Head v Evans
[2020] ACTCA 26
•22 May 2020
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:
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.
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.
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.
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).
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.
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.
The Crown alleged that the officers acted without lawful justification when they pulled Mr Johnson out of the car. The appellants said they were simply doing their duty and properly arresting a deviant Mr Johnson. The appellants said Mr Johnson had been “hindering” them while they investigated the offence of driving in the bus only area. In addition, the appellants asserted, Mr Johnson resisted arrest.
The Magistrate identified the main question before him:
The question to be determined is whether or not there was lawful excuse for the use of force applied by both constables, as in the lawful performance of their duties. If the application of force was lawful, as in the performance of their duties, this assault would not be established and the offence will not be proved as the application of force will have been justified by law.
The Magistrate also noted that it was conceded that the conduct of the officers was by joint commission. Ultimately, the Magistrate was not satisfied that actual bodily harm had been caused to Mr Johnson. But he was satisfied as to the balance of the elements of the offence and so found the statutory alternative of common assault had been established.
At the hearing before Mossop J the nine grounds of appeal were refined to three grounds, described by his Honour, at [5], as follows:
The first ground concerned the “further evidence point” (grounds (f)-(g)), the second ground concerned “the failure by the learned magistrate to take into account the earlier direction by Constables Head and McVicar prior to the arrest of the complainant” (grounds (a)-(e)). The third ground involved “the reference to excessive use of force, without that being put to the parties; in other words, somewhat of a denial of procedural fairness” (grounds (h)-(i)). This grouping of the grounds is an appropriate way to consider the grounds of appeal.
In addition to the evidence before the Magistrate, the appellants placed fresh evidence before his Honour, namely the oral evidence of a Ms Keaton.
His Honour decided the appeal after addressing each of the three grounds described above. Before doing so his Honour set out the evidence given by each witness in the court below and also analysed the decision of the Magistrate.
His Honour did identify an error in the decision of the Magistrate. This concerned the ground which his Honour described as “Evidence of the constables’ earlier interactions with the complainant”. Notwithstanding the finding of error, his Honour did not think that the error was sufficient to set aside the Magistrate’s conclusions. His Honour’s reasoning, at [122], was as follows:
Because of the lack of clarity in the magistrate’s reasons, this ground of appeal is made out. However, although this ground is made out it does not provide a basis for setting aside the decision. That is because even if the evidence of the officers as to the nature of the first interaction could not be excluded beyond reasonable doubt, for the reasons given above that evidence would not create a doubt about the lack of lawful authority for the conduct of the officers.
The primary consideration both before the Magistrate and in the Court below was whether or not Mr Johnson had been lawfully arrested. In both Courts considerable attention was paid to this question and the same decision was reached: The Crown (which bore the onus) had successfully proven that the officers had not acted lawfully. The officers had manhandled Mr Johnson and, absent lawful excuse, there could be no suggestion other than that at least a common assault had occurred.
If the lawfulness of the arrest was the main issue before the Magistrate, and on appeal to Mossop J, then the question of what occurred in the first interaction was put forward by the appellants as the next most significant issue. Mossop J found, as noted above, that the Magistrate did not make appropriate findings about this issue. Therefore, said the appellants, the cases should have been sent back to the Magistrates Court so that, on a fresh hearing, the necessary findings would be made. As will be seen below however, the apparent importance of this issue is misplaced.
Although the Amended Notices of Appeal to this Court each list eight grounds of appeal, it is clear from the respective written submissions that the appellants are most concerned about the use of a ‘video’ recording that had been captured on the mobile phone of another passenger in the vehicle (Ms Tongs).
Both appellants say the Magistrate and Mossop J gave too much weight to the video, in effect they were deceived by its confronting nature and consequently fell into error. They say there was other evidence before the Magistrate (and fresh evidence before Mossop J) which was not properly considered and should have led to the matters being remitted to the Magistrates Court for a fresh hearing.
