Head v Evans
[2019] ACTSC 255
•26 September 2019
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; 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 and 14 March 2018. The principal issue at trial was whether or not the prosecution had excluded beyond reasonable doubt the possibility that each of the officers had lawful authority for their actions. On 27 April 2018, his Honour found the two constables guilty of common assault, the statutory alternative to assault occasioning actual bodily harm. Both officers have appealed against their convictions.
The appeal is an appeal by way of rehearing. The approach to be adopted in an appeal under Div 3.10.2 of the Magistrates Court Act 1930 (ACT) is set out in Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24.
The grounds of appeal
The Notice of Appeal was filed on 24 May 2018. An Amended Notice of Appeal was filed on 16 August 2018. The grounds of appeal are:
(a)The Learned Magistrate failed to address or alternatively misunderstood the defence of lawful justification raised by the accused arising out of the first interactions with the occupants of the vehicle.
(b)The Learned Magistrate erred by focusing on whether the appellant Head's interactions with the complainant captured on video provided a lawful justification for any arrest when the defence case was that it was an earlier (unrecorded) interaction between the appellant McVicar and the complainant that provided lawful justification for the arrest.
(c)The Learned Magistrate failed to make any findings of fact in relation to what occurred during the first interaction between the complainant and the appellant McVicar.
(d)The Learned Magistrate erred by finding the appellants acted without lawful justification in arresting the complainant without rejecting or considering the effect of the sworn evidence given by the appellant McVicar about his dealings with the complainant during the first interaction.
(e)The Learned Magistrate erred in finding (implicitly) that any lawful basis to arrest the complainant arising from the first interaction ceased upon Constable McVicar leaving the car to attend to a separate incident.
(f)The failure of the prosecution to disclose to the appellants the identity and contact details of two eye witnesses to the incident denied the appellants an opportunity to call potentially exculpatory evidence and led to a miscarriage of justice.
(g)The failure of the prosecution to disclose a potentially exculpatory account of the incident that had been obtained from an eye witness (Courtney Keaton) or to call that witness, led to a miscarriage of justice.
(h)The learned magistrate erred in finding excessive force was used in circumstances where the issue was not raised and accordingly not addressed by the appellants.
(i)The learned magistrate erred in finding the appellants used excessive force without making any findings about what had occurred during the first interaction.
At the appeal hearing, counsel for the appellants stated that the grounds of appeal had been reduced to three grounds only. 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.
On these grounds the appellants accepted that, at best, they could obtain an order that the appeal be allowed and that the matter be remitted for retrial.
Video evidence of the alleged assault
Part of the incident forming the subject of these proceedings was captured in a mobile phone video recording by Isabelle Tongs, who was another passenger in the motor vehicle driven by Steve Brewer. This video was tendered before the magistrate and part of it was shown during the appeal hearing. 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. However, a transcript of the audio was tendered along with the video and the magistrate summarised the video in the following manner:
Constable Head can be seen to have commenced his interaction with Steven Brewer, the driver of the motor vehicle. He then directs the driver to the following, in an abrupt manner, “Give me your licence.” From the rear of the motor vehicle can be heard the word, “please”, from Mr Johnson. Constable Head then says words to the effect of, “What is your problem? Do you not know how to drive?” To which Mr Brewer responds, “I do, sir. Sorry.” Constable Head then says, “Well, you do, so what happens when a police officer puts his lights on behind you?” Steven Brewer again says, “I’m sorry, sir.” To which Constable Head then in a clear and loud voice says, “No, no, answer the question, don’t give me an excuse. What do you do?” To which Mr Brewer responds, “You pull over”.
The exchange then continues with Constable Head then asking Mr Brewer “which way”, and then adding before Mr Brewer could respond, “which way, to the right, keep going, turn right into Pitt’s carpark, park out in the middle here”, and then from the rear seat you hear Mr Johnson say, “He parked where he” – and he is cut off by Mr Brewer, who says, “Shhh, Cyle.” Constable Head, then pointing to Mr Johnson in the back seat says in a loud and clear tone, “If you don’t shut up your mouth I’ll pull you out and arrest you for hinder.” Mr Brewer can be heard saying again, “Shh, Cyle.”
Constable Head then continues in rapid succession to Mr Johnson saying, “Do you understand? Give me your licence right now.” Mr Johnson says, “I don’t have my wallet on me, I’m sorry.” To which Constable Head then responds, “You have no identification on you?” Mr Johnson responds, in what appears to be in a slurred manner, the words of, “No, not on me.” Constable Head then says to Mr Johnson, “All right, get out of the car. I’ll be searching you for being a smartarse.”
In doing so the constable steps away from the driver’s side door and continues addressing Mr Johnson, at the same time saying, “You have witnessed an offence and therefore you are to provide me with your details. Get the fuck out of the car right now.”
…
Senior Constable McVicar appears from behind Constable Head, over his left shoulder, and passes very close to Constable Head and proceeds straight to the rear right passenger door, behind which sits Mr Johnson ... Constable McVicar says, “How fucking old are you?” Mr Johnson says, “I’m fucking 19.”
Senior Constable McVicar then says words to the effect, “You're fucking 19, are you? Get the fuck out of the car.” Constable Head can then be seen to disappear from the right-hand driver’s door location towards the back of the vehicle. A scuffle can be heard, and the words to the effect of Constable Head saying, “Get out of the car”, then saying rapidly, “Get the fuck out of the car.”
Ms Tongs then attempts to move the mobile phone to the rear behind the driver’s seat to capture the interaction between the two police officers and Mr Johnson.
…
Constable Head has Mr Johnson in a headlock in his right arm, and clearly on the video he has grabbed hold of Mr Johnson’s head while he is inside the motor vehicle.
…
The application of force is hard and direct on the movements of Constable Head, and to a highly sensitive and vulnerable area being placed into the headlock and being forcibly removed from a seating position out of the rear passenger door. Mr Johnson is saying very little. The officers are dominant and yelling … Mr Johnson has only seconds to respond to any direction. The application of force initiated by Senior Constable McVicar starts the cascade of excessive force when joined by Constable Head at that point in time.
…
Mr Johnson is then dragged onto the ground, onto his stomach and face, and watching the video a number of times while the officers say you are resisting at no time do I see Mr Johnson struggling while holding his arms under his body in a manner that would give any suggestion that he is resisting arrest. And in fact, at the time he is said to resist, Mr Johnson's arms are laying loose, it appears, across his back, joined at the wrist where both officers are applying significant force.
…
Senior Constable McVicar, who says words to the effect of, “Hands behind your back. Give me your fucking hands, cunt”, clearly aware Constable Head has been recorded on the video footage. Constable Head then says, “Give me your hands.” At no time does Mr Johnson’s hand disappear under Mr Johnson’s body from the video footage.
[The transcript then indicates:
Unknown: Give me your hands or you will be charged with resist
Johnson: (indistinct) resist (indistinct) fuck (indistinct)
McVicar: Back the fuck up now. Backup now. Move backwards. Move backwards.
Head: You are now in custody for resisting arrest.
Johnson: Resisting]
…
The extent of the exchange then progresses to dialogue between Ms Tongs, who is now taking the video from outside the car, when she suggests that the officers are being too aggressive. She is told to move back. She is further told to hop back in the car or she would also be arrested for resist.
