduled offence. Currently, section 28 of the Criminal Code would apply.[8]”
10.However, as noted earlier Part II of the Criminal Code does apply to the offences of assault and aggravated assault, and in this case the Part II defences of defensive conduct and s 27 justification are raised in tandem with s 208E.
11.There is a reference to s 208E in the Second Reading Speech of Dr Toyne (Minister for Justice and Attorney-General), as follows:
“This Bill also inserts two further defence provisions. The first is for the protection of persons whose conduct causes serious harm or gives rise to a danger of death or serious harm during conduct engaged in by the person for the purpose of benefiting another or pursuant to a socially acceptable function or activity where conduct is reasonable in the circumstances. This covers good Samaritan situations and sporting pursuits. The second covers police, prison and law enforcement officers acting in the course of duty where the conduct is reasonable in the circumstances.[9]”
12.There is no mention of s 208E in the debate, which was preoccupied with proposed changes to the laws concerning, inter alia, murder, manslaughter and abortion. However, paradoxically, while the Criminal Reform Amendment Act (No2) 2006 introduced a defence that was only available to law enforcement officers, in justification of proposed changes to the defences for murder, Mr Stirling (Minister for Justice and Attorney-General) said:
“It is not appropriate that defences should be available to one part of the community and population in the Northern Territory but not others...[10]”
13.Although s 208E has not been judicially considered, the section has been the subject of academic consideration by Dr Stephen Gray, Faculty of Law, Monash University[11]. In his learned article, Dr Gray examined the context in which s 208E was introduced. In R v Whittington (2007) 19 NTLR 235, Mildren J held that s 162 of the Police Administration Act1978(NT) provided a 2 month time limit for the commencement of prosecutions for acts done in pursuance of that Act. Accordingly a police officer who shot an Aboriginal man in Wadeye, in pursuance of his duties under the Police Administration Act 1978, could not be prosecuted because the charges were laid out of time. Section 162 of the Police Administration Act was repealed in 2005 and replaced with the more limited criminal immunity provision of s 208E of the Criminal Code. Having identified the historical context Dr Gray, reasoned as follows:
“This provision is found in Part VI, which deals with ‘offences against the person and related matters’. Offences found within Part VI include murder and manslaughter, as well as attempted murder, reckless endangerment offences, and various forms of assault. Thus, the provision is a defence to most of the offences police and other law enforcement officers might commit while acting in the course of their duties.
The provision operates as an alternative to the law of justification, or self-defence. In the NT, the applicable self-defence provision will vary depending on whether the offence is classified as a schedule 1 offence. Schedule 1 offences are, broadly, the more serious offences such as murder, manslaughter and endangerment offences. For these offences, the test requires, in essence, that the conduct carried out by a person in self-defence be a ‘reasonable response in the circumstances as he or she perceives them’ (s43BD of the NT Criminal Code) for less serious offences such as assault, the test for self-defence is slightly stricter, requiring that the person’s conduct be ‘a reasonable response in the circumstances as the person reasonably perceives them’ (s29 NT Criminal Code).
Thus, a person other than a police, corrections or law enforcement officer who wishes to argue they were justified in committing an assault or homicide has to navigate a complex set of provisions. The conduct must be carried out to defend the person or another, or in a very strictly defined further set of circumstances (such as to prevent or terminate unlawful imprisonment: see NT Criminal Code s 43BD(2)(a)); and the conduct has to be a reasonable response in the circumstances.
If the person is a police, corrections or law enforcement officer, however, section 208E will apply. Provided that the person is acting ‘in the course of’ their duties (a phrase which has been interpreted widely in the past, as has been noted [earlier in this paper]), all that is necessary is that the person’s conduct be ‘reasonable in the circumstances for performing that duty’, an objective test.
…
Providing a police officer is acting in the course of duty, it appears the test under section 208E is easier to satisfy than the general test for justification or self-defence. It could provide a defence, for example, to a police officer who killed youth in the course of carrying out an arrest, or while seeking to prevent a property offence such as vandalism. The jury’s attention in such a case is not directed to the reasonableness of the officer’s response to the victim’s conduct, as it would be in an ordinary case of justification, but to the reasonableness of the conduct for performing the defendant’s duty. This is a separate question to which different and broader considerations might be relevant.
…
As noted above, section 208E was enshrined into the NT Criminal Code in 2006. This was done as part of the sweeping reforms to the criminal responsibility provisions, which introduced a new Part IIAA, substantially incorporating the criminal responsibility provisions of schedule 1 chapter 2 of the Criminal Code Act 1995 (Cth), including its provisions regarding self-defence, and applying them to particular offences, including murder and manslaughter. This had the effect of reducing the scope of the old defence for police and prison officers in section 28 of the NT Criminal Code, which would no longer apply to murder and manslaughter. The defence in section 28 did provide that force was justified when police or prison officers were carrying out a lawful arrest, or were attempting to prevent an escape. However this was only the case when the force used was not ‘unnecessary force’. (‘Unnecessary force’ is defined in section 1 of the NT Criminal Code as force that the user knows is unnecessary and disproportionate, or that an ordinary person similarly circumstances would know was unnecessary and disproportionate. This section thus imposes an ‘ordinary person similarly circumstanced’ test similar to the test used in some jurisdictions for provocation.) This test requires that the force not exceed what an ordinary person similarly circumstanced would regard as necessary and proportionate. While this is arguably a more favourable test for the defendant than the ‘reasonable response’ test for self-defence, it is still a more stringent test than that created by section 208E.
It is not easy to say whether section 208E was introduced as part of a deliberate policy to expand the scope of criminal immunity for police. It is hard to see what other motive there could have been for the creation of an alternative and separate provision on this issue. Parliamentary debates are silent on the matter. However, the section was introduced at the same time as the Whittington case was making its way through the appeal process in the NT Supreme Court. It is very likely that legislators were aware of the issue of police immunity from prosecution, which would have been drawn to their attention by Mildren J’s decision to quash the indictment against Whittington in August 2006. In fact, they had acted swiftly and as early as March 2005 to repeal the two-month time limit on criminal prosecution contained in section 162 (1) of the Police Administration Act 1978 (NT). Again, though, there is no reference to the issue of criminal immunity in the Police Ministers Second Reading Speech.