Mossop J clearly was ‘impressed’ by the footage. He observed, at [7]:
The video is disturbing. It shows highly aggressive, loud and ill-mannered police officers interrogating the driver of a motor vehicle who had accidentally driven through the Civic bus interchange and taken longer than the police would have liked to pull over in response to their direction to do so. It then shows the officers dragging a passenger whose attitude they did not like from the car, taking him to the ground and handcuffing him. The dramatic disproportion between the officers’ conduct and the situation with which they were dealing is readily apparent from the video. A full appreciation of the impact of the video can only be obtained by watching it.
After giving his impressions of the video, his Honour went through the transcript of the recording and then described in some detail the oral evidence that was before the Magistrate. No suggestion has been made that his Honour has not summarised the evidence correctly.
This Court has viewed the video and agrees with the above description. It has often been said that a picture is worth a thousand words. This video paints an entire story. It alone is sufficient to warrant the ultimate conclusions. The speed with which the events occur does not permit any argument that suggests a hindrance of the officers’ duties was followed by an appropriate consideration of a necessity to arrest Mr Johnson.
It is abundantly clear that the officers have simply overreacted to Mr Johnson’s comments. They thought he was a “smart arse” and they would brook no criticism of their actions. When he complained about an injury to his elbow, the response was “good”. This conclusion is reinforced by their dealings with the driver. He immediately apologised for his actions but yet was criticised for even making an apology.
The appellants submitted that, consistent with their evidence before the Magistrate, there had been a disagreement with Mr Johnson in the first interaction, such that he had hindered the police in carrying out their duties. Accordingly, the justification for the arrest came from this first interaction. The evidence however contradicts this conclusion.
Constable Head, immediately before the arrest, having returned to the vehicle, said to Mr Johnson:
If you don’t shut your mouth I’ll pull you out and arrest you for hinder.
Plainly Constable Head was proceeding on the basis of what Mr Johnson was saying in the second interaction. It was put on behalf of Constable Head that he did not go on to arrest Mr Johnson. Rather this was done independently by Constable McVicar and he, Constable Head, was simply assisting his colleague. This is entirely inconsistent with him saying to Mr Johnson, before the arrest:
Alright get out of the car I’ll be searching you for being a smart arse.
Constable McVicar sought to extricate himself from culpability by suggesting that he was acting on the basis that, as he returned from dealing with Ms Keaton and a Mr Westbrook, he only heard Constable Head say to Mr Johnson “…you’ll be arrested for hinder”. He gave the following evidence as to his consequential thought process:
… at that stage when I heard Constable Head speak to the person and say that he be arrested for hinder I formed the, I made the decision to arrest Mr Johnson at that stage for hinder. In my mind he had been warned on multiple occasions that he was conducting the offence of hinder. He was informed of the consequences for those actions and I had a second police officer now telling him that he was also hindering. At that stage I walked up to the vehicle, opened the rear door to arrest Mr Johnson.
Counsel for Constable McVicar argued that unless that evidence was specifically rejected it was not possible for Mossop J to conclude that the prosecution had proved beyond reasonable doubt that Constable McVicar did not reasonably suspect that Mr Johnson had hindered police and would continue to do so. It was submitted that such a rejection would require an adverse finding as to Constable McVicar’s credit on that issue. Magistrate Cook had not made such a finding, and Mossop J, on appeal, was not in a position to do so.
Mossop J at [101] – [104] of his reasons for decision provided cogent reasons to explain why Magistrate Cook might have rejected the evidence of Constable McVicar on this issue. As Mossop J said at [103], in all the circumstances the Constable’s evidence was strongly suggestive of a defensive reconstruction of events.
His Honour, however, concluded that it was not necessary to make a finding as to Constable McVicar’s credit on this point. His Honour, at [106], referred to the three reasons given for the arrest during the period after Mr Johnson had been placed in handcuffs namely, “fail to abide directions, fail to follow instructions and resist police.”