Although not described in the magistrate’s reasons, the video then continues to record Constable McVicar returning to interrogate the driver. The driver is very apologetic and explains that he was not used to Civic and that he had just dropped a friend off after picking him up from a party. Constable McVicar continues to interrogate him in an unnecessarily rude and unpleasant manner.
The video records Mr Johnson who at this stage is sitting handcuffed on the ground trying to find out what is going on:
Johnson: (indistinct) May I ask a question.
Head: You can ask whatever you want.
Johnson: Why is this happening?
Head: You were under arrest, you resisted
Johnson: (indistinct)
Head: You did resist. When two officers pull you out of a fucking car that’s resist.
Johnson: Can I stand up?
Head: No you cannot stand up.
Johnson: Okay
He is then asked for his name and date of birth. The transcript continues:
Johnson: I’ve done nothing wrong.
McVicar: … You’ve done noth…? You’re in handcuffs for a reason. We don’t just walk around. Is he handcuffed? Is she handcuffed? Fail to abide directions, failed to follow instructions and resist police. You find it funny?
A second portion of the video in Exhibit 3 (which was not transcribed in Exhibit 3A) shows the situation once Mr Johnson is seated on the ground and talking to both police officers. He is obviously unclear as to why he was arrested:
Johnson: (indistinct)
Head: If your mother was in the police I’m sure she would have raised you with a bit more nous than to break rules, break laws.
Johnson: What rules have I broken?
Head: What rules have you broken?
McVicar: Failure to produce identification, failed to follow police directions, resist police.
Head: Three so far, resist …
Johnson: When did I resist?
Head: When police pull you out of the car and you do not cooperate that is resisting.
…
Johnson: …I’m fucking dealing with this shit for no reason what so-ever. No fucking reason. I’ve been pulled out of the car for no reason. Fucking resist arrest. What is that shit. I didn’t resist arrest. I’m not a fucking bad person. If you guys had a reason to do this to me I would accept it but I have done shit all wrong. You guys are fucked. Why do you have to be like this … I’ve done nothing wrong.
The proceedings below
At the commencement of the proceedings before the magistrate, counsel for the informant gave a short opening.
Informant
The first witness was Leading Senior Constable Troy Evans. He was the informant. Through him a number of documents were tendered. The first document was a statement of Rohan Smith dated 23 October 2017 (Exhibit 1). The second was a statement of Cain Denman of 17 October 2017 (Exhibit 2). The third was a CD containing video taken of the incident (Exhibit 3) as well as a transcript of part of that video (Exhibit 3A). The video was played to the court.
Next, a document from the walk-in clinic in Kingston was tendered (Exhibit 4) as well as seven photographs of the complainant (Exhibit 5). Two police documents that were prepared after the incident, being a summary (Exhibit 6) and a case note (Exhibit 7) were also tendered. Exhibit 6 was a document created on the evening of the incident. Exhibit 7 was produced the day after, describing the use of force by the constables. Both documents are shown as having been prepared by Constable McVicar.
In cross-examination of the informant by counsel for Constable McVicar, a medical report from the Kingston walk-in centre was tendered (Exhibit 8). There was no cross-examination by counsel for Constable Head.
After a short adjournment counsel for Constable McVicar produced Constable McVicar’s notebook and that was tendered (Exhibit 9). Counsel then asked about the conversation that he had with Mr Johnson. Evidence was elicited that Mr Johnson had told Constable Evans that “after he has a lot on board that he may possibly get aggressive”. He also gave evidence that Mr Johnson said that when he drinks alcohol he drinks up to 12 drinks. If it is a night out on the town he would usually have six pre-drinks and then six to 10 more drinks out in the city. He also gave evidence that Mr Johnson had said that “there have been times where I’ve ended up a bit aggressive at the end of the night but that’s when I know I’ve had too much to drink”.
The complainant
The next witness was Kyle Johnson, the complainant.
Mr Johnson had been at an Australia Day party for about 10 hours until 10pm that night. He had drunk 10 to 15 cans of beer throughout the day. On a scale of 1 to 10, with 1 being sober and 10 being absolutely drunk, he rated himself as a 5. He was picked up from the party by his friend Mr Brewer. He was with his girlfriend Isabelle Tongs and another friend, Liam Markey. Mr Johnson had forgotten his wallet so was just going home. Liam was dropped off at the corner of Bunda and Mort Street. Instead of turning right to avoid the bus interchange, Mr Brewer went straight and drove through the bus interchange on Mort Street. They realised that they were not supposed to be on the street when they passed McDonald’s. There was a discussion in the vehicle and a decision made to continue to the end and turn out into London Circuit. They continued to the intersection at London Circuit. Mr Brewer mentioned that a police car had turned around and was following them. After turning onto London Circuit the vehicle didn’t pull over immediately because it was a taxi rank. Instead, it turned right into the car park and pulled over in the loading zone. The driver, Mr Brewer, had pointed his arm out the window to show the police that they were going there.
Following being shown the video, Mr Johnson denied that he had said anything to cause the police officer to allege that he was being a smart arse. He denied using any form of abusive language towards the police officer prior to the police officer abusing him. He denied being aggressive. When shown a part of the video where he was pulled from the vehicle he said that he believed that Constable Head had him around the head and the other constable had his arm pulling him out of the car. He denied resisting police. He was taken through the video and asked various questions about what was occurring during it.
In relation to his injuries, the complainant said he had “a couple of scratches on my elbows and shoulders but the most severe one was I had three months nerve damage to my (indistinct) from the handcuffs”. Later he said, “it was a bit numb for a while, that’s all”.
In cross-examination he was asked some questions about what appeared on the video. He agreed that he went to the medical centre at 2pm on 27 January 2017. He agreed that he was “fairly intoxicated” during the evening before. He denied that he was aggressive. He agreed that it was Constable McVicar who initially approached the driver’s side of the vehicle. He agreed that Constable McVicar asked Mr Brewer to turn the engine off and that he asked Mr Brewer for his licence. He denied that the officer spoke to Mr Brewer at that point about why he had travelled through the bus interchange. He said that apart from asking to turn the engine off and hand over his licence he didn’t recall much of the conversation because shortly afterwards the police got distracted by someone else. He recalled only that it was “oddly aggressive” and that was the reason that “we decided to start recording”.
It was suggested to him that he continually interjected while Constable McVicar was trying to talk to Mr Brewer. He denied this and said that the first interaction that he had with either of the constables was his first interaction captured in the video. He denied that he was warned not to interject while Constable McVicar was talking with Mr Brewer. He said that he didn’t say anything while Constable McVicar was at the window. He said that Constable McVicar did not speak to him. He denied that he continued to interject. He denied the suggestion that Constable McVicar had warned him that he would be arrested for hindering police if he continued. He agreed that the police both left and after that Constable Head approached the driver’s door. He agreed that he was intoxicated but denied being aggressive. He stated that he was angry but not aggressive. He denied that he was interrupting Constable McVicar’s discussion with Mr Brewer. He denied that when Constable McVicar came to the door and grabbed hold of his arm that he pushed himself back into the seat, raised his legs and thrashed his body in order to prevent himself from being taken from the car. He denied attempting to put his arms under his body while he was on the ground and denied pulling his legs up to push himself off the ground. He denied that he had been interjecting whenever the police were speaking to Mr Brewer. He said that he “only interrupted once Steve wasn’t able to get a word in at all”. He agreed that the first interaction between the police and Mr Brewer was not on the footage.
