Director of Public Prosecutions (NSW) v Greenhalgh

[2022] NSWSC 980

Supreme Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980

Hearing dates:

6 December 2021

Decision date:

29 July 2022

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

1) Appeal allowed;

2) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the order made by Magistrate Dakin on 24 February 2021 dismissing the charge of “common assault” under s 61 of the Crimes Act 1900 (NSW) is set aside.

3) The matter is remitted to the Local Court to be dealt with according to   law.

4) Each party to pay their own costs of these proceedings.

Catchwords:

CRIME – appeal and review – appeal as of right from Local Court decision under s 56(1)(c) Crimes (Appeal and Review) Act 2001 (NSW) – where first defendant a police officer – where first defendant struck a young person a number of times with a baton – where young person intoxicated – where Magistrate dismissed charge of common assault against first defendant – meaning of “reasonably necessary” in s 230 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – whether Magistrate failed to determine whether first defendant’s use of force was “reasonably necessary” – whether Magistrate failed to provide adequate reasons for decision

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59

Crimes Act 1900 (NSW), s 61

Criminal Investigation Act 2006 (WA), s 16

Evidence Act 1995 (NSW), ss 38, 65

Interpretation Act 1987 (NSW), s 34

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 206, 230-231

Police Powers and Responsibilities Act 2000 (Qld), s 615

Cases Cited:

Attorney General for New South Wales v XX [2018] NSWCCA 198

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

Commissioner of Police v Flanagan [2019] 1 Qd R 249; [2018] QCA 109

Devetak v R [2018] NSWDC 23

Director of Public Prosecutions (NSW) v Tamcelik (2012) 224 A Crim R 350; [2012] NSWSC 1008

Elwin v Robinson [2014] WASCA 46

Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336

O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286

R v Turner [1962] VR 30

State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185

State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225

Woodley v Boyd [2001] NSWCA 35

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (Plaintiff)
Michial Luke Greenhalgh (First Defendant)
Local Court of New South Wales (Second Defendant)

Representation:

Counsel:
F Veltro SC; W Liu (Plaintiff)
N Hutley SC; B Haverfield (Second Defendant)
Submitting Appearance (Second Defendant)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Plaintiff)
Walter Madden Jenkins Solicitors (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s):

2021/171343

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

24 February 2021

Before:

Dakin LCM

File Number(s):

2019/332580

Judgment

1. HIS HONOUR: By a summons that was amended by a supplementary notice filed on 25 August 2021, the plaintiff seeks to appeal an order made by Magistrate Dakin (“the Magistrate”) on 24 February 2021, sitting at Lismore Local Court, dismissing a charge of common assault contrary to s 61 of the Crimes Act 1900 (NSW) against the first defendant, following a contested hearing of the matter. The Local Court of New South Wales (“the second defendant”) has filed a submitting appearance. I will refer to the first defendant in this judgment as the defendant.

2. At the time of the incident that gave rise to the charge, the alleged victim of the assault was aged 16. In accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), I made an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that his name not be published. I will refer to him in this judgment as the complainant. On 12 November 2020, the Magistrate made orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that certain videos that captured images of the complainant at the Byron Bay police station whilst he was naked not be published. I am satisfied that it is appropriate for those orders to continue.

The background to the charge

3. The defendant was the subject of a Court Attendance Notice dated 2 December 2019 that alleged that “between 2.00am and 3.00am … [o]n 11 January 2018 on Lateen Lane Byron Bay … [the defendant] did assault [the complainant]”. The charge arose from events in the course of an incident that was attended by the defendant in his capacity at that time as a Senior Constable of the New South Wales Police Force.

4. In the early hours of Thursday 11 January 2018, the complainant was heard and observed in Lateen Lane by nearby residents and others to be in a state of distress and acting bizarrely. He was naked, pacing up and down and yelling out for help and for water. It was not in dispute that he was under the influence of a drug, that he later claimed he had consumed unwittingly. Police were notified of the disturbance and four officers attended in two police vans. The defendant and Senior Constable Roach (“SC Roach”) arrived in the first van, shortly followed by Senior Constable Mates (“SC Mates”) and Senior Constable Sims (“SC Sims”) in a second van. There was a physical interaction between the complainant and the four officers, during which police attached two sets of handcuffs on his wrists and carried him into one of the police vans.

5. It was common ground between the parties that prior to the complainant being placed in the police van, SC Roach applied oleoresin capsicum spray (“OC spray”) to the complainant and the defendant discharged at least two bursts from a Taser into his body and struck him multiple times with a police baton. He was also struck twice with a baton by SC Mates. The complainant was conveyed to Byron Bay Police Station where the Duty Sergeant directed that he be taken by ambulance to Tweed Heads Hospital for examination. He was subsequently released from hospital into his mother’s care.

The issue of law

6. Police did not arrest the complainant and he was not charged with any offence. There was no dispute that police acted lawfully in seeking to detain the complainant, in accordance with s 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), which relevantly provides as follows:

“206   Detention of intoxicated persons

(1)   A police officer may detain an intoxicated person found in a public place who is—

(a)   behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or

(b)   in need of physical protection because the person is intoxicated.

(2)   A police officer is not to detain a person under this section because of behaviour that constitutes an offence under any law.

(2A) However, a police officer may detain an intoxicated person under this section even if behaviour constitutes an offence under section 9 of the Summary Offences Act 1988 if the detention is not for the purpose of taking proceedings for the offence.

Note—

Section 9 of the Summary Offences Act 1988 makes it an offence for a person who is the subject of a move on direction to be intoxicated and disorderly in a public place. Part 8 of this Act would apply to a person who is arrested for such an offence and detained for the purpose of taking proceedings for the offence.

…

(5)   An intoxicated person detained under this Part may be detained under such reasonable restraint as is necessary to protect the intoxicated person and other persons from injury and property from damage.

...”

7. Part 18 of LEPRA, in particular s 230 (“s 230”), was a relevant consideration. Part 18 reads as follows:

“Part   18 Use of force

230   Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

231   Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.”

8. It was accepted by the parties that during the course of the incident, the defendant struck the complainant with his baton at least 18 times. The essence of the prosecution case against the defendant was that six of those baton blows, in the terms of s 230, were not “reasonably necessary” (“the contested baton strikes”) and therefore constituted a common assault contrary to s 61 of the Crimes Act. At the outset of the hearing, counsel for the defendant conceded that the legislative protection of Pt 18 was “the issue”. Referring to the defence case, counsel for the defendant added that “a small part of it will actually fall under the self-defence provisions of the Crimes Act” but at the close of his final submissions to the Magistrate, he stated “I never raised self-defence”. As the Magistrate noted in his judgment, if the legislative protection of s 230 did not apply to the contested baton strikes, the defendant did not contend that an assault had not been established.

The essence of the factual dispute

9. The prosecution contended that the police response, from the first administration of physical force, was disproportionate to the threat posed by the complainant. It was obvious that he was distressed and seeking help and that he was unarmed, since he was naked and not holding anything. He did not verbally threaten or pose a threat to the bystanders or to the police. The complainant was secured with two sets of handcuffs and restrained on the ground by three police officers by the time that the contested baton strikes were administered. However, by that time, the defendant’s judgment had been clouded by a loss of self-control borne of frustration and anger, known in policing as “a red mist of rage”. The contested baton strikes were unwarranted and were not “reasonably necessary” in terms of s 230.

10. The defence contended that, although the complainant was clearly unarmed and either drug-affected or mentally unwell, he posed an imminent threat of violence. The complainant tried to punch SC Roach, which prompted the application of physical restraints, and when the officers engaged him on the ground, he was able to resist their attempts with extraordinary strength. The contested baton strikes were a proportionate response to one of these outbursts and were intended to bring him back under control with “pain compliance”.

The appeal

11. The appeal is brought pursuant to ss 56(1)(c) and 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CARA”). Section 56(1)(c) of CARA provides that a prosecutor may appeal as of right from “an order made by the Local Court dismissing a matter the subject of any summary proceedings”. Section 59 provides as follows:

“59   Determination of appeals

(1)   The Supreme Court may determine an appeal against sentence—

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by dismissing the appeal.

(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c), (d) or (e) or 57 (1) (b) or (c):

(a)   by setting aside the order and making such other order as it thinks just, or

(b)   by dismissing the appeal.”

12. The plaintiff contends that, in dismissing the charge, the Magistrate erred in law by:

1. failing to consider or determine whether, for the purposes of s 230 of LEPRA, the defendant's use of force in the exercise of a function under the Act was "reasonably necessary" by an objective standard; and

2. failing to provide adequate reasons for dismissing the charge.

13. Alternatively, the plaintiff seeks leave for an extension of time to commence judicial review proceedings of the Magistrate's decision pursuant to s 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari, on the same basis, in the event that the Court is satisfied that ground 2 is made out but not that it relates to a question of law alone.

The nature of the evidence

14. The prosecution tendered a video of part of the incident that was captured on a smartphone by a nearby resident, Patricia Cardona (“the video”). The video is 2 minutes and 49 seconds in length. It was not disputed by the defendant that he could be seen on the video striking the complainant with his baton 18 times, the last six being the contested baton strikes. In her closing submissions to the Magistrate, the prosecutor described the video as “the primary evidence relied upon in the prosecution case”.

15. Ms Cardona’s partner, Daniel Thomas, who was with Ms Cardona when she captured the video, later downloaded it onto a computer and forwarded it to the television program A Current Affair, which broadcast a story on the incident shortly thereafter. That story featured at least part of the video. That prompted an investigation by the New South Wales Law Enforcement Conduct Commission (“the LECC”) into the actions of police in the course of the incident, that generated witness statements and the taking of evidence in hearings in 2018.

16. The hearing by the Magistrate occurred over six days between 9 November 2020 and 24 February 2021. The prosecution called the complainant and his mother, three civilian eyewitnesses, two of the other three police officers who attended the incident, an ambulance officer who took the complainant from Byron Bay Police Station to Tweed Heads Hospital, the Duty Sergeant at the Byron Bay Police Station who directed that transfer and a senior instructor from the Police Force Operational Safety and Skills Command who gave evidence as to the proper use of batons and the training that the defendant had received in that regard. The prosecution also tendered transcripts of evidence given to the LECC by SC Mates, who was unavailable to give evidence in the Local Court due to ill-health, pursuant to s 65 of the Evidence Act 1995 (NSW). The prosecution tendered a statement by Ms Cardona to the LECC, in which she declined to relate her observations of the incident. She confirmed that she had taken the video, its length, that she had not edited it and that she had given it to Mr Thomas. She was not required for cross-examination in the Local Court proceedings and was not called as a witness.

17. The defence called the defendant and five witnesses who attested to his good character, four of whom were more senior police officers who knew him through his police service. The defendant was represented by counsel throughout the hearing.

18. For the purposes of the application, it is unnecessary to canvas the evidence as to what occurred at the police station after the complainant was detained, since the issue is what the defendant or a reasonable person deemed reasonably necessary at the time of the contested baton strikes. The character evidence is irrelevant as well, since the issue in dispute is the Magistrate’s determination of the objective test.

19. At the outset of the hearing, the Magistrate conducted a voir dire as to medical evidence that the prosecution sought to tender of injuries observed on the complainant’s torso when he was examined at Tweed Heads Hospital, and an expert report by Professor Johan Duflou as to the consistency of the injuries with the alleged assault, as depicted on the video. The Magistrate ruled that the evidence was inadmissible because it was irrelevant and unfairly prejudicial to the defendant. Actual injury was not an element of the charge of assault and it could not be excluded that baton blows delivered by the defendant other than the contested baton strikes, which were not the subject of the charge, accounted for the injuries.