Mossop J concluded that the prosecution had excluded each of these as the basis for a lawful arrest. He said:
107. First, the arrest was clearly not justified by any failure to comply with a direction to Mr Johnson to provide his name. Section 211 of the Crimes Act does provide an authority in certain circumstances to request a person’s name and address. It is unnecessary to decide whether, in the circumstances, Constable Head had the state of mind required by s 211(1)(b) or whether he was simply using any power of coercion merely to punish or harass someone who he considered was a “smart arse”. That is because even if Mr Johnson was lawfully given a request to provide his name, he was not given any opportunity to comply before being arrested. The officers could not have had reasonable grounds for the suspicion required to lawfully make an arrest without a warrant set out in s 212 of the Crimes Act.
108. Second, although it should be obvious, a police officer does not have power to search someone “for being a smart arse”. The power to stop, detain and search someone in
s 207 of the Crimes Act is limited and only arises in the circumstances set out in
s 207(1). The officer is required to suspect on reasonable grounds that the person has in his or her possession a thing relevant to a serious offence (as defined) or a thing stolen or otherwise unlawfully obtained. Therefore, any direction or instruction that Mr Johnson leave the car for the purposes of such a search was not lawful and no arrest could be made for hindering or resisting police in relation to such an instruction or demand. In any event, as a matter of fact, no opportunity was given to Mr Johnson to comply and there was no reasonable basis for a suspicion that he had failed to comply.
109. Third, no other basis for an arrest for failure to comply with a direction or instruction was identified.
110. Fourth, the contention advanced at trial and on appeal was that there was a reasonable possibility that (notwithstanding what was said on the video) Mr Johnson was arrested for a combination of hindering Constable McVicar during his earlier interaction and then hindering Constable Head. If that was the case then the arrest was unlawful because neither officer told Mr Johnson that he was being arrested for that reason.
The appellants argued, in the appeal to this Court, that the failure to obey directions and follow instructions could be related back to the evidence of Constable McVicar that he had told Mr Johnson during the first interaction to “be quiet” and “stop interrupting”. This Court does not accept that submission. In the context of the immediate lead up to the arrest Mr Johnson did nothing which could on any reasonable basis have amounted to hindering police in the execution of their duty. Moreover, it is important to note the actual terms of the conversation in the second video:
Johnson: What rules have I broken?
Head: What rules have you broken?
Johnson: Yes.
McVicar: Fail to produce identification. Fail to follow police direction. Resist police.
(Then a little later):
Head: Open alcohol in the car. That’s another one. That is also against the road rules as of three months ago.
Head: (Indistinct) we’ve got four offences, no identification, I have no choice but to arrest you.
The references in the video material to Mr Johnson failing to comply with directions or instructions was, in context, plainly a reference to him not getting out of the car when he was told to. Contrary to the submissions of the appellants, there is no plausible basis for accepting that it could have been a reference to the failure to “be quiet” or “stop interrupting”. It is equally clear from the video that Mr Johnson had no chance to comply with the order to get out of the car. Constable McVicar started to manhandle Mr Johnson simultaneously with the direction “Get the fuck out of the car”. Having regard to the events shown on the video material there is a very clear distinction between actions which might, in the overall context, have amounted to hindering or obstructing the officers and Mr Johnson’s alleged failure to obey the order to get out of the car.
In the light of the above, at no stage did either officer articulate, in substance, that Mr Johnson was being arrested for hindering police. That such was the case was amply demonstrated by Mr Johnson’s genuine confusion as to why he was being arrested (see particularly the second video). If, as asserted, the arrest was for hindering one might have expected the officers to have said so, especially as this was said to be the primary reason for arresting him.
We agree with the analysis of Mossop J on the above issue.
The appellants submitted that the significance of the fresh evidence was not appreciated by Mossop J. His Honour dealt with this evidence from [89]:
89.The Crown consented to further evidence being called for the purposes of the appeal. Ms Keaton gave oral evidence and was cross-examined.
