Donnelly v Lester
[2024] ACTSC 393
•11 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Donnelly v Lester |
Citation: | [2024] ACTSC 393 |
Hearing Dates: | 16 May 2024; 12 August 2024 |
Decision Date: | 11 December 2024 |
Before: | Taylor J |
Decision: | (1) The appeal is allowed. (2) The finding of guilty in relation to the offence of obstruct a public official (CC2022/6371) is set aside. (3) The finding of guilt in relation to the offence of resist a public official (CC2023/2342) is set aside. (4) A finding of not guilty is entered in relation to the offence of obstruct a public official (CC2022/6371). (5) A finding of not guilty is entered in relation to the offence of resist a public official (CC2023/2342). |
Catchwords: | APPEAL – Appeal from Magistrates Court – Appeal against conviction – whether the verdict was unreasonable or unsupported by the evidence – whether the Magistrate erred regarding lawfulness of the arrest of a second person – whether the Magistrate erred in finding the appellant to have been lawfully arrested – resist public official – obstruct public official –police conduct – breach of the peace – appeal upheld – findings of guilt set aside |
Legislation Cited: | Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth), ss 68(1), 69 Criminal Code 2002 (ACT), s 361(1) Magistrates Court Act 1930 (ACT), div 3.10.2, 207, 208, 214 |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 Coleman v Power [2004] HCA 39; 220 CLR 1 Dicksonv Irwin [2018] ACTSC 315 Fletcher v Harris [2005] ACTSC 27 Forbutt v Blake [1981] 51 FLR 465; 2 A Crim R 28 Fox v Percy [2003] HCA 22; 214 CLR 118 Inglis v Adamson [2024] ACTSC 4 Ji v Stone [2023] ACTSC 54 Lavin v Albert [1982] AC 546 Lee v Lee [2019] HCA 28; 266 CLR 129 M v The Queen [1994] HCA 63; 181 CLR 487 Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 R v Howell [1982] 1 QBR 416 SBT v Wright [2021] ACTSC 322; 17 ACTLR 137 Warren v Coombes [1979] HCA 9; 142 CLR 531 |
Parties: | Cheree Donnelly (Appellant) Commonwealth Director of Public Prosecutions (Respondent) |
Representation: | Counsel K Ginges ( Appellant) L Fomiatti ( Respondent) |
| Solicitors Hugo Law Group ( Appellant) Commonwealth Director of Public Prosecutions (Respondent) | |
File Number: | SCA 34 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 11 May 2023 Case Title: The Police v Cheree Donnelly Court File Numbers: CAN 6371/2022 CAN 2342/2023 |
TAYLOR J:
Introduction
1․After a hearing on 10 May 2023, the appellant, Ms Cheree Donnelly, was found guilty in the ACT Magistrates Court on 11 May 2023 of the following charges:
(a)CC2023/2342 – resist a public official, contrary to s 361(1) of the Criminal Code 2002 (ACT) (the Criminal Code).
(b)CC2022/6371 – obstruct a public official, contrary to s 361(1) of the Criminal Code.
2․The Magistrate recorded a conviction and imposed a 12-month Good Behaviour Order on each charge.
3․The appellant was found not guilty of a third charge of unauthorised camping on unleased national land contrary to s 68(1) of the Australian Capital Territory National Land (Unleased) Ordinance 2022 (Cth) (the 2022 Ordinance) (CC2022/6993). The charges arose out of an incident on 1 July 2022.
Grounds of appeal
4․The appellant appeals against the findings of guilt on the following grounds:
(a)The findings of guilt in respect of charges CC2023/2342 and CC2022/6371 should be set aside on the ground that they are unreasonable, or cannot be supported, having regard to the evidence.
(b)The primary Magistrate erred in failing to determine whether “the male” was lawfully arrested for “breach of the peace”.
(c)In the alternative to (b), the primary Magistrate erred in assuming or finding that “the male” had been lawfully arrested for “breach of the peace”.
(d)The primary Magistrate erred in finding that the appellant’s subjective belief, concerning the lawfulness of the arrest of “the male”, was not reasonable.
(e)The primary Magistrate erred in finding that the appellant was lawfully arrested for a breach of the peace, in respect of charge CC2023/2342.
5․At the hearing the appellant abandoned her appeal as to the sentence imposed.
6․For the following reasons, the appeal is upheld.
Background
The prosecution case
7․On 30 June 2022, a group of people on Territory land were issued a ‘move on’ direction by police. Shortly after midnight on 1 July 2022, police returned to the location in Parkes, ACT, and observed that the group had not left the area as directed and an unauthorised camp had been established. Minutes after arriving, Sergeant Robert Lester placed an associate of the appellant, Mr Jarrad Spalding, under arrest for a breach of the peace. The prosecution’s case was that the appellant obstructed the arrest of Mr Spalding which constituted charge CC2022/6371 (obstruct a public official).
8․The conduct of the appellant relied upon for the obstruct charge was:
(a)attempting to take hold of Mr Spalding when police attempted to arrest him;
(b)refusing to let go of Mr Spalding despite repeated instructions to do so from police;
(c)taking hold of the arm of the police officer who was attempting to effect the arrest of Mr Spalding; and
(d)placing herself on top of Mr Spalding on the ground and placing her arms around him.
9․Sergeant Elizabeth Swain consequently placed the appellant under arrest for breach of the peace. Constable Leigh Cantle was involved in the physical arrest of the appellant and was the public official she was said to have resisted (CC2023/2342: resist a public official). The prosecution relied on the following conduct of the appellant to establish the charge:
(a)not placing her hands behind her back when repeatedly directed to do so;
(b)placing her hands under her body;
(c)physically struggling against Constable Cantle as he attempted to handcuff her;
(d)physically struggling against Constable Cantle as he walked her to a police vehicle; and
(e)failing to enter the police vehicle when directed to do so.
Proceedings in the Magistrates Court
10․The hearing took place before the Magistrate on 10 May 2023. The appellant was self-represented. The appellant made an application for a ‘McKenzie Friend’ which was denied. The following day, the Magistrate delivered her decision and proceeded to sentence the appellant.
The evidence
11․The evidence in relation to the allegation of unauthorised camping was a discrete part of the prosecution case. That charge is not the subject of appeal, nor was the evidence adduced in relation to it relevant for the purposes of determining the appeal. Accordingly, the evidence in relation to the dismissed charge is not substantially included in the summary of the evidence in the Magistrates Court.
12․I observe here that the appellant’s hearing in the Magistrates Court occurred the day before Mr Spalding’s hearing in the Magistrates Court. For reasons unexplained, while the appellant and Mr Spalding were effectively co-accused, the proceedings arising from their alleged part in the incident were conducted separately and before different judicial officers. One of the consequences of that circumstance is that for much of the time in the appellant’s proceedings, Mr Spalding was referred to as “the man” or “the male”. A reference in this appeal to “the man” or “the male” should be taken as a reference to Mr Spalding.
Sergeant Robert Lester
13․Sergeant Lester gave evidence that he attended the National Archives carpark at approximately 12:30am on 1 July 2022 after being informed that a group of people were in the carpark despite having been earlier directed by police to move on.