In cross-examination by counsel for Constable Head, the complainant agreed that the 10 to 15 drinks consumed throughout the day of the incident were of full-strength beer. He agreed that it could have been more than that, although he had only taken 12 beers with him to the party. He agreed that he may have consumed a couple more beers than 15, that is possibly up to 17.
The complainant said that he realised at the party that he did not have his identification with him. He had his last beer with him in the car. It was still in his hand when he was dealing with the police. He identified that it was Ms Tongs who first realised that Mr Brewer was driving in the interchange. He said that Mr Brewer was not familiar with the Civic streets. He agreed that there was an interaction between Mr Brewer and Constable McVicar “for about a minute”. He denied interjecting. He denied explaining why they were parked there. He agreed that there was a discussion about filming the police “because we all thought they were both acting a bit strange”. He denied that the filming occurred because he’d been warned that he would be arrested if he didn’t stop hindering. He agreed that he had told Constable Evans that Constable Head seemed quite new because Constable McVicar was answering for him. He agreed that he had said “please” when Constable Head came to the vehicle and said “give me your licence”. He said that he had nearly said that to the first police officer but didn’t. It was suggested to him that he had been told to get out of the car, that he did not do so and that he “had to be removed from the vehicle”. He did not agree with that proposition. When asked about the length of time taken to pull over he said that they didn’t go far at all, that they were going about 10 km/h the whole time and that the appropriate approach was to pull over where you feel safe.
In re-examination Mr Johnson said the total distance driven before pulling over was about 100m to 200m at maximum.
Steve Brewer
The next witness was Steve Brewer. Mr Brewer had collected Mr Johnson and Ms Tongs from a party at a friend’s house in Belconnen. Mr Johnson and Ms Tongs had decided halfway through the car ride to not go into Civic, but Liam still wanted to go out. Mr Johnson had left his wallet at his house and could not enter any nightclubs without identification.
As at January 2017, Mr Brewer had had a driver’s licence for four or five months. This was probably his third time driving into Civic. He was not familiar with the roads in Civic at all. After dropping Liam off he headed straight and drove into the bus interchange. He said that as soon as he entered East Row he knew he was not meant to be there. He noticed the police car passing him and, knowing that something was wrong, he started looking for a place to pull over on East Row. He continued towards London Circuit which was busy and full of taxis. He turned left onto London Circuit and then indicated with his hand that he was going to turn into what he referred to as “the Mooseheads car park”. He said that he was not running away from the police. He pulled over into a loading zone and Constable McVicar approached his car. Mr Brewer said he had not consumed any alcohol. Constable McVicar told him to turn off the car and proceeded to ask him why he didn’t pull over straight away. He said that Mr Johnson was silent at this time. He said that the first time that Mr Johnson spoke was when the second officer approached his car.
He was then played the video footage and asked various questions during the course of that footage. He said that the occasion on the video was the first time that Mr Johnson had opened his mouth. He said that Mr Johnson didn’t say anything when Constable McVicar was talking to him and the first thing he said was when Constable Head was talking to him. He identified that Constable Head was the first person to use abusive language when he said “get the fuck out of the car”. He described Mr Johnson as being in good spirits and that he “had a fair bit to drink but not sloppy, just in a good mood”. At the point where the police officers reached in to pull Mr Johnson out of the vehicle, Mr Brewer said that he did not think that Mr Johnson was doing anything to prevent being arrested or handcuffed, other than maybe struggling to get his seatbelt off while being pulled from the car. In relation to the recording on the video of Mr Brewer saying “I haven’t done anything wrong”, Mr Brewer explained that by saying that driving through the bus interchange wasn’t deliberate or intentional. He said that he didn’t pull over because there was no safe spot to stop straight away. On the video he was recorded telling Mr Johnson to be quiet because his view was that “you just accept what’s happening and you deal with it another time”. He said that he was not charged with any offence arising from that night.
In cross-examination by counsel for Constable McVicar he agreed that after Constable Head approached the vehicle Mr Johnson said something like “please” and Mr Brewer said “shush”. He did that because he wanted to deal with the issue because he was the driver. He agreed that when he first stopped the car it was Constable McVicar who approached the driver’s door. He agreed that Constable McVicar spoke to him about why he had driven into the bus interchange and that he asked for his licence. He agreed that Constable McVicar spoke to him in a way that wasn’t polite saying “It was aggressive, it was stern, it was rude basically.” He said that the officer straight away told him to turn off the car and continued “Do you know the road rules? Do you know what to do when a police officer turns his lights on” et cetera. He said that it seemed like the police officer was trying to provoke an argument or confrontation. He accepted that an appropriate description of the way he was spoken to was “stern”. He denied that Mr Johnson kept interjecting. He said that he had known Mr Johnson the majority of his life and that while Mr Johnson can get aggressive, he was not aggressive on that particular night. He denied that Mr Johnson interjected when Constable McVicar was talking and denied that Constable McVicar said that he would arrest him for hindering. He denied that he said “shush” to Mr Johnson when Constable Head returned because Constable McVicar had warned him of the possibility of arrest. He said that only Constable Head said that he would arrest him for hindering and that Constable McVicar did not say that at all.
He was then cross-examined by counsel for Constable Head. He repeated his evidence that during the car trip Mr Johnson and Ms Tongs had decided that they were not going out in Civic because Mr Johnson didn’t have any identification. He said that it was past the intersection near McDonald’s that he realised that he had gone the wrong way. He said that there was nowhere safe to stop in the interchange. His recollection was a bit hazy as to whether he made the decision to turn into the car park or whether there was a discussion in the car about it.
There was no re-examination.
Isabelle Tongs
Isabelle Tongs was the next witness. She gave evidence that she and Mr Johnson had been at the party in Macquarie for about 10 hours and were picked up by Mr Brewer. She had not planned to go out in Civic and Mr Johnson realised he’d forgotten his wallet so they both decided that they weren’t going out. After dropping off Liam Mr Brewer, Mr Johnson and herself were going home. They went into the interchange and realised the police were behind the car when the police put on their lights. There wasn’t a place to stop. Mr Brewer put his arm out the car window and pointed to where he was aiming to pull over. She said she believed Constable Head approached the vehicle first and said “where’s your licence”. She said that both officers were aggressive but one was more aggressive than the other. The police then went to deal with two other people. Once they walked away she asked Mr Johnson and Mr Brewer whether she should record this because “it seemed quite unusual and aggressive”. She did this because of the aggressive and loud manner in which they were being spoken to and that the police did not allow much time to converse about what happened. She said that the police officer did not address Mr Johnson initially and only spoke to Mr Brewer. She said that when she commenced recording Mr Johnson had not spoken to the police and the police had not spoken to Mr Johnson.