The NT goes further than other Australian jurisdictions in the degree of immunity from criminal liability it provides to police and law enforcement staff.”[12] (citations omitted)
14.Counsel for the defence submitted that I should follow Dr Gray’s reasoning in my interpretation of s 208E proposing that the defence was broad in scope, and hence, easier to raise and harder to negative, than the Part II defences.
What are the duties of police?
15.In Gardiner v Marinov[13] Martin CJ considered the legality of entry onto private premises for the purposes of executing a “warrant of distress” which permitted the seizure of goods by a bailiff in lieu of an unpaid debt. Both the bailiff and a police officer entered premises on the mistaken but honestly held belief that the warrant authorised them to do so but it was held that the police officer was not so authorised. Martin CJ said:
“It is necessary to go into a little detail in relation to the powers and duties of a constable. A constable has all the powers and privileges as are by any law in force in the Territory, conferred or imposed upon him. (Police Administration Act 1979 (NT), s 25). The powers at common law include those necessarily incident to the discharge of a constable’s functions as a peace officer or conservator of the peace. The oath taken, or affirmation made by members of the Territory Police Force include an undertaking “to see and cause her Majesty’s peace to be kept and preserved” as required by this schedule to the Police Administration Act.
In the performance of the duty to prevent a breach of the peace, police officers may enter upon private premises.
…
I have no doubt, upon consideration of the evidence, that the constable acted in the way he thought best in the circumstances. It is certainly not shown that he knew that entry into the room would be unlawful.… Nowhere does he say that he apprehended that the appellant would try and physically interfere with the bailiff or otherwise commit a breach of the peace in the room. Any breach or threatened breach of the peace outside the room could have been dealt with there. Entry into the room was not required in the discharge of the constable’s duty to keep the peace.[14]”
16.In Innes v Weate[15] Cosgrove J had cause to consider whether a Franklin Dam protestor had obstructed a police officer “in the execution of his duty”, when the protestor attempted to board a barge, but was told not to by a police officer. Cosgrove J said:
“… The word “duty” does not refer, as was suggested in the argument, to the constable’s duty to obey superior officers. It refers to the duty of constables generally – the duty to prevent and detect crime, to apprehend wrongdoers, to keep the peace, and to protect life and property, (that is, to protect persons from injury and property from damage).
…
There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms – the range of circumstances in which the duty to act may arise is too wide, to various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty often depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong. These difficulties cannot be overcome. It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control so that he should not too easily or officiously clothe himself with the powers of the state and by so doing affect the rights and duties of other citizens..
Two other points can be made:
(a)the general duties of constables do not require them to arbitrate civil disputes. By the same token, if, in properly acting to preserve the peace in a situation arising out of a civil dispute a constable innocently chooses to constrain the offended rather than the offending party, he is in no breach of his duty;
(b)when the decision to act is taken far from the time or place of the anticipated offence or breach of the peace, there will almost always be a residual discretion in the man on the spot. Both the superintendent and the junior and senior constables. The discretion resides in each.
…
I do not accept the suggestion that a remote possibility of a breach of the peace will call up a duty in a constable to act: Howell and Piddington [1961] 1 W.L.R. 162 at 169. The power to give orders restricting the personal liberty of citizens is a special power. It does not exist until the constable has a duty to exercise it. Thus the power to restrict liberty only arises when it is or appears to be necessary to do so. It is necessary to restrict liberty only when the risk of injury to property or persons, measured by the twin tests of probability of injury and the nature of the threatened injury, is such as to warrant the proposed degree of restraint. It is always a question of balance, but basically restriction of liberty is for a constable the last resort.
Nor do I accept the proposition that a constable is clothed with a duty to act once his superiors have ordered him to do so. As I have said, a residual discretion usually resides in the man on the spot. There may be cases where conflicts are so grave, so widespread, so confused, or so disguised that a policy of widespread intervention not yielding to the particular situation is justified. But such intervention would require very special circumstances…
In this case, there was no evidence of any such special circumstances, and their non-existence was virtually conceded by the limited crown advocates opening in the magistrates Court. Nor was there any evidence that Senior Constable the any of his superiors entertained any reasonable apprehension of the commission of an offence or a breach of the peace. It follows that the Senior Constable was under no duty to prevent a civil wrong (if it was such) of boarding the barge and had no authority to proscribe the act of boarding. As he was acting in excess of duty, disobedience of his order was not an obstruction within the terms of the Police Offences Act.”
17.In R v K[16] the Federal Court was asked to consider whether a police officer was “acting in the execution of his duty” as the phrase was used in s 64(1)of the Australian Federal Police Force Act 1979 (Cth), an assault police offence. In this case, the Court discussed the scope and breadth of police duties. Gallop, Spender and Birch JJ held:
“The common law of the Australian Capital Territory is the common law of Australia save where it has been abrogated by statute or other enactment. No Territory legislation has dealt with the common law as it applies to the powers and duties of a constable or a police officer.
The powers and duties of police officers have always been expressed in the most general terms. In Rice v Connolly [1966] 2 QB 414, in the course of allowing an appeal against a conviction of wilfully obstructing a constable in the execution of his duty, Lord Parker CJ said (at 419):
“… That it is part of the obligation and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”
In Thomson v C (1989) 67 NTR 11 at 13, Angel J, addressing what are the duties of police officers, said that courts have sensibly been loath to clothe the ambit of a police officer’s duties in specifics and said that his duties have always been expressed in the most general of terms. He cited Rice v Connolly and the next case to which we were refer, Innes v Weate [1984] Tas R 14; 12 A Crim R 45 at 51….
The Commonwealth Director of Public Prosecutions referred to other authorities which demonstrate the need to examine what a police officer was actually doing to determine whether he was in the execution of his duty and decide whether such conduct falls within the general scope of any duty imposed by statute or recognised at common law, or outside that general scope of duty. Reference was made to R v Waterfield [1964] 1 QB 164; Donnelly v Jackman [1970] 1 WLR 562; Collins v Wilcock [1984] 1 WLR 1172; Coffin v Smith (1980) CrApp R 221; and the Canadian case of R v Westlie [1971] 2 CCC (2d) 315. In the last case, McFarlane JA expressed the view that in order to support a conviction on a charge of obstructing a police officer in the execution of his duty, it is not necessary to show that the officer was at the time of the obstruction engaged in the performance of a specific duty. McFarlane JA cited a number of authorities approved by the Supreme Court of Canada to that effect.