14․Upon arrival, Sergeant Lester observed the appellant to be sitting inside a marquee with a man who had a beard and was wearing a ‘Stussy’ branded hat. Sergeant Lester recalled that Sergeant Swain directed the group to leave and the man responded “fuck off”. Sergeant Lester began ripping the plastic off the marquee as he had come to the conclusion that “negotiation was pointless”. He stated that the group, having placed a lit gas brazier inside the plastic wrapped marquee, posed a significant safety risk which informed his opinion that “any resolution had to be quite quick to save injury to either themself or [himself] and [his] colleagues”.
15․Sergeant Lester gave evidence that arresting the man for a breach of the peace was warranted because of his belligerence, which rendered the prospect of negotiation and resolution unlikely. Sergeant Lester said that when placed under arrest, the man resisted and additional officers became involved in the struggle, at which point the appellant started “bearhugging” the man.
16․Sergeant Lester’s body-worn camera (BWC) footage was played as part of his evidence. In summary, the BWC footage revealed the appellant placing her right arm across the front of the man. Sergeant Swain is observed attempting to move the appellant’s arm. The BWC footage showed Sergeant Lester placing his taser on the left side of the man’s chest and directing him to “move now” and “put your hands behind your back”. The man did not comply with those directions. Sergeant Swain stood in front of the appellant and said, “ma’am let go, you are under arrest, you are under arrest for a breach of the peace”. Sergeant Lester notified the other officers that he was going to use “some gas”. He sprayed the appellant and the man with pepper spray. He yelled at the man to lay face down.
17․Another officer can be heard saying “let’s separate them first” and Sergeant Lester replied “yeah, take the lady off first”. Sergeant Lester continued to restrain the man and two other officers can be seen dragging the appellant a short distance away. The appellant can be heard repeatedly yelling “what am I doing wrong?” and the man asked Sergeant Lester “what is she doing wrong? Tell me what am I doing wrong? What’s breaching the Queen’s peace?”.
18․The BWC footage established that the man continued to voice his objection to the treatment of the appellant. Sergeant Lester enlisted help from two officers to roll the man so he was face down on the ground with his hands behind his back. The man repeatedly yelled “why am I under arrest?”. Sergeant Lester replied, “shut up idiot” and then later, “you’ve already been told”. Sergeant Swain replied, “for breach of the peace sir”. Sergeant Lester, together with two other officers, moved the man and attempted to place handcuffs on him. The man did not move his arms as instructed to do so by police which led to Sergeant Lester using a taser to force his compliance.
19․Sergeants Lester and Swain left the appellant and the man in the custody of other officers and redirected their focus to the broader group who remained in the carpark. Sergeant Swain yelled out to the remaining members of the group to “pick up this stuff and take it otherwise I’m just about to seize it all”. Another officer asked Sergeant Lester about what charges had been laid. It is unclear whether this question is in respect to the man, the appellant or both. Sergeant Lester replied, “breach of the peace for a start… he’s telling us to fuck off as soon as we get here, he’s being aggressive, we can’t give him directions, he’s got to go”. Sergeant Lester directed the remaining individuals to leave the carpark and the BWC was turned off shortly thereafter.
20․In cross-examination, it was put to Sergeant Lester by the appellant that the aggressive language used when police arrived was not directed at the officers but was rather “banter within the marquee”, a proposition with which Sergeant Lester disagreed.
Sergeant Elizabeth Swain
21․Sergeant Swain gave evidence that she attended the National Archives carpark at approximately 12:30am on 1 July 2022, where she observed on arrival that a group of protestors had set up a camp.
22․Sergeant Swain’s BWC footage provided a different angle of the same interaction captured in Sergeant Lester’s BWC footage. Sergeant Swain repeatedly walked away from the appellant and the male to coordinate aspects of the police response and to interact with other members of the group.
23․Sergeant Swain was cross-examined by the appellant. Sergeant Swain agreed that her BWC footage recorded her saying she did not care if the items she assumed belonged to the group were damaged. Sergeant Swain gave evidence that the timeframe given to the protestors to pack up was adequate, citing her previous experience with the group that they would wait to pack up their belongings until the last possible moment, regardless of the timeframe given.
24․Sergeant Swain agreed that she was aware there was a fire and a gas heater in operation and said that she did not feel that she was in a position to negotiate with the group to turn them off. She disagreed that she proceeded regardless of any safety issues, stating that police considered safety when they acted as they did.
25․Sergeant Swain gave evidence that she considered Officer Lester had used the most appropriate method when he ripped the marquee structure down, given the volatile situation. She also gave evidence that the primary objective was to move the structure away from the fire to give them access to the people inside it who were acting aggressively. She stated the structure was self-made so ripping it did not seem to be “a big deal” to her.
26․Sergeant Swain stated that she informed the appellant her arrest was for a breach of the peace and that the circumstances of the arrest then changed as further offending occurred. Sergeant Swain maintained that it was clear to the appellant the reason for her arrest.
Constable Leigh Cantle
27․Constable Cantle gave evidence that while on shift during the early hours of the morning on 1 July 2022, he attended the National Archives carpark and observed a group of people with a fire inside a gazebo structure wrapped in plastic. He observed two people being arrested, a male and a female. He stated that he was involved in that to some degree including dismantling a “semi-permanent structure” being a tent and the gazebo. He described his role as separating the appellant when she was “hugging” the man who police were attempting to arrest. He then conveyed the appellant to the watch house.
28․Constable Cantle’s BWC footage was played as part of his evidence. The footage depicted the appellant being dragged a short distance from the male, and Constable Cantle together with another officer, attempting to place her in handcuffs. The appellant can be heard yelling various things such as “get off me you fucking cunt” and “I’m not doing anything wrong”. The officers can be observed struggling to place handcuffs around the appellant’s wrists and repeatedly telling the appellant to “stop resisting”. Multiple officers, including Constable Cantle, escorted the appellant toward a police vehicle. A conversation can be heard between the appellant and a male police officer where he tells her to get in the vehicle as he does not want to use force. The appellant repeatedly stated she is a mother of two children and asserts that she will not “get in there as [she] has done nothing wrong”.
29․Constable Cantle gave further evidence after the BWC footage was played, clarifying that while the officers escorted the appellant to the police vehicle, she was attempting to pull away from their grasps. He stated that the appellant did not enter the vehicle of her own accord and the officers had to push her into the cage.
30․In cross-examination, Constable Cantle stated that his conduct was “safe enough” given the circumstances. When asked what charges the appellant was taken into custody in relation to, he replied obstructing a police officer or territory official. He recalled there was mention of breach of the peace but he believed that to be in relation to the other person who was charged, not the appellant.
Character evidence
31․The appellant tendered a letter from Mark Hanson, Principal of Knox Park Primary School, in support of her good character. The character reference detailed that the appellant is a parent who regularly volunteers her time to assist the school community. He described in positive terms the appellant’s communication skills and willingness to help others.
The Magistrate’s decision
32․The reasons of the Magistrate extended to six pages of the transcript. The reasons included the standard directions applicable in a criminal hearing. There is no complaint made as to those directions.
33․After dealing first with the unauthorised camping allegation, the Magistrate moved to the remaining two charges and identified that the status of the police officers as territory public officials and the appellant’s knowledge as to this fact was not in dispute. Accordingly, her Honour was correctly satisfied on the evidence that these elements for both the resist and obstruct offences were proved.