She was then played the recording and asked some questions about it. She identified herself as the person in the video who can be heard saying that the police were too aggressive before being told to get back in the car. She was the one who can be heard crying on the video. On a scale of 1 to 10 she said that Mr Johnson was a 4 or 5 and that “he wasn’t drunk”. She said it was her decision to capture the events on her phone because “it just didn’t feel normal”. She said that Constable McVicar asked her not to put the video in the media.
In cross-examination by counsel for Constable McVicar, she said that she went to the walk-in centre with Mr Johnson to see a doctor the next day. She said that Mr Johnson had drunk 10 to 15 drinks on Australia Day and “it was not a big day”. She said before the interaction with police that he was “quite sober”, that she had been with him a lot that day and he would not have been drunk. She agreed (contrary to her evidence in chief) that it was Constable McVicar who approached Mr Brewer first. She agreed that she did not have much recall of the initial conversation between Mr Brewer and Constable McVicar. She did not recall Constable McVicar saying something like “I’m arresting you for hindering if you carry on”. She agreed that Mr Johnson said “please” and that Mr Brewer said “shush”.
She agreed that when she was outside the vehicle filming the police neither of them requested that she stop filming. She said that she did not recall saying to Constable McVicar that Mr Johnson was “completely unreasonable when he is like this”. She recalled discussing the footage with Constable McVicar after the incident. She agreed that he asked if she would email him a copy of the footage and that he asked her not to put it on Facebook.
Counsel for Constable Head asked her how much alcohol she had drunk that day. She said maybe six drinks during the day but that it could have been one or two more. She was asked about whether she had discussed with Mr Johnson the number of drinks that he had or how intoxicated he was prior to giving evidence. She agreed that she was incorrect in her initial evidence that it was Constable Head who first approached the vehicle. She said that Mr Johnson was frustrated that he couldn’t go out as he had planned all day to go out. She agreed he had one drink with him when the car was pulled over. She said that there was some discussion about where to pull over. She agreed that she didn’t really recall the conversation between Constable McVicar, Mr Brewer and anyone else at that stage. She said it was her decision to commence the recording. She said that she was paying enough attention to understand that it was a serious situation.
Liam Markey
Statements of Liam Markey (Exhibit 10) and Lee-Anne Johnson (Exhibit 11) were tendered with some deletions but otherwise without objection.
Mr Markey gave evidence concerning his journey in the car with Mr Johnson, Ms Tongs and Mr Brewer. He corroborated Mr Johnson’s evidence that he had left his wallet and identification at home and that as a result was not going to join him in Civic. He said that he was dropped off and observed a police van start to follow Mr Brewer’s car. He subsequently attempted to telephone Mr Johnson. When he received a response he went to the “Mooseheads” car park. He saw that Mr Johnson was in the back of a police van. He subsequently saw Mr Johnson and Ms Tongs in a distressed state. He observed bloody scratches on Mr Johnson’s elbows and marks on his wrists from where the handcuffs were. Mr Johnson complained that he couldn’t feel his thumb.
Lee-Anne Johnson, Mr Johnson’s mother, gave evidence that she was employed within ACT Policing. On 26 January 2017, she and her husband travelled to Port Macquarie. Late that evening she received a phone call from Mr Brewer. She had a conversation with a police officer (Constable McVicar). She was ultimately told by Constable McVicar that he would “let the kids go”.
Matthew McVicar
Constable McVicar gave evidence. His evidence was that as at 2017 he had been a police officer for nine years. For most of that time he was in general duties. Prior to that he was in the Army for five years. Constable McVicar commenced duties at 2pm on the day of the incident. He was rostered to finish at midnight. He and Constable Head had left the Civic police station to go and refuel the vehicle and were driving through the city to Braddon to the Caltex petrol station. While driving through the bus interchange he observed Mr Brewer’s vehicle travelling in the opposite direction. He said that he initially put his arm out the window indicating that he wanted them to stop. The constables continued past in their vehicle, conducted a U-turn and put on their lights in an attempt to have them stop. He then briefly activated the siren (which he described as a “whelp”) and indicated with his hand that he wanted the driver to pull over within the bus interchange. Constable McVicar said his intention was to conduct a traffic stop and determine why they were travelling through the bus interchange. After the vehicle turned into London Circuit he activated the sirens. He did see the driver indicate with his arm that he was continuing in the direction he was going. He responded by pointing to the left, an attempt to indicate that he wanted him to pull over to the left next to the taxi rank. He said the vehicle pulled into what is referred to as Pitt’s car park and stopped in the loading zone by Theatre Lane. He said that there was a large area partitioned by a solid white line that would allow another vehicle to come to a stop in or near the taxi area on London Circuit without any safety issue. He said that there were a large number of people within the bus interchange in the city area.
Constable McVicar said that he approached the driver and instructed him about three times to turn off his vehicle. He said that his tone was “clear, concise and direct”. He said that he informed Mr Brewer that he had been stopped for driving through the bus interchange and for failing to stop. He said he then asked him whether he had any lawful excuse for travelling through the bus interchange and failing to stop. He said that Constable Head had exited the vehicle but he did not know where he was standing at the time. He said that he asked him whether he had any lawful excuse for failing to stop and the driver just said “sorry”. Constable McVicar asked him whether he understood what was required when a police car activates its lights and sirens and Mr Brewer initially responded that “you come to a stop when you feel safe”. He said that when he initially said that he failed to stop Mr Johnson said “come on mate, what are you talking about. We just want to go home”. He said he told him to be quiet and that at that point Mr Johnson “commenced arguing continuously with me”. The evidence was:
What did he say?---Again words to the effect of come on mate I just want to go home, you’re being over the top, I’m just having a good day, I just want to go home and again I’ve told him you need to stop interrupting, I’m not talking to you I’m talking to the driver. He continued talking to the point that I was having trouble speaking to the driver at all and it got to the point where I then said to him if you don’t stop interrupting and allow me to speak to the driver you’ll be arrested for hindering police. You’re hindering me because I cannot speak to the driver. At that point he replied with something similar to come on mate, I know my rights.
…
What happened?---I continued trying to talk to the driver for a short period of time. Mr Johnson continued interrupting and from my memory I told him between four and six times that he was hindering me and that the result of that would be arrest.
Constable McVicar was then diverted to deal with two other people. He told Mr Brewer that he was not permitted to leave and that he needed to go and speak to those other people. Of those two other people, the male was then arrested for failing to comply with a direction to move on and placed in a police vehicle. He spoke to the female about why her partner had been arrested. As he returned to the vehicle he could hear Constable Head speaking to the occupants and he heard him say “you will be arrested for hinder”. He said that when he heard that he made the decision to arrest Mr Johnson for hindering police:
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.
His evidence was then:
What did you actually do?---I walked up to the door, opened the door and asked him his age. He responded with “I’m fucking 19”. I responded “you’re fucking 19 are you” and leant forward to take a hold of his arm. At that stage he spun in the seat that he was in so that his feet and his body were facing out of the door, pushed himself backwards in the car so that he was further into the middle of the vehicle and proceeded to flail his legs and arms around me, at me sorry. At that stage I didn’t believe that he was trying to strike me or cause me any injury, I just believe he was attempting to prevent me from removing him from the vehicle.
