Brooke v Turnbull
[2018] ACTMC 15
•6 August 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brooke v Turnbull |
Citation: | [2018] ACTMC 15 |
Hearing Dates: | 31 July 2017, 14 – 15 December 2017 & 23 July 2018 |
DecisionDate: | 6 August 2018 |
Before: | Magistrate Theakston |
Decision: | See paragraph [58] |
Catchwords: | CRIMINAL LAW – resist territory public official – failure to comply with exclusion direction – whether or not exclusion direction lawfully issued – lawful excuse for not complying with exclusion direction DRUG OFFENCES – possess drug of dependence – possession of cocaine – whether or not satisfied beyond reasonable doubt white powder in defendants possession was cocaine POLICE – rights, powers and duties – functions of a territory public official – lawful arrest – use of force – excessive force |
Legislation Cited: | Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 (ACT) Crimes Act 1900 (ACT) ss 175, 179, 212, 221, 222 Crimes Prevention Powers Act 1998 (ACT) (Repealed) Criminal Code 2002 (ACT) s 361 Drugs of Dependence Act 1989 (ACT) s 169 Human Rights Act 2004 (ACT) ss 13, 30 |
Cases Cited: | Elwin v Robinson [2012] WASC 311 R v Austin (No 2) [2010] ACTSC 136 Temoannui v Ford [2009] ACTSC 69 |
Parties: | Matthew Brooke (Informant) Owen Roscoe Oswald Turnbull (Defendant) |
Representation: | Counsel Mr T Trotter (Informant) Mr J Pappas (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Informant) Ben Aulich & Associates (Defendant) | |
File Numbers: | CC 12831 of 2016 CC 11404 of 2016 CC 11405 of 2016 CC 11406 of 2016 |
MAGISTRATE THEAKSTON:
Background
On a Friday evening in October 2016, the defendant was out celebrating his 26th birthday in Canberra City. An incident occurred just before midnight, where police alleged he was in possession of cocaine sitting in lines atop his mobile phone. He was initially arrested, but subsequently released and issued with an exclusion direction. It is alleged that he then failed to comply with that direction. It was also alleged that he later intimidated a police officer and then resisted police when they attempted to arrest him.
The defendant is charged with the following offences:
(a) CC16/12831 – Possess drug of dependence (29 November (sic) 2016) contrary to s 169(1) Drugs of Dependence Act 1989 (ACT);
(b) CC16/11404 – Failing to comply with exclusion direction (29 October 2016) contrary to s 179(1) Crimes Act 1900 (ACT);
(c) CC16/11405 – Resist territory public official (29 October 2016) contrary to s 361(1) Criminal Code 2002 (ACT); and
(d) CC16/11406 – Resist territory public official (29 October 2016) contrary to s 361(1) Criminal Code 2002 (ACT).
A charge of intimidating a territory public official was earlier before the court, but ultimately withdrawn. The defendant entered pleas of not guilty to the remaining charges and a hearing was conducted before me over a number of days.
The following disputes arose during the hearing:
(a)Can I be satisfied that the white powder in the defendant’s possession was cocaine?
(b)Is the offence of possessing a drug of dependence established?
(c)Was the exclusion direction lawfully issued?
(d)Did the defendant have a lawful excuse for not complying with the exclusion direction?
(e)Is the offence of failing to comply with an exclusion direction established?
(f)Was the second arrest lawful?
(g)Was the force used by arresting police necessary and reasonable?
(h)Are the offences of resisting territory public officials established?
General principles to be applied
In these proceedings I must find facts, draw inferences from them, and apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and defendant are entitled to my verdict free of partiality, prejudice, favour or ill-will. I must deliver my decision according to the evidence.
The prosecution bears the onus of proving the guilt of the defendant. The defendant does not have to prove that he did not commit the offences charged.
The standard of proof for the prosecution is proof beyond reasonable doubt and the defendant cannot be found guilty of an offence unless the evidence satisfies me beyond reasonable doubt of his guilt for each element of the offence.
If the evidence, which I accept, fails to satisfy me beyond reasonable doubt of any or all of the elements of an offence, then I must dismiss the charge.