34․The Magistrate found that the conduct relied upon by the prosecution as to the obstruct charge, being that the appellant held onto the male and attempted to stop police from restraining him, impinged on the police’s ability to perform their duties, and that this conduct was demonstrated in the BWC footage. The Magistrate observed the following:
Sergeant Swain tells the defendant, ‘Ma’am let go’ and the defendant continues to say ‘For what? For what?’ and at that point, it is what I see on the body-worn camera footage, that Sergeant Swain says to the defendant, ‘you’re under arrest for breach of peace.’ She yells that to both of the defendants at that point because both of the defendants are yelling, ‘For what? For what?
35․The Magistrate made the following finding in relation to the arrest of the male:
I consider also that at the time that the [appellant] was holding onto the male that it was clear that the male had been arrested. It is clear that he had been told the basis of the arrest. It was clear that he was being arrested for a breach of the peace. In my view there were no reasonable grounds for the [appellant] to believe that the police were acting unlawfully which would entitle her to act in a manner to prevent the unlawful imprisonment of the male.
36․Accordingly, her Honour found the charge of obstructing a public official proved.
37․The Magistrate found that the conduct relied upon by the prosecution as to the resist charge was established by the BWC footage. The Magistrate observed from the BWC footage that Constable Cantle told the appellant to “put [her] hands behind [her] back” to which the appellant continued to struggle to keep her right arm under her body. Her Honour further observed that the appellant attempted to free her arm while yelling words such as “get the fuck off me”, and continued to struggle against the officers while being escorted to the police vehicle.
38․The Magistrate correctly observed that failing to cooperate with an arrest did not equate to obstructing or resisting police, citing Fletcher v Harris [2005] ACTSC 27. Her Honour found that the appellant’s actions went beyond non-cooperation in that “her actions were deliberately intended to struggle against the police” and concluded that “there was no reasonable ground for the [appellant] to believe that she was able to resist the police conduct to prevent an unlawful imprisonment”.
39․The Magistrate was satisfied that the prosecution had proved each element of each offence beyond reasonable doubt and accordingly the appellant was found guilty of both the obstruct and the resist charge.
Determination
The standard of review
40․The Supreme Court’s jurisdiction and conduct on appeals against convictions imposed on summary offences from the Magistrates Court is governed by div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the MCA), namely ss 207–219. This appeal is brought pursuant to ss 207 and 208 and is by way of re-hearing: Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27 (Alexander). On a rehearing, “the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact”: s 214 of the MCA.
41․The standard of review to be applied in conviction appeals from the Magistrates Court brought under s 208 was clarified and confirmed in Alexander at [18]:
…[A]n appellant may succeed in an appeal under s 214 of the MCA by demonstrating that the magistrate’s finding was unreasonable, but such a finding is not necessary for an appellant to succeed. Rather, it is sufficient for an appellant to demonstrate that there is a material legal, factual or discretionary error in the magistrate’s decision.
42․As Baker J stated in Inglis v Adamson [2024] ACTSC 4 at [47]-[49] the onus is on the appellant to identify and demonstrate error in the Magistrate’s findings. In Alfred (a pseudonym) v Eiffert [2023] ACTSC 403 at [37], Baker J observed where there is a complaint that the verdict is unreasonable, the Court must “ask itself whether it thinks that upon the whole of the evidence it was open to [the tribunal of fact] to be satisfied beyond reasonable doubt that the accused was guilty”: citing M v The Queen [1994] HCA 63; 181 CLR 487 at 49 [7] (per Mason CJ, Deane, Dawson and Toohey JJ) (M v The Queen).
43․As her Honour further observed in Ji v Stone [2023] ACTSC 54 at [153], there may be “little difference in practical outcomes” between the principles applying to review of jury verdicts set in M v The Queen and the principles applying to review by way of rehearing enunciated in Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) and concluded at [154] that:
whether applying the test in M v The Queen or applying “rehearing” principles in the Court’s determination of whether factual error is established, the Court will be required to perform its own assessment of the evidence, but in doing so, the Court must also take into account any advantage that the tribunal of fact had in the proceedings below.
44․If error is established, the Court is obliged to make its own findings and to formulate its own reasoning based on those findings: Robinson Helicopter Company Inc v McDermott [2016] HCA 22; 331 ALR 550 at [43].
45․Any consideration of error in a Magistrate’s decision must take into account the pressures of the Magistrates Court: Alexander at [21]. Appeals by way of re-hearing require a “real review of the evidence given at first instance and the judge’s reasons for judgment and while respecting any advantage that the primary judge enjoyed, should not shrink from giving effect to its own conclusion”: Alexander at [13], citing Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 and Lee v Lee [2019] HCA 28; 266 CLR 129 at 148-149; [55]-[56].
46․I must bear in mind the advantage that the Magistrate had in the environment of the hearing given the nature of the case, in particular when assessing the credibility of all the witnesses. In this matter there was no challenge mounted as to the credibility of the witnesses. The appeal is directed toward the substance and content of the evidence as to the lawfulness of police conduct. In that context, there was no submission advanced that the Magistrate had any particular advantage in seeing and hearing the evidence in determining the lawfulness of the arrest of the appellant and Mr Spalding. Neither party submitted that should error be established, the matter should be remitted to the Magistrates Court for further hearing.
Further evidence
Transcript of separate proceedings
47․Pursuant to s 214(3)(b) of the MCA, the parties agreed to the tender of the transcript of separate proceedings before Special Magistrate Urbas on 11 May 2023 and a transcript of the decision of the Special Magistrate delivered on 2 June 2023.
48․Those transcripts admitted by consent were in relation to the “the male”, Mr Jarrad Spalding, whose arrest the appellant was said to have obstructed. Mr Spalding was charged with unauthorised camping on unleased national land and resisting a public official, arising from the same incident which led to the appellant’s arrest. Both charges against Mr Spalding were dismissed by the Special Magistrate on 2 June 2023.
49․The appellant initially relied on the transcript in support of the contention that issue estoppel had application and that the Crown’s position in maintaining the lawfulness of Mr Spalding’s arrest, in light of the outcome of his proceedings, amounted to an abuse of process.
50․Those contentions were abandoned during the appeal hearing and I need not consider them. Notwithstanding that those arguments were not pressed, the transcript of the proceedings is before me as additional evidence in the appeal.
51․The parties agreed that the decision of the Special Magistrate in relation to Mr Spalding was irrelevant for the purposes of assessing the decision of the Magistrate with respect to the appellant. I make clear I have not used it for that purpose. In so far as the hearing of Mr Spalding adduced evidence additional to that adduced before the Magistrate, the additional evidence, it was accepted, can be considered in the appeal.
52․The evidence called by the prosecution in Mr Spalding’s hearing was substantially the same as the evidence relied upon in the case against the appellant. I do not intend to summarise the evidence adduced in Mr Spalding’s hearing. I will refer to the additional evidence in those proceedings where it is relevant for the purposes of determining the outcome of the appeal.
BWC footage
53․By consent, pursuant to s 214(3)(b), I received the entire recording of Constable Cantle’s BWC footage. A version of the BWC footage that was seven minutes long was exhibited in the appellant’s Magistrates Court hearing. The version of the footage before me for consideration in this appeal contained an additional 2 minutes and 56 seconds of footage.
Consequences of the admission of fresh and further evidence
54․The appellant conceded that notwithstanding the admission of fresh evidence she was required to establish error of the kind contemplated in Alexander to succeed in the appeal. No submission was advanced to the contrary. The issue not having been the subject of substantive argument, I do not consider it appropriate or necessary to resolve any inconsistency in the approach taken to this issue by single judges of this Court as identified by Mossop J in SBT v Wright [2021] ACTSC 322; 17 ACTLR 137 at [43]-[67]. Unlike his Honour in that matter, I need not consider the terms of s 214(4) as the fresh evidence was admitted by consent. In any event as will become clear the appellant established material error in the approach taken by the Magistrate.