Once he leant into the car he observed Constable Head come to his left hand side, lean into the car and take hold of Mr Johnson to help remove him from the vehicle. He said they conducted an “arm bar takedown”. He said that once on the ground Mr Johnson managed to pull his arms free and pulled them under his body in an attempt to prevent being handcuffed. He said he told Mr Johnson to give him his arm and that he was resisting. He forcibly took hold of his arm, pulled it from underneath his body and put it behind his back where Constable Head assisted him in handcuffing him. He then informed him that he was under arrest for resisting arrest and that there were further offences. He said that he had been arrested for hinder but that he had now also committed the offence of resist. Constable Head then searched him before he was sat up. He said he was aware Ms Tongs was filming “from the moment I walked up to the car the second time”. He did not say anything about stopping filming. He said that Mr Johnson was handcuffed for between 10 and 15 minutes. He said that Mr Johnson said “his mother was in the job and that I was fucked and that he was going to have our jobs”. He said that he asked for his mother’s name and Mr Johnson declined to provide that information. He was placed in the police vehicle with the intention of taking him to the Watch House to charge him with hindering and resisting. He was not charged and was released after Constable McVicar had spoken to Mr Johnson’s mother on the phone. At that stage he was satisfied of his identity and that he was no longer hindering or resisting him. He was satisfied that if required he could summons him and that an arrest was no longer necessary.
The driver of the vehicle was not charged with any offence. He said that his intent was to issue him with a traffic infringement notice. He said he spoke to Ms Tongs about filming. He said that “if he can’t handle his piss he shouldn’t come into town and drink” and that Ms Tongs had replied “he’s completely unreasonable when he’s like this”. He said he made some notes in his notebook. He requested that he be able to watch the video on Ms Tong’s phone. She allowed him to watch the footage and requested that she email it to him. He said that he had power to seize the phone but did not. He requested that she not put it on Facebook. He was taken to various entries in his notebook including the quotes “he is incredibly unreasonable” and “he’s not like this when he’s drunk”. He also recorded “unarrested, unhandcuffed and told mother would be, matter would be followed up. Appeared to think it was funny and continued to argue”.
In cross-examination by counsel for the prosecution he agreed that he did not arrest him for hindering in the first conversation because he heard Constable Head say something and he then spoke to the driver, telling him that he couldn’t leave. He said that Constable Head was three or four metres away, walking towards the male who was ultimately arrested. He said that in the original interaction he wasn’t shouting and nor was Mr Johnson but “our voices were raised”. He said that when returning to the vehicle the only words he heard Constable Head saying was in relation to Mr Johnson hindering him. He said that he did not arrest him for being a smart arse. He denied arresting him for hindering because he heard Constable Head demand that he get out of the car. He said that he did not discuss with Constable Head that Mr Johnson had been trying to hinder him previously. He attempted to justify the use of abusive language on the following basis:
One should verbalise before using force. In doing that, we’re also trained to speak in a manner that people understand, and that we’ll effect a result, so whilst I can understand that swearing is not a first course of action, in many instances in my nine and a half years of interacting with the public, using strong language has often effected a result that has resulted in no use of force and that was my intent on the night.
He accepted that the language used by Constable Head left much to be desired. He accepted that if the only interaction was with Constable Head then that would not constitute a hinder and would not have empowered either Constable Head or himself to arrest the complainant. He was asked why Mr Johnson was not charged with hindering police. He said that he spoke to his mother whose voice he recognised and who had worked at the same station as him. He then turned his mind to the appropriateness of arrest over summons. She said that she was happy for her son to be in the care of the driver. He then said that when she came back from holidays they would arrange to have a meeting: “We can sit down and discuss this, because again in accordance with our requirements, I was turning my mind to restorative justice”.
He thought that a summons was appropriate, although depending on the circumstances maybe a criminal caution was appropriate. Upon returning to the city police station he searched for Mr Johnson in the police database and found no entries. He did the same on the national police database and again found no results. He thought that the very likely outcome was either a criminal caution or a verbal caution depending on the outcome of the meeting with Mrs Johnson. He was never in fact contacted and didn’t subsequently press for the meeting to occur. He never cautioned Mr Johnson.
He agreed that in the police case report he recorded that Mr Johnson was “belligerent” and “Interfering to the point [where] police were unable to effectively manage the incident”.
It was suggested to him that the first time he said in evidence that the complainant had said “you are fucked as my mother is in the police force or words to that effect” was in cross-examination. Although the transcript is somewhat unclear, he appears to say that he told his counsel about that. Similarly, in relation to his evidence of using a hand gesture to tell Mr Brewer to stop, he said he believed he did tell his counsel about that. He agreed that Constable Head had not had any interaction with Mr Johnson prior to the incident being recorded but maintained his version of the interaction that he had prior to the filming. He maintained that he told Mr Johnson between four and six times that he was hindering him. He said that he believed that Mr Johnson was intoxicated. On a scale of 1 to 10 he estimated him at 7 out of 10. He said that he did not draw Constable Head’s attention to the hindering through interruption that occurred during the first incident. He agreed that Mr Brewer did not receive a ticket for his driving in the bus interchange. He said that he had difficulty accessing an “auto cite” device but that he had the intention to send a traffic infringement notice to him.
In re-examination he was asked why he didn’t caution Mr Johnson that night. He said there was a process for a criminal caution which requires some sort of discussion and there are certain requirements that have to be met before that can be done but they had not occurred.
James Head
Constable Head was then called to give evidence. He said that after Year 12 he had joined the army and left the army in 2011 after seven years’ service. He said that he was still a member of the Army Reserve. He said he worked in the mining industry before joining the AFP. He did six months of training. He had been a sworn police officer for just over 12 months. He did general duties policing and spent his entire time at the City police station.
On 26 January 2017 he started out in a job with three officers in the car and then he and Constable McVicar were assigned to a vehicle. Constable McVicar was the officer in charge. Constable McVicar identified a car going the wrong way and conducted a U‑turn. The vehicle didn’t stop straight away the vehicles lights were on and a single whelp of the siren was given. He thought that maybe the vehicle was not going to stop. He said:
Did your experience at all in the army have any impact upon the way you went about your duties in the AFP?---I guess that the majority of my life before becoming a police officer I was a soldier and I have seen a lot of things and my experience is always to assume that this is the worst case scenario and that if it’s not that’s happy days. If it is your prepared for the worst-case scenario whether that be an ambush, whether that be someone driving or whether it’s just someone who just not noticed us turning off our lights.
So when the vehicle didn’t stop straight away you had some concerns?---My anxiety was starting to raise quite quickly.
When the vehicle stopped both officers exited the vehicle. He ungloved his hands and placed them on the rear of the vehicle and then continued to walk in an anticlockwise direction around the vehicle coming to a stop just in front of the front passenger seat. Constable McVicar was talking to the occupants. He could not say the specifics of what the conversation was. On two occasions he said he heard Constable McVicar say to the occupant of the vehicle that he needed to stop interrupting him and words to the effect that what he was doing was hindering him. He was keeping an eye on Constable McVicar’s back and saw the male who had been given a move on direction. He then went to deal with him and he was arrested. The male was unarrested at a later point when the officers realised that he was not trying to contravene the move on direction but simply making his way back to a car driven by his mother.
