Head v Evans - [2019] ACTSC 255

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Head v Evans
Citation:	[2019] ACTSC 255
Hearing Date:	7 August 2019
DecisionDate:	26 September 2019
Before:	Mossop J
Decision:	Appeal dismissed: see [128]
Catchwords:	CRIMINAL LAW – APPEAL AGAINST CONVICTION – Appeal from Magistrates Court – Charge of assault by police officers – police officers stop vehicle – questioning of driver interrupted by passenger – passenger told to produce identification – told “Alright get out of the car I’ll be searching you for being a smart arse” – passenger forcefully arrested – whether arrest lawful – it was not – appeal dismissed
Legislation Cited:	Crimes Act 1900 (ACT), ss 24, 207, 211, 212, 221, 222 Criminal Code 2002 (ACT), s 361 Magistrates Court Act 1930 (ACT), s 218
Cases Cited:	Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 Christie v Leachinsky [1947] AC 573; Coleman v Power [2004] HCA 39; 220 CLR 1 Crowley v Commonwealth [2011] ACTSC 89; 251 FLR 1 Easterday v The Queen [2003] WASCA 69; 143 A Crim R 154 Johnstone v State of NSW [2010] NSWCA 70; 202 A Crim R 422 Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 McLiney v Minster [1911] VLR 347; 17 ALR 336 Michaels v The Queen (1995) 184 CLR 117 R v Bryer (1994) 75 A Crim R 456 R v Doolan [2001] ACTSC 69 R v Ryan [1890] 2 NSWR (L) 171 R v Welch [2009] ACTSC 35; 3 ACTLR 68 New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125
Parties:	James Head (Appellant) Matthew McVicar (Appellant) Troy Evans (Respondent)
Representation:	Counsel J Sabharwal (Appellants) T Hickey (Respondent)
Solicitors Sharman Robertson Solicitors (Appellant Head) David Healey Solicitors (Appellant McVicar) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCA 25 of 2018 SCA 26 of 2018
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Cook Date of Decision: 27 April 2018 Court File Numbers: CC2017/8164 CC2017/8167

MOSSOP J

Introduction

These are two appeals from a decision of the Magistrates Court. The appellants are Constable James Head and Senior Constable Matthew McVicar, officers of the Australian Federal Police (AFP). Both officers were charged with the offence of assault occasioning actual bodily harm. It was alleged that on 26 January 2017, the officers assaulted and occasioned actual bodily harm to Kyle Johnson by joint commission (CC2017/8164 and CC2017/8167). The charges arose from an incident in which the officers pulled over a motor vehicle in which Mr Johnson was a passenger. They did so because that motor vehicle was proceeding through a bus-only traffic zone. The interactions that followed between the officers, the driver of the motor vehicle and Mr Johnson resulted in Mr Johnson being forcefully pulled by the officers from the vehicle, brought to the ground on his stomach and handcuffed.

Constable Head and Senior Constable McVicar pleaded not guilty to the offence. The matter was heard before a magistrate on 13…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Head v Evans

Details

AGLC: Head v Evans [2019] ACTSC 255
Case: [2019] ACTSC 255
Decision Date: 26 September 2019

CaseChat Overview and Summary

In the matter of Head v Evans, the appellant sought to appeal a conviction for assault by police officers. The events leading to the conviction occurred when police officers stopped the vehicle the appellant was in and questioned the driver. The appellant, who was a passenger in the vehicle, interrupted the questioning, prompting the police officers to request identification. When the appellant was instructed to produce identification, they were told "Alright get out of the car I’ll be searching you for being a smart arse". The appellant was then forcefully arrested. The legal issues before the court were whether the arrest was lawful and if not, whether the appeal should be dismissed. The court found that the arrest was not lawful and dismissed the appeal. The reasoning behind the court's decision was that the police officers did not have reasonable suspicion to justify the arrest, as the appellant had not committed any offence and had not acted in a threatening or aggressive manner. The court found that the police officers' actions were excessive and unreasonable, leading to the dismissal of the appeal. The final orders of the court were to dismiss the appeal.

Orders

Orders of the court

Appeal dismissed: see [128]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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