The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not, in the course of that task, do anything outside the ambit of his duty so as to cease to be acting therein.
It was submitted on behalf of the accused that the learned Judge was correct in holding that the police officers had ceased executing their duty at the time the alleged assaults took place. The substance of the submission was that there has to be a start and a finish to a duty executed by a police officer, that the evidence at the trial established that the duty of crowd control and looking for incendiary devices or weapons had finished at the time the alleged assault took place and that, although the police officers at that time may be said to have been “on duty”, they were not acting “in the execution of their duty”.
In our judgment there was clearly evidence that at the time of the assaults the two police officers were still inspecting the car park for incendiary devices and weapons and, at the very least, acting in the execution of a general duty as police officers to preserve the peace and detect crime, as well as a specific duty of returning from inspecting the carpark to report to their superior officer on what they had observed and receive further instructions. They were certainly not performing any unlawful activity that would have taken them out of the ambit of the general and specific duties.
Section 64 should not be construed in any narrow or restricted sense, but should be given a broad operation to protect the performance of all police duties, and not just some. The section is general: “in the execution of his duty”. That means that the section applies whenever the police officer is doing something which can fairly and reasonably be regarded, given the existing circumstances, as a carrying out of his duty. The generality of the section is further confirmed by the consideration that it attempts to cover a very wide range of possible interferences with the work of the police: assault, resistance, obstruction, or hindrance, or aid incitement or assistance in relation to any of those things. It is not limited to violence of the sort that was in issue in the present case.[17]”(emphasis added)
18.Police duties encompass powers and obligations conferred by laws in force, powers at common law and functions ancillary to those powers. In this case there was no real dispute on the evidence that the defendant attended the premises to investigate, prevent and detect whether a criminal offence had taken place and, in my view concomitantly, to preserve the peace. I am satisfied that the defendant attended the premises as part of his duties.
When is a police officer “acting in the course of his duty as a police officer”? Is “acting in the course of his duty” the same as “acting in the execution of their duty”?
19.According to the LexisNexis Australian Legal Dictionary a “public officer” is “1. A person appointed to discharge a duty of public office, in the interests of the public, in exchange for compensation or payment out of a public fund: R v Whitaker [1914] 3 KB 1283.[18]” There was no dispute that the defendant was a serving police officer. Although I was satisfied that the defendant attended the premises as part of his duties as a police officer, an issue to be resolved was whether the defendant was still “acting in the course of his duty” when he used force against each of the complainants.
20.As noted earlier in this decision, although the precise phrase, “a public officer acting in the course of his or her duty as a police officer”, has not been judicially considered, Northern Territory courts have considered whether police are “acting in the execution of their duty”. The question of whether a police officer is “acting in the execution of his duty” or is acting outside his duties sometimes arises when the legality of an arrest is challenged and there is an application to exclude evidence improperly or illegally obtained, or when someone is charged with assaulting a police officer in the execution of his duty[19].
21.In Sinclair v Burgoyne[20], an appeal from the Local Court, Southwood J considered the question of whether two police officers were acting in the execution of their duty at the time they were assaulted by the appellant. The police had searched and restrained the appellant who was distressed and potentially psychiatrically disturbed. One police officer put his hand on the appellant’s shoulder and guided him to the police paddy wagon with the intention of taking him to the hospital. The appellant then punched, hit and kicked the police; and was charged with unlawfully assaulting the police officers in the execution of their duty. Southwood J considered the requirements of s 163 of the Mental Health and Related Services Act, and held that on the evidence, the police had not considered matters relevant to and necessary for the exercise of a power to apprehend under s 163, and so, did not have authority to apprehend the appellant under s 163. There was no suggestion that the police were deliberately ignoring or disregarding the requirements of s 163, rather it seemed that they did not fully appreciate that they might be apprehending the appellant (as opposed to just helping him) and had not properly considered what was required for a lawful apprehension. Southwood J held on the evidence that “it could not be excluded as a reasonable possibility that the officers were not acting execution of their duty as they unlawfully apprehended the appellant.[21]” It seems that when effecting an arrest or apprehension, police must strictly comply with the legislation that confers the specific power of arrest or apprehension. A failure to comply with the legislative requirements of arrest or apprehension, even a failure arising from an honest mistake, will likely result in findings that the arrest or apprehension was “unlawful” and that the police officer “was not acting in the execution of his duty”.
22.In Prior v Mole[22] the appellant appealed his convictions for unlawfully assaulting a police officer in the execution of his duty and for behaving in an indecent manner. In this case the appellant had been apprehended by police pursuant to s 128 of the Police Administration Act on the grounds that he was intoxicated. Following his arrest, the appellant swore at police and spat at them. Southwood J found that even though the police had considered the apprehension requirements of s 128 of the Police Administration Act, they had failed to comply with the Northern Territory Police General Order A7[23]. General Order A7 provides, inter alia, that the arrest of a person should be an action of last resort and it was submitted that, in the circumstances of this case, the apprehension was unnecessary. Southwood J found the apprehension to be not in accordance with the requirements of the General Order. Applying s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA) Southwood J held that the evidence of the appellant’s subsequent behaviour (the assault on police and his behaving in an indecent manner) ought to have been excluded in the exercise of a discretion because:
“The undesirability of admitting the evidence about counts 2 and 3 outweighed the desirability of admitting it. The assault on Sgt O’Donnell was a low-level assault and the indecent behaviour was a very low level offence. Sgt O’Donnell was not injured and his face was, to some degree, protected from the appellant’s sputum by his glasses. The apprehension of the appellant was ill-advised and unnecessary and the offences were objectively the anticipated or expected outcome of his apprehension. The apprehension of the appellant significantly interfered with his liberty and his detention was significantly in excess of any penalty that may have been imposed on him by the Court of Summary Jurisdiction for drinking in a regulated place even if he was creating a nuisance.[24]”
23.In addition, Southwood J said:
“In circumstances where it seems the liberty of the subject is increasingly in need of protection, it is of critical importance to the existence and protection of personal liberty under the law that minimum standards of police conduct with respect to apprehending and detaining citizens should be scrupulously observed. For many years the courts have been at pains to emphasise the importance of the observance by police of those minimum standards by excluding on the grounds of public policy evidence obtained as a result of breaches of those standards.[25]”
24.Applying the reasoning in Prior v Mole, it is possible that a failure by police to comply with the Police General Orders, particularly when police are exercising a power that interferes with the liberty of a person, may result in a finding that police have breached the “minimum standards of police conduct”. It seems likely that if a police officer has breached the “minimum standards of police conduct” then he or she may no longer be “acting in the execution of his or her duty”, instead it could be said that he or she was acting outside his or her duty.