Grounds of appeal
55․At the heart of the appeal is the learned Magistrate’s consideration of the lawfulness of police action. Collectively the five grounds of appeal are directed toward the Magistrate’s consideration of the lawfulness of the arrest of Mr Spalding and the appellant.
56․Accordingly, it is convenient to first deal with grounds (b) and (c), that is:
(b)The primary Magistrate erred in failing to determine whether “the male” was lawfully arrested for “breach of the peace”.
(c)In the alternative to (b), the primary Magistrate erred in assuming or finding that “the male” had been lawfully arrested for “breach of the peace”.
Appellant’s submissions
57․The appellant highlighted that at the outset of the hearing before the learned Magistrate, to the extent that she was able, her intention to challenge the lawfulness of police action during the incident was made plain. Despite this indication, the appellant submitted that the Magistrate’s decision did not grapple with the question of whether the arrest of Mr Spalding was lawful. It was submitted that her Honour either failed to find or alternatively assumed that the arrest of Mr Spalding was lawful and moved to consider whether the appellant had a lawful basis to obstruct the arrest.
58․Sergeant Lester’s evidence was critical to the prosecution case with respect to the basis upon which Mr Spalding was arrested for a breach of the peace. The appellant noted that during an exchange with the prosecutor during closing submissions, the Magistrate correctly observed that merely being told to “fuck off” would not amount to a breach of the peace. While the reasons of the Magistrate refer to Mr Spalding’s arrest “being clear”, the appellant submitted that the Magistrate did not identify the conduct he had engaged in to justify his arrest for a breach of the peace.
59․Further the appellant referred to the absence from the Magistrate’s reasons of any consideration of the relevant law on breach of the peace, citing Dicksonv Irwin [2018] ACTSC 315 (Dickson vIrwin) and R v Howell [1982] 1 QBR 416 (Howell).
60․It was submitted that the evidence did not establish that Sergeant Lester arrested Mr Spalding because of any actual violence or harm, or arising from a concern that his conduct created an imminent threat of violence or harm, and that if her Honour formed a contrary view, reasoning supporting such a conclusion was not contained in her decision.
61․Counsel for the appellant submitted that the Magistrate was not given the level of assistance from the prosecutor as was required in the circumstances. The appellant pointed to the absence of submissions from the prosecutor in the proceedings before the Magistrate which set out the evidence in support of the lawfulness of Mr Spalding’s arrest nor was the learned Magistrate taken to any relevant authorities.
62․The appellant contended that a review of the evidence leads to a conclusion that neither Mr Spalding nor the appellant were lawfully arrested for a breach of the peace and that the guilty verdicts imposed by the Magistrate should be set aside. It was conceded that Mr Spalding and the appellant were being uncooperative with police demands to dismantle the ‘camp’ and told police to “fuck off”. It was submitted that Mr Spalding was seated and that his conduct did not escalate beyond the use of offensive language.
63․The appellant submitted that there was an insufficient basis for the reasonable apprehension of fear of violence or harm by the police and that his arrest was consequently unlawful. On that basis, it was submitted that the appellant’s conduct in bearhugging Mr Spalding during his arrest was not unlawful as it did not amount to an obstruction of a lawful arrest, nor could it justify her own arrest for a breach of the peace.
Respondent’s submissions
64․The respondent contended that the evidence of Sergeant Lester established that in response to Mr Spalding’s conduct, he held a reasonable belief that a person was likely to be harmed by an assault, an affray, a riot, unlawful assembly or other disturbance; or he was put in fear of harm by an assault, an affray, a riot unlawful assembly or other disturbance: citing Lavin v Albert [1982] AC 546, Howell and Dickson vIrwin.
65․The respondent submitted that Sergeant Lester’s evidence established that the circumstances as he appreciated them, enlivened the power to arrest Mr Spalding for breach of the peace. Sergeant Lester’s evidence describing Mr Spalding’s belligerence, aggressive demeanour, language toward police, solid build and the resultant safety concern from the lit brazier in an enclosed area, informed the reasonableness of the belief.
66․The respondent submitted that the lawfulness of the appellant’s arrest was not contingent on the lawfulness of Mr Spalding’s arrest. The appellant being separately arrested for a breach of the peace, it was accordingly submitted that if Mr Spalding was not lawfully arrested, the finding of guilt in relation to CC2023/2342 (resisting public official) can nonetheless be upheld. The respondent submitted that the evidence established that the appellant’s actions in obstructing Mr Spalding’s arrest (whether lawful or not), caused Sergeant Swain to believe that there was a real risk of harm due the appellant inserting herself into a physical scuffle in the vicinity of a lit gas heater and a brazier. That apprehension of harm appreciated by Sergeant Swain was said to validate the exercise of the power to arrest the appellant for a breach of the peace.
Consideration
The arrest of Mr Spalding
67․If the arrest of Mr Spalding was unlawful, the charge alleged against the appellant in relation to obstructing that arrest necessarily failed.
68․In Coleman v Power [2004] HCA 39; 220 CLR 1 at [118]-[120] McHugh J relevantly stated:
118. An officer who unlawfully arrests a person is not acting in the execution of his or her duty. In Nguyen v Elliott, the Supreme Court of Victoria set aside convictions for assaulting and resisting an officer in the execution of his duty when the arrest was unlawful and therefore not made in the execution of the officer's duty. The accused was approached by two constables who believed that he might have been involved in drug dealing. The accused attempted to walk away but was detained by the first officer who wished to search him. The accused became aggressive and kicked the first officer. The second officer crossed the street to assist the first officer to control the accused. The accused was forced into the police vehicle and continued to protest. He was then taken out and handcuffed during which the accused bit the second officer on the hand. Before the magistrate, the first officer acknowledged that he did not reasonably suspect that the accused was in possession of drugs but was merely curious about whether the accused possessed drugs. The charges relating to the first officer were dismissed. The prosecution claimed the second officer's position was different because he had good reason to believe he was lawfully assisting his partner to effect an arrest for what the second officer assumed was an assault on the first officer. Hedigan J held that the conviction for resisting arrest could not stand. His Honour said:
"… it cannot be said that a police officer is acting in the execution of his duty to facilitate an unlawful search and arrest. The right of citizens to resist unlawful search and arrest is as old as their inclination to do so. The role of the courts in balancing the exercise of police powers conferred by the State and the rights of citizens to be free from unlawful search and seizure may be traced through centuries of cases."
119. In setting aside the conviction, Hedigan J applied the decision of the Full Court of the Supreme Court of Victoria in McLiney v Minster where Madden CJ said:
"… it is an important principle of law that no man has the right to deprive another of his liberty except according to law, and if he does so the person so unlawfully deprived has a perfect right to use reasonable efforts to beat him off and get out of his custody."
120. Hedigan J held that, although the second officer acted in good faith, his conduct was also unlawful and he was not acting in the execution of his duty when assisting the first officer to effect an unlawful arrest.
69․The complaint that the Magistrate failed to determine the lawfulness of the arrest or “assumed” the lawfulness of the arrest of Mr Spalding can be readily considered.