The evidence called by the prosecution

The complainant’s mother

20. The complainant’s mother gave brief evidence to the effect that the complainant has “Asperger’s Syndrome”, a condition that was first diagnosed when he was aged about five years old.

The complainant’s evidence

21. The complainant gave evidence in chief that at the time of the incident he was aged 16 and on holiday in Byron Bay with his mother, stepfather and brother. On the evening of 10 January 2018 at about 9pm, after the family had dined in town, his mother gave him permission to go by himself to a grassed area near the beach. There he met a group of boys who he thought were a year or two older than him. He sat and talked with them while they drank beer. They offered him a bottle of beer, which he accepted. He could not recall if he opened it or if it was already open. He had not previously consumed alcohol. He drank about three quarters of the bottle’s contents. He described his experience thereafter:

“… I started feeling strange, like, everything was getting bright. … My heart started racing and I was starting to sweat a little bit and everything just seemed like very colourful.”

22. The complainant went to a shop, purchased a bottle of water and returned to the boys on the grass. He told them that he was feeling strange, and said that in response “they were just giggling and looking at each other … they were just laughing”. They all walked into town and the boys departed, leaving him alone. He said:

“I just started feeling more worse and worse every minute and I was just sweating … I didn't know where my hotel was or where I was staying and I was trying to look for it. … I couldn't walk straight and just my vision was very blurred and everything.”

23. The complainant realised that he could not walk straight and his vision remained blurred. He recalled hearing people, who he could not see, asking: “Are you alright?” He found himself in a “side street”. He was sweating profusely and took off his singlet and t-shirt; he did not recall taking off his shorts and underwear. He felt dehydrated and was looking for water. He again heard people who he could not see, asking if he was all right:

“I was shouting out, ‘I need water, I need water,’ and just keep sweating out. … The next thing I remember … seeing, like … flashing blue and white. … then guys were saying, ‘Mate, are you all right?’ whatever. … I remember saying, ‘I need water, I need water, please. I need water.’ … I don't know exactly what they were saying, but someone was saying - like, just shouting something at me, but I don't know exactly what the words were. I was just hearing muffled, like, talking towards me. … they were in front of me or whatever, but I couldn't properly see who they were and I didn't know what they were saying.”

24. The complainant was asked:

“Q. And did you feel anything happen to your body at that point?

A. Yeah, I felt like a pinch from my stomach.

…

Q. So you felt a pinch in that area in the middle of your body?

A. Yeah. It felt like a pinch on my skin - like, a pull.

Q. And what happened after you felt that pinch in that area?

A. I remember, like, just looking at it and feeling it or whatever, and then I just kept touching it and I was freaking out because I didn't know what it was, and then I felt it again. ... After, like, the second one, I remember I fell to my side, because I was just in so much pain. … and then, like, people came around me.

…

Q. And did you hear anything when the people were around you?

A. No, just keep shouting - like, shouting, ‘Stop resisting. Stop resisting.’ … I remember after they first were saying, ‘Stop resisting,’ then I just kept shouting, ‘I need water, I need water,’ and then the other officer – I mean, the other guy, the other officer - said, ‘You fucking little cunt.’ … and they kept saying, ‘You fucking loser, you fucking little cunt.’ I remember hearing that from the guy next to me.

…

Q. All right. And do you remember anything else happening when you heard those words said?

A. No. I just remember screaming, ‘I need water,’ and then feeling a lot of, like, pressure on my body and on my legs and on my stomach.

…

Q. Okay. Do you know what was happening when you felt that pressure?

A. No, I just remember seeing, like, this big, black thing just moving.

Q. And you’re sort of gesturing with your arm?

A. Yeah, like - yeah, and just like hitting me and just moving around. I remember just sort of seeing this black thing and that's it. … I felt like … I was getting hit with something, yeah, but I didn’t know what it was. … I remember my hands - my wrists getting, like, pulled back behind my head. … I remember I was on my back and they were getting pulled behind me.

…

Q. And was that at the same time as you were feeling the hits or a different time?

A. Yeah, I would say it was the same time, from what I recall.

…

Q. Are you able to say where on your body you felt the hits?

A. I would say it was all on my right side, so under my - in my rib area, like, there on the right side, all on the right side of my - like, under my chest and stuff.

Q. Do you know what position you were in on the ground?

A. I was on my back.

Q. And you’ve again got your arms above your head, behind your head?

A. Yeah.

Q. Are you able to say how many times you felt the hits to your body?

A. No, I just remember it being every second and just feeling that feeling again and again. But I don’t know how many, no, I don’t.

…

Q. Do you know who it was that was hitting you?

A. No. No idea.

…

Q. So you didn't see the person at all? A.

No, I just remember looking and I thought I saw a guy - like, a man with a beard, … the one that was hitting me on my right, but that’s it.

Q. That’s the one that you thought was hitting you?

A. Yeah, the majority. The one that was hitting me or swearing at me.

Q. Now, apart from that person with the beard, do you remember anyone else hitting you?

A. Yeah, I remember the guy on my left was hitting me too. … I remember the one on my left hit me, because the one behind me had me in, like, handcuffs.

…

Q. Do you remember feeling the handcuffs going on?

A. Yeah, because I remember my hands were very, very tight, clasped together.

…

Q. Do you remember anything happening with your legs?

A. No, I remember looking at them and someone was like holding my legs together.

Q. Do you remember what you were doing when you were being hit?

A. Yeah, I was just screaming out for water – ‘Please, I need water’ - and just screaming out, ‘I’m not resisting,’ because I just kept hearing, ‘Stop resisting. Stop resisting.’

…

Q. Do you know if you were doing anything with your body?

A. I remember just being - aching in pain and just screaming - they were like, ‘Stay still’ – ‘I need water. Please, I need water. I'm not resisting,’ but, no.

…

Q. Okay, and earlier in your evidence you said you heard someone saying, ‘You fucking loser,’ and, ‘You little cunt,’ is that—

A. Yeah. Yeah, the same officer on my right had said, ‘You fucking little loser,’ ‘You little wog cunt.’

…

Q. What’s the next thing that you remember after you were being hit on the ground?

A. I remember getting hit and then feeling, like, lifted off the ground.

…

Q. What's the next thing you remember after being lifted off the ground?

A. So thrown into like a little dark box of some sort. Like, that's how I remember it, like, a little cage that’s dark, and then just like it just being closed and just being in the dark, that’s it.

…

Q. All right. And do you remember if you were saying anything at that stage?

A. Yeah, I just remember saying, ‘I need water. Please, I need water,’ again and again.

…

Q. And do you remember anything happening to your legs as you were thrown into the dark little box? A. I remember just feeling more, like, pressure on my knees - on the right side of my leg and everywhere and on my knees - like, just the same pressure feeling I had when I was on the ground. … but I didn't see anything - like, this time, the black thing - but I remember just getting pressure on my legs and everything.

Q. Okay. So is it that same feeling that you felt when you were on the ground when you saw the black thing?

A. Yeah.

Q. But you didn’t see a black thing on this occasion?

A. No. I just remember hearing the guys around me.

Q. Okay. And what's the next thing that you remember after you went into the dark little box?

A. The next thing I remember is waking up in the hospital - not in the hospital, sorry, in the ambulance van.

…

Q. And what’s the next thing that you remember after being on the ambulance bed?

A. I remember the medic asking me what my mum’s - like, who my family’s number was, and I remember giving my mum’s number.”

25. The complainant described his memory generally as “very good”, but initially “very fuzzy” as to what happened during the incident, although he considered that it was now “pretty accurate, very good. I can remember most of the things that happened”. Following the incident, he had “started seeing a psychologist” with whom, “after a lot of sessions”, he discussed the incident. He had seen the video about five times, only in the context of a story on the television program A Current Affair, and only together with his psychologist.

26. In cross-examination, the complainant agreed that he had made two statements, the first on 29 March 2019 and the second on 28 October 2020. He agreed that the entirety of his first statement as to what occurred on 10 and 11 January 2018 was as follows:

“At 9pm on 10 January 2019 (sic) I met these young people who were kicking back on the grass near the beach. I’m not sure who they were nor have I seen them since. I was offered a beer and drank it, expecting it to be normal beer.

I remember walking around the beach and I have little recollection until I remember being hit with a baton repeatedly by the police. I then awoke in the ambulance, telling the paramedic my mum’s phone number and then again awoke in the hospital bed.

When I witnessed the footage on A Current Affair, I can confirm it was me in the footage being assaulted by the police.”

27. The only cross-examination of the complainant’s account of what occurred in his interaction with the police comprised the following:

“Q. Now, do you remember at any time when you were with the police on that morning saying the words, ‘Put me on my back.’?

A. ‘Put me’ - yeah.

Q. ‘Put me on my back’

A. Yeah.

Q. You remember saying that, do you?

A. Yeah, I do.

Q. And at that stage you were already on your back?

A. Yeah.

Q. You were on your side on occasions too; is that correct?

A. From what I recall, yes.

Q. Yes. And at one stage you had your arm stuck under your body whilst you were on your side?

A. I don’t recall that.

Q. And there was occasions where the police officer was saying, ‘Stop resisting,’ at the time he was using a baton. Do you remember that?

A. I remember hearing it, yeah. Yes.

Q. And in fact the use of the baton was associated with the, ‘Stop resisting,’ or another command by the police officer; that’s correct, isn’t it?

A. From what I remember, yeah.”

Daniel Thomas

28. Mr Thomas gave evidence that, at the time of the incident, he resided with Ms Cardona in a first-floor apartment that had a balcony off their bedroom that backed onto Lateen Lane, where there was a backpackers hostel (“the hostel”), which I note, according to the video, was diagonally opposite. Mr Thomas said that around 2am, they awoke to someone calling out, stating that:

“… He was calling out for help a lot. He was saying that he wanted this experience to end. He was asking, you know, for help, for water – ‘Can someone please get me some water’ - things like that.”

29. Ms Cardona got up to look and said that there was “a kid outside naked - walking up and down the street naked”. Mr Thomas got up and went to the balcony. He saw the complainant, naked, “pacing back and forth”, still calling out for help and for water. He continued:

“… so this kid walking up and down saying - as I said, repeating over and over those words, and then there was also three or four people out the front of the backpackers telling him, ‘Mate, just go home, just go home,’ you know, words to that effect, basically. They were just sort of, you know, pretty relaxed, yeah. … He was looking up at the sky a bit. Like, it was like he was talking to someone up in the sky a little bit, yeah.”

30. Mr Thomas described the lighting as “very good” and agreed that he could see “quite well”. He was asked about the complainant’s demeanour, and stated that it was:

“… like someone that needed help, but he looked like, you know, he was either drunk [or] on drugs. But, yeah, he was definitely affected by something.

Q. Was he aggressive at all?

A. I wouldn't say aggressive. He wasn't really - like, he wasn’t breaking stuff around him or threatening people or doing anything like that. It was almost like the other people weren’t there, he wasn't taking in anything around him, he was more so in his own space.