25.In R v Gehan[26] Grant CJ was asked to exclude evidence obtained following the stop and search of a vehicle and a passenger on the grounds that the police actions were illegal or improper: s 138 ENULA. Although he was not considering whether police were acting “in the execution of his duty” or “in the course of their duty”, Grant CJ’s findings concerning what might amount to police illegality or impropriety appear pertinent to the question of whether or not a police officer was acting in the execution of his duty.
26.Concerning what was meant by “impropriety” in s 138 of the ENULA Grant CJ said:
“The ENULA contains no definition of “impropriety”. The method or conduct will be “improper” in the relevant sense if it is “not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong”. The meaning of the term “improperly” was described by Basten J in Robinson v Woolworths Ltd in the following terms:
“It follows that the identification of impropriety requires attention to the following propositions. First, it is necessary to identify what, in a particular context, may be viewed as “the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Secondly, the conduct in question must not merely blur or contravene those standards in some minor respect; it must be “quite inconsistent with” or “clearly inconsistent with” those standards.
As suggested in that extract, the test is not materially different to the common law position that in order to warrant the exclusion of evidence on this basis the conduct in question must be “inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement”. Moreover, the conduct must be “clearly inconsistent” with those standards. Although the method or conduct in question need not have been intentionally improper, it must still be capable of characterisation as clearly and significantly inconsistent with minimum standards.[27]” (citations omitted)
27.In addition, concerning the exercise of the police power to randomly breath test and saliva test drivers,[28] Grant CJ said:
“The use of the power to conduct a random breath test for the ulterior purpose of general criminal investigation would be both improper and in contravention of the law which confers the power.[29]”
28.Concerning the exercise of the police power to search a vehicle without a warrant on reasonable grounds to suspect that a dangerous drug may be found in it[30], Grant CJ said:
“The exercise of the power required the apprehending police officers to have “reasonable grounds to suspect that a dangerous drug… may be found” in the vehicle. Those reasonable grounds must have existed in both the subjective and objective senses which are discussed further below. If there were not reasonable grounds in both senses, the search was “improper” within the meaning of s 138 of the ENULA. It is less clear whether this would constitute a contravention of the law in the relevant sense, as mere failure to satisfy the conditions necessary for the exercise of the statutory power may in some circumstances not constitute a contravention of the law. That uncertainty notwithstanding, where the power in question is one which abrogates a fundamental liberty and is exercised by law enforcement authorities, the better view is that a failure to comply with the statutory limitations on the exercise of the power will constitute a contravention of the law in the relevant sense.[31]” (citations omitted)
29.Similarly to Southwood J, Grant CJ’s reasons appear to suggest that police may be held to higher and more exacting levels of accountability when exercising powers that infringe on the freedoms and liberties of a person.
30.In Perkins v The County Court of Victoria[32], a claim in the nature of certiorari, the Court of Appeal had reason to consider whether a police use of handcuffs was legal. In this instance, it was accepted that the use of cuffs in the circumstances of the case could not be said to be unwarranted. However, Charles JA said:
“ … there is no general rule that persons arrested and being conveyed to or from a place of detention to a court must be handcuffed. An arresting officer is entitled to take proper precautions when conveying a person in custody, and all the circumstances must be considered to determine whether there are reasonable grounds for the arresting officer to handcuff the prisoner. But the right to handcuff must be found in some additional circumstances, such as the necessity to prevent the prisoner escaping; or committing some further offence; or endangering the safety of persons or property. If the police officers arresting this appellant had no justification for handcuffing their prisoner, it would in my opinion follow that in attempting to do so, they were not acting in the course of their duty, and the appellant was not guilty of the offence of resisting the police in the course of their duty.[33]”
31.In order for a police officer to be “acting in the execution of his duty” the Victorian Court of Appeal expected that the conduct engaged in be connected to the broadly defined functions of a police officer and necessary for those functions.
32.I consider that to “execute” a duty means to “carry out or complete[34]” or “carry out and perform[35]” or “carry out and accomplish[36]” a duty. The decisions discussed above suggest that a strict approach is applied to the concept of “in the execution of a duty” and this is especially so when police are exercising a power which, unless justified by law, would otherwise infringe upon a person’s liberties. In those instances, if the means or method of completing the duty diverges from the power conferred or is unnecessary for the exercise of that power, then it might be found that any such divergence falls outside the concept of “executing” the duty.
33.However, is “acting in the course of his duty” a broader or looser concept than “in the execution of a duty”? In his paper, Dr Gray likened the phrase “acting in the course of his duty” to the phrase “in pursuance of” a duty. Dr Gray considered Hamilton v Halesworth[37] and the Whittington[38] decisions and reasoned as follows:
“For example, in Hamilton v Halesworth, the question arose whether a police officer who had wrongfully arrested the plaintiff was acting “in pursuance of” the relevant legislation, the Police Offences Act 1901 (NSW). According to Starke J in the High Court, the defendant was acting pursuant to the Act “if he had a bona fide belief in the existence of facts which if existing would have justified him in so acting”. Provided the defendant was acting in pursuance of powers he supposed he possessed, his actions fell within the scope of the phrase. The reasonableness or otherwise of the defendant’s belief was irrelevant. Moreover, the burden of proving lack of good faith lay upon the plaintiff, according to the High Court.
More recently, in R v Whittington (2006) 17 NTLR 235, the question arose of whether a police officer who shot and killed an Aboriginal man was acting “in pursuance of” the Police Administration Act 1978 (NT). This question was relevant because s 162 of the Police Administration Act 1978 (NT) provided a two-month time limit for the commencement of prosecutions for acts done in pursuance of the Act… The prosecution conceded that there was no evidence to suggest that the “accused was acting otherwise than according to what he believed to be the lawful execution of his duty at the relevant time”. Following the High Court decision in Hamilton v Halesworth, Mildren J in the NT Supreme Court held that there was no evidence on which a jury could conclude that the police officer was not acting “in pursuance of” the Act. In February 2007, and for similar reasons to those advanced by Mildren J, the Court of Criminal Appeal rejected a prosecution appeal. [39]”
34.If this interpretation is correct, then police who unwittingly fail to comply with a legislative requirement or a Police General Order but proceed in the mistaken belief that they are complying with the requirements of their duties, could still be “acting in the course of their duty”. It follows that certain conduct not precisely attuned to a legislative power or precisely conducted in compliance with policy, could be found to be not done “in the execution of their duty”; or an “impropriety”, but, nevertheless, the police officer might still be found to be “acting in the course of his duty”.