70․To find the appellant guilty of the obstruct public official charge, it was necessary for the public official to have been acting lawfully. The question of the lawfulness of the arrest of Mr Spalding was generally referred to by the appellant when given the opportunity by the Magistrate to make opening remarks.
71․After the appellant told the Magistrate that in relation to the obstruct and resist charges “the series of events that took place was due to the fact that the AFP did not carry out their duty, so to speak”, the Magistrate enquired:
Magistrate: So you are going to allege that the AFP were acting unlawfully?
Appellant: Yes, your honour.
72․The prosecutor submitted to the Magistrate in closing submissions that there were “two components” that required consideration: the first being the lawfulness of the arrest of the male and the second being the appellant’s “own arrest and resist”.
73․A fair reading of the Magistrate’s reasons does not establish either that she failed to make a finding as to the lawfulness of the arrest, or that she assumed that the arrest of Mr Spalding was lawful. A fair reading of the reasons in their entirety, inferentially demonstrates that when the Magistrate refers to the arrest of Mr Spalding as being “clear”, her Honour was positively satisfied that the arrest was lawful. I am satisfied that finding was made and not assumed. That being the case, the question becomes whether that finding, that the arrest of Mr Spalding was lawful, was an error.
74․In the lead up to finding that “it was clear that [Mr Spalding] was being arrested for a breach of the peace”, the Magistrate made the following factual findings:
The male is heard to tell the police to “fuck off” and continue to be swearing back to the police. The defendant, Ms Donnelly, also engages in swearing with the police and abuse to the police. Police are also, I must say, acting in a manner which was clearly not going to de-escalate the situation and there was back and forth going on, being rude and abusive, the male and the defendant and swearing at the police. It was getting louder and louder, people yelling at each other. Eventually it is Sergeant Swain who is saying – and I’ll get the exact words that – she starts saying “if you’re not going to move” and the defendant and the male continue yelling out to her, “Fuck off, get fucked”. She then says “Alright, pick him up” and at that point she moves towards the male and indicating to other police who were standing nearby to put their hands onto the male. It is at that point that Sergeant Lester says to the male, “You’re under arrest for breach of the peace”. At that point the defendant places her arm onto the male. She also places her arm between the male and Sergeant Swain who is making her way towards the male as well. The defendant and the male keep saying very loudly, “For what? For what? For what?”.
75․During an exchange with the prosecutor in closing submissions the Magistrate observed:
… [S]o you have the initial interaction. Inspector Swain comes in and says, you know, “You all have to move on” or whatever, and at that point the male says “Fuck off” or “Get Fucked” which seemed to very much aggravate Sergeant Lester and he – his words are, which I thought were interesting, somebody about “Do not talk to us in that manner” or being disrespectful. You can’t say that’s a breach of the peace at this stage, being told to “fuck off”. And at that point, Sergeant Lester starts ripping down the structure. Then the yelling from both the defendant and the man starts and Sergeant Lester is yelling back, everyone is yelling back, and it’s at that point Inspector Swain basically says something like – she doesn’t say “shut up” but she yells out “Everybody be quiet” or something like that. And at that point, she says, “arrest them”.
76․The prosecutor responded to the Magistrate generally by submitting that the evidence of Sergeant Lester established some danger because of the items around the group and that the male was aggressive and argumentative, resulting in there being “every chance of violence erupting”. Accordingly, the prosecutor submitted the decision to arrest the male for a breach of the peace was reasonable.
77․In circumstances where the Magistrate indicated that up until the point where Sergeant Lester began ripping down the structure, the conduct of the male in telling police to “fuck off” was not sufficient to establish a basis to arrest him for a breach of the peace, the specific conduct thereafter engaged in by the male that was said to enliven the power of arrest, was not identified by the prosecutor.
78․There is some merit in the appellant’s assertion that the Magistrate did not receive careful assistance in relation to the specific conduct of Mr Spalding relied upon by the prosecution to demonstrate the breach of the peace nor in relation to the evidence of Sergeant Lester with respect to his state of mind. No authorities were identified by the prosecutor as relevant to her Honour’s consideration of this issue. The Magistrate was not taken to the specific evidence of Sergeant Lester with respect to his state of mind. In circumstances where the appellant had indicated that the lawfulness of police conduct was her challenge to the entirety of the prosecution case, there was a requirement to carefully attend to these issues.
79․The chronology recorded by the Magistrate in her reasons is consistent with the observations she made in the exchange with the prosecutor in closing submissions. Though the Magistrate recorded the facts she considered had been established by the evidence, her Honour did not identify the conduct of the male from the point at which she had indicated there was no basis to arrest him for a breach of the peace, to the point at which he was arrested. If her Honour had reflected on the state of the evidence and altered the view she had expressed to the prosecutor in closing submissions, her Honour did not identify the conduct engaged in by Mr Spalding during the interaction with police that she was satisfied provided a basis for his arrest for a breach of the peace. Further, there was no reference to the evidence of Sergeant Lester as to what was operating in his mind at the time he arrested Mr Spalding.
80․In determining the lawfulness of the arrest, the state of mind of Sergeant Lester at the time of the arrest was critical. In his evidence Sergeant Lester described the scene in the following way:
Inspector Swain basically said to them, “you know why we’re here. You have to leave.” The gentleman then basically just told us to fuck off, the other gentleman that was there. At that stage I started ripping the structure open, getting rid of the gladwrap. I mean there were several issues there. Negotiation was pointless. We’ve already proven that when we retuned there. There was a significant risk of injury or harm, both to themself and us, from putting a lit gas brazier with coals inside a plastic tent with people. There was an open brazier with coals in it so any resolution had to be quite quick to save injury to either themself or myself and my colleagues to basically effect that place being removed. The other gentleman who is sitting in the back of the court, immediately started resisting and it is a matter of – I drew my taser at that stage. Other police got involved in the struggle, trying to resist him. The defendant then got involved in the matter, basically bearhugging the other gentleman, and it was a bit of a melee. I put my taser away, I used pepper spray basically just to resolve the issue.
81․In cross-examination Sergeant Lester was asked about the safety concerns he had described earlier in his evidence as creating a “significant risk”. He did not entirely embrace his previously unequivocal evidence as to the extent of that risk. The following evidence was adduced by the appellant:
Appellant: Do you believe that an open fire pit made the area secure and safe for everyone involved?
Sergeant Lester: M’mm, I got around it.
Appellant: But in the evidence that was just provided we did see that you mention several times the area was not safe and that then you decided to do that after the arrest. Would that not be something you should do before proceeding to arrest people?
Sergeant Lester: Not necessarily.
Appellant: Do you think that the area should be safe and secure?
Sergeant Lester: I’ve answered that question. Not necessarily.
82․Sergeant Lester’s evidence in Mr Spalding’s proceedings was largely consistent with that which he gave in the appellant’s proceedings the day before. Further evidence was adduced from Sergeant Lester in examination in chief in Mr Spalding’s proceedings when he said:
He [Mr Spalding] was not – well, in my opinion he was not going to comply with any directions police gave him, and the fact is we did lay hands on the chance of him attacking us or having a go at us or putting us in a position of danger because we’re getting tipped into a coal brazier or this gas heater, so I didn’t really see that I had any other option but take him into custody at that time.
83․Mr Spalding cross-examined Sergeant Lester as follows:
Mr Spalding: What determines a breach of the peace?
Sergeant Lester: Ongoing violence or an intimation of a violence.