If I am satisfied that there may be an explanation consistent with the innocence of the defendant, or I am unsure of where the truth lies, I must find the charge has not been proven to the requisite standard.
I need to consider the reliability of each witness’ evidence. I can accept all, part or none of a witness’ evidence.
The defendant did not give evidence during his hearing, and he was not required to do so. No inference, adverse to him, can be drawn from his decision to exercise his right to silence. Nor can the absence of evidence from the defendant be used to fill in any gaps or used as a makeweight for any deficiency in the prosecution case.
Uncontested facts
The following facts were established by the prosecution evidence and not challenged. I accept the same and make findings accordingly:
Drugs
(a)Just before midnight on Friday 28 October 2016, Constables Brooke and Sutherland rode up to the defendant on their AFP issued bicycles. The defendant was with another male and two other females inside an alcove adjacent to Off Ya Tree on Petrie Plaza Canberra City. All were seated. The defendant held a rolled up $5 note and a black mobile phone with lines of white powder on the phone glass. He moved in a way as to sniff the powder through the note.
(b)Constable Brooke directed the defendant to place his hands up, stand up and step out of the alcove. The defendant stood up, tipped the powder towards the ground. Some of the powder landed on the front of his body and on the black satchel bag he was carrying. The defended kicked and rubbed the powder on the ground.
(c)The third member of the bicycle patrol arrived, namely Senior Constable Power. The defendant was arrested and handcuffed. Three other police arrived, namely Constables Love, Drennan and Lai Thackeray. The defendant was verbally abusive towards the police, including calling Constable Brooke a ‘fucking cunt’ and ‘dog’, and calling Constable Lai Thackeray a ‘corrupt dog’ and ‘Halavich’s bitch’. He also stated that if the handcuffs were removed he would fight all the police present.
(d)During the arrest Constable Brooke removed the satchel from the defendant, and seized that bag along with the phone and $5 note. Constable Brooke initially placed the satchel on the ground with the white powder uppermost. Constable Sutherland searched the satchel, found no drugs and placed the satchel on the front of a police vehicle. He subsequently placed the satchel in an AFP exhibit bag. The $5 note and mobile phone were placed in separate AFP exhibit bags. Constable Brooke could see white powder on the phone and satchel when they were seized.
(e)The contents of the exhibit bag containing the satchel was later analysed by the ACT Government Laboratory, and observed to contain, among other things, a black shoulder bag and a mixture of white powder, hair and dirt. Cocaine was detected in the mixture of white powder, hair and dirt.
(f)The contents of the exhibit bag containing the mobile phone was analysed by the same laboratory. No drugs were detected.
(g)The exhibit bag containing the $5 note was not sent to the laboratory for analysis. This was because Constable Brooke could not see any white powder on the $5 note.
(h)The second male observed to be in the alcove with the defendant was charged with being in possession of a drug of dependence, namely cocaine. That charge related to two bags of powder located by police.
Exclusion Direction
(i)At just after 12:20 am, Constable Brooke informed the defendant that due to his ‘behaviour and intimidation of Constable Lai Thackeray’ and Constable Brooke’s belief that the defendant ‘have or are likely to be engaged in conduct that would cause a reasonable person to fear for their safety’, he was ‘excluded from the zone as shown on the back of this map’, and was to ‘leave immediately’, ‘remain outside the exclusions zone for a period of six hours’, and ‘must leave the exclusion zone by a particular route onto Bunda Street where the taxis are out the front of Academy’. The defendant was provided with a map of the exclusion zone, which depicted that zone as bounded by the streets: Bunda Street, Petrie Plaza, London Circuit and Northbourne Avenue. Constable Brooke also informed the defendant that it was an offence to fail to comply with the direction and that the direction would end at 6 am that morning.
(j)At the time the defendant was given the direction, he was in the back of a police vehicle and handcuffed. The handcuffs were then removed and items, including cash, were returned to the defendant.
