DPP v Gribble

[2004] NSWSC 926

Reported Decision: 151 A Crim R 256

Supreme Court

CITATION:	DPP v Gribble [2004] NSWSC 926
HEARING DATE(S):	17 September 2004
JUDGMENT DATE:	8 October 2004
JUDGMENT OF:	Barr J at 1
DECISION:	See para 33.
PARTIES :	Director of Public Prosecutions v Matthew Charles GRIBBLE
FILE NUMBER(S):	SC 11878/2004
COUNSEL:	Plaintiff: I Bourke Defendant: A Haesler
SOLICITORS:	Plaintiff: S C Kavanagh Defendant: Steve O'Connor

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE GRAHAM BARR

8 October 2004

11878/2004 Director of Public Prosecutions v Matthew
Charles GRIBBLE
JUDGMENT

1 HIS HONOUR: At about 10pm on 24 October 2003 two police officers were driving along a city street when they came upon the defendant wearing dark clothing, standing in the middle of the road. Police directed him to move off the road but he refused. He resisted their efforts to move him to the safety of the footpath. Once the defendant had been removed to the footpath, one of the officers remained with him to stop him going back onto the road while the other called for assistance. As those things were happening the defendant started punching the first police officer. He was arrested and charged with one count of resisting police in the execution of their duty and two counts of assaulting police in the execution of their duty: see ss58, 60 (1) Crimes Act 1900.

2 On 27 February 2004 the defendant appeared before Ms L Gilmour, Magistrate, and pleaded not guilty to the charges. The prosecution presented its case, in the course of which the two police officers, Senior Constable Suitor and Senior Constable Duffey, gave evidence. At the conclusion of the prosecution case the solicitor for the defendant moved for a dismissal of the three charges because, it was asserted, no prima facie case had been made out. In an ex tempore judgment the magistrate up held the submission and dismissed the three charges. There was a fourth charge which was being heard concurrently, that the defendant failed to obey a reasonable direction for the safe and efficient regulation of traffic. That charge was not the subject of the no-case submission and the defendant was in due course found to have committed the offence.

3 By his summons filed on 21 June 2004 the plaintiff, the Director of Public Prosecutions, seeks orders setting aside the orders of the Magistrate dismissing the charges and remitting them to the Local Court to be dealt with in accordance with the orders of the Court.

4 The plaintiff submits that the Magistrate erred in law in finding that there was no prima facie case on each of the three offences and as to the test to be applied in determining whether the police were acting in the execution of their duties.

5 Before dealing with the several assertions of error it is convenient to state in somewhat greater detail the facts which the evidence was capable of establishing. There has been put before this Court a transcript of the evidence taken and of the reasons for the decisions appealed against.

6 At 10:35pmon 24 October 2003 Senior Constable Duffey and Senior Constable Suitor were driving eastwards in Oxford street Woollahra. Oxford Street is a very busy street. There are three eastbound lanes. As they rounded a bend in the road just before the commencement of Syd Einfeld Drive senior Constable Duffey saw the defendant, dressed in black clothes standing in the middle of the road. He braked heavily and stopped the car about four or five metres in front of the defendant. The two officers were in plain clothes. The car was unmarked but had red and blue strobe lights. Senior Constable Duffey activated the lights, wound down his window, told the defendant that he and his colleague were the police and directed him to get off the road. The defendant swore at them and refused to move. Senior Constable Duffey tried to open the door to get out of the car but the defendant stopped him by pushing against the door with his arms. Senior Constable Suitor got out of the front passenger door of the car, walked round to the defendant, pushed him away from the driver’s door and took him to the front of the vehicle, which was still stationary. Senior Constable Duffey got out of the car and joined Senior Constable Suitor and the defendant in front of the car.

7 Senior Constable Duffey again told the defendant to get off the road and he refused a second time. The officers took hold of him, intending to remove him from the roadway, and a struggle ensued. The three men fell onto the roadway after bouncing off the side of a slow-moving passing taxi. Eventually the officers managed to get the defendant onto the footpath. They concluded that he was affected by some form of intoxicating substance and that his intention was to return to the roadway. They decided to call for a caged truck. They were not intending to arrest him but to take him home. The defendant said “you’re not going to stop me” and lunged at Senior Constable Duffey, punching him in the head and knocking him to the ground. Senior Constable Duffey lost consciousness for a moment. The defendant continued to punch him while he was on the ground. Senior Constable Suitor came to Senior Constable Duffey’s assistance and the defendant attacked him as well.