35.The phrase “acting in the ordinary course of the person’s duties as a police officer” has been judicially considered in the context of a criminal defence provision.
36.In Director of Public Prosecutions (New South Wales) v Weinstein[40], on appeal from the Local Court NSW, Schmidt J considered whether a police officer who had failed to secure his firearm was “acting in the ordinary course of the person’s duties as a police officer”. The Firearms Act 1996 (NSW) required persons who possessed firearms to take all reasonable precautions to ensure their safe keeping[41]. However the Firearms Act also provided an exemption for police officers as follows:
Section 6(2) a person is not guilty of an offence under this Act or the regulations only because of something done by the person while acting in the ordinary course of the person’s duties:
(a) as a police officer (or as a student police officer in rolled in the New South Wales Police Academy), or
(b)…
37.Schmidt J said:
“The phrase “acting in the ordinary course of the person’s duties” is not defined. It must be given its ordinary meaning, having regard to the context in which it is used. The consequences of competing interpretations must also be considered, as must the purpose of the legislation.
In this case the evidence showed that police officers are required to carry firearms when performing their duty; that they take off their heavy belts when driving long distances; that they are required to secure their firearms when they are light from the vehicle; and when going off shift, they must secure their firearms in the gun room. All of this was what the ordinary course of the police officers duties required. The respondent erred when he left his firearm behind in the vehicle and later failed to leave the firearm in the gun room.
The issue between the parties was whether or not these errors took the respondent outside the ordinary course of a police officer’s duties.
On appeal the parties each relied on what was observed in Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1 at 6, to further their arguments as to the meaning of the phrase here in issue. There the meaning of the phrase “in the performance of any duty as an officer” was being considered. Dixon CJ observed (at 6):
“But, in any case, I think that the words “except in the performance of any duty as an office”’ ought to receive a very wide interpretation. The word duty there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word function. The exception governs all that is incidental to the carrying out of what is commonly called the duties of an officer’s employment: that is to say the functions and proper actions which his employment authorises”[42].
38.Schmidt J then discussed various approaches to statutory interpretation and went on to hold:
“There is no suggestion that anything which the respondent did, involved a departure from the ordinary course of his duties, other than leaving his firearm in the vehicle and then failing to secure it in the gun room, when he went off-shift. This was the “something done” to which s 6(2) directs attention. In my view, that these errors, whether inadvertent or negligent, involved the respondent acting outside the ordinary course of his duties, so that exemption did not operate, may not be accepted. The phrase, “acting in the ordinary course of a person’s duties” must be understood as encompassing the possibility of human error in performing a duty in the ordinary course.
…
Departures from “the ordinary course” of a police officer’s duties when using a firearm can easily be envisaged. A police officer using a firearm to shoot a personal rival with whom the officer is having a dispute, is an obvious and extreme example of use of a firearm while not acting in the ordinary course of duty, albeit no doubt an extremely unlikely one. This is not a mere error committed in the ordinary course of duty, but a deliberate act entirely inconsistent with that duty. Even on the respondent’s approach, such a situation would take the police officer’s use of the firearm outside the ordinary course of duty.
…
Likewise, an error of judgment made when returning fire at an assailant who is shooting at a number of officers, which results in an officer shooting another police officer, could not result in a situation where the officer would no longer be acting in the ordinary course of duty, notwithstanding the serious consequences of the error made. An error of this kind could be inadvertent, or could even involve negligence.
Similarly, it seems to me, an error or oversight in securing a firearm after alighting from a police vehicle, may not result in a situation where the officer is no longer acting in the ordinary course of the officers duties. The evidence does not reveal how the errors here in question came to be made. It may well be that failures like the respondents involve a very serious breach of the applicable policy, which may be dealt with in various ways, but they do not take a police officer beyond the ordinary course of duty.
There may, of course, be other factual situations which could give rise to quite different conclusions. It could be, for example, that a police officer who deliberately refuses to adhere to required policy in relation to the carrying and securing a firearms, could also be found no longer to be acting in the ordinary course of duty. Such a deliberate decision, like a deliberate decision to use a firearm to shoot a rival, while of a different character, may still lead to the same result, so far as the question of whether or not the officer is still acting in the ordinary course of duty, once that decision has been made, is concerned.
There is no suggestion that this was such a case. To the contrary, the evidence suggests that there had been no history of breaches of the firearm policy and that this was a one-off error.
The policy requiring police officers to secure their firearms is no doubt directed at the same considerations as those which underpin the objects of the Firearms Act, namely, to ensure that the firearms which police officers are required to carry in the performance of their duties are safely and securely carried and stored. That policy is unquestionably an important one, especially given the statutory exemption for police officers who breach s 39 during the ordinary course of their duties. Undoubtedly a failure to adhere to the policy may be enforced by the Police Commissioner in various ways. Assuming here that the evidence established a breach of s 39, in the circumstances it is difficult to see that it is one which could result in a conviction for an offence under s 39, given the s 6(2)(a) exemption.[43]”
39.Applying the reasoning of Schmidt J, a police officer may still be considered to be “acting in the ordinary course of his duty” even if the act performed by him was imperfect and involved human error, inadvertence or negligence. A failure to adhere to a Police Service policy or guideline might occur but the police officer might still be considered as acting in the course of duty. However, a deliberate, gross, or repeated failure to comply with a policy might result in a finding that the police officer was acting outside the course of duty. At the other end of the scale, it seems relatively clear that deliberate acts, that are entirely inconsistent with the duty of a police officer, are not acts done “in the ordinary course of his duty”.
40.I consider that whether or not a police officer is “acting in the course of his duty” is a question of fact. In each case it will require an examination of the facts and circumstances to determine:
(i)What was the duty to be performed and the nature of that duty?
(ii)What is the impugned act?
(iii)How closely did the impugned act align with the duty?