(k)Constable Brooke recorded the direction using an audio recorder. The recording started at 12:21 am and ended at 12:25 am, and therefore extended for no more than five minutes. The direction was initially given towards the early part of the recording and the defendant was released from the handcuffs and had items returned to him by the end of that conversation. The defendant could only comply with the direction at the end of the conversation, some four minutes after he was initially given the direction to leave the exclusion zone immediately.
(l)The defendant then walked onto Bunda Street and turned left towards the Academy Club. He walked a short distance along Bunda Street before entering the Monkey Bar. Soon afterwards, Constables Brooke and Sutherland and Senior Constable Power approached the doors of the Monkey Bar and the defendant exited that night club. Constable Brooke approached the defendant and instructed him again to leave the exclusion zone, and warned him that if he did not do so he would be in breach of the exclusion direction.
(m)The defendant walked away from police along Bunda Street in a northerly direction with Warren White. The two stopped briefly at the corner of Bunda Street and Garema Place and looked at a mobile phone held by Mr White. They were joined by Aaron Graham. The three then walked westward along Garema Place into the exclusion zone a relatively short distance. They stopped for a brief period before police arrived on mass. Constable Brooke and Senior Constable Power spoke to the defendant and advised him he was in breach of the exclusion direction and that he would receive a summons. At some point the defendant dismissively said to police ‘get me a cab’.
Arrest
(n)Mr Graham ushered the defendant towards Bunda Street. Mr White followed. Constable Lia Thackeray hailed a taxi and opened the front passenger door. Mr Graham ushered the defendant into the front seat of that taxi. At this time there were approximately a dozen police officers in close proximity to the defendant and observing his actions.
(o)As the defendant sat down in the taxi he said words that were heard by police.
(p)Senior Constable Power decided to arrest the defendant. He and Constable Daniel Thackray grabbed the defendant and forcibly removed the defendant from the taxi. During the process the defendant resisted the force applied to his body. The defendant was moved to the ground. Oleoresin capsicum spray was applied to the defendant’s face and he was handcuffed. He was not decontaminated until he arrived at the Watch House.
(q)All police officers were wearing their police uniforms.
Can I be satisfied that the white powder in the defendant’s possession was cocaine?
I have reservations about the continuity of evidence in relation to the white powder observed to be in the defendant’s possession, and whether that same powder tested positive for cocaine.
It was a mixture of white powder, hair and dirt that tested positive for cocaine. However, the evidence provides no explanation for the presence of the hair and dirt. The presence of that additional material points to the possibility that hair and dirt may have been added, intentionally or otherwise, to the exhibit bag that contained the satchel. Such a scenario raises questions of contamination. I cannot be certain that the positive test for cocaine related only to the white powder observed to be on the satchel.
Additionally, the mobile phone was seized with white powder visible on it. However, the phone tested negative for the presence of cocaine.
Is the offence of possessing a drug of dependence established?
In these circumstances, while I am satisfied beyond reasonable doubt that the defendant was in possession of the white powder, I cannot be satisfied beyond reasonable doubt that the power was, or included, cocaine. Accordingly, I find the offence of possession of a drug of dependence not proved.
Was the exclusion direction lawfully issued?
It was submitted on behalf of the defendant that the basis on which the exclusion direction was issued was inadequate, and the direction was not properly exercised.
Subsection 175(1) of the Crimes Act 1900 provides that, subject to some exclusions that are not applicable to the present case, an exclusion direction may be issued if:
a police officer reasonably believes that a person (whether part of a group or not) has recently engaged in, is engaged in, or is likely in the immediate future to engage in, conduct—
(a)involving—
(i)violence towards, or intimidation of, a person; or
(ii)damage to property; or
(b)that would cause a reasonable person to fear for their safety.
19. Those requirements envisage conduct in the recent past, present or immediate future, which involves violence, intimidation, damage to property or would otherwise cause a reasonable person to fear for their safety. As the last option is hypothetical in nature, due to the use of the term ‘would’, it does not require that a person did in fact fear for their safety.