8 Senior Constable Duffey, having regained consciousness, produced a can of capsicum spray and told the defendant to stay where he was. The defendant lunged at the officers and Senior Constable Duffey sprayed him. The defendant ran away, but was apprehended a few minutes later and arrested.

9 This statement of facts comes principally from written submissions filed by Counsel for the plaintiff and based on the transcript of evidence to which I have referred. Defence counsel agrees with its accuracy except insofar as it asserts that the officers told the defendant a second time to get off the road and that he refused a second time. Defence counsel relies on the finding of the Magistrate.

10 Her Honour dealt with the topic three times during the course of her judgment. She said -

Constable Duffey then got out of the vehicle and repeated the direction to move on but before he could do that both Constables grabbed an arm…
…
At that point in time Senior Constable Suitor approaches the defendant and pushed the defendant away and Senior Constable Duffey got out of the police vehicle and gives the defendant a direction to move. But before the defendant can comply , both police officers grabbed the defendant by an arm and forcibly removed him…
…
Now if one looks at that you can ascertain that having been told to move from the road now, before he was given the opportunity to do so , Constable Duffey says that the defendant was grabbed and in effect forcibly removed from the roadway.

11 The Magistrate was hearing a no-case submission and was bound to take the prosecution case at it highest. She had heard evidence from Senior Constable Suitor to this effect -

A …I can’t remember exactly but it was words to the effect of “what are you doing in the middle of the roadway? Get off the road way before you get hit”. He replied something similar to “fuck off, I am having a good night, I’m not hurting anybody”. Senior Constable Duffey said “get off the roadway before you get killed…”
…
Q What was said after that?
A He then gave us the finger, then Senior Constable Duffey went to get out of the vehicle by opening the driver’s door. The defendant’s pushed on the driver’s door basically not allowing Senior Constable Duffey to get out.
…
Q What happened next?
A Senior Constable Duffey said something like “I have given you a direction to move from the roadway, get off the road way now”. Something like that. He again refused.
Q What happened next?
A We then grabbed the defendant …

12 A statement of Senior Constable Duffey dated 27 October 2003 was adduced in evidence before the Magistrate and before this Court. Dealing with the exchange at the front of the car after the first direction to get off the road and the refusal, Senior Constable Duffey says this in the statement -

I got out of the vehicle and I said “you’ve been given a direction to move off the road way. Move from the road now.” I grabbed the defendant…

13 In cross-examination on his statement Senior Constable Duffey said this about the second direction -

Q Do you say that when you said that that my client the refused that direction?
A That’s correct, yes.

14 The Magistrate appears, in coming to her repeated conclusion that the defendant was never given an opportunity to respond to the second direction to leave the road, to have relied only on the statement of Senior Constable Duffey and to have overlooked the evidence to the contrary of that officer and of Senior Constable Suitor. This was a no prima facie case submission and her Honour was bound to take at its highest all the evidence in the prosecution case. In my opinion her Honour erred in finding that the defendant was not given an opportunity to leave the road voluntarily after the second direction before the police took hold of him and removed him.

Resisting an Officer while in the execution of his duty

15 Section 58 Crimes Act 1900 provides that -

Whosoever … resists …any officer while in the execution of his …duty, such officer being a Constable… shall be liable for imprisonment for five years.

16 Having dealt with the facts and having found erroneously that after the second direction to remove himself from the road way the defendant was given no opportunity to comply before he was seized and removed, the Magistrate said -