Mr Spalding: Okay. Can you name a moment when I was being violent?
Sergeant Lester: What, I have to take you ---
Mr Spalding: Before the arrest?
Sergeant Lester: What – you swearing at police and telling them to “fuck off” as soon as they got there means police still had to carry out an action of moving people on. Your behaviour led me to believe with my police experience that you had committed a breach of the peace and there would be an ongoing breach of the peace because of your behaviour.
Mr Spalding: Offensive language is not considered violence. Do you agree with that?
Sergeant Lester: In the right context, it is.
Mr Spalding: Can you tell me how offensive language could be violent?
Sergeant Lester: Because you’re fully aware that if police have to go hands-on to move you because you’re refusing to obey directions, that would lead me to believe, justifiably so, that you are going to be violent and there would ongoing violence because of that.
Mr Spalding: So it’s a belief that I was going to be violent. Is that correct?
Sergeant Lester: Yes.
Mr Spalding: At any point, did I threaten to harm or harm anyone before the arrest?
Sergeant Lester: Continual abuse is still a threat.
Mr Spalding: A threat to harm?
Sergeant Lester: It’s a threat regardless.
Mr Spalding: A threat to harm?
Sergeant Lester: I’ve answered the question.
Magistrate Urbas: Well, the question is ‘threat to harm’?
Sergeant Lester: I believe there’s a reasonable expectation it would happen, given his behaviour, as you can see in the video.
Mr Spalding: So there was a threat to harm made?
Sergeant Lester: I said there’s a reasons expectation given your behaviour, and ---
Mr Spalding: I would just like a ‘yes’ or ‘no’ answer, please. Was there a threat to harm?
Sergeant Lester: You’re not going to get a ‘yes’ or a ‘no’ answer, because it doesn’t work that way. It’s yes and no.
The power to arrest for breach of the peace
84․In Dickson vIrwin the common law power to arrest (for police and “ordinary citizens”) to keep the peace was affirmed. In so finding the Court observed at [12]:
[T]he relevant law is as set out in R v Howell [1982] 1 QBR 416 (Howell) at 426 – 427 where the English Court of Appeal said:
We entertain no doubt that a constable has power of arrest where there is reasonable apprehension of imminent danger of a breach of the peace, so for that matter has the ordinary citizen. … We hold that there is power of arrest for breach of the peace where: (1) a breach of the peace is committed in the presence of the person making the arrest or (2) the arrestor reasonably believes that such a breach will be committed in the immediate future by the person arrested although he has not yet committed any breach or (3) where a breach has been committed and it is reasonably believed that a renewal of it is threatened.
The public expects a police officer not only to apprehend the criminal but to do his best to prevent the commission of crime, to keep the peace, in other words. To deny him, therefore, the right to arrest a person who he reasonably believes is about to breach the peace would be to disable him from preventing that which might cause serious injury to someone or even to many people or to property. The common law, we believe, whilst recognising that a wrongful arrest is a serious invasion of a person’s liberty, provides the police with this power in the public interest.
In those instances of the exercise of this power which depend upon a belief that a breach of the peace is imminent it must, we think we should emphasise, be established that it is not only an honest albeit mistaken belief but a belief which is founded on reasonable grounds.
…
In Halsbury’s Laws of England, 4th ed., vol. 11 (1976), para. 108, it is stated:
“for the purpose of the common law powers of arrest without warrant, a breach of the peace arises where there is an actual assault, or where public alarm and excitement caused by a person’s wrongful act. Mere annoyance and disturbance or insult to a person or abusive language, or great heat and fury without personal violence, are not generally sufficient.”
…
The statement in Halsbury is in parts, we think, inaccurate because of its failure to relate all kinds of behaviour there mentioned to violence. Furthermore, we think, the word “disturbance” when used in isolation cannot constitute a breach of the peace.
We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance. It is for this breach of the peace when done in his presence or the reasonable apprehension of it taking place that a constable, or anyone else, may arrest an offender without warrant.
85․The lawfulness of the arrest of Mr Spalding relied on the prosecution establishing that the power of arrest exercised by Sergeant Lester was done in circumstances where he reasonably apprehended that a breach of the peace had occurred or was imminent. For an exercise of the power to be lawful, the apprehension of an imminent breach of the peace must be reasonable and the breach of the peace must relate to actual harm, likely harm or fear of harm.
86․Sergeant Lester’s evidence established that he considered that by the time he came to arrest Mr Spalding, Mr Spalding had already breached the peace because he told police to “fuck off” and refused to comply with police directions.
87․The BWC footage provided some certainty with respect to the actual conduct engaged in by Mr Spalding and Sergeant Lester as well as other police in attendance. The Magistrate was correct when she determined it to be “the most reliable evidence of what happened on the night”.
88․Immediately upon approaching the group which included the appellant and Mr Spalding seated on chairs next to each other under the marquee, Inspector Swain yelled “ok guys, pack up your stuff and leave immediately or you’re gonna get arrested”.
89․The BWC footage makes plain that by the time Sergeant Lester arrested Mr Spalding the plastic structure or marquee that he referred to as part of the circumstances creating “risk” or “danger” had been ripped down and entirely removed from the immediate vicinity of the appellant, Mr Spalding and the lit brazier. It also makes plain that which was observed by the Magistrate with respect to the language used by Mr Spalding and the yelling by police and other members of the group, becoming louder and louder. The dynamic between police and the group, including Mr Spalding, was tense. As the Magistrate accurately observed, the conduct of police on display in the BWC footage “was clearly not going to de-escalate the situation”.
90․The BWC footage demonstrated that at the time of his arrest Mr Spalding was seated and had given no verbal or physical indication that he was about to move from his seated position. Indeed, in the spirit of his consistent demand to police to “fuck off” in response to their direction to the group to move on, his presentation suggested determination to remain where he was seated. Mr Spalding was undoubtedly unpleasant, belligerent, rude and disrespectful toward police in the lead up to his arrest. So too, were others in the group, including the appellant. The many police in attendance, including Sergeant Lester, were standing and moving around the group and the marquee structure.
91․The BWC footage demonstrated that once the marquee structure was successfully removed, attending police and members of the group, including the appellant and Mr Spalding, continued to speak over each other. At this point Mr Spalding instructed Sergeant Lester who can be observed in the footage leaning back against a vehicle to “get off his fucking mirror” and “get the fuck off his car, cunt”. Sergeant Lester did not reference this direction from Mr Spalding as influencing his view that a breach of the peace had occurred or was imminent. He did agree that the words were directed toward him when prompted by the prosecutor, consistent with his movement away from the vehicle upon the words being said by Mr Spalding.
92․Sergeant Swain then screamed or yelled very loudly, perhaps in an effort to be heard, over the other voices, “okay, everyone stop” to which Mr Spalding replied “shut the fuck up”. Sergeant Swain responded by yelling at the group “if you’re not gonna move, pop you hand [or head] up”, before immediately moving directly toward Mr Spalding with the words “alright, pick him up”. Sergeant Lester can be immediately heard to say, “you’re under arrest”.
93․In her evidence in Mr Spalding’s proceedings, Sergeant Swain said that she “perceived that there was violent intent, that he had no intention of doing what we had asked him to do and the best way to move forward was that was a breach of the peace arrest rather than let the situation continue to escalate”.