Q. Did you see him behave violently in any way?

A. No, not at all.”

31. Mr Thomas said that he and Ms Cardona went back to bed, where they stayed until he saw a reflection in the room of flashing lights coming through a window. They returned to the balcony. He saw two police vehicles parked in the lane, facing in the direction of his balcony. Police were coming from the cars. Mr Thomas stated that the complainant:

“… was still pacing back and forth, saying the same things as what he had been saying before - repeating them, yeah. … If anything he was back sort of pacing away again from [the police cars], as opposed to going towards them … so he was walking towards our balcony. … there was four officers that I observed go up, so I guess in a semi-circle sort of position, and start to, I guess, corral the kid, … and … where he was, walking away, they started pushing towards him in that formation. … One of them was saying, ‘Get down,’ or was giving direction, I remember that. One of them was yelling out something but the kid was - you know, he wasn’t listening to anyone around him at that stage. He wasn’t responding. He was still, again, saying the same things. He was still saying, ‘Help me. Get me some water,’ still in that loud pitch, what he had the whole time. So that part didn't change the whole time.

32. Mr Thomas was asked:

Q. And can you describe the tone that was being used by the police officers at that point?

A. Yeah, it was a pretty aggressive tone. Yeah, it was loud, it was verbal, but, yeah, it was pretty aggressive.

Q. And I think you started to indicate whether or not the male responded to the police when they were telling him to get on the ground?

A. Yeah, it was like they weren't there. So, you know, I guess you could call it non-compliance.

Q. And was he saying anything?

A. The same sort of stuff, you know, ‘Help. Get me some water. I don't like this experience. Make it stop. Please God, make it stop,’ things like that.”

33. Mr Thomas said that at that point, which was less than 30 seconds after he first saw the police: “there was like a call of, ‘Spray him, spray him’”. He continued:

“… the officer on the right-hand side sort of reached around to get the spray in front of the kid’s face so he could spray it in his eyes, so it was like a direct spray … because the kid wasn’t facing him, he came around from the right-hand side of the kid, from around behind him, and sprayed it over the kid’s shoulder into his eyes. … the kid put up his hands. He was still saying things like, ‘Help,’ and making loud screaming noises, and he had his hands up. From my view it didn't look like he was rubbing his face, as such, but it definitely looked like it was affecting him, and he was … walking around in half circles. … one of the officers came out with a baton … and he basically started swiping - coming in, I guess, on a low angle from the right-hand side, swiping at his kneecap, and he’s hit him a couple of times across the kneecap, or around that area … he basically came in and took a full swing - full wind up and swing - and went down with the motion and - yeah, he got - it was a fair hit, like, it was pretty heavy. It buckled a little bit, his knee, but he was still standing. He still had his hands up in that same position as he was being hit. … So that happened a couple of times and then, again, it was like - and I don't recall the exact words, … but it was along the lines of, ‘Taser, Taser. Taser him’ and then one of the officers got the Taser out and, yeah, shot him with the Taser. … He'd just been hit and sprayed, but he still had his hands up and he was still, you know, ‘Help, help, make it stop,’ and he was screaming a little bit by now.”

34. Mr Thomas was asked:

“Q. Did you see him move towards the police at all?

A. No.

Q. And you say he’s still saying the same - repeating the same things?

A. Yeah, correct.

Q. What happened after the Taser was fired?

A. That’s when … my partner … went inside to get her phone out to start recording. …

…

Q. Did you remain outside or did you go inside as well?

A. I did remain outside, but I did turn my back for - it would have been five to ten seconds. As she went inside I walked to the door and sort of, I guess, stuck my head in the bedroom door as she was getting the camera out.

…

Q. What, if anything, happened to the male after the Taser was fired?

A. Yeah, so by that stage the Taser was fired and when I turned back around there was the four police officers over the top of the kid and he was … on his back on the ground with four police officers over the top of him, and that's basically when the filming started.

Q. And did he remain on the ground?

A. Yeah, he did.”

35. Mr Thomas gave evidence of what he observed thereafter, while the incident was being videoed by Ms Cardona, as follows:

“Q. And you said you saw four police officers, I think you said, over him?

A. Yes, correct.

Q. Did you see the police do anything after the male was Tasered?

A. Well, that’s when we started filming from and that’s when we witnessed the police, you know, start hitting him with batons and, you know, telling him to stop resisting and things like that. The kid was just, you know, saying the same things over and over again – ‘Help’. By this stage he was saying, ‘I'm not resisting,’ so he actually started responding to what the police were saying. He kept saying, ‘I'm not resisting.’ … One had his foot down on his stomach; another one was kneeling on him. There was two of them that had batons out that were hitting him. … he was on his back. Flat on his back.”

Q. At that point in time did you see him get to his feet at all?

A. No.

Q. Okay. Now, you've said you observed one police officer near the male’s feet?

A. Yes.

Q. Are you able to say where the other officers were in relation to the male?

A. Yeah, they would have been - one was above his head and then there was two around his body area and then one at the feet.

Q. And he remained on his back?

A. Yes.

Q. Did you observe whether the male was struggling with the police at this point?

A. No, it didn't look like he was. He was clenching up when he was getting hit with the baton, but, you know, he wasn’t - it didn’t look like he was struggling.

Q. What do you mean by he was clenching up?

A. Well, when he was getting hit across - whether it be his ribs or legs – you could see he would move that part or flinch that part and then the police would just keep saying, ‘Stop resisting,’ as they kept hitting him, and he would be screaming out, ‘Help,’ and, ‘I'm not resisting,’ and things like that.

Q. Did you at any point see the male try to attack the police at all? A

A. No, I didn’t.

…

Q. Do you have any memory of what was being said?

A. I remember it was pretty aggressive tone and violent towards him. Like, I remember at one stage one of the officers basically called him a C, and, ‘Give me your hand, you C,’ and things like that. It was sort of that tone, you know, throughout.

Q. When you say ‘C’, you will just need to use the exact terminology?

A. Okay, yeah. So he’s like, ‘Cunt, give me your hand.’ That was when they were trying to put - yeah.

Q. Did you ever hear an officer ask him to give his name?

A. Yeah, I did.

Q. And when was that?

A. That was very late in the piece. It would have been after handcuffs were on him and he had been hit a fair few times. It was before they went to move him, I'm pretty sure. They asked him what his name was and he replied, ‘[The complainant’s first name]’ yeah.

…

Q. And from your observations at the time, how old did you think the male was?

A. Yeah, I would have said teens, maybe early twenties, yeah.”

36. Mr Thomas gave evidence of what he observed and heard when the complainant was placed in the police van:

“A. I recall when the kid was being put into the van, I remember hearing the sounds of him being hit a number of times as he was being put into the van. … that same sound of the baton hitting the kid which happened a number of times while he was on the ground, it was that same sound as he was getting put in. There was rustling around the van. Both the sides of the divvy van was open, so there was an officer sort of, I guess, pulling him through from one side and others pushing him in, and it was the side that I couldn't see, but I definitely heard the sounds of him being hit.

Q. But you heard a sound which you thought to be him being hit?

A. Correct.

Q. And how would you describe that sound exactly?

A. A really loud thud. You can hear the sound throughout the footage. It’s the same sound, of a baton hitting into him, yeah.

Q. So you heard the same sound as the male was being placed into the van

A. Correct.

Q. And approximately how many times did you hear that sound at that point?

A. Yeah, it was a lot. It would have been over five times.

Q. And I think you said the officers were on both sides of the van as they were placing him in?

A. Yes, that’s correct.

Q. Did you see the police close the doors to the van?

A. Yeah, I did.”

37. Mr Thomas described an incident that he said occurred after the complainant was placed in the police van:

“… I also remember witnessing one of the … officers going across to the three or four people standing out the front of [the hostel] and saying words to the effect of, ‘You better not have fucking recorded this.’

…

Q. And how exactly did he - what was the tone that he used when he said those words?

A. It was very aggressive. It was, walked towards them aggressively, said it aggressively. They all reacted, you know, as you would, quite frightened, and that's the stage that Patricia and I both quickly went inside.”

38. During cross-examination, a number of variations on Mr Thomas’ account were put to him. These variations included first, that the baton strikes to the complainant’s knee occurred before the OC spray was applied; second, that immediately before the complainant was sprayed, an officer said to him, “Mate, if you don’t calm down you’re going to get a gobful of this”, and that the complainant then took “a haymaker type hook punch towards the police officer that didn’t connect”; third, that after he was sprayed he was repeatedly told to “Get on the ground”; and finally, that when the complainant was on the ground, being struck with a baton and saying that he was not resisting, he was on his side, not on his back, and later in cross-examination, that there were “periods” when he was on his side rather than on his back. Mr Thomas did not concede any of those events. Mr Thomas conceded that when police were attempting to handcuff the complainant, one of them could have said “That’s coming off”, although he did not recall hearing that comment.

The video

39. There are references in the transcript of the proceedings in the Local Court to the Magistrate and parties having an aide memoire of the video, but there is no reference in the transcript to it being marked for identification. Although the video was tendered on this application and the Court was invited to view it, the aide memoire was not part of the tendered material, nor was there a fresh aide memoire as to the spoken content of the video or a detailed description of its visual contents in evidence. Accordingly, for the purposes of the application, I will describe the contents of the video as they appear to me. I am mindful that, inevitably, there is a degree of interpretation involved in relating the content of a video, in this case particularly because it was made at night-time and some metres from the incident and in relation to precisely what was said and where on the complainant’s body police officers placed their hands or feet or applied baton strikes.

39. There was no dispute that the video depicts the defendant, the other three attending police officers and the complainant, although as they appear on the video, they cannot be identified by their appearance alone. Nor can the words apparently spoken by police officers be attributed to particular officers. In describing the video’s contents, I will refer to the persons according to the unopposed evidence as to their identities and, where there is unopposed evidence from the officers as to who said what, the identity of that speaker. I will use time references in minutes and seconds, set out in brackets, to indicate how far into the video certain events are heard and/or seen. What is heard on the video is set out in italics.

40. During the course of the video, the defendant and SC Mates are seen to hit the complainant with batons. There was undisputed evidence in the hearing that SC Mates was using what is known as a “long baton”, which is a one-piece aluminium baton. The defendant was using a shorter “extendable baton”, which is kept on an officer’s belt with his other “appointments” (that is, with an officer’s pistol, OC spray, handcuffs, gloves, etc) and flicked out to its full length when it is to be deployed. There was no evidence as to what it was made from.

41. Throughout the video, a slatted railing is in the foreground. This is consistent with Mr Thomas’ evidence that the video was made from his apartment balcony, overlooking Lateen Lane. As the video commences, in the mid-ground and above the top of the railing, the four police officers can be seen in the roadway of the lane standing closely together over the complainant, who is outstretched on the ground. For the first six seconds or so, the complainant is slightly on his left side, and thereafter he is completely on his back. He is lying on the roadway alongside and almost parallel to the gutter, his head slightly closer to it, and closer to the opposite footpath than to the side from which the video is taken. His body is also at an angle to the camera, his head being closer to it than his feet.

42. Immediately alongside the group is a two-storey building (that is, a building with a ground floor and a first floor) which, on the evidence, is consistent with it being the hostel. There appears to be lighting from a streetlight that is situated on Mr Thomas’ side of the lane and approximately opposite the group. Light is also seen coming from within the ground floor of the hostel and, more particularly, from a driveway immediately alongside the group that passes under the hostel. That driveway was identified in evidence as a driveway to an underground parking area for an Aldi supermarket. Light is also apparent from the headlights of the two police vehicles that are parked further up the lane, facing the group, approximately no more than three car lengths away. There are only three other people that are visible on the video. There is a person standing behind a full-length glass window of the hostel quite close to the complainant and police, who identified himself in evidence as the hostel’s night manager, Justin Millar. In addition, there are two individuals standing on steps at the front of the hostel, alongside the police vehicles.