I query their power at that point to restrain him and forcibly remove him fro the roadway and in doing so I make no criticism of the police officers. I believe their intentions were honest and reasonable but that is not the test that I have to apply.
At that point there the struggled relied on for the resist commences and clearly – I am indicating at the time that he was grabbed and removed from the roadway. Eventually all parties make it to the footpath, so they’re off the roadway and the struggle appears to have stopped. There is certainly no evidence that it continued, before the Court today.
Senior Constable Suitor goes back to the car and Senior Constable Duffey remains with the defendant on the footpath while Senior Constable Suitor calls for a truck to remove him from the area. It would seem from the evidence before me today that the defendant was clearly not free to leave at that stage and I again query where the power was for the police officers to detain him. The prosecution today rely in a breach of the peace, however, Senior Constable Suitor said in his evidence today “I made a comment to Senior Constable Duffey to the effect ‘that this guy’s going to go out on the road again, we’d better get him away from here’”, but more importantly Senior Constable Duffey says this, referring to paragraph 8 of his statement:
“Senior Constable Suitor went to the vehicle and grabbed the police radio. I said to the defendant ‘You’re not going back onto the roadway, we’re getting a caged truck to take you home’”.
That appears to be both Constables’ intention on the night, not today but on the night, that the caged truck was to remove the defendant from the dangerous and precarious situation he was placing himself in. Neither says the purpose of the truck was because they intended to arrest him. He was clearly not under arrest at that stage but was being held or detained awaiting the arrival of the police caged truck to remove him from the area for his own safety.

17 Her honour went on to summarise the submissions that had been made, including one to the effect that the police officers were really trying to prevent a breach of the peace. Her Honour continued -

I do not accept on the basis of the evidence that was before the court today that that was the intention of the police officers at the time. Whilst I believe it is a submission that’s been made for the purposes of the hearing today, clearly on the evidence of the constables that was not their intention. They were getting a truck to get him out of the way so he wouldn’t get hit by a car. There is nothing wrong with that but that clearly was their intention at the time, not to prevent any imminent breach of the peace.
…
This was not a case of resist arrest whereby if the arrest is subsequently found to be illegal it doesn’t necessarily mean that the charge must fail. The question here is what duty were the police officers executing at the time of the resist. The defendant was being physically restrained and detained to remove him from the roadway so he could be detained while a police truck arrived to take him home, to stop him going back on the roadway. They don’t have the power to do that and were not in the execution of their duty at the time.

18 Those were her Honour’s express reasons for dismissing the charge of resisting the officers in the execution of their duties.

19 The principal ground of appeal against the dismissal of that charge is her Honour’s failure to consider the duty of the officers to protect persons from injury or death and property from damage. Counsel referred to the Police Act 1990, s6 of which provides as follows -

6 Mission and functions of NSW Police

(1) The mission of NSW Police is to have the police and the community working together to establish a safer environment by reducing violence, crime and fear.

(2) NSW Police has the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section:

"police services" includes:

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of NSW Police includes a reference to the functions of members of NSW Police.

(5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988 .

20 Dealing with the meaning of “function”, s3 of the Act provides as follows -

(2) In this Act:
(a) a reference to a function includes a reference to a power, authority and duty, and
(b) a reference to an exercise of a function includes, where the function is a duty, a reference to the performance of the duty.

21 The Police Act replaced the Police Regulation Act 1899. Section 7A of that Act was introduced by a 1978 amendment. It provided as follows -

7A (1) It is, and shall be deemed always to have been, the duty of a member of a police force to protect persons from injury or death and property from damage, whether the persons are, or the property is, endangered by criminal acts or otherwise.

22 In introducing the Amending Bill into the Lower House of the New South Wales Parliament, the Premier, Mr Wran, said this -

…one of the purposes of this Bill is to amend the Police Regulation Act, 1899, by inserting a new section 7A to impose upon members of the police force a duty to protect life and property even though the acts endangering life or property are not criminal. This new section is designed to set out clearly the powers of members of the police force and remove any doubt that may exist at the present time…
…
A new section 26A is being inserted in the Police Regulation Act to exculpate a member of the police force from liability for any injury or damage caused in the execution of duty, in good faith. This immunity is conferred upon members of the police force while carrying out their duties, whether such duty is imposed by the Police Regulation Act or any other Act or by-law…At present, legislation does not provide a defence to causes of action taken against police acting in the lawful performance of the duties.

23 It was submitted that the legislative history and the current section 6 of the Police Act extended the duty of a police officer beyond the prevention and investigation of crime so as to include actions reasonably necessary for the protection of persons from injury or death, and property from damage, regardless of whether the need for those services arises from any criminal act.