20. As described above, Constable Brooke described the basis for issuing the direction as being due to the defendant’s behaviour and his intimidation of Constable Lai Thackeray. The defendant had been verbally aggressive to police, by insulting Constables Brooke and Lai Thackeray, and stating that if his handcuffs were removed he would fight all the police present. That basis clearly falls within the components of the statutory test verbalised by Constable Brooke, namely:
[the defendant] ‘have or are likely to be engaged in conduct that would cause a reasonable person to fear for their safety’
I am satisfied that Constable Brooke held the belief he described, and that in the circumstances it was reasonable for him to do so. I am therefore satisfied that the direction was issued on an appropriate basis.
It was submitted that the direction was robbed of any lawful force because the direction was issued in circumstances where:
(a)the defendant was still handcuffed and not free to immediately comply with the direction; and
(b)it was accompanied by a demand to comply with the direction within two minutes, as opposed to immediately.
My attention was drawn to the requirement to interpret the exclusion directions provisions in a way that is compatible with the rights described within the Human Rights Act 2004, in particular the right to the freedom of movement. That Act provides at ss 13 and 30:
13 Freedom of movement
Everyone has the right to move freely within the ACT and to enter and leave it, and the freedom to choose his or her residence in the ACT
30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
The power to give an exclusion direction is provided at s 175 of the Crimes Act, which reads relevantly:
(3) The police officer may give the person a direction (an exclusion direction) to do any of the following:
(a)immediately leave an area specified by the officer (an exclusion zone);
(b)remain outside the exclusion zone for a period, decided by the officer (an exclusion period ), of not more than 6 hours;
(c)leave the exclusion zone by a particular route, or in a particular direction, decided by the officer.
The exclusion zone provisions were enacted by the Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 and replaced and modernised the move-on-powers previously contained within the Crime Prevention Powers Act 1998. In Temoannui v Ford [2009] ACTSC 69, Higgins CJ echoed the Explanatory Memorandum to the Crime Prevention Powers Bill 1998 when he observed at [25]:
The purpose of the [Crime Prevention Powers] Act is clear. It is designed to permit a police officer to direct a person in a public place whose conduct is or is likely to be violent to leave that place.
The Explanatory Statement to the amendment Bill observed that the exclusion powers engaged and limited the right to freedom of movement provided by the Human Rights Act. The statement when on to explain that:
The purpose of the limitation is to provide [ACT Policing] with better tools to deal with antisocial behaviours that can intimidate members of the public or reasonably cause them to fear for their safety.
The Explanatory Statement also explained the nature and extent of the limitation to the right to freedom of movement, and the various safeguards contained within the provisions that are intended to reduce the extent of that limitation. Those safeguards included limiting the circumstances in which the directions could be given, the period of time for which they would remain in force and how the directions are to be given.
In relation to the complaint that the defendant was not able to comply immediately with the direction, the term ‘immediately’ needs to be read in light of the purpose of the provisions and the realities of policing. The modernisation of the powers involved the requirement that police provide key and precise information to the person being directed and to record a range of associated information.
By imposing those requirements, the new arrangements contemplated a process. That process will invariably take time to complete. It is in that context, and consistent with the purpose of the provision and compatible with the right to freedom of movement, that the term ‘immediately’ needs to be understood. ‘Immediately’ must mean as soon as circumstances allow, and not instantaneously.
Accordingly, I do not accept that giving the defendant the exclusion direction in the circumstances where he could not instantaneously comply, robs the direction of any lawful force.
Further, I do not accept that a police officer, when demanding that a person leave an exclusion zone within two minutes, as opposed to immediately, takes a step that would rob the associated exclusion direction of lawful authority. The command, of itself, does not impose any additional obligation on the person, could not frustrate compliance with the direction, and does not increase the limitation on the right to freedom of movement.
Additionally, I do not see the lawfulness of the initial exclusion direction being affected by subsequent demands by police for the defendant to leave the exclusion zone in compliance with the initial direction.
Accordingly, I find that the exclusion direction was issued lawfully.
Did the defendant have a lawful excuse for not complying with the exclusion direction?
The defence of reasonable excuse was not expressly raised during submissions, but out of completeness I will address the same.