43. The defendant is kneeling alongside the complainant’s right shoulder facing his body and at right angles to it. Moving clockwise from him around the complainant, SC Roach appears to be straddling the complainant’s head in a standing position, leaning forward. He appears to be holding, or attempting to hold, the complainant’s right hand, which is outstretched above and behind his head. SC Mates is crouched alongside the complainant’s left foot and facing the complainant’s body, in a position which is diagonally opposite the defendant. SC Sims is to the immediate right of the defendant and thus also on the complainant’s right side, kneeling with his left knee on either the complainant’s right leg or both legs, with his back to the other officers.

44. At the outset of the video, the complainant is screaming “Please help, help”. Coinciding with the last cry for help, the defendant strikes the complainant with his baton the first two of four times in quick succession (four times within two seconds) somewhere around the middle area of his body or upper legs (4s). Coinciding with the fourth strike, SC Mates strikes the complainant once with his baton with a sweeping sideways swing in what appears to be the same area of the complainant’s body. Immediately after the last strike, the defendant yells “Get your arms out” and another officer’s voice (the defendant thought it was SC Mates) overlaps, yelling “arms out now” (6s). From that point thereafter, the complainant appears to remain flat on his back. The complainant’s left arm limply falls outstretched onto the road towards the gutter. SC Roach and SC Mates continue to focus on the complainant’s hands while SC Sims repositions himself, crouching in a direction away from the complainant’s head with a hand on each of the complainant’s legs.

45. Thereafter, the complainant calls out “Oh God, please God, I need water, I need water, I need water, I need water”. An officer says something indistinguishable and, in the meantime, SC Mates has taken three steps towards the complainant’s outstretched left arm and placed his left foot on it (10s). SC Roach is holding the complainant’s right hand above and behind his head. Whilst that occurs, the defendant appears to place his left foot onto the complainant’s chest or right shoulder, lifts it and does the same again (13s), leaving it there. As he does so, the complainant, apparently responding to something unintelligible said to him by an officer in a normal tone of voice, which ends with the word “mate”, says “I’m all good mate, I’m all …” and then yells “God” (8s). The last word coincides with the defendant, who has his right knee on the lower part of the complainant’s torso or his upper thigh, placing his left foot on the complainant’s upper torso, apparently in his chest area. He lifts it and brings it down again in the same area. An officer says at a normal level of volume, “Leave it” (17s). The officers then talk unintelligibly. The complainant says, “Dear God please … God, God” and then calls out, “Oh God, God, God, God, God” (22s). He then calls out “Toilet” (28s). A police officer says, apparently to other officers, “Right foot … [unintelligible]” (31s). SC Mates says, “Okay mate just settle down, settle down” and appears to take his foot off the complainant’s left arm (33s). SC Roach takes his left hand and holds both of the complainant’s hands together, above his head, consistently with evidence that the officers were handcuffing the complainant. The complainant yells out “Put me on my back”, although he is in fact on his back (36s). While the defendant’s right knee is resting on the complainant’s chest, he moves his left foot to above the complainant’s head (in evidence he said to the complaint’s left armpit), and then brings it back down again on the complainant’s chest or shoulder. As he does so, SC Mates says “Right, stop it, stop it, settle” (38s).

46. SC Mates says “Are you right”, the complainant yells “Right” and SC Roach then folds the complainant’s arms in front of his chest and the complainant raises his head. At the same time, SC Sims, who has had his knees on the complainant’s legs, stands (43s). The complainant, with his torso remaining on the roadway, immediately draws up his right leg and then his left leg, placing his right foot flat on the road closer to his body. As he does so, SC Roach says “They’re coming off” and the defendant strikes the complainant’s body five times in quick succession with his baton (five times within two seconds) (44s). SC Sims bends down and stretches the complainant’s legs back out again, flat onto the roadway (46s). Coinciding with the last of those strikes, the defendant says “Stop it”. SC Mates says to SC Roach, “You right, mate?”. An officer says, apparently to the complainant, “Leave the hands there” (49s). The complainant calls out unintelligibly and moans (56s). SC Mates drops his baton on the footpath and kneels down, apparently to give assistance to SC Roach in attaching a second set of handcuffs to the complainant’s wrists. At the same time, the defendant strikes the complainant with his baton three times to the body; each blow is two to three seconds apart (58s). Immediately after the first strike, he pauses and yells, “stop resisting”. After the second strike, the defendant pauses and a police officer yells a phrase, in which the only intelligible word is “fucking”, in an angry tone. After the third strike, the complainant screams, “I’m not resisting”. SC Mates then yells in an angry tone “Cunt, give me your hand [or hands]”. (SC Mates denied using the word “cunt”: see [103] below) (1m 4s). SC Roach and SC Mates continue to manipulate the complainant’s hands. The complainant calls out something unintelligible, followed by “God, please help me, God, God”. An officer asks, “Got it?”, apparently directed to another officer. An officer asks, “You right there?” The complainant responds in a softer voice, “I need water” (1m 21s) and SC Mates stands up. A police officer can be heard saying “[unintelligible] silly prick”. The complainant says: “I am not, I am not a prick” (1m 24s). SC Mates walks in the direction of the police vehicles (1m 25s). A police officer says “You right” and the complainant says “Don’t call me a prick” (1m 27s).

47. The defendant raises his baton and holds it in mid-air as if to strike the complainant, as a police officer says “Don’t touch these”, then yells “Don’t touch them”. The complainant yells “All right, all right, all right”, as the defendant lowers the baton (1m 33s). SC Roach places the complainant’s hands, which appear consistently with them being handcuffed, on the road behind the complainant’s head. As he does so, the defendant moves his left foot from the complainant’s body and places it in the area of the complainant’s hands on the roadway (1m 38s). SC Roach stands up and does likewise with his right foot, his left foot on the footpath and both of his hands on his hips (1m 42s). I note SC Roach’s evidence that at one point he placed his foot on the two sets of handcuffs that had been placed on the complainant. SC Sims moves his knee onto the complainant’s leg or legs. SC Mates pulls up in a police van alongside the group, completely blocking the view of the complainant on the ground (1m 48s). Thereafter, SC Roach can be seen completely, the defendant can be seen from the waist up, and only the head of SC Sims can be seen.

The contested baton strikes

49. As the van pulls up, the complainant yells “What?” A police officer says a phrase that is unintelligible, except for the word “fuck”, immediately followed by the defendant raising his baton and striking it down to where the complainant was last visible, three times in quick succession, that is, in less than two seconds (1m 53s). These are the first three of the contested baton strikes. As the defendant strikes the complainant for the first time, it can be seen from the movement of SC Sims’ head that he stands up, remains where he is, and after about five seconds, crouches down again, still in the vicinity of where the complainant’s legs were last visible. After the first strike, the complainant says, “I don’t want this feeling.” Immediately after the last strike, the defendant faces the complainant’s face so that their faces are less than a metre apart, and screams at the top of his voice “Stop resisting”. This is immediately followed by SC Sims yelling, as he again crouches over the complainant’s legs, “Put your fucking legs down” (1m 55s). Following a gap of about two seconds, the defendant strikes towards the complainant twice more, in quick succession (both blows within one second), immediately thereafter screaming, again at the top of his voice, “Stop it” (1m 57s). The complainant yells “I don’t want this feeling, God”. This is followed by something that is unintelligible, then the complainant says “Please”. Throughout the first five of the contested baton strikes, SC Roach stood in the same position, hands on hips, his left leg on the footpath and his right apparently not having moved from where it had been in the vicinity of the complainant’s hands on the roadway. SC Sims stands up again (at about 2m 3s), quickly walks onto the footpath, and turns around to face the complainant and other officers, standing within two paces of them. At the same time as SC Sims stands up, SC Roach takes his hands off his hips, stands aside and then bends over the complainant (2m 2s). The complainant says something which is unintelligible, again followed by the word “Please”. The defendant, while still kneeling over the complainant, then strikes towards the complainant with his baton once more (2m 6s). This is the last of the six contested baton strikes. As the blow impacts the complainant’s body, one of the complainant’s legs can be seen briefly lifting up into view and then dropping back down again. At the time of the sixth baton strike, SC Sims was out of the van and standing alongside the defendant and SC Roach.

50. For the remainder of the video, the defendant and SC Roach are crouched over the complainant. SC Mates asks him, “Hey buddy, what’s your name, what’s your name?” (2m 10s). The complainant responds, saying “My name is”, and then states his first name. SC Mates calls him by his first name, says something intelligible, followed by “Listen to me. We’re going to pick you up and you’re going to walk to that truck and get into the truck, do you understand? Do you understand? Stop resisting mate” (2m 20s). The complainant says something unintelligible that includes the words “I’m not resist … water” (2m 35s). SC Mates continues, saying “I’m going to ask you to get up, get in the truck and behave yourself” (this ends at 2m 49s).

51. It is, of course, possible that the complainant was offering physical resistance at one or more points during the video which was being successfully thwarted by counter-pressure applied by the defendant and/or other officers, so that there was no bodily movement.

Shane Marian

52. Mr Marian gave evidence that at the time of the incident, he and his family were on holiday in Byron Bay and residing in an apartment block that backed onto the laneway, opposite the hostel (and thus alongside Mr Thomas’ unit). Mr Marian said that in the early hours of 11 January 2018, while he was lying in bed, he heard someone scream in the laneway. He reported hearing words to the effect of “God help me”, and said that “he was asking a lot of people for water”. Mr Marian went onto his balcony and saw the complainant being spoken to by persons at the front of the hostel. They were asking the complainant to “be quiet and settle down”. Mr Marian perceived that the complainant was “a little bit agitated” and said that:

“They initially asked him just to be quiet and settle down. … That was the initial response, and then there was a gentleman standing on the rail at the backpackers, which I later got to understand was the guy that was running the place, who had a conversation with him as well.”

53. Mr Marian was asked further questions on this point:

“Q. You said he wasn't making any sense?

A. Well, no, because it was bouncing from one thing to another, and at the time I remember seeing him, thinking, well, he's been affected by something, not knowing what that thing was, but essentially - and he was sweating profusely, from what I could see. … At the time he had some denim shorts on and that was the only thing he had on at that particular time. … he was pacing in that general area. He was looking up to the sky and speaking to God. …

Q. Was he acting aggressively at all?

A. I wouldn’t say it was an aggressive - in an aggressive manner, I would say it was in a confused manner. … he was just really confused.