He then gave evidence that he then “took lead on the traffic stop, yes and that’s where the video starts”. He said:
Once I’ve calmed myself down and realised that this wasn’t a worst-case scenario situation, this was just a kid who you know, realised that he’s driven the wrong way, my intention was to impress upon him the seriousness of making a simple mistake like that---
He explained the seriousness by reference to the possibility of a motor vehicle accident. He said he knew about the people in the car interrupting Constable McVicar and that:
As soon as the person in the rear had spoke to me, interrupted me again, I’d decided no, in my mind this person has now met the bar for me to arrest him, because they’ve committed the offence and so my brain then turned to what my requirements are as a police officer to arrest someone, so do I suspect they’ve committed an offence and can I proceed? I was asking him if he had his driver’s licence as a form of photo identification.
He agreed that his thought process did not reflect the words coming out of his mouth he said:
…I wish I could have said it in a more articulating way I thought my thought process was, but I think due to my heightened anxiety at the time, the situation, the night time, that I just went too quickly with my words and that’s why I obviously said those words, but my intention was to find out if this person had any identification so I could summons him for the offence. The fact that he didn’t have any identification on him, meant that I had no choice but to arrest him for his committing of his offence.
He said he thought that Mr Johnson was going to be compliant because he had told him to get out of the car but that it then became apparent that he wasn’t getting out of the car. He said he then noticed there was a physical altercation by which he meant an interaction. He said that Mr Johnson was secured and Constable McVicar had a conversation with him. He said he viewed the case “write off” and the use of force on Constable McVicar’s screen when he was preparing the documents and didn’t have any issues with it. He said he and Constable McVicar had a conversation about the incident and that Constable McVicar had said that he would take the lead on the job in relation to document preparation. He then gave the following evidence:
Looking back, is there anything you do differently?---Yes, your Honour, I would try and slow down and use my words better and articulate what I am feeling and thinking, but in relation to arresting someone who is hindering an investigation, I believe I met my legal requirements and so no, I wouldn’t have changed my outcome. Just the way I went about it.
He was then cross-examined by counsel for the prosecution. He was referred to the transcript where he said “If you don’t shut up, I’ll pull you out and arrest you for hinder”. It was suggested to him that that did not involve saying that he was arresting him for hinder. He did not agree that he had not arrested him for hinder. It was suggested that after he said those words Mr Johnson did not utter a word. The officer said that Mr Johnson said something but he couldn’t make it out. He said that Mr Johnson was then asked to produce his driver’s licence because he had formed the view that he had committed the offence of hinder. He said that he did not think it was a legislative requirement to tell the person when he was under arrest. His understanding was that you tell them when they are under arrest when it’s most convenient. He said that he arrested Mr Johnson because he had hindered an investigation. He said he was going through the criteria in his mind that he had to tick off to arrest him or whether it could summons him for the offence. He agreed that he told him that “If you don’t shut up, you’ll be arrested for hinder”. He agreed that Mr Johnson did shut up but said “I then decided no this person has met the level at the bar I need to, for arresting”. The transcript continues:
It was in your head that he was hindering?---That’s correct, your Honour.
You then without telling him, in your head you arrested him for hindering?---That’s correct,your Honour.
Yes?---Yes.
He had not uttered a word to your condition, “If you don’t shut up, I’ll put you out and arrest you for hinder.” He had not uttered any word?---That’s correct, your Honour.
He agreed that he had a right to ask somebody for the driver’s licence if they were driving. He agreed that he didn’t have a right to ask Mr Johnson for his driver’s licence. He said he was going through in his head whether he could summons him to court. If Mr Johnson was not able to satisfy him who he was through photo identification then he would have no choice but to arrest him.
He agreed he did not ask him for his name in the first place. He was asked about his levels of anxiety and said he could not recall at what point on the night his anxiety was at its highest. He was asked whether his anxiety was at its highest when he used the word “fuck” for the first time. He said his anxiety was definitely raised but he could not say whether it was at its peak. He said that he did not normally use the word “fuck” when he first sees a person. He said in relation to the first interaction, that he could hear what Constable McVicar said through the window but could not hear what was coming back. He said:
He was talking to the driver about, does he know how to drive? Why did he not stop when he was told to? He then would turn his attention to someone else in the vehicle and I noticed that through his body had physically turned and he even told him to stop interrupting. Stop, I’m not talking to you. I’m talking to the driver. You’re interrupting me.
He could not say what Mr Johnson was saying to Constable McVicar. He said he recalled Constable McVicar saying on two occasions “Stop, you are hindering me”. He was asked what he said when Mr Johnson asked him why he was under arrest. He said he did tell him why he was under arrest a number of times. He then agreed that he did not tell him why he was under arrest but only that he told him that he was going to arrest him for hinder. He agreed that if there was no first interaction between the complainant and Constable McVicar then there was no justification for his arrest. He said his statement that he would be searched for being a smart arse “is something that came out of my mouth, which is not in line with my thoughts at the time”.
In re-examination Constable Head was asked when would he do a search on a person. He said that he would search them when taking them into custody to ensure that they had nothing dangerous upon them prior to putting them in a police caged vehicle.
The proceedings were then adjourned until the next afternoon when the parties made submissions to the magistrate and the decision was reserved.
The decision of the magistrate
His Honour’s reasons were given orally six weeks after the hearing. They extended over 34 pages of transcript.
His Honour identified some basic principles relating to criminal trials, the charges being faced by each accused and the oral and documentary evidence that was given at the hearing. He then gave a brief overview of the circumstances giving rise to the charges. He referred to the elements of s 24 of the Crimes Act 1900 (ACT) and indicated that:
(j)the use of force by each of the officers was intentional, the use of force being Constable McVicar grabbing Mr Johnson’s right arm and Constable Head grabbing Mr Johnson in a headlock and pulling him out of the vehicle;
(k)both officers then propelled the complainant towards the ground;
(l)when Mr Johnson was on the ground on his stomach the officers pulled his hands back behind the middle of his back and placed them handcuffs;
(m)he was satisfied as the identity of the officers and the identity of the complainant;
(n)he was satisfied that the force was intentional as both officers had given a direction to Mr Johnson to exit the vehicle but the officers applied force to him before he had a reasonable opportunity of doing so; and
(o)he was satisfied that there was no consent by Mr Johnson to what occurred.
He indicated that no assault would occur if the application of force was justified by law. He said that was to be determined by whether or not there was a lawful excuse for the use of force applied by the constables in the lawful performance of their duties.
He indicated that the issue of joint commission was conceded.
In relation to whether or not the assault occasioned actual bodily harm, his Honour referred to authorities on the point and considered some of the evidence in relation to that issue. The Crown case was based upon the complainant suffering pins and needles in his thumb and scratches and abrasions. His Honour reached the somewhat surprising conclusion that the numbness around the thumb and the scratches and abrasions did not amount to actual bodily harm as they were “of a transitory nature”. There is no appeal by the informant in relation to this finding.
In relation to the remaining issue, namely whether or not the assault was excused or justified by law, his Honour identified that the case of the accused was that they were making an arrest of a person who had committed an offence of hindering police in the performance of their duties and resisting police in the performance of their duties.