(iv)Did the impugned act comply with or diverge from any relevant legislation or police policy?
(v)If there was a divergence between the impugned act and the duty, what was the breadth or extent of that divergence?
(vi)What factors motivated, caused or contributed to the divergence between the impugned act and the duty?
41.I consider that the phrase “acting in the execution of duty” as applied in the Supreme Court of the Northern Territory is narrower and stricter than the phrase “acting in the course of his duty”. In the Northern Territory, “acting in the execution of duty” appears to call for a greater degree of exactitude with the legislation which confers powers and with the policy concerning the exercise of those powers. In my view, “acting in the course of his duty” does not call for the same high degree of exactitude between the duty and the act. The phrase allows for normal human error and honest mistakes. I consider that trivial and /or unintended breaches of legislative or policy requirements would not normally operate to take an officer outside the scope of “acting in the course of his duty” even if they resulted in a finding that the acts were illegal (e.g. an illegal arrest on insufficient but genuinely held grounds). An unintended failure to comply with police guidelines might result in the conduct being considered “improper” and might result in evidence being excluded, but would not necessarily result in the conclusion that the officer was not “acting in the course of his duty”. However, deliberate and/or gross and/or repeated breaches of legislative or policy requirements might result in the conclusion that the police conduct fell demonstrably and clearly below the minimum standards required and expected of a police officer. In those circumstances it seems that the officer would no longer be acting “in the course of his duty” but rather he would be acting in dereliction of his duty. In each case it will be a matter for the tribunal of fact to determine whether or not the prosecution has negatived beyond a reasonable doubt that the police officer was “acting in the course of his duty”.
When is the “conduct of the police officer reasonable in the circumstances for performing that duty”?
42.If a police officer is “acting in the course of his duty” it seems that the second limb of the defence requires an assessment of the police conduct as against the duty to be performed taking into account the circumstances in which it is being performed.
43.The word “reasonable” has, in law, the prima facie meaning of reasonable in regard to those circumstances of which the actor, called on to act reasonably, knows or ought to know[44]. Where a statute requires a decision maker to act reasonably or on reasonable grounds, the relevant decision must meet an objective standard of reasonableness. Where “reasonable grounds” must exist for forming a state of mind, facts must exist which are sufficient to induce that state of mind in a reasonable person[45].
44.In Taikato v The Queen[46] Dawson J (who was in the minority on the substantive issues) said:
“… Reasonableness provides a test which is well-known in both criminal and civil law and, though it may involve a judgment of degree, has a ready application in widely differing circumstances. The fact that the test of reasonableness frequently involves a question of degree so that minds may differ upon the answer does not relieve a tribunal of the duty to apply the test where that is the test laid down and does not justify confining its scope for the sake of greater precision or certainty. That is particularly so where the test is contained in a provision which is intended to define the circumstances amounting to a defence in a criminal prosecution.”
45.Considerations relevant to the question of whether a police officer is “acting in the course of his duty” may also be relevant to an assessment of “reasonableness”. In my view, reasonable conduct carries with it the concepts of moderation, appropriateness, proportionality and efficacy. The police conduct must be in pursuance of and appropriate for the duty to be performed. It must also be proportional to the circumstances in which it is performed. However, reasonableness permits a falling short of perfection. There will likely often be a range of conduct, all of which might be considered “reasonable”. Normally, I would expect that conduct which falls clearly and plainly short of the minimum standard expected of police might be found unreasonable. However, in any given case all the relevant circumstances surrounding the conduct need to be considered to determine whether or not the conduct was “reasonable in the circumstances for performing the duty”.
46.As part of the assessment to determine whether the conduct was “reasonable in the circumstances for performing that duty” it is necessary to identify and consider the relevant circumstances in which the conduct was performed. Given the breadth of duties that police are required to perform and the wide variety of circumstances which they encounter, each case must be assessed on its own facts. It would be impossible to list an exhaustive set of circumstances to be considered in any given case. However, the circumstances might include a consideration of:
(i)the urgency of the situation;
(ii)whether or not weapons are involved, and the nature and location of those weapons;
(iii)whether any person(s) is armed;
(iv)whether there is a risk to life or limb of any person (including the police officer);
(v)whether or not the police officer is outnumbered;
(vi)whether or not the police officer has back-up (and how far away it might be);
(vii)whether or not the police officer has access to relevant information (e.g. police communications, or relevant databases via use of an iPad)
(viii)the substance of any information, intelligence or history on the person or location;
(ix)whether any person(s) is intoxicated or affected by illegal drugs;
(x)whether any person(s) is affected by mental health or physical health issues;
(xi)the apparent age, strength, or frailty of person(s) with whom the police are dealing;
(xii)whether children are present;
(xiii)whether or not the person(s) is co-operating and any known history of compliance or non-compliance;
(xiv)whether there is a risk of further offending;
(xv)whether or not the person(s) has a residence;
(xvi)whether or not there are court orders or bail conditions;
(xvii)any reported information about the incident;
(xviii)a general risk assessment; and
(xix)a police officer’s training and experience.
Other defences available to the charges of s 188 assault and aggravated assault
47.As noted earlier, Part IIAA does not apply to the offences of assault and aggravated assault. In respect of those offences the relevant criminal responsibility provisions are found in Part II of the Criminal Code, which include additional available defences. Although not specifically relied on by the defence, I consider that the evidence relied on in support of the defence under s 208E, also raised possible defences under ss 27 and 29 of the Criminal Code. Accordingly the prosecution also bears the legal burden of negativing those defences.
Charge 1: Aggravated assault on Mamarika
48.The Crerar Road location where the incident took place houses a number of ground floor residential units operated by Anglicare. The relevant unit block consisted of two adjoined units fronted by a linear cement veranda. The events unfolded on the cement veranda and adjoining grass. There was limited lighting and the location was reasonably dark. There was some ambient light from external lights mounted on unit blocks nearby, from the parked police car, and from a light inside the unit visible through an open front door. Later, veranda lights were turned on. Both officers carried illuminated torches in their right hands. Both officers activated their body worn videos (BWV) on approach.