Q. All right. And how exactly was he pacing around; how was he walking?

A. Quite quickly and he had his hands waving about as well at the time.

Q. Did you see if there was anything in his hands at all?

A. No, I couldn’t see anything in his hands.

Q. … Other than waving his hands, was he doing anything else with his hands?

A. He was holding his head. … He had the palms - both palms of his hands on his head while he was walking around …”

54. Mr Marian said that he went back inside his apartment to get his glasses and some water, as follows:

“So I got my glasses and I went to get some water for him, but the bottle of water that we had was a big 5 litre bottle and I thought that probably wouldn’t help, because there was a fence that separated the unit and the laneway, and I thought, okay, well, I’ll head downstairs, and I thought, I’ll get him a glass. Then when I came back outside on the balcony to see what was going on, within that timeframe I think he had taken his shorts off …”

55. Mr Marian said that the complainant was naked and still pacing. He left the balcony briefly. When he returned, he saw two police cars arrive. The complainant was walking away from the hostel, in the direction of Mr Marian’s apartment, but then turned around and walked towards the police. Mr Marian gave the following account of what occurred, stating that the complainant:

“… turned around and he’s basically walked towards the police and continued to ask for water and for help. … the police basically said to him, ‘Look, we’re here to help you. Just settle down, buddy,’ or, ‘settle down, mate,’ words to that effect. … it was only the one police officer that had interacted with him at this stage and it was the police officer closer to our unit. … There was one other but I think he’d either just got out of the car, from memory, or he was standing near the driver’s door, was my recollection of that. … [the complainant] basically just continued to ask for water. ‘Just get me some water,’ were his words. ‘I need help. God help me.’ So, yeah, similar sentences were being, I guess, repeated. … I think at one point in time, from memory, he got close to … that police officer and that police officer just asked him to back away for a moment.”

56. Mr Marian said that the complainant retreated. The second police officer arrived and moved towards the complainant. When that police officer was two to three metres away, Mr Marian said that the following occurred:

“… there was some type of scuffle that occurred and I think it was at that time that he was actually sprayed with some type of spray … I remember his hands being by his side at that point in time … Either he's walked into the police or the police have walked into him and they’ve asked him to settle down and to back away. He's then either fallen back or – I’m not sure - not fallen back as in, you know, on his backside or anything, but he’s sort of fallen back and at the same time - either prior to that he was sprayed or during that time he was sprayed.”

57. Mr Marian said that the complainant’s response to the OC spray was that:

“… he was extremely agitated. … [h]e was yelling, he was screaming, he was wiping his face, he was coughing … [the police] were just asking him to, again, just to restrain himself and settle down. … I remember him getting up and trying to walk away from the laneway … and by that stage I clearly remember him getting a tap on the back or the shoulder by a police officer and he looked really startled and surprised, and then I remember him getting a whack to the back of the leg with the baton.”

58. Mr Marian was asked:

“Q. Now, at that point in time, after the spray, the tap on the shoulder and the boy being startled, did you ever see [the complainant] try to attack the police at all?

A. No, not from memory. I think he was just trying to get away.”

59. He continued:

“[The complainant’s] then fallen back towards the gutter of the backpackers, so on that side, and then at that stage - at that point in time I’ve noticed that he was surrounded by either four or five police officers at this stage. … I think they would have had a hold of him, the ones that were standing on the other side of the kerb, and I do remember a few strikes to the back of the legs so the kid fell down, yeah. … I think it was by the third strike that he actually fell backwards towards the other side of the kerb.”

60. Mr Marian said that a police officer grabbed the complainant, he thought on his shoulders, and attempted to pull him to the ground as he tried to get up. The complainant got up, then a Taser was fired, and:

“[The complainant] just started to get up off the ground after being struck with a baton on the back of the leg. He had started to get up, and he was on both feet, he started walking, and that's when the Taser went off. … he fell backwards and there was a bit of a moan. He sort of went quiet for about ten seconds or thereabouts. … and then he's got up again”

61. Mr Marian said that the complainant got back up again, after which Mr Marian went inside for a period of less than 30 seconds to get his phone to record the incident, but his phone had no power, and he returned to the balcony.

62. Mr Marian said that he saw the complainant again trying to walk away in the same direction as before. By that point, there were four or five police officers, who encircled the complainant and “were trying to drag him to the ground”. Mr Marian elaborated, as follows:

“They manage to get [the complainant] to the ground and I remember one officer trying to hold his legs or his arms. Another one had his knee on the boy’s body. I’m not quite sure where. I actually thought it was the shoulder. … There was one standing and trying to grab his hands to obviously put handcuffs on him, was what I thought. … I remember hearing strikes with the baton. As they're trying to grab his hand there are strikes with a baton to his legs and I'd say upper torso area.”

63. He said that the complainant was saying: “I need help”, “I need water” and “I’m not resisting”. An officer was striking him with a baton “sort of around the stomach, rib area”. The complainant was screaming. Mr Marian’s recollection was that the complainant was on his stomach.

64. Mr Marian said that he again went inside his apartment. When he returned, the police officers appeared to be carrying the complainant into a police van, although he did not have a line of sight to it.

65. Mr Marian said that, after the incident, he saw police approach people who were outside the hostel. One of the police officers said: "I hope none of you fucking recorded any of this”. The officer was “quite angry at the time”. He said that the same police officer then appeared to be looking at the buildings in the laneway for cameras.

66. Mr Marian said that he had seen the video on A Current Affair “about 300 times”.

67. Mr Marian said that the complainant was struggling and moving around “the entire time”, with one exception:

“Q. Whilst he was on the ground with the police holding him down did you ever see him not moving at all?

A. Maybe for a brief period, yeah. A brief period of maybe a few seconds.

Q. Are you able to say at what point in time that was?

A. That’s as they were - I think it’s when they originally got the handcuffs on him and were asking him not to resist, and he screamed out, ‘I'm not resisting,’ and then that was only for a brief moment, yeah.”

68. In cross-examination, Mr Marian agreed that this brief period was immediately after the complainant was Tasered. He also agreed that, in evidence before the LECC, he had said that “The young kid seemed like he had the strength of about three [or] four people”. He was asked:

“Q. And … the observation you were making, four police officers trying to control this young fellow and having great difficulty because he appeared to have the strength of about three [or] four people?

A. Yes, that’s correct.”

69. Referring to the last time Mr Marian went back into his apartment, he was asked:

“Q. So you didn’t see anything between - what you’ve given in evidence, when they were on top of him in the process of trying to get the handcuffs on. The next memory you have in relation to it is the police truck had moved to a location where the officers were picking him up and actually putting him in the truck?

A. No, I remember seeing the police officers on top of him and administering the baton strikes and him either scuffling or trying to move or get handcuffs off or move his arm, whatever the case may be. But when that happened, that’s what had happened after that. All that I remember seeing is that they had lifted him up and they were walking him around to the back of the wagon.

Q. And you’ve described - I think you've given evidence today on the basis that you saw approximately eight strikes of the baton whilst he was on the ground?

A. Yes.”

70. He said that it was after the eight strikes that he went inside. It was also put to him that:

“… immediately before the use of the OC spray the young fellow went towards him swinging what would appear to be a haymaker punch that didn’t connect?”

Mr Marian responded that he did not recall seeing that.

71. Mr Marian was taken to evidence that he gave before the LECC. He agreed that, before the Taser was deployed, a police officer had said “Get down or I’ll Taser you”. He also agreed that when the complainant was on the ground surrounded by the four police officers, he was “at one stage being curled up, at one stage perhaps being on his side, another time being on his back”.

Justin Millar

72. Mr Millar was the night manager of the hostel. He said that the entrance to the hostel was in the lane. He described watching the complainant pace around the lane, waving his hands around and not responding to Mr Millar and others who spoke to him. The light was “decent. There were street lights, so there was light”. He said the complainant was not aggressive or violent, and thought that he was aged 18 or 19. When he took his clothes off, Mr Millar asked him to put them back on, but he did not respond. Mr Millar did not feel threatened by the complainant, but phoned the police. He said that “I just described a young male, probably 18 or 19, causing noise complaints, not in the right state of mind, out the front of the hostel”.

73. He said that “four to five officers” arrived about five minutes later and surrounded the complainant. He continued to stare up and yell at the sky, his arms slightly moving in a swaying motion. Mr Millar was asked:

Q. Did you hear the police say anything to him at that point?

A. Yes.

Q. What did the police say? … if you could say the exact words. …

A. Okay. All they kept saying was, ‘Get down on the ground, cunt.’ …. yelling, like, aggressively.

…

Q. How did he appear to you at that stage when the police were yelling at him to get on the ground?

A. Same as before, but just more scared ….

…

Q. And what was it about his appearance that led you to think he was scared

A. You could tell just like in - like, his eyes or his voice that he was afraid.”

74. Mr Millar said that the police made a semi-circle around the complainant, warned him that that they were going to use “pepper spray” and sprayed him. The complainant’s reaction was “Just more movement. Nothing aggressive, just hands to the eyes, rubbing and screaming”. Mr Millar continued, saying that “a couple of minutes later they warned him about the Taser”. He heard an officer say “Taser”, and then they Tasered the complainant, who stayed upright. Mr Millar went inside at that point, to a desk from which he could observe what was occurring in the lane through a large window. When the complainant was Tasered, “five or more” times, he heard more than one officer yelling “Get on the ground, cunt”. He went back outside after “a minute or two”. The complainant was flat on the ground, but Mr Millar could not recall if he was on his front or back. Mr Millar said that:

“They had one holding pretty much each limb or kneeling on him. … They all were down, like, kneeling on him. … At that stage I seen one officer pull out a baton … He started to strike the male. … the officer was bringing his arm up … - like, shoulder height … ”

75. Mr Millar said that the complainant was yelling, at one point saying “I’m not resisting”. There were “a few more hits” after he said that. Mr Millar saw the complainant hit over five times while he was on the ground. Some were in quick succession, and some were spaced. He could not say what part of the complainant’s body was hit. He came back out after the complainant was in the police vehicle and the door was shut. He did not see the police handcuff the complainant.

76. Mr Millar said that he did not see the complainant being aggressive to the police, but the police were aggressive towards the complainant. Mr Millar identified himself on the video, standing inside the hostel on the other side of a full-length window.

77. In cross-examination, Mr Millar added that he initially heard the police officers say “Just don’t resist”. He agreed that, before the complainant was sprayed, a police officer said “Mate, if you don’t calm down you’re going to get a gobful of this”. When it was put to Mr Millar that the complainant swung a punch towards the officer, who then sprayed him, he replied “I don’t recall a punch being thrown”. He recalled the complainant saying “Please help, help” and an officer yelling out, “Get your arms out”.

“Q. And at that time, that, ‘Get your arms out,’ the young person was on his side in what could be described as a foetal position, curled up, so to speak?

A. I believe he was flat down, but just by seeing that video it looked like he was in that position you're saying, yes.”

78. Mr Millar agreed that the complainant was “heavily perspiring” and naked, and that “it was harder to hold him”. He heard police say “stop resisting” multiple times.

SC Matthew Roach

79. SC Roach gave evidence that he attended the incident with the defendant in the same police vehicle in response to a radio call about “a naked male acting intoxicated, drug-affected, in Lateen Lane outside a backpackers”. He said that while he was still in the police vehicle, he saw a naked male, about 15 metres away, “jump up” from the roadway, apparently startled. SC Roach got out of the vehicle and stood alongside or near the front of the police vehicle, as the complainant walked towards him in a zig-zag fashion, “constantly yelling”, and apparently drug-affected. He was naked, not carrying anything and looking to the sky. SC Roach said that he was the first police officer to speak to the complainant. He said “‘Listen, mate, just calm down a bit, mate. We’re here to help.’ Something along those lines”. He said the complainant did not respond and continued to approach him. SC Roach got out his OC Spray and said, “you need to calm down”. The complainant “was still yelling out” and continued to approach him. SC Roach said to him “Mate, if you don’t calm down you’re going to get a gobful of this”. The complainant continued approaching. When he was about a metre and a half away, SC Roach said that:

“… he had a swing at me. … His right hand has come out and he's done like a drunken haymaker type swing. … So he’s brought it up at about my head level. I’ve moved back. It didn’t hit, but he’s had a swing at me. … A drunken haymaker swing, yeah.”