When the defendant was originally arrested, a number of items were seized. However, the record of conversation documents that cash was returned to the defendant upon his release. While his mobile phone remained with police, the defendant can be seen on the CCTV viewing a mobile phone with Mr White. Therefore I would reject any suggestion that the absence of the defendant’s phone impacted upon his ability to leave the exclusion zone. In any event, the exclusion zone was modest in size and it remained open to the defendant to leave the exclusion zone, as directed, by making his way to the taxi area out the front of the Academy Club. From there, his options for future travel, including for example going home, were just as broad as when he was within the exclusion zone.
I am not satisfied that the evidential burden for this defence has been met. In any event, I am satisfied beyond reasonable doubt that the defendant did not have a reasonable excuse for not complying with the exclusion direction at the time he was walked along Garema Place.
Is the offence of failing to comply with an exclusion direction established?
Based on the above findings and for the above reasons, I am therefore satisfied beyond reasonable doubt that the defendant was issued with a lawful exclusion direction, was at least reckless about that circumstance, failed to comply with the direction and did so intentionally. Accordingly, I find the offence of failing to comply with an exclusion direction proved.
Was the second arrest lawful?
Various police witnesses uniformly testified that as the defendant sat in the taxi he said the words ‘I know where your girlfriend lives’. Senior Constable Power indicated that upon hearing those words he made the decision to arrest the defendant because the defendant attempted to intimidate police, in particular Constable Lai Thackeray. Senior Constable Power took the comments by the defendant as a threat, assessed that the defendant had the means and the ability to be able to go and carry out whatever threat he made and feared that the defendant might carry the threat out. The evidence was not clear about whom precisely Senior Constable Power understood the threat to be directed towards. Senior Constable Power indicated that he told the defendant he was under arrest for intimidate police.
I accept the evidence of the police witnesses that as the defendant went to sit in the taxi he said the words ‘I know where your girlfriend lives’. I accept that Senior Constable Power formed the view that the defendant had committed an offence and that he held the view at the time that he had to arrest the defendant to prevent a threat being carried out. This decision was made in an instant without the luxury of contemplation or consultation. I am also satisfied that in the circumstances there were reasonable grounds for Senior Constable to have formed those views as is required by s 212 of the Crimes Act.
I also accept the evidence that Senior Constable Power told the defendant he was under arrest for intimidate police and find that such a description was adequate for the purposes of informing the defendant of the substance of the offence as is required by s 222 of the Crimes Act.
In those circumstances I find that the decision to arrest the defendant the second time was lawful.
Was the force used by arresting police necessary and reasonable?
I infer from the evidence that had the police not taken action, the defendant may have left in the taxi moments later.
What followed the decision to arrest the defendant occurred within a brief period of time and involved the application of direct force upon the defendant without any obvious attempt to avoid an escalate of the situation, cordon the area and wait the defendant out or even provide the defendant with an opportunity to comply with any directions to submit to the arrest before significant force was applied.
Evidence from a number of police officers suggested that they perceived the defendant as acting aggressively shortly before the second arrest. When that evidence was tested and considered along with the CCTV footage, the defendant, at most, could be described as being indifferent to police.
The incident was captured relatively clearly on CCTV. Senior Constable Power and Constable Thackray quickly approach the defendant, pushing aside Mr Graham who was still in the door of the taxi and leaning over the defendant. The two police officers grab the defendant’s leg and immediately commence heaving at him in the attempt to drag him out of the taxi. The defendant immediately braced himself within the taxi in response to the force applied to him.
While the defendant was still in the taxi, Constable Drennan sprayed the defendants face with oleoresin capsicum spray. He did so without giving the defendant a warning.
Approximately 10 seconds after police first touching the defendant, he was hauled through the air and onto the ground. He lands on his back and immediately turns onto his stomach, probably in direct response to having just received the spray.
Constable Lai Thackeray, who was previously looking outwards from the incident and monitoring any other persons who may approach the incident, turns quickly towards the incident and also sprays the defendant’s face with oleoresin capsicum spray. Constable Lai Thackeray immediately turns back to face away from the incident and continues to monitor others who may be around. The defendant had been on the ground for not more than a second before he received that second spray. Constable Lai Thackeray did not warn the defendant before applying the spray, other than possibly saying ‘stop, stop’.