90.Counsel for the appellants made brief oral submissions on this point, noting that the further evidence was now before the court and that the question to be answered was whether that evidence would have made a difference in terms of the decision of the magistrate: see R v Bryer (1994) 75 A Crim R 456 at 478; Easterday v The Queen [2003] WASCA 69; 143 A Crim R 154 at [200]-[201]. Is there a significant possibility that the magistrate would have acquitted the appellants had the further evidence been before it in the trial?
91. Counsel for the appellants said that the appellants had hoped that the evidence would have been of significance in identifying what police had said to the occupants of the car prior to the arrest of Mr Westbrook.
92.The evidence of Ms Keaton did not extend that far. The high point of her evidence was that a police officer was standing at the driver’s door. There appeared to be a disagreement with a person in the back seat of the car. There was no yelling but there was a disagreement. It was at that point that the police officers came over and arrested Mr Westbrook.
93.The evidence does not provide corroboration of anything other than that there was a disagreement between the police officer and the occupants of the car.
94.In my view, there is not a significant possibility that the magistrate would have reached a different conclusion to that which he did. That is because of the limited nature of the further evidence and because nothing in the evidence undermines the unlawfulness of the conduct proven by the video evidence.
The background to Ms Keaton’s evidence is that she and Mr Westbrook were out and about in the city when Mr Brewer’s vehicle was pulled over. She noticed the police talking to an occupant of the vehicle. The police then approached her and Mr Westbrook and arrested Mr Westbrook “because he was not meant to be in the city”. The police officers then returned to the vehicle “and one of them was arguing with the guy in the back seat, and then he started talking to the driver”.
Ms Keaton noticed that “someone got pulled out of the car and put on the ground”. Ms Keaton then approached one of the officers and told them that their “lift” had arrived, and, in effect, sought permission to leave. The police officers released Mr Westbrook and he left with Ms Keaton. The interaction between the officers and the person in the back seat (presumably Mr Johnson) was described as “sort of like a really big argument”. Under cross-examination, Ms Keaton affirmed that it “was a pretty big argument” although she had no recollection of the details of the argument.
His Honour, based on his comments quoted above, clearly did not think Ms Keaton’s testimony assisted the appellants. The appellants however submitted that his Honour had essentially ‘missed the point’. The relevance of Ms Keaton’s evidence was not what may have been said, but rather that there had been a disagreement with a person in the back seat, consistent with the appellants’ version that something had occurred in the first interaction which prompted Mr Johnson’s lawful arrest.
Constable McVicar submitted that:
It was accepted at the hearing that Constable McVicar approached the car and spoke to Mr Brewer in stern terms. He asked Mr Brewer to turn the car off. The critical issue at the hearing was what, if anything, was said by Mr Johnson during this conversation.
It was not a matter of contest that Constable McVicar and Constable Head then walked away from the car to deal with another person. (Written submissions [4] and [5]; references omitted)
It is immediately apparent from the just quoted submissions that the alleged critical conversation occurred before the police officers dealt with Mr Westbrook. This is part of the fundamental case put by the appellants, that the first interaction was a critical issue and should have been the subject of decision, or absent a decision, returned to the Magistrates Court.
Accepting, for the moment, the chronological order suggested on behalf of Constable McVicar, the appeal does not become any stronger. If there was some form of hindrance before the officers left to deal with Mr Westbrook, by the time they returned that hindrance was over and did not justify the subsequent actions. It has already been seen that the officers were not acting on the basis of the first interaction but rather on the basis of Mr Johnson’s comments (continued or fresh) on the return of Constable Head to the vehicle.
The chronology, moreover, is far from certain. Ms Keaton’s observations about an argument may relate to a conversation after Mr Westbrook had been arrested. In examination in chief there was this question and answer:
So when you say there was a big argument, an argument with a person the back seat and the driver, was that when Blake was already in the paddy wagon, or was that before police had even come over and arrested him? When was that? ---Blake was already in the paddy wagon.