80. SC Roach sprayed the complainant in the face, and said that:

“I think he put his hands to his eyes and then he screamed even more and then he turned away. … He was still standing and walking away … I gave another set of - another spray to him in his face.

Q. So as he’s walking away from you, how is it that you’ve sprayed him in the face?

A. Well, kind of he’s - I've walked around, kind of to corral in between him and the car, to kind of restrict his movements, and he’s kind of not walking directly towards me but walking in a kind of a - still walking east, and I’ve actually given another spray.

…

Q. Was that at his face again?

A. Yes.

Q. And what was the purpose of the second burst of spray?

A. Well, because it appeared to me that the spray didn't work.”

81. SC Roach said that the complainant “kept walking around”. He was asked:

“Q. And what was the next thing that you noticed after the second burst of spray?

A. I think the Taser being used. … I heard the Taser go.

Q. And who had the Taser?

A. [The defendant].

Q. And did you hear [the defendant] say anything before the Taser was used?

A. I can’t remember.”

82. SC Roach thought the Taser was fired “maybe 20 seconds” after the second OC spray. He had thought that the complainant was Tasered once, but after being shown video that was taken from the Taser, he accepted that in fact the complainant was Tasered probably two or three times.

83. SC Roach said that:

“… with the first second of the cycle he just looked like he just stood there, and then he collapsed onto the road. … I think he fell onto his side. What side, I can’t remember.”

84. He said that after the complainant went to the ground, “I tried to wrestle him to keep him under control”. However, because he was so sweaty and thus slippery, the complainant escaped his grasp and stood up. He was Tasered again, went to the ground, and SC Roach again unsuccessfully tried to control him. The complainant stood up a third time. By then, the second police vehicle had arrived. As the complainant walked around, SC Mates struck him to the back of his legs with a baton. The complainant yelled out and fell to the ground into a foetal position, at which point all four officers got on top of him. The complainant was on his back and SC Roach was at his head. He got out his handcuffs, but the complainant “was thrashing around … He was quite strong”. SC Roach and SC Mates had an each held one of the complainant’s arms. SC Roach identified the other officers on the video as they were positioned over the complainant who was lying on his back on the ground. He identified SC Mates saying “Cunt, give me your hand”.

85. The complainant started to get the handcuffs off, causing SC Roach to call out “They’re coming off”. SC Mates put on a second set, so that the complainant had two sets of handcuffs on. SC Roach then stood with one of his feet on the handcuffs.

“A. I think I was just holding his hand and when they got the handcuffs on I think we just kind of just held his arms. We knew that he was secure.

Q. Now, after the second set was applied, would he have been able to get out of those?

A. No.

Q. And after that second set was applied, did you do something with your foot in relation to the handcuffs?

A. I remember at one stage during the struggle - he might have been on his front then, might have been - might have turned over, I don’t know - but I put my foot on the handcuffs to control.

Q. And are you able to say whether or not there was a chain that you put your foot on, or you can’t recall?

A. No, just the handcuffs, yeah.

Q. But you placed your foot on it to secure?

A. Yes.

Q. And that’s still with his hands above his head?

A. Well, I can't remember if he was moved to his front or on his back, but he was secured then.

Q. Okay. And was that a successful means of securing the handcuffs, by placing your foot on them?

A. Yes.”

86. SC Roach said that the only time he recalled seeing SC Mates use his baton was the strike to the complainant’s leg. SC Roach said that he saw the defendant strike the complainant “five or six” times with a baton, but added that he was

“… only guessing. … There was probably a lot more. I didn’t see everyone. I was focused on a job at the front with the handcuffs. And I do remember hearing a lot more than that.”

87. He said that he did not see where the blows landed, saying “I’m assuming it’s probably around the leg area. I’m only guessing”. SC Roach said that the complainant “was thrashing out, still trying to get up.” He was asked:

“Q. Okay. What about you said earlier in your evidence that there were more strikes after the two sets of handcuffs were on?

A. Yes.

Q. Was he moving at all at that point in time - that's the later point in time?

A. No, because I think, referring back to the video, I remember seeing I’m standing on the handcuffs and a number of baton strikes after when I’m standing on the handcuffs.”

88. And later:

“Q. When you say that you heard additional strikes after the handcuffs have gone on—

A. Yes.

Q. --are you able to say how many times you heard that sound? Was it more than once?

A. It could be three or four.

Q. And when that occurred, did your foot remain on the handcuffs?

A. Yes.

Q. Did you hear any additional baton strikes after that point in time?

A. No, I can't really remember.”

89. SC Roach said that both sets of handcuffs were on the complainant when SC Mates left to bring the police van closer. SC Roach was apparently played the part of the video that depicts the contested baton strikes, and was asked questions as follows:

“Q. Now, did you just see in that footage some further baton strikes?

A. Yes, I did, yeah.

Q. And is it your evidence that you didn't see that at the time?

A. I can't recall that.

…

Q. But do you recall whether you were still standing on the young person’s handcuffs?

A. Yes, I was still standing.

Q. And do you recall seeing the young person do anything immediately prior to that happening?

A. Not that I can recall, no. He may have been struggling or wriggling out. I can't remember.

Q. Did you see in the footage you had your hands on your hips?

A. Yeah. Probably because I was exhausted.”

90. SC Roach said that the complainant struggled when he was carried into the police van. There were doors on both sides. SC Mates went around to the other side and dragged the complainant through by the handcuffs. He said that the defendant “used the baton probably maybe another one or two times to get his feet in”.

91. SC Roach said that at no stage did he hear the young person verbally threaten any police officer. He said that the complainant was not aggressive when he was at the police station.

92. In cross examination, SC Roach was asked:

“Q. Well, do you remember when you were first arrived and yourself and Senior Constable Greenhalgh were there, ‘Mate, you've got to back away. Please don't resist. Back away. We're here to help you.’ Were those words spoken?

A. I would - I think I would have said something like that - similar to that.”

93. SC Roach explained that “[the complainant] just kind of looked like he didn’t understand, didn’t take in what I was saying, who we were”. He accepted a proposition that if the complainant had released one of his hands from the handcuffs, he would have a weapon:

“Q. If he gets that off, you’re in the same situation as you were before, which is a very important, if he gets that off, he’s now got a weapon again?

A. That’s correct. [That] was my biggest fear.”

94. Contrary to the use of the word “again” in the cross-examiner’s question, no witness said that the complainant had a weapon at any stage of the incident, or that he had released one of his hands from one or both sets of handcuffs.

95. The cross-examination of SC Roach continued:

“… the person, whilst he appeared to be under control, the young person whilst he appeared to be under control, there was always the chance of him breaking out from that control because he continued to struggle right up to the time he was put into the truck?

A. Correct.”

96. As to what occurred after SC Mates left to bring the police van up, it was put to him:

“Q. Senior Constable Sims is on the feet, the young person’s still kicking out notwithstanding you’ve got the cuffs on and you are now holding the cuffs with your left foot I think it is?

A. Yeah, one of my--

Q. Yeah - you say. The young person’s still kicking out, you'd agree with that?

A. Yes.

Q. In fact he kicked Senior Constable Sims at that time? Senior Constable Sims—

A. I can’t remember- I can’t remember seeing that.

Q. I’ll put to you that Senior Constable Sims was kicked and kicked off the young person?

A. Okay.

Q. Is that something you did not see?

A. I didn’t see that or - I can’t recall it either.

Q. Senior Constable Sims got kicked and was kicked off and it was at that time there was then the use of a baton, a further use of the baton by Senior Constable Greenhalgh?

A. Right.”

97. And later, SC Roach was asked:

“Q. You didn’t see Sims get kicked and kicked off the young person?

148. The Magistrate said that the complainant described in some detail what happened to him thereafter, and noted that:

“His ability to accurately recall what occurred to him is challenged by defence counsel and it is a challenge that is mounted in respect to the evidence of a number of witnesses in these proceedings. That challenge is that there has been, and there is, evidence clearly, in the accounts of witnesses, of reconstruction.”

149. However, as noted at [27] above, in cross-examining the complainant, defence counsel had not challenged any aspect of his evidence. The Magistrate referred to the video that had been broadcast by A Current Affair. He continued:

“The challenge by [defence counsel] - and it is indeed something that is in respect to most, if not all, of, if I can put it this way, the civilian witnesses - is that their evidence has been contaminated because they have been required to watch that video footage over and over and over again. The issue in question becomes, for this Court, what [defence counsel] described as gross contamination of that evidence.”

150. Ultimately, the Magistrate accepted defence counsel’s submission that the evidence of the civilian eyewitnesses and of the complainant was tainted by them having viewed the video on multiple occasions. His Honour found that the consistency of their evidence as to what they witnessed and what occurred was indicative, not of its reliability, but of the degree of contamination and thus, by inference, its unreliability. The Magistrate did not explain how multiple viewings of the video had negated the reliability of their evidence, in particular the evidence of Mr Thomas, who watched the incident unfold from alongside the person who made the video.

151. As to the evidence of the three police officers who attended the incident with the defendant, the Magistrate accepted a submission made by the prosecutor that the evidence of SC Sims should be rejected as unreliable, stating that:

“He, at times, was off-handed in his response to questions, if not flippant, and he would, at times, noticeably smirk in the witness box … his evidence, in any event, is internally inconsistent …”

152. The Magistrate found that it was “common ground that [the complainant] swung his right hand towards Senior Constable Roach, in what has been described as a haymaker”. (However, as noted at [38], [70] and [77] above, the alleged attempted punch was not conceded by any of the civilian witnesses and was disputed by the prosecutor in her address). In relation to the defendant’s evidence and the dilemma facing the police officers collectively, the Magistrate stated:

“The defendant gave evidence. He, to my mind, gave his evidence in a straightforward fashion. He did not accept propositions put to him that he was excessive, that he had lost his temper, that he was angry or, indeed, in my words, vengeful, as it were, in using the baton strikes in the way that he did and which gives rise to the charge. Indeed, it is the evidence particularly of Senior Constable Mates at the Commission that seems to me to have summed-up the situation quite succinctly that these police were confronted with, and, indeed, self-evidently, the behaviour of the young person was such that it involved four police, at various times, to restrain him and attempt to control him. There is no evidence, and I accept, it was not the intention of any police to arrest him; rather, the intention was to detain him. Police, with the volatile situation which was unfolding before them, summarised by the prosecutor as a naked man in the street, acting and yelling in a way which was irrational, and, given the evidence of Senior Constable Roach, indeed, notwithstanding the evidence of Mr Martin that there was no violence before police arrived, that this man had swung at the officer, was not responsive to any of the officers’ commands or directions, and indeed it was that swing that prompted the use of appointments, not only by Senior Constable Roach but subsequently by the defendant, in the use of his taser.”

