Head v Evans

[2020] ACTCA 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Head v Evans

Citation:

[2020] ACTCA 26

Hearing Date:

15 May 2020  

DecisionDate:

22 May 2020

Before:

Elkaim J, Crowe AJ and Berman AJ

Decision:

Both Appeals dismissed. Both matters remitted to the Magistrates Court for sentence.

Catchwords:

APPEAL – APPEAL FROM MAGISTRATES COURT TO SINGLE JUDGE – Appeal from single judge to Court of Appeal – arrest of passenger in vehicle – whether arrest lawful

Legislation Cited:

Magistrates Court Act 1930 (ACT) s 214(3)

Parties:

James Head (Appellant)

Matthew McVicar (Appellant)

Troy Geoffrey Evans (Respondent)

Representation:

Counsel

B Morrisroe (Appellant Head)

K Archer (Appellant McVicar)

S Jerome (Respondent)

Solicitors

Sharman Robertson Solicitors (Appellant Head)

David Healey Solicitors (Appellant McVicar)

ACT Director of Public Prosecutions (Respondent)

File Numbers:

ACTCA 45 of 2019; ACTCA 46 of 2019

Decision under appeal: 

Court:  Supreme Court of the ACT

Before:  Mossop J

Date of Decision:          26 September 2019

Case Title:  Head v Evans

Citation: [2019] ACTSC 255

THE COURT:

1. These reasons concern two separate appeals. They arise from the same incident and share identical points of appeal. The original decisions were made by Magistrate Cook on 27 April 2018. The appellants had each been charged with assault occasioning actual bodily harm by joint commission. They were found guilty of the statutory alternative of common assault. They appealed to the Supreme Court.

1. The appeal was heard by Mossop J on 7 August 2019. On 26 September 2019 his Honour dismissed the appeals. It is important to remember that this Court is dealing with an appeal from Mossop J. It is not an appeal from the Magistrate. Error must be demonstrated on the part of Mossop J for the appellants to succeed.

1. The appellants were individually represented before the Magistrate. They shared the same representation before Mossop J. They now have separate representation again, but generally follow a common approach. Although it is important to acknowledge each appellant must be treated individually, the facts here do not support any possible conclusion that one appellant might succeed, but the other fail.

1. The incident giving rise to the prosecutions occurred on 26 January 2017. The appellants were police officers, one a constable (Head) and the other a senior constable (McVicar).

1. In the course of their duties the officers stopped a motor vehicle, driven by a Mr Brewer and in which a Mr Johnson (the complainant) was a back-seat passenger. Mr Brewer was driving in an area reserved for buses, as were the police officers.

1. The Crown alleged that following a verbal altercation between the officers, Mr Brewer and Mr Johnson, the officers pulled Mr Johnson from the vehicle against his will, put him on the ground and handcuffed him. Before this occurred, but after the officers had at least spoken to Mr Brewer, they were diverted by a separate matter which caused them to leave the vehicle, deal with that matter, and then return. The initial conversation was referred to as the first interaction.

1. The…