49.Both police approached the ground floor unit where the knife-incident involving Mr Soloman Mamarika was alleged to have taken place. To the left of the unit’s front door, the police identified Mr Solomon Mamarika sitting cross-legged on the cement veranda with his back to the wall of the unit. Two women were also present. Mr Solomon Mamarika’s wife, Ms Lalara, was in the doorway of the unit approximately two metres from where Mr Solomon Mamarika was sitting. Their 36 year old daughter, Mamarika, was standing at the edge of the veranda, opposite the doorway. Another two woman were further along the veranda but moved away shortly after the police arrived.
Turning to the defendant’s accounts:
(i) (a) In Exhibit 6 the defendant said:
“(Mr) Mamarika then got up and approached Neilson-Scott. He showed several pre-attack indicators (lowered his tone, pointing, staring), he raised his hand pointing out at police and abusing members about the incident. Neilson-Scott took hold of (Mr) Mamarika’s arm to secure him in an attempt to de-escalate the situation and make it safe for police. Mamarika lashed out and swung his left arm which struck the right side of Neilson-Scott’s head near the body worn camera. Mamarika started challenging police saying “come on”, another clearance Dive manoeuvre was performed to create distance and then Mamarika was taken to the ground and secured in cuffs”.
(b) In this version the defendant no longer alleges a punch and instead alleges that Mr Solomon Mamarika “lashed out and swung”. When compared against the BWV I consider this version misrepresents the incident. Mr Solomon Mamarika did point and stare, but he was not abusive. Mr Solomon Mamarika was clearly upset about the women being pushed and he moved forward but then stopped and verbalised his complaint. Nothing on the BWV depicts Mr Solomon Mamarika lashing out although he does flail as he is pushed backwards. When Mr Solomon Mamarika said the words “come on” his back was against the wall and he immediately raised his arms in surrender, in my view the words were not said as an invitation to fight but rather as an expression of disbelief or resignation.
(ii)(a) In Exhibit 7 the defendant largely repeats the Exhibit 6 version. However, he adds that Mr Solomon Mamarika approached him in “a combative way” and alleges the strike was to the left side of his head.
(b)My concerns about Exhibit 6 apply equally to Exhibit 7. In addition and significantly, the defendant changes the location of the alleged strike from the right side (BWV and Exhibit 6) to the left side of his head. If the defendant had been struck as alleged, it is very odd that he then gets the site of impact wrong.
(iii)In Exhibit 8, the defendant adds that “I tried to tell him (Mr Solomon Mamarika) that (Mamarika) was spitting on my face”. However this attempted explanation is not borne out on the BWV and in cross examination the defendant conceded was not given.
(iv)In his evidence in chief the defendant gave a detailed explanation using quite a deal of police jargon to describe his actions with Mr Solomon Mamarika. In reference to his own actions he spoke of observing “pre-attack indicators”, the attempted arm grasp was further detailed by reference to the “new ISR package as an arm drag”, the push was again described as a “Dive manoeuvre”, and his further actions were couched in technical terms such as: “intercept, stabilise and resolve”, “take down manoeuvres” and so on. However, concerning the alleged contact with his head, the defendant became rather vague and said:
“I felt a strike on the right side of my head... I remember feeling the magnet that’s on behind my camera…I remember feeling that hit my head...I initially thought that maybe he tried to grab my head or punch me.”
Having considered all of the evidence I consider the defendant’s evidence to be largely self-serving. It changed in significant ways over time and I found him to be unreliable. I consider that the defendant exaggerated the actions of Mr Solomon Mamarika to paint him as the aggressor. Conversely, the defendant’s gave his own actions a veneer of legitimacy by couching them in technical police jargon. I rejected the defendant’s evidence that he was punched or otherwise deliberately struck by Mr Solomon Mamarika.
Did the prosecution negative the raised defences beyond reasonable doubt?
Section 208E of the Criminal Code
I was satisfied that this possible defence was raised to the required evidential standard on the evidence taken at its highest.
As discussed earlier, the defendant’s duties included ensuring the safety of persons, including his own safety, and the prevention of further offending. If he had honestly believed that he was about to be assaulted by Mr Solomon Mamarika, then I would have considered that a grapple, push and arrest to prevent such an assault would fall within the range of “acting in the course of his duty”. However, I did not accept the defendant’s evidence. Instead I found on the evidence that Mr Solomon Mamarika was lawfully remonstrating against the defendant’s treatment of the two women. Mr Solomon Mamarika was waggling his finger and complaining but he was not moving forward or closing the gap between himself and the defendant. He did not abuse the defendant or raise a fist. The defendant could not have genuinely misconstrued his acts as a precursor to an assault requiring a defensive reaction. I am satisfied that no force at all was required to contain or control Mr Solomon Mamarika. In those circumstances I was satisfied beyond reasonable doubt that when he introduced force and pushed Mr Solomon Mamarika the defendant was not “acting in the course of his duty”.
In addition I find the push occurred in the following circumstances:
(i)The defendant was an officer with 12 years’ experience, use of force training and experienced in general duties, domestic violence incidents, and dealing with Aboriginal persons;
(ii)Mr Solomon Mamarika was a solidly built, older male;
(iii)Mr Solomon Mamarika was unarmed;
(iv)Mr Solomon Mamarika was intoxicated;
(v)Mr Solomon Mamarika was apparently compliant with police directions;
(vi)Mr Solomon Mamarika was under the effective guard of Senior Constable Smithers, which did not change even though Mr Solomon Mamarika stood up;
(vii)Mamarika was on her side on the ground having just been pushed by the defendant;
(viii)Ms Lalara was on the ground having just been pushed by the defendant;
(ix)There were two police to one Mr Solomon Mamarika;
(x)Mr Solomon Mamarika was complaining but not abusive;
(xi)Mr Solomon Mamarika was waggling his finger but had not clenched his hand;
(xii)Mr Solomon Mamarika had stopped moving forward and there was over a metre between the defendant and Mr Solomon Mamarika;
(xiii)Mr Solomon Mamarika was complying with the direction to stay back;
(xiv)The first application of force was by the police to Mr Solomon Mamarika; and
(xv)Mr Solomon Mamarika did not throw a punch but flailed his arms as he went backwards.
In those circumstances I was satisfied that Mr Solomon Mamarika was well contained by the two police officers. He was acting lawfully. It was neither appropriate nor necessary to introduce force. I found the second limb negatived beyond reasonable doubt.
Alternate defences: s 27 Criminal Code
Taking the defendant’s evidence at its highest, I consider this defence was raised to the evidential standard. However, I rejected the defendant’s evidence that Mr Solomon Mamarika assaulted him by punching or swinging at him. Accordingly the defence is negatived.