94․In my view, the BWC footage demonstrated that if there was an escalation in demeanour it came from Sergeant Swain when she yelled loudly over the top of the voices of police and members of the group. The direction to the group to “pop” their “hand” or their “head up” if they were not going to move, was not accompanied by any time to follow the direction. Sergeant Swain moved immediately to direct the other police to “pick up” Mr Spalding. Sergeant Swain’s direction and action spoke of frustration and exasperation. It could not reasonably have been in response to any actual harm or violence or threat of harm or violence from Mr Spalding given there had been no verbal or physical escalation in his presentation since police arrived at the scene and began interacting with him.
95․The BWC footage raised a question as to whether Sergeant Lester formed his own view at all as to a breach of the peace in relation to Mr Spalding at the time of the arrest or whether he was arresting Mr Spalding because of Sergeant Swain’s direction to “pick him up”. The issue was not explored in the proceedings below nor in the appeal and I take the observation no further. The prosecution case proceeded on the basis that Sergeant Lester made the arrest of Mr Spalding having determined to do so and I have assessed it on that basis.
96․The following evidence of Sergeant Lester provided insight into his state of mind at the time he arrested Mr Spalding:
I think in the first instance there was obviously a breach of the peace there because we’re there to do a job and you’re told – as soon as you’re told to fuck off when you arrive somewhere it doesn’t leave you a great deal of wriggle room to have a resolution to the matter. You can’t negotiate from behind plastic Gladwrap, particularly when there’s yet again items that place myself and themselves at risk from that. So it’s a matter of resolving the issue, so I’d made my mind up that he was going to be arrested for a breach of the peace.
97․The effect of Sergeant Lester’s evidence was that being told to “fuck off” by Mr Spalding was an “obvious” breach of the peace, that negotiating was pointless and impeded by the plastic wrap around the marquee. By the time of Mr Spalding’s arrest, the plastic had been entirely removed, so too the marquee structure. Neither the structure nor the plastic wrap served as an impediment to negotiation or as a risk to safety when the arrest was made. Aside from the direction from Mr Spalding to “fuck off”, Sergeant Lester did not refer to any other conduct or words on the part of Mr Spalding that demonstrated the “obvious” breach of the peace.
98․That first direction to the group from Sergeant Swain set the scene for the interaction and provided insight into the mindset with which the group were being approached by Sergeant Swain. The same mindset is, in my view, reflected in Sergeant Lester’s evidence when he described making up his mind upon being told to “fuck off” by Mr Spalding that an arrest for a breach of the peace would occur.
99․The effect of the evidence is that a determination was made by Sergeant Lester to arrest Mr Spalding for breach of the peace by reference to his use of foul language and his failure to co-operate. As the Magistrate correctly observed to the prosecutor with respect to the various iterations of the direction from Mr Spalding for police to “fuck off”, in this instance that conduct did not establish a sufficient basis to warrant an arrest for breach of the peace. Further, disobedience in the face of a police direction does not necessarily provide a basis for a breach of the peace arrest: see Forbutt v Blake [1981] 51 FLR 465; 2 A Crim R 28 (Forbutt v Blake). The combination of both of those factors in this instance as revealed in the BWC footage, did not of themselves reasonably demonstrate “violent intent” or imminent harm.
100․Sergeant Lester’s insistence that the “continued abuse” by Mr Spalding constituted a threat, was not supported by Mr Spalding’s physical presentation in the BWC footage and absent something more from Mr Spalding, was not a reasonable assessment in the circumstances. A conclusion supported by Sergeant Lester’s “it’s yes and no” answer in cross-examination by Mr Spalding. That the language used by Mr Spalding was foul and insulting did not automatically make it threatening or reflective of imminent violence or harm. The conduct of Mr Spalding did not ever move beyond foul-mouthed disrespect for police. While undoubtedly unpleasant, difficult and tiresome, the presentation of Mr Spalding as revealed by the evidence did not provide sufficient basis for a reasonable apprehension of imminent violence or harm.
101․It must also be observed that the conduct of police toward the group was, from the beginning of the interaction, hostile and despite the suggestion of room for negotiation, brokered no such response. It is this context that the conduct of Mr Spalding fell to be considered. With the words of Sergeant Swain, the interaction began with an immediate direction that arrests would be made if compliance was not forthcoming. The removal of the plastic wrap and the marquee structure occurred without any regard for damage to property that might occur as a result; Sergeant Swain made clear to the group that any damage was not a concern for police. It is not the case that in the face of calm, courteous requests from police, Mr Spalding was immediately rude and disrespectful. Police perform an at times difficult and important job on behalf of the community; nonetheless the BWC footage demonstrates an unedifying example of the assertion of police power.
102․Mr Spalding’s conduct toward police prior to his arrest was consistent. He remained seated. He was immediately rude and uncooperative. He remained so. His language was strong and deliberately disrespectful, though also matter of fact. His manner demonstrated him to be unmoved by assertions of police authority. Mr Spalding made no threats, nor said any words that were accompanied by signs of increasing physical agitation or emotional distress. Critically the BWC footage demonstrated that Mr Spalding did not alter in manner, demeanour or physical position from the point when he initially told police to “fuck off” upon their arrival, to the point at which he was, moments later, arrested.
103․It is also relevant to consider that the incident occurred in a public carpark after midnight in winter. The evidence demonstrated that the group to which Mr Spalding and the appellant belonged were the only people with whom attending police were interacting in that location. At the time of the arrest of Mr Spalding no other member of the group (leaving aside the conduct of the appellant in response to his arrest) were conducting themselves violently or in a manner that suggested violence or harm was imminent nor was there any suggestion that any other member of the public was likely to be provoked to violence by the actions of the group, as was the case in Forbutt v Blake.
104․It is against the background of those observations both as to the circumstances of the incident and the consistent conduct of Mr Spalding, that Sergeant Lester’s evidence about the “chance” of Mr Spalding “attacking or having a go” at police as the basis to “lay hands” on him must be assessed. Those observations were not consistent with the conduct engaged in by Mr Spalding revealed in the BWC footage.
105․The evidence demonstrated that Sergeants Lester and Swain almost immediately formed the view that successful negotiation was unlikely and that physical, forcible removal of the group would accordingly be necessary. This was entirely consistent with Sergeant Swain’s description of a breach of the peace arrest being “the best way forward”. This evidence was telling of a tactical or strategic approach rather than one based on an assessment of the conduct engaged in by individual members of the group as the situation unfolded.
106․The power to forcibly remove Mr Spalding and the appellant was available to police pursuant to s 69 of the 2022 Ordinance in circumstances where police reasonably suspected, as was the case here, that they were camping unlawfully. A strategic approach to the use of that power may well have been justified when police held the reasonable suspicion that all members of the group were camping unlawfully and had earlier been given a move on direction. The prospect of their removal as a group in those circumstances, pursuant to the power available in s 69, may well have warranted a tactical approach understood by all attending police in the face of resistance from members of the group to being directed to move on. This was not the power police asserted when Mr Spalding and the appellant were arrested.
107․The power of arrest Sergeant Lester relied upon to arrest Mr Spalding demanded an assessment of Mr Spalding’s conduct, the conduct of others present and the circumstances as they evolved. The evidence demonstrated that the arrest of Mr Spalding was a response by Sergeant Lester to his view that the group, including Mr Spalding, were not willing to “negotiate”. That unwillingness manifesting as it did in foul language and invective did not provide a basis, at the time Mr Spalding was arrested, to reasonably apprehend actual or threatened harm or violence. Mr Spalding’s conduct in refusing to co-operate and telling police to “fuck off” and “shut the fuck up”, was not an “obvious” breach of the peace or a reasonable basis upon which to determine that harm was imminent.