Constable Thackray then applied his body weight through his knee into the shoulder or upper arm of the defendant. He did so before he attempted to bring the defendant’s arm out from underneath the defendant. The defendant’s arms are placed behind his back and he is handcuffed. The physical altercation comes to an end, seven seconds after the defendant landed on the ground. While on the ground the defendant did not struggle to any significant degree.
Approximately 30 seconds later the defendant is rolled to his side and sat up. He is not decontaminated from the spray before he is placed into a police caged vehicle.
Subsection 221(1) of the Crimes Act provides the following in relation to the use of force during an arrest:
A person shall not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest.
The prosecution referred to the decision in R v Austin(No 2) [2010] ACTSC 136. In that decision at [51] – [57], Refshauge J referred to a number of US and Canadian authorities and adopted the principle that exigent circumstances may permit entry into premises for the purpose of executing a search warrant without any prior announcement. That decision related to the execution of a warrant, rather than an arrest on suspicion of a person having committed an offence. To the extent that that decision may be relied upon to support an equivalent principle that exigent circumstances may permit an arrest without explanation, that concept is in any event expressly provided for in subsection 222(3)(b) of the Crimes Act. To the extent that the decision may support an equivalent principle that in exigent circumstances significant pre-emptive force may be applied during an arrest, there is no evidence in the instant case to provide a factual foundation.
In the instant case police were present in significant numbers and focused solely on the defendant. While there may have been a concern the defendant was about to be driven away in the taxi, police could have readily cordoned the area and prevented the taxi from leaving. The defendant could have been directed to exit the taxi, and force used, if necessary, in a graduated way. His immediate and reactive resistance to being forcibly pulled from the taxi is not surprising. It could not be said in the circumstances that the degree of force used was necessary.
The prosecution also referred to the decision of Elwin v Robinson [2012] WASC 311. The facts in that matter involved police observing two men fight during a boisterous New Year’s Eve event in Perth’s CBD. At [25] and [26], McKechnie J found that force applied by police to put the offender on the ground, notwithstanding his verbal submission to the arrest, but refusal to go to the ground, was not excessive force. McKechnie J noted that the events occurred quickly and it was necessary to separate and subdue the two fighting men.
In the instant case there was no such necessity to subdue the defendant. He was merely sitting in a taxi. I make that observation cognisant that the defendant had earlier threatened police and was known to police. I cannot be satisfied beyond reasonable doubt that the force used upon the defendant was necessary and reasonable.
Are the offences of resisting territory public officials established?
I am satisfied that the Senior Constable Power and Constable Thackray were territory public officials and that the defendant knew they were public officials. I am also satisfied that the defendant resisted the actions of those two police officers and did so intentionally. However and for the above reasons, I cannot find beyond reasonable doubt that Senior Constable Power and Constable Thackray were exercising their functions as territory public officials, by not using more force upon the defendant than was necessary and reasonable to make the arrest or to prevent the defendant’s escape. Accordingly, I find the two resist territory public official charges not proved.
Referral to the Chief Police Officer
I have decided to refrain from making further comment about the evidence, other than to observe there were key and significant inconsistencies between the CCTV footage, police perceptions and the Use of Force Report. As the latter is an important document for AFP governance, I will direct the Registrar to draw these inconsistencies to the attention of the Chief Police Officer by providing her with a copy of these reasons, the transcript and evidence relating to these proceedings.
Costs
I will hear the parties further, if necessary, in relation to the question of costs.
Orders
I make the following orders:
1. In relation to charge CC 12831 of 2016, being the possess drug of dependence, I find the offence not proved and the charge is dismissed.
2. In relation to charge CC 11404 of 2016, being the failure to comply with an exclusion direction, I find the offence proved.
3. In relation to charge CC 11405 of 2016, being the resist territory public official, namely David Power, I find the offence not proved and the charge is dismissed.
4. In relation to charge CC 11406 of 2016, being the resist territory public official, namely Daniel Thackray, I find the offence not proved and the charge is dismissed.
5. I direct the Registrar to providing the Chief Police Officer with a copy of these reasons, the transcript and evidence relating to these proceedings
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 6 August 2018 |
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