If I am wrong and there was a punch or swing to the defendant’s head and the defendant used force to prevent the commission or continued commission of an assault then, taking into account the circumstances (i) – (xiv) above, I would have considered that the force used (and that an ordinary person similarly circumstanced would regard the force used) was reasonable.
Alternate defences: s 29 defensive conduct
Taking the defendant’s evidence at its highest, I consider that this defence was raised to the evidential standard. However, although the defendant claimed he was responding to an assault on him, I find there was no such assault and I do not accept that the defendant genuinely believed he had been assaulted. I consider that it must have been clear to the defendant that Mr Solomon Mamarika was verbally remonstrating against the defendant’s treatment of the two women, which he was entitled to do. In remonstrating Mr Solomon Mamarika was acting lawfully. He was not abusive, aggressive or threatening. I was satisfied this defence was negatived.
If I am wrong and the defendant genuinely held the belief that he had been assaulted by Mr Solomon Mamarika, then I still would not have been satisfied that there were reasonable grounds for that belief, as it is clear on the BWV that there was no punch or swing by Mr Solomon Mamarika before the force was introduced and his behaviour was neither aggressive nor abusive. Accordingly there was no reasonable basis for the defendant’s belief that he had been assaulted.
Result Charge 3: Assault on Mr Solomon Mamarika
I find the offence proven.
Ruling
Weighing all of the evidence, I found the defendant’s evidence changed over time, was internally inconsistent, was inconsistent with the BWV and was, at times, exaggerated. Overall, I found the defendant’s evidence unreliable and unconvincing. Where his evidence differed from what was shown on the BWV, I gave it little weight.
I found that the defendant’s behaviour fell markedly below the minimum standards expected of a police officer.
I find the defendant guilty on each of the three charges and on each circumstance of aggravation.
Dated this 20 March 2020
| Judge Armitage |
| LOCAL COURT JUDGE |
[1] Ex 5 Case 8917947 CAD Log
[2] Contrary to s 188(1) and (2) of the Criminal Code
[3] Contrary to s 188(1) of the Criminal Code
[4] Section 29 of the Criminal Code
[5] Section 27(e) of the Criminal Code
[6] Schedule 1 of the Criminal Code Act 1983
[7] Contrary to the written submissions of the defendant at [3], s141 of the Evidence (National Uniform Legislation ) Act (NT) does not apply.
[8] Criminal Reform Amendment Bill (No.2) 2006 Explanatory Statement
[9] Criminal Reform Amendment Bill (No2) 2006 Second Reading Speech – Thursday, 31 August 2006, Hansard p 3023
[10] Criminal Reform Amendment Bill (No2) 2006 Second Reading Speech – Wednesday, 11 October 2006, Hansard p 3184. Mr Stirling became Minister for Justice and Attorney-General after the introduction of the Bill.
[11] Dr Stephen Gray, ‘You can't charge me, I'm a cop: should police, corrections staff and law enforcement officers be immune from criminal liability for actions carried out against vulnerable people in the course of their duties?’, (2018) 41(3) UNSW Law Journal 670
[12] Ibid 675-678 (Dr Stephen Gray)
[13] Gardiner v Marinov (1998) 7 NTLR 181
[14] Ibid pp 190-191
[15] Innes v Weate [1984] Tas R 14
[16] R v K (1993) 118 ALR 596
[17] Ibid at pp 600-601
[18] LexisNexis Australian Legal Dictionary, LexisNexis Butterworths Australia 2016, 2nd Ed. at p 1251
[19] Section 189A Criminal Code
[20] Sinclair v Burgoyne (2007) 208 FLR 101
[21] Ibid at [4]
[22] Prior v Mole [2015] NTSC 65
[23] Section 14 A of the Police Administration Act 1978 (NT) empowers the Commissioner to issue general orders and instructions as are necessary to secure the good government and efficient working of the Police Force.
[24] Ibid at [71]
[25] Ibid at [52]
[26] R v Gehan [2019] NTSC 91
[27] Ibid at [8-9]
[28] Section 29AAB(1) of the Traffic Act
[29] R v Gehan [2019] NTSC 91 at [11]
[30] Section 120C (a) of the Police Administration Act 1978
[31] Ibid at [35]
[32] Perkins v The County Court of Victoria (2000) 2 VR 2
[33] Ibid at 267-268 (I note that the relevant offence under consideration was one of resisting police in the “execution of their duty”: s52 (1) of the Crimes Act 1958 (Vic), which provision did not use the phrase “in the course of duty” as stated by Charles JA. See judgment of Buchanan JA at [46])
[34] Collins English Dictionary and Thesaurus, Harpers Collins Publishers, Reprint 1994 at 392
[35] The Concise Oxford Dictionary of Current English, Clarendon Press, Eighth Ed. at 408
[36] Macquarie Dictionary, Macquarie Dictionary Publishers Pty Ltd, Fifth Ed. at 579
[37] Hamilton v Halesworth (1973) 58 CLR 369
[38] R v Whittington (2006) 17 NTLR 235, R v Whittington (2007) 19 NTLR 83
[39] Dr Stephen Gray, ‘You can't charge me, I'm a cop: should police, corrections staff and law enforcement officers be immune from criminal liability for actions carried out against vulnerable people in the course of their duties?’, (2018) 41(3) UNSW Law Journal 670 at 672-673
[40] Director of Public Prosecutions (NSW) v Weinstein (2010) 78 NSWLR 666
[41] Firearms Act 1996 (NSW) s39
[42] Director of Public Prosecutions (NSW) v Weinstein (2010) 78 NSWLR 666 at 673
[43] Ibid at 675-677
[44] Re a Solicitor [1945] K.B. 368
[45] George v Rockett (1990) 170 CLR 104 at 112 per the Court
[46] Taikato v The Queen (1996) 186 CLR 454 at 470
[47] Exhibits 1 and 4, noting there was only limited transcript provided with Exhibit 1 and none for Exhibit 4.
[48] Exhibit 3 Royal Darwin Hospital medical records p 13
[49] Exhibit 2 statutory declaration of Mamarika dated 26 April 2019 at [15-19]
[50] Exhibit 3 p 3
[51] Definitions 1A(1) Criminal Code
[52] T 31/01/20 p 36
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