108․Accordingly, the Magistrate was in error when she determined that the arrest of Mr Spalding was lawful. The appellant has demonstrated material legal error. It is unnecessary to consider grounds (a) in so far as it relates to the obstruct public official charge (CC2022/6371) and ground (d).
109․Based on the above analysis the evidence adduced by the prosecution did not establish an element of the obstruct public official charge, being that the public official was obstructed while exercising their functions. The exercise of those functions had to be lawful. Having carefully considered the evidence I am not satisfied beyond reasonable doubt that the arrest of Mr Spalding was lawful. The conviction imposed on the obstruct charge accordingly must be set aside and replaced with a verdict of not guilty.
The resist charge
110․It is convenient to deal first with ground (e) which asserts error in the finding that the arrest of the appellant was lawful.
111․The respondent submitted that the conviction imposed on the resist charge could survive a determination that the arrest of Mr Spalding was unlawful on the basis that the arrest of the appellant was “independent of the arrest of [Mr] Spalding”. The appellant submitted first, that the Magistrate did not make a finding as to the lawfulness of the arrest of the appellant and secondly and in the alternative, that if the finding was made it was an error because the appellant’s arrest was not lawful.
112․I am satisfied on a fair reading of the entirety of the reasons that the Magistrate made a positive finding that the arrest of the appellant was lawful. As I have already observed, it was made clear to the Magistrate by the appellant that the lawfulness of the action of police was her central challenge to the prosecution case. In finding that the appellant was arrested by Sergeant Swain for a breach of the peace, I am satisfied her Honour inferentially concluded that the arrest was lawful. I turn to consider whether that conclusion was in error.
113․Sergeant Swain in the proceedings before the Magistrate confirmed that she arrested the appellant for a breach of the peace. The respondent conceded there was “little evidence as to [Sergeant Swain’s] state of mind in relation to [the appellant] specifically”.
114․In evidence in Mr Spalding’s proceedings, Sergeant Swain was asked what she considered to be a breach of the peace. She replied:
So a breach of the peace to me is activities which cause alarm to people that are in the area and cause them to be apprehensive about what’s going to happen if that activity doesn’t cease.
115․In so describing, Sergeant Swain revealed the limitations of the view under which she was operating as the officer apparently in charge of the police response to the group. Merely being apprehensive about an activity or alarmed about an activity would not be sufficient to enliven the power to arrest for a breach of the peace. The alarm or apprehension must relate to actual or threatened imminent harm.
116․The respondent attempted to bolster Sergeant Swain’s limited evidence as to her state of mind when arresting the appellant for a breach of the peace, by reference to the evidence she gave about her concern about the open fire in Mr Spalding’s proceedings. The respondent submitted that the combination of Sergeant Swain’s evidence and actions revealed on the BWC footage, established the basis for an inference to be drawn as to her state of mind when she arrested the appellant. I am not satisfied that the evidence does provide a basis for such an inference. On the contrary, the evidence demonstrated that Sergeant Swain did not consider the foundation for the appellant’s arrest at the time the arrest was made, but rather was operating on a pre-determined position that arrests would occur for a failure to follow police directions.
117․The combined effect of Sergeant Swain’s evidence and her actions did not establish that at the time she arrested the appellant she apprehended imminent harm. The overall effect of Sergeant Swain’s evidence, including her limited understanding of the power to arrest for a breach of the peace, her actions revealed on the BWC footage, as well as her directions to the group during the interaction, demonstrated she was operating on the basis that any noncompliance with those directions would result in an arrest.
118․The direction from Sergeant Swain for members of the group who were not going to “move” to identify themselves was given with no time to take effect, the Sergeant moving immediately to arrest. The words and actions of Sergeant Swain on the BWC footage revealed frustration and anger in the face of the group’s disrespectful dismissal of police authority. While perhaps understandable in the circumstances, the rude dismissal by the group, which included the appellant did not translate to a basis to arrest the appellant for a breach of the peace.
119․Sergeant Swain’s evidence that a breach of the peace “was the best way forward” was as I have already observed, telling. In so describing, Sergeant Swain made no reference to her consideration of the appellant’s conduct. Sergeant Swain’s evidence reflected that having determined that police should “pick up” Mr Spalding, the appellant’s arrest was part of the tactical approach to remove the group, consistent with the opening direction to them upon arrival.
120․Sergeant Swain’s evidence did not establish the necessary state of mind in order that the appellant be lawfully arrested for a breach of the peace.
121․Having formed that view, there is no need to further consider whether the appellant’s conduct in attempting to physically interfere with the arrest of Mr Spalding could constitute a breach of the peace. That is, could the appellant’s response to the unlawful arrest of Mr Spalding nonetheless constitute a breach of the peace? No submissions were specifically advanced on this point, nor any authorities identified. The issue is unnecessary to contemplate for the purposes of this ground given the finding I have made as to the state of the evidence with respect to Sergeant Swain’s state of mind at the time she arrested the appellant.
122․The determination that the arrest of the appellant was lawful was a material legal error. Based on an analysis of the evidence I am not satisfied that the prosecution established beyond reasonable doubt that the arrest of the appellant was lawful. This is fatal to the resist charge, it being necessary to prove that the function of the public official being resisted was lawful. The effect of Constable Cantle’s evidence was that he became involved and assisted in the physical restraint of the appellant after she was arrested by Sergeant Swain for a breach of the peace. Accordingly, the conviction for the resist charge must be set aside and replaced with a verdict of not guilty.
123․Having formed that view, it is not necessary to consider ground (a) in so far as it was raised in respect to this charge.
Abuse of process?
124․During the appeal hearing the appellant abandoned an argument that the position of the respondent in maintaining the lawfulness of the arrest of Mr Spalding, having determined not to appeal the decision of Special Magistrate Urbas that it was not, amounted to abuse of process. Despite the position adopted by the appellant, the respondent invited a determination of the issue, nonetheless. I do not consider it necessary given the findings I have made.
125․I will observe though that absent a compelling explanation, which was not advanced, the conduct of separate proceedings with respect to the appellant and Mr Spalding was decidedly inefficient. The appellant and Mr Spalding were co-accused. Their hearings occurred one day after the other. The witnesses relied upon by the prosecution were identical except with respect to one police officer. The legal issues requiring determination were identical. Both co-accused were self-represented. The level of assistance provided to Special Magistrate Urbas on the question of lawful arrest was more comprehensive than that which was provided to the Magistrate in the appellant’s hearing. The conduct of separate proceedings in the circumstances that I have outlined was not ideal and represented a duplication of resources in a court system where there are few resources to spare.
Orders
126․For those reasons the following orders are made:
(1)The appeal is allowed.
(2)The finding of guilty in relation to the offence of obstruct a public official (CC2022/6371) is set aside.
(3)The finding of guilt in relation to the offence of resist a public official (CC2023/2342) is set aside.
(4)A finding of not guilty is entered in relation to the offence of obstruct a public official (CC2022/6371).
(5)A finding of not guilty is entered in relation to the offence of resist a public official (CC2023/2342).
| I certify that the preceding one-hundred and twenty-six [126] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: O Ferguson Date: 11 December 2024 |
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