153. The Magistrate recited a passage from the account of SC Mates to the LECC that conveyed a sense of urgency in the need of the police officers to restrain the complainant, and added that:

“What that refers to is that the handcuffs that were initially applied, one, at least - that the bracelet-style handcuffs had been secured and locked, but had been not secured firmly enough or tightly enough around the young person’s wrist. I have little difficulty visualising the amount of effort, regardless of the amount of sweat and wetness which has been described on and about the young person’s body and, I interpolate, around his wrists and hands - how much effort and, indeed, the likely pain that would have resulted from someone attempting to pull a handcuff back over his knuckles, which was in the process of occurring, and why I accept Senior Constable Mates has described the urgency in getting another set of handcuffs on him to restrain him, as - and I accept the evidence, which was agreed to by Senior Sergeant Watt, to the effect that - and, indeed, in some detail, by Senior Constable Roach it would become a very, very dangerous situation if the handcuff were to come off; he could then use it as a weapon. It is indicative of, in my words, the state of delirium, the state of extraordinary physical strength this young man was displaying at the time.”

154. The Magistrate distilled the competing cases into the following terms:

“The prosecution position is that the behaviour of the defendant was an uncontrolled, unreasonable use of force, with a man being held on the ground by three or four police officers, his arms up above his head, he was handcuffed by two sets of handcuffs. Senior Constable Roach was standing on those handcuffs. At the time of the impugned strikes with the baton, the defendant had his bodyweight, through his knee, on or about the young man’s torso. It is the prosecution case that the defendant’s behaviour was borne out of anger and was not a legitimate or reasonable use of force to carry out any function under the [LEPRA], even more so when one considers, on the prosecution case, that the young person had been the subject of Oleoresin capsicum spray application, at least one discharge of the Taser - it is, on the evidence, unlikely that the second or third attempt by the decision [sic], Senior Constable Greenhalgh, had any effect because of the wires being broken - struck with a baton multiple times, that there was no need for Senior Constable Greenhalgh to use his baton in the way that he did.

It is the defendant’s position that control over the young person was never properly obtained.”

155. The last sentence is a misstatement of the defendant’s evidence as to the control that he exercised over the complainant. It was the defendant’s case that he, together with the other three officers, had gained control of the complainant by the time he directed SC Sims to bring up the police van, but subsequently lost control.

156. The Magistrate determined that the evidence established that the defendant had approached a group of onlookers in Lateen Lane afterwards and raised the issue of the incident being recorded but stated he could not “resolve” the two versions as to what was said, other than by accepting that the defendant was using “angry words”.

157. The Magistrate then turned to evidence of the complainant’s behaviour at the police station, finding that he needed to be restrained by a number of police officers at that point, which, his Honour found, mitigated against the prosecution’s submission that the complainant was compliant before he was placed in the police van at Lateen Lane.

158. Following the assessment of the evidence, the Magistrate returned to “the question of reasonableness”, noting that both parties had directed him to Woodley v Boyd at [37]. The Magistrate recited parts of that paragraph (but not the parts that referred to the objective test) and observed that the defendant’s evidence was to the effect that “he did what was necessary” and did not go beyond that. His Honour referred to the evidence as to the defendant’s good character and then found as follows:

“The telling part of the evidence, to my mind, is the video evidence of these impugned baton strikes. The first set of three of those strikes, in quick succession, occurs at one minute and 55 seconds into the mobile phone footage; the second set was two strikes, at two minutes into the footage; the third, a single strike, at two minutes and eight seconds. It is the defendant’s evidence that he believed that control over the young person was being obtained, all but belatedly, and, indeed, the evidence of Senior Constable Mates at the Commission bears that out, in that he said that he thought they had him, in his words, and then they had lost him again; that is, his behaviour was so volatile, in my words, and unpredictable that it was not possible to say that, as is often seen in a situation of arrests which are impugned and challenged in this Court, where ultimately there may be struggles and violence and ultimately the person is subdued and that is the end of it - the evidence of Senior Constable Greenhalgh is that he was not of that view and, indeed, the behaviour of the young person, on the way back to the police vehicle and on the floor of the dock, lends support to his assertion. The most telling part is at two minutes and 49 of the video recording, which is, as identified, [I] repeat - the principal part of the Crown case.

If it were, in my view, the case that the defendant had acted in the red fog, or red mist, I think it was described as yesterday, and that was the part of the cross-examination I wanted to listen to again, there would not be any gap between the strikes. Someone who had lost control and lost their temper would not have taken - there would not have been any gap, in time, between those strikes. THE CHARGE IS DISMISSED.”

The plaintiff’s submissions

Ground 1

The Magistrate erred in law by failing to consider or determine whether, for the purposes of s 230 of LEPRA, the defendant's use of force in the exercise of a function under the Act was "reasonably necessary" by an objective standard

159. The plaintiff submitted that at common law, as noted in Woodley v Boyd, the test as to the permissible degree of force to effect an arrest is both subjective and objective. However, contrary to the position taken by the prosecutor at the hearing in the Local Court, the plaintiff submits that the test for determining whether the use of force by police pursuant to s 230 is “reasonably necessary” is exclusively an objective test, in the same terms as the objective test is to be understood at common law, which it formulated as “whether a reasonable person in the position of the police officer would have considered the use of force to be proportionate to the risk or danger sought to be prevented”.

160. The plaintiff submitted that the construction of a purely objective test for s 230 is consistent with the “natural and ordinary meaning” of the words as they appear in that section: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-305.

161. Further, that construction accords with the use of a reasonableness standard elsewhere in the statute. The plaintiff referred to State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185 (“Bouffler”), in which the Court of Appeal (Beazley ACJ, Ward and Gleeson JJA) considered the meaning of “reasonable grounds” as that phrase appears in ss 99(2) of LEPRA. The Court held that:

“When a statutory provision requires that a state of mind be based or held upon reasonable grounds, the question whether there are reasonable grounds is determined objectively at the time when the relevant power or function is exercised: George v Rockett (1990) 170 CLR 104; [1990] HCA 26; Hyder v Commonwealth of Australia; O’Hara v Chief Constable of the Royal Ulster Constabulary.” [2]

2. Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336. O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286.

162. The plaintiff submits that it is apparent from the Magistrate’s judgment that his Honour applied the subjective test but did not then consider whether a reasonable person in the position of the defendant at the time would have considered the contested baton strikes to be reasonable and proportionate to the risk or danger that was sought to be prevented. The failure of the Magistrate to give any consideration to the objective test constituted an error of law, regardless of whether the common law test is imported into s 230 or it is exclusively the objective test.

Ground 2

The Magistrate erred in law by failing to provide adequate reasons for dismissing the charge

163. The plaintiff’s second ground is closely related to the first, namely, that if the Magistrate did apply the objective test, his Honour failed to provide reasons as to why he found that the prosecution had not established that the defendant’s use of force with the contested baton strikes failed the objective test.

The defendant’s submissions

164. The defendant submitted that s 230 is to be understood as importing the common law test for determining “reasonable necessity”, that is, a subjective and objective test, although the defendant also submitted that the plaintiff had mis-stated it in its submissions to this Court. The defendant submitted that the objective test is correctly expressed in the passage from R v Turner [1962] VR 30 that was excerpted by Heydon JA in Woodley v Boyd, namely, incorporating a double negative: whether a reasonable person in the position of the police officer would not consider the use of force by the police officer to be disproportionate to the risk or danger sought to be prevented. I note this is essentially the same formulation that was put by the prosecutor to the Magistrate, as excerpted at [138] above.

165. The defendant complained that there is an inherent unfairness in the plaintiff advancing a different construction to s 230 to that which was advanced in the Local Court.

166. Pursuant to ss 34(1) and (2)(f) of the Interpretation Act 1987 (NSW), the defendant relied upon the Second Reading Speech of the Law Enforcement (Powers and Responsibilities) Bill 2002, delivered on 17 September 2002, in which the Attorney General, the Hon Bob Debus, said:

“Matters included in the bill represent a codification of the common law, a consolidation of existing statute law, a clarification of police powers, or a combination of these. … While generally the bill simply re-enacts existing legislation, it does in some circumstances make amendments intended to more accurately reflect areas of the common law or to address areas in the existing law where gaps have been identified. Unless expressly stated, the bill is not intended to change the common law.”

167. In his written submissions, the defendant submitted that, contrary to the plaintiff’s submission, the Magistrate found that at the time of the contested baton strikes only SC Roach was with the defendant, since SC Mates had gone to get the police van and SC Sims had “walked away”. However, in oral submissions, the defendant conceded that it is apparent from the video that SC Sims did not stand from where he was crouching at the complainant’s feet until after the fifth contested strike.

168. In response to ground 1, the defendant submitted that it is apparent from the Magistrate’s reasoning in the passages extracted in [152] and [153] above that his Honour accepted the evidence of the defendant that he was not angry or “vengeful” at the time of the contested baton strikes and, by necessary implication, that the objective test was satisfied.

The plaintiff’s submissions in reply

169. The plaintiff contended that the prosecutor had not submitted to the Magistrate that there was a subjective, as well as objective, test., since she had only referred to Woodley v Boyd as “guidance”. I note, however, that when she did so, she did not distinguish the reference in the passage extracted from R v Turner that referred to the subjective test.

170. The plaintiff submitted, that, in any event, no unfairness would be occasioned to the defendant if the Court found in favour of the defendant in that regard, because the plaintiff’s complaint is as to the Magistrate’s failure to apply the objective test, regardless of whether there is also a subjective test. In that sense, the plaintiff has not raised a fresh argument.

171. The plaintiff submitted that the common law did not apply to s 230, referring to s 4 of LEPRA, which states:

“4   Relationship to common law and other matters

(1)   Unless this Act otherwise provides expressly or by implication, this Act does not limit—

(a)   the functions, obligations and liabilities that a police officer has as a constable at common law, or

(b)   the functions that a police officer may lawfully exercise, whether under an Act or any other law as an individual (otherwise than as a police officer) including, for example, powers for protecting property.

(2)   …” (emphasis added)

172. The plaintiff submitted that the reference to the common law being overridden “by implication” displaces extraneous material in the form of the Second Reading Speech, which was to the effect that it could only be displaced by express words.

173. An example of an application of s 4 of LEPRA is Director of Public Prosecutions (NSW) v Tamcelik (2012) 224 A Crim R 350; [2012] NSWSC 1008 (“DPP v Tamcelik”), in which Garling J considered whether the common law is excluded by implication from applying to Pt 6 of LEPRA, which concerns search, entry and seizure powers of police officers relating to domestic violence. In essence, at [79] to [87], his Honour found that the terms of the relevant sections of Pt 6 were quite specific as to when a police officer may enter premisses for the purpose of investigating whether a domestic violence offence has been or is about to be committed, who may invite the police officer in (a person who apparently resides in the dwelling), the circumstances in which a warrant is required for entry and what limits apply to what actions the police officer may take, once inside. His Honour concluded:

“88   In accordance with the principle discussed in Coco,[3] and endorsed by the plurality, the statute should be interpreted as abrogating the common law to the limited extent necessary to give effect to its purpose.

89   The common law principle which the statute is abrogating is the fundamental right of a person not to be disturbed in their own premises without lawful authority, because it empowers a police officer to enter the premises but only in the circumstances and for the purposes identified in the legislation.”

3. Coco v R [1994] HCA 15; (1994) 179 CLR 427.

174. The plaintiff relied upon a reference to s 230 and s 231 of LEPRA by Brereton JA in State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 (“Ouhammi”) at footnote 28 to [53], in which his Honour said:

“Other pleaded defences, under [Civil Liability Act 2002 (NSW) (“CLA”)], s52 (self-defence) and s54 (illegality), and [LEPRA], s 230 and s 231 (lawful justification), were not developed before this court. It suffices to observe that CLA, s 52 was not engaged because the relevant conduct of the respondent was not unlawful; s 54 was not engaged because no criminal conduct of the respondent materially contributed to his injury; and LEPRA, s 230 and s 231 were not engaged, because objectively judged, the force used by SC Johnson was not reasonably necessary.”