His Honour then returned to the facts and recorded findings in relation to the basic outline of events, describing the initial interaction with the occupants of the vehicle, the officers being distracted by another young person who had been given the move on direction and then the officers returning to deal with Mr Brewer.
His Honour then addresses the contents of the video. His Honour said:
… the playing of the video evidence tendered through the informant provides cogent evidence that the defendants acted without lawful authority and that the video itself does [not] reveal any circumstance which would give rise to a situation which would warrant the police to exercise their powers to apply force to Mr Johnson in the manner that they did, even if both police officers were factually correct in forming the view that Mr Johnson was hindering Constable Head in his questioning of Mr Brewer.
He also said that the video showed that Mr Johnson was given no time to comply with a direction to exit the motor vehicle and that it could not be said on the video evidence alone that Mr Johnson was resisting arrest. His Honour then went on to explain these conclusions by reference to what appeared on the video.
He then reviewed what is shown on the video up to the point where Mr Johnson is removed from the vehicle saying: “I am satisfied there was no proper basis at law for the application of force by the two constables against Mr Johnson.”
He then reviewed what can be seen on the video concerning Mr Johnston’s conduct when on the ground, finding that he was “entirely compliant” and that there was no resistance by Mr Johnson.
His Honour then summarised his position, stating:
Accordingly, in the two separate phases of the alleged execution of lawful application of force, one for the purposes of hinder, the next for the purposes of resist, I do not accept the evidence of both constables in relation to their justification of the exercise of their lawful powers of arrest through the application of force. I am satisfied the events of common assault is established on the evidence.
He then referred to the threat made by one of the officers to Ms Tongs to arrest her for resisting, his Honour commenting how “over the top” the reaction of one of the officers had become.
His Honour then referred to the absence of an obligation on Mr Johnson’s part to produce his driver’s licence as he was not the driver of the vehicle, although he may have been required to provide his name and address details.
Notwithstanding the conclusions expressed that were based upon the terms of the video, his Honour then summarised over 15 pages of transcript, the oral evidence given by each of the witnesses (Mr Johnson, Mr Brewer, Ms Tongs, Constable McVicar and Constable Head). It is clear from his Honour’s remarks about the content and manner of the evidence of Mr Johnson, Mr Brewer and Ms Tongs that His Honour accepted the evidence as being reliable. In relation to the evidence of Constable McVicar, he said:
But for reasons that will become apparent, I am troubled by the evidence from the Senior Constable. I am not satisfied that I should reject it in whole, however, but I should reject it in part, and I will come to my reasons for that.
It is difficult to discern from his Honour’s reasons precisely where he returned to consideration of that issue. He did express some concern about the evidence given by Constable McVicar that he had made five or six directions to Mr Johnson while he was in the back seat of the vehicle during the first interaction.
In relation to the evidence of Constable Head, his Honour concluded that there was no legal justification for the constable’s direction to “get the fuck out of the car right now”. None of the paragraphs in s 212 of the Crimes Act were applicable. He did not have power to search Mr Johnson under s 207 because the circumstances in that section were not evident. Section 211 permits an officer to request a person to provide his or her name or address and requires the police officer to inform the person of the reason for that request. That applies where the police officer has reason to believe that an offence has or may have been committed, that the person may be able to assist the officer in inquiries in relation to the offence and the name or address of that person is unknown to the officer. His Honour said that although the requirements of s 212(2) were met, Constable Head “simply gives Mr Johnson no opportunity to respond” and therefore there was “no lawful justification in the manner and approach adopted by Constable Head and the execution of all what otherwise may have been lawful authority”.
His Honour then, appearing to summarise the situation, said:
I am not satisfied that there has been any hinder, but more importantly, even if I were satisfied there is simply no opportunity afforded to Mr Johnson to be able to respond to the questions put to him by Constable Head. There is an escalation of the interaction in contact with Mr Johnson without any legal basis by Senior Constable McVicar. I am satisfied that everything that follows having regard to my earlier observations of the video, that he did not provide the constables with any legal justification in the exercise of their powers against Mr Johnson.
His Honour then referred to the provisions of s 221 of the Crimes Act. He said he was not satisfied that Mr Johnson had turned in his seat, moved towards the centre of the vehicle and flailed his legs or body so as to prevent the constables from pulling him from the vehicle. He said that after being warned “if you don’t shut your mouth I will pull you out and arrest you for hinder” Mr Johnson said nothing further that would constitute a hinder.
His Honour appeared to accept Constable Head’s evidence that he had “many things going on in his mind” but that “none of them were properly expressed verbally” and that was largely due to his inexperience. He referred to the portion of the cross-examination where Constable Head agreed that after the warning Mr Johnson had not uttered a further word.
His Honour indicated that it was clear that the final element of the charge of assault was established. In the final parts of his reasons he referred to comments of Penfold J in Crowley v Commonwealth [2011] ACTSC 89; 251 FLR 1 concerning some of the complexities that confront police officers in the performance of their duties.
As may be apparent from the above summary, the structure of his Honour’s reasons makes it difficult to discern the precise chain of reasoning which led to his conclusion. He returned on a number of occasions to critical issues and appears to make findings which are then revisited later in the reasons in a way that is confusing.
Consideration of grounds of appeal
The grounds of appeal will be addressed in the grouping described at [4] above.
The further evidence
This ground of appeal relates to grounds (f) and (g) of the appellants’ Amended Notice of Appeal. During the trial before the magistrate, the prosecution failed to disclose the identity of two eyewitnesses to some or all of the incident: Blake Westbrook and Courtney Keaton. A dot point summary of a police interview with Ms Keaton was also not disclosed. Mr Westbrook and Ms Keaton were subpoenaed to give evidence at the appeal hearing. Only Ms Keaton gave evidence as the parties agreed that Mr Westbrook could not give relevant evidence. The dot point account of her interview with police was tendered.
The Crown consented to further evidence being called for the purposes of the appeal. Ms Keaton gave oral evidence and was cross-examined.
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?
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.
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.
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.
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.
Evidence of the constables’ earlier interactions with the complainant
This appeal ground appears to relate to grounds (a)-(e) in the appellants’ Amended Notice of Appeal. Before the magistrate was evidence of two interactions between the complainant, his companions and police. The video footage of the incident only captures the second incident. The two interactions were separated by police attending to Mr Westbrook and Ms Keaton, the former having been told to move on earlier in the evening.
Counsel for the appellants’ submitted that the magistrate focused disproportionately on the video evidence when deciding whether or not the appellants had lawful justification for that arrest. He submitted that:
Whilst the magistrate did set out briefly the claims of the defendants concerning the first interaction with the complainant, he did not make a clear finding of fact, nor did he outright reject the defendant’s version of events. This inadequate regard of the defendants’ evidence is important because that prior interaction could indeed have demonstrated that the defendants had a lawful justification to arrest the complainant for hindering police.
I agree that his Honour’s reasons are unclear and fail to make appropriate findings of fact. Notwithstanding referring to the evidence of the five or six occasions upon which Constable McVicar said that he had told Mr Johnson not to interrupt him during the first interaction, indicating “concern” about that evidence and indicating that he would look further at it, the balance of his Honour’s reasons do not clearly articulate whether or not he has accepted or rejected it.