Ms Keaton then seemed to give a contradictory answer under cross-examination:
Can I just ask you this. Before the police came to arrest your boyfriend did you see what they were doing? ---They were talking to the people in the car.
Both police officers? ---( No audible reply).
…
Could you make out what they were saying? ---Now I wouldn’t quite remember, but it was a pretty big argument.
Then they walked towards Blake? ---Yes.
A little later Ms Keaton seemed to return to her original position:
And then the police officers walk across to where you are? ---Yes. They weren’t arguing a lot at the start.
Under re-examination Ms Keaton seems to change her timing yet again. She gives evidence of an apparent disagreement before the officers came over to arrest Mr Westbrook.
Having regard to her uncertainty, it is little wonder that his Honour did not regard the fresh evidence as evidence that might have influenced the decision of the Magistrate. However, it does not matter what occurred in the first interaction. Even accepting that Mr Johnson had made unseemly comments before the arrest of Mr Westbrook, by the time the officers returned to the vehicle any initial interaction was no longer relevant to the arrest of Mr Johnson.
It was submitted that his Honour took the wrong approach to the fresh evidence. Mossop J should have approached it on the basis of s 214(3) of the Magistrates Court Act 1930 (ACT) and treated it as evidence before him and not apply a test of whether or not it would have made a difference to the Magistrate. The submission is ostensibly correct. However, its efficacy depends on whether the first interaction was relevant to the arrest. It has been emphasised above that this was not the case.
Another matter raised in submissions was that Mr Johnson invited his arrest because he would not provide proof of his identification. It was submitted that the police could not have proceeded by way of a summons because that course required them to have his name and address. Mr Johnson did not have his wallet with him. He could not provide any identification. There was however a much simpler option open to the police before they arrested him. They might have asked him for his name and address, as they did after the arrest and immediately received a correct reply.
Both appellants made a number of written submissions on the asserted errors in the Magistrate’s reasons. As has already been noted, this is not an appeal from the decision of the Magistrate. That appeal has been heard and disposed of. This is an appeal from the decision of Mossop J and it is necessary to identify error in his judgment. This is not to say that a potential error could not be derived from the Magistrate’s reasons. But for these appeals to succeed the error must have been made by Mossop J.
The appellants made a number of submissions concerning the prerequisites for an arrest, both at common law and under statute, and the technical aspects of whether or not the arrest had been properly effected. It was submitted that his Honour had “failed, to engage with the totality of the evidence in relation to that issue” (Constable McVicar’s written submissions [58]).
The submissions fail to grapple with the fundamental difficulty the appellants face in this case. The video simply does not permit any interpretation that the police officers acted lawfully. Arrest is a last resort. The officers rushed to this resort on the flimsiest basis, namely, in essence, because Mr Johnson was being cheeky.
The written submissions of both appellants correctly set out the elements of an assault. They do not seem to cavil with the first three elements but concentrate on whether or not there was lawful excuse for the alleged assault. It was conceded that if the arrest was not lawful then an assault had taken place.
The Magistrate referred to the officers being close to the end of a long shift after a busy night. He posed the possibility that they were tired and perhaps frustrated by the vehicle driving through the bus zone for no good reason. That may well be the case. This Court has nothing but admiration for the work of police officers dealing with young and rude, and often alcohol and drug affected, young persons. It is not however suggested Mr Johnson fell into this category.
But, no matter what the temptations, police officers are governed by rules which separate their conduct from the conduct of offenders. The officers here simply ignored the rules. If they did so because of the circumstances identified by the Magistrate, those matters may go to the mitigation of their sentences. They certainly do not relieve them of their liability to conviction.
The appeals are dismissed. The matters are remitted to the Magistrates Court for the completion of the criminal proceedings.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Acting Justice Crowe and Acting Justice Berman. Associate: Date: 22 May 2020 |