175. The plaintiff submitted that Brereton JA’s construction is consistent with the interpretation of similar statutory provisions in interstate jurisdictions. Section 615 of the Police Powers and Responsibilities Act 2000 (Qld) (“to use reasonably necessary force”) was held in Commissioner of Police v Flanagan [2019] 1 Qd R 249; [2018] QCA 109 by Philippides JA, at [49], to be a “purely objective test” and by McMurdo P, at [73], to be “an objective view”. In Western Australia, s 16 of the Criminal Investigation Act 2006 (WA) (“reasonably necessary”) was considered in Elwin v Robinson [2014] WASCA 46 by the Court, at [61], to mean “an objective evaluation of all of the surrounding circumstances”.

Consideration

The meaning of “reasonably necessary” in s 230

176. Section 34(1) of the Interpretation Act 1987 (NSW) sets out the circumstances in which, pursuant to s 34(2)(f), a court may have regard to the Second Reading Speech of a Bill for an Act to interpret a provision of that Act:

“34   Use of extrinsic material in the interpretation of Acts and statutory rules

(1)   In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material—

(a)   to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or

(b)   to determine the meaning of the provision—

(i)   if the provision is ambiguous or obscure, or

(ii)   if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.”

177. The circumstances in which, pursuant to s 4(1) of the LEPRA, the Act overrides the common law is clear and thus the reference in the Second Reading Speech to the Bill not being intended to change the common law unless “expressly stated” is of no assistance in the construction of s 230. The question for determination is whether, pursuant to s 4(1), the meaning of “reasonably necessary” in s 230 at common law is displaced by implication.

178. In Attorney General for New South Wales v XX [2018] NSWCCA 198 the Court succinctly stated the principles of statutory construction:

“134   The relevant principles of statutory construction are well-established. As was said by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (Project Blue Sky), the ‘primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’, with the meaning of the provision to be ‘determined by reference to the language of the instrument viewed as a whole’. Their Honours also referred to the statement of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397; [1955] HCA 27 that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. They also emphasised at [71] that a court must strive to give meaning to every word of a provision.

135   In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 at [47], the majority emphasised that the ‘language which has actually been employed in the text of legislation is the surest guide to legislative intention’, but that the ‘meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy’: see also Thiess v Collector of Customs (2014) 250 CLR 664; [2014] HCA 12 at [22]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. In Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [44], the majority emphasised that the ‘purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction’.

136   However, as was emphasised in SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936; [2017] HCA 34 (SZTAL), the text cannot be considered without regard to its context and purpose. The majority stated the principle in the following terms at [14]:

‘[14]   The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.’

See also Gageler J at [35]-[39]; Interpretation Act 1987 (NSW) s 33.”

179. In relation to how the competing constructions accord with “the language and purpose of the all the provisions of the statute,” as noted, the plaintiff submitted that the meaning of the reasonableness test elsewhere in LEPRA, such as in s 99(2), is exclusively the objective test as determined in Bouffler at [87]. However, at [90], the Court approved a passage from Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336 (“Hyder”), that referred with approval in turn to a passage from the judgment of Lord Hope in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 (“O’Hara”). These were the two cases cited by the Court as support for its conclusion at [87], in Bouffler. The relevant passage in Hyder is set out in the judgment of McColl JA, at [56], who quotes from O’Hara as follows:

“‘My Lords, the test which section 12(1) ... has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.’”

180. Clearly then, the Court in Bouffler accepted that the subjective test was also relevant, although it is rarely the sticking point; in most cases, it is more of an evidentiary formality. The real issue in such cases is the objective test, which likely explains why in Bouffler, at [87], the subjective test was not expressly identified as a relevant test.

181. The passage in Ouhammi by Brereton JA, extracted at [174] above, does not, in terms, exclude the subjective test. It went no further than stating that the objective test in ss 230 and 231 of LEPRA was not satisfied in the circumstances of that case.

182. The test of reasonable necessity occurs throughout LEPRA in multiple contexts for a range of purposes. In all but one of those contexts, it is expressed in terms of what is “reasonably necessary”. An exception is s 33(5) and (6) of LEPRA, which read as follows:

“33   Rules of conduct of strip searches

…

(5)   A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

(6)   A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.

…”

183. In those sections, the term is qualified so as to confine its meaning in the context of strip searches regulated by ss 33(5) and (6) to an objective rather than subjective test, which is consistent with it being construed in s 230 to incorporate its meaning at common law.

184. In my view, little assistance is derived from a consideration of the term “reasonably necessary” in isolation or in the context of Pt 18; it is inherently ambiguous as to whether reasonableness is to be understood as a subjective or objective consideration, or both.

185. In DPP v Tamcelik, in concluding that certain sections of Pt 6 of LEPRA excluded the operation of the common law by implication, Garling J found that the detailed provisions in Pt 6 that governed when a police officer could exercise certain functions were inconsistent with the common law as to the powers of a police officer. The legislative protection afforded to police officers by s 230, however, is simply expressed in terms that directly reflect the terminology that has developed in the common law. The term “reasonably necessary” was one of the formulations of reasonableness expressly identified by Heydon JA in Woodley v Boyd. There is no qualification of that term in s 230, which tends towards a conclusion that the common law has not been excluded by implication.

186. For those reasons, I conclude that the term “reasonably necessary” in s 230 is to be understood as incorporating the common law test. I find that the objective test is as stated in R v Turner and quoted with approval by Heydon JA in Woodley v Boyd, which is to this effect when appropriately modified for the purposes of s 230: whether a reasonable person in the position of the police officer would not consider the use of force by the police officer to be disproportionate to the risk or danger sought to be prevented.

The Magistrate’s reasons

187. When examining an ex tempore judgment that is delivered in the Local Court, it is appropriate to recall the daily pressures under which magistrates conduct their courts, without the benefit of the resources that are available to judicial officers in higher courts. Analysis and any criticism should be expressed and understood in that context.

188. As noted, the Magistrate accepted the evidence of the defendant and the evidence of SC Roach and SC Mates as to the resistance offered by the complainant and the difficulties they said they encountered in subduing him. Although only SC Roach gave evidence of the complainant springing up from the ground when he and the defendant first arrived, the Magistrate accepted it. The Magistrate also accepted the evidence of SC Roach and the defendant that the complainant approached SC Roach and threw a punch at him.

189. Although the Magistrate referred to the meaning of the “reasonably necessary” test and Woodley v Boyd, he did not articulate the objective aspect of it. Nor did his Honour expressly turn his mind to a consideration of the evidence advanced by each of the parties as to whether, objectively, the contested baton strikes were disproportionate to the level of threat posed by the complainant. No mention was made of what a reasonable person in the defendant’s position would think of the proportionality of the contested baton strikes to the level of threat posed at that point in time by the complainant.

190. The defendant’s submission that it can be inferred from the terms in which the Magistrate accepted the evidence of the defendant, SC Roach and SC Mates as to their perceptions at that time, that his Honour’s consideration and findings related to the objective test, is unpersuasive.

191. The passages from the Magistrate’s judgment relied upon by the defendant that are excerpted at [152] and [153] above refer generally to the entire incident rather than discretely to the level of threat posed by the complainant and the security options available to police at the time of the six contested baton strikes. The Magistrate did not assess the extent to which the level of any threat had been mitigated by the time the contested baton strikes occurred and the proportionality of those strikes to that threat. Accepting the Magistrate’s findings as to the difficulties faced by the police officers, a live issue remained as to the objective reasonableness of the contested baton strikes.

192. Had the Magistrate performed such an assessment, there were particular aspects of the evidence that warranted consideration from that perspective. Accepting that the Magistrate found the evidence of the eyewitnesses to be unreliable and putting their evidence to one side, there remained the video. Relevant aspects of the video evidence as to the issues of whether the defendant’s six baton strikes were reasonably necessary include the following:

1. By the time of the contested baton strikes, the defendant and other police officers had held the complainant on the ground and, by the defendant’s admission, on his back, for almost the length of the video to that point. That was a period of almost two minutes, comprising 1 minute and 54 seconds less the first six seconds when the complainant was slightly on his side. SC Roach was standing on the double handcuffs for the first five of the six contested baton strikes and, as found by the Magistrate, the defendant was kneeling on the complainant’s torso throughout the contested baton strikes. It is apparent from the video that SC Sims remained crouched in the area of the complainant's legs for the first five of the contested baton strikes, only moving away before the sixth strike, at which time he was nevertheless standing within two paces of the complainant and facing him, the defendant and SC Roach. In addition, at the time of the sixth strike, SC Sims was out of the van and standing alongside the defendant and SC Roach, so the defendant still had the benefit of three other officers around him, one of whom (SC Roach) was also still restraining the complainant.

2. The complainant did not get up immediately before, during or after the contested baton strikes.

3. For the duration of the video, to the extent that the complainant’s speech could be discerned, he did not verbally threaten a police officer or anyone else. He is not seen to perpetrate a violent act against anyone. This is consistent with the level of threat that he posed by the time of the contested baton strikes being minimal.

4. There were no members of the public within the immediate vicinity of the complainant, before or at the time of the contested baton strikes.

5. Two other police officers were present at the time of the first five baton strikes and three others were present for the sixth baton strike. Those police officers could be called upon by the defendant for assistance, if it was required.

6. The complainant had been responsive to what was being said to him throughout the video, for instance by placing his left arm out from his body when he was told to, denying that he was a “prick”, responding to the demand that he “stop resisting” by saying “I’m not resisting”, and saying “all right” when told to stop touching his handcuffs. Immediately after the contested baton strikes, the complainant responded immediately when asked his name.

193. There were other uncontested aspects of the evidence that were not apparent from the video that were also relevant to the objective test:

1. The defendant had no reason to believe that the complainant had committed any crime or threatened anyone with harm before their arrival, although his behaviour may have qualified for certain minor offences under the Summary Offences Act 1988 (NSW).

2. At the time of the contested baton strikes, the complainant continued to not have a weapon or object that could be used as a weapon.

Determination

194. I conclude that ground 1 is made out and, in the absence of any consideration of the objective test, that it constitutes an error of law. It is unnecessary to consider ground 2, since it assumes that the first ground is unsuccessful. It follows that it is also unnecessary to consider the alternative basis of judicial review of the proceedings in light of it being advanced on a limited basis as an alternative form of relief for ground 2. It is also unnecessary to determine whether the defendant was disadvantaged by the plaintiff advancing a different construction of s 230 than the one that it advanced in the Local Court, since I have rejected the plaintiff’s submission to that effect.

Costs

195. The plaintiff seeks an order for costs if it is successful on the appeal. In my view, it would be inappropriate to do so. It is no fault of the defendant that the Magistrate fell into error.

Orders

196. I make the following orders:

1. Appeal allowed;

2. Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW), the order made by Magistrate Dakin on 24 February 2021 dismissing the charge of “common assault” under s 61 of the Crimes Act 1900 (NSW) is set aside.

3. The matter is remitted to the Local Court to be dealt with according to   law.

4. Each party to pay their own costs of these proceedings.

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Endnotes

Decision last updated: 29 July 2022