24 It seems to me that that is the intent of the legislation and that the submission should be accepted. This approach is consistent with the common law. In Johnson v Phillips [1975] 3 All ER 682 it was said at 685 -

The first function of a constable for centuries has been the preservation of the peace. His powers and obligations derive from the common law and statute. It is his general duty to protect life and property…the powers and obligations of a constable under the common law have never been exhaustively defined and no attempt to do so has ever been made: see, for example, R v Wakefield [1963] 3 All ER 659 where Ashworth J, who delivered the judgment of the court said: ‘…it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed’. Also there is the case of Rice v Connolly [1966] 2 All ER 649, where Lord Parker CJ said: ‘It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those…’.

25 Relying on Johnson v Phillips Cosgrove J said this in the Supreme Court of Tasmania in Innes v Weate [1984] TasR 14 at 21 -

There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms – the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. The other is that the existence and nature of the duty depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong…It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control…

26 In Director of Public Prosecutions Ref. No. 1 of 1993; R v K (1993) 118 ALR 596 the Full Court of the Federal Court of Australia dealt with the question whether police officers were acting in the execution of their duty. The Court reviewed the cases, including Rice v Connolly and Innes v Weate, and observed that the relevant section of the Australian Federal Police Force Act, which dealt inter alia, with the assault of a member of the Federal Police in the execution of his duty, should be given a broad operation. Their Honours said this at 601 -

Section 64 should not be construed in any narrow or restricted sense, but should be given a broad operation to protect the performance of all police duties, and not just some. The section is general: “in the execution of his duty”. That means that the section applies whenever the police officer is doing something which can fairly and reasonably be regarded, giving the existing circumstances, as carrying out his duty. The generality of the section is further confirmed by the consideration that it attempts to cover a very wide range of possible interferences with the work of the police: assault, resistance, obstruction, or hindrance, or aid indictment or assistance in relation to any of those things. It is not limited to violence of the sort that was in issue in the present case.

27 I note that in combination ss58 and 60 Crimes Act have a similarly broad scope.

28 It was submitted that Senor Constable Duffey and Senior Constable Suitor were met with an emergency. They were in the middle of a busy road at night confronted by an irrational man dressed all in black who had already made plain his intention to disregard police instructions and to stay where he was in the middle of the road, endangering himself and others. The risk to his safety and to the safety of the officers and other road users was obvious and would have been pressing. I think that the submission should be accepted.

29 In my opinion those circumstances gave rise to a duty on the part of the officers to do what they reasonably could to remove the defendant and others from the danger to which his action was giving rise. They twice required him to get off the road and he twice refused. His refusal was irrational and he was otherwise behaving inappropriately. In my opinion when the officers laid hands on the defendant they were acting in the course of their duty to protect the defendant and others from the danger which he was presenting. The Magistrate erred in her finding to the contrary.

Assault of the officers while in the execution of their duty

30 Section 60 (1) Crimes Act provides that a person who assaults … a police officer while in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for five years.

31 The Magistrate found that when the police were assaulted they were not in the execution of their duty, and it appears that the basis for the finding was that they had no power to restrain or detain the defendant at the roadside. It follows from what I have said that after they had removed the defendant to the footpath Senior Constable Duffey and Senior Constable Suitor continued at act in the course of their duty to protect the defendant and others from injury. That was because they had formed the view that if they let him go he would walk back onto the roadway and because they had decided in the emergency to call for a vehicle that would take him home and out of danger. The need for protection was as great as ever. In fact it increased when the defendant decided to attack the officers. In R v K the Court said this at 601 -

…a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.

32 I reject the submission that Senior Constable Duffey and Senior Constable Suitor acted at any time outside the ambit of their duty and therefore acted unlawfully. I conclude that the officers continued throughout to act in the execution of their duty. The Magistrate erred in her conclusion to the contrary.

33 I make the following orders -

1 Order that the orders made on 27 February 2004 dismissing the charges of assault police officer in execution of duty and resist officer in execution of duty be and are set aside;
2 Order that the charges be remitted to the Local Court to be dealt with in accordance with the orders and reasons of this Court;
3 Order the defendant to pay the plaintiff’s costs.

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Last Modified: 10/13/2004