This would warrant the setting aside of the decision and the remission of the matter for a new trial if the Crown was required, in order to succeed, to exclude beyond reasonable doubt, the evidence of Constable McVicar and of Constable Head about the context of the earlier interaction. That would be the case if it was necessary for the Crown to exclude the reasonable possibility that Constable McVicar lawfully arrested Mr Johnson for hindering, comprising both his conduct during the earlier interaction with Constable McVicar and his conduct during the second interaction with Constable Head.
The evidence of Constable McVicar was that the combination of Mr Johnson’s conduct when dealing with him and the conduct when dealing with Constable Head provided reasonable grounds for him to believe that Mr Johnson had committed the offence of hindering police and hence, he was justified in making an arrest after he heard Constable Head say “If you don’t shut your mouth I’ll pull you out and arrest you for hinder”. He said:
Your Honour, at that stage when I heard Constable Head speak to the person and say that he’d 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.
There were numerous reasons for the magistrate to have rejected this evidence. They included (but were not limited to) the following.
First, he had found the evidence of each of Ms Tongs, Mr Brewer and Mr Johnson to be reliable. That evidence was inconsistent with the evidence of Constable McVicar and Constable Head as to what happened during the first interaction. The evidence of Ms Tongs, Mr Brewer and Mr Johnson was given without any understanding of the significance of the first interaction and hence was unlikely to have been contaminated by any forensic considerations.
Second, what is heard on the video and his Honour’s findings about the absence of resistance on the part of Mr Johnson are completely inconsistent with the statements made about Mr Johnson’s conduct in the case notes created by Constable McVicar shortly after the event in question. Those case notes include what might be most benevolently described as a gross overstatement of Mr Johnson’s conduct both prior to his arrest and after his arrest. Having the benefit of the video and having made findings beyond reasonable doubt inconsistent with the version of events portrayed in those notes it was readily open to his Honour to conclude that the evidence of the officers was unreliable and driven by a desire to protect themselves in circumstances where they knew that their conduct had been filmed.
Third, had Constable McVicar in fact decided to arrest Mr Johnson because he had hindered police by what he had said, then it is likely that an officer of his experience would have first, told the alleged offender that he was under arrest and second, identified hindering police during the traffic stop as the reason for the arrest. That plainly did not happen. There is no explanation as to why it did not happen. In those circumstances the evidence given by Constable McVicar (and Constable Head) that this was the reason for the arrest was strongly suggestive of a defensive reconstruction of events.
Fourth, the evidence that Constable McVicar decided, when he heard Constable Head referring to hindering him, to arrest Mr Johnson is not consistent with what can be heard on the video. Constable McVicar approaches the car while Constable Head is demanding Mr Johnson’s licence and then telling him to “get the fuck out of the car”. Instead of indicating that he was arresting him, Constable McVicar asked him how old he was. He then tells him to “get the fuck out of the car”. There was no explanation as to why he questioned him about his age or told him to get out of the car rather than simply informing him that he was under arrest.
However, it is not essential to the outcome of this appeal that his Honour had resolved the conflict in the evidence as to what occurred during the first interaction. That is because, as his Honour appeared to conclude, what appears on the video is sufficient to demonstrate that the assault was without lawful authority. That is because the arrest was unlawful for the following reasons.
Following the arrest, Constable McVicar articulated up to three reasons for the arrest: “fail to abide directions, fail to follow instructions and resist police”. At trial and on appeal the submissions of the appellants were that the prosecution had not excluded the possibility that the arrest was lawful because it was an arrest for hindering police in the execution of their duty arising from the combination of the earlier interaction with Constable McVicar and the interaction with Constable Head. The prosecution had excluded each of these possible bases for lawful justification for the assault.
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.
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.
Third, no other basis for an arrest for failure to comply with a direction or instruction was identified.
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.
Section 222 of the Crimes Act provides:
222 Persons to be informed of grounds of arrest
(1)A person who arrests another person for an offence shall inform the other person, at the time of the arrest, of the offence for which the other person is being arrested.
(2)It is sufficient if the other person is informed of the substance of the offence, and it is not necessary that this be done in language of a precise or technical nature.
(3) Subsection (1) does not apply to the arrest of the other person if—
(a) the other person should, in the circumstances, know the substance of the offence for which he or she is being arrested; or
(b) the other person’s actions make it impracticable for the person making the arrest to inform the other person of the offence for which he or she is being arrested.
This provision reflects the common law requirement articulated in Christie v Leachinsky [1947] AC 573; (Christie) at 587-588. This procedure “is for the obvious purpose of securing that a citizen who is prima facie entitled to personal freedom should know why for the time being his personal freedom is interfered with”: Christie at 585. That is for at least two underlying reasons. First, they should be in a position to provide an explanation or provide some other exculpatory explanation: New South Wales v Delly [2007] NSWCA 303; 70 NSWLR 125 (Delly) at [9]. Second, so that they “assess his or her own right to resist an attempted arrest, or to escape from custody on the basis that it is not lawful”: R v Doolan [2001] ACTSC 69 at [14].
Consistently with Christie, the obligation in s 222 must be to state not only a reason for the arrest but the true reason for the arrest: Christie at 587, 592; Johnstone v State of NSW [2010] NSWCA 70; 202 A Crim R 422 (Johnstone) at [56], [77], [80]. Where an arresting officer does not state the substance of the offence for which the person is being arrested than the arrest is unlawful: R v Welch [2009] ACTSC 35; 3 ACTLR 68 at [67]-[68]; Adams v Kennedy [2000] NSWCA 152; 49 NSWLR 78 at [22]-[30]; Delly at [18]-[19], [64]-[65], [101]; Johnstone at [80], [129].
Counsel for the appellants submitted that Mr Johnson knew or should have known the reason for his arrest and hence his clients were absolved from the obligation to tell him the reason for his arrest: s 222(3)(a). That submission may readily be rejected beyond reasonable doubt because of the gap between the earlier interaction and the arrest, and the interactions immediately prior to when the arrest was effected. Even if Constable McVicar’s evidence was accepted at its highest, then the position would be that Constable McVicar told Mr Johnson between four and six times that he was hindering him and that the consequence would be arrest. The interaction then ceased when Constable McVicar walked away to assist Constable Head to deal with Mr Westbrook. He then heard Constable Head make reference to Mr Johnson being arrested for hinder. This must have been a reference to when Constable Head is heard on the video saying “If you don’t shut your mouth I’ll pull you out and arrest you for hinder”. Constable Head then makes the demand for his licence, says that Mr Johnson will be searched “for being a smart arse”, demands his details and demands that he gets out of the car. Constable McVicar at that point does not tell Mr Johnson that he is under arrest. Rather, he asks him how old he is and also tells him to get out of the car. It is at that point at which the door is opened and the arrest commences. Mr Johnson is not told that he is under arrest. Rather, he is told that he is going to be searched “for being a smart arse”, told to provide his details and told to get out of the car. He is neither told the substance of the offence for which he is being arrested nor are the circumstances such that he should know the substance of the offence.
The fact that Mr Johnson did not know the reason he was arrested is made clear by the subsequent interaction recorded on the video in which two things are clear. First, that Mr Johnson asks questions which demonstrate that he does not know why he has been arrested. Second, at no point following his arrest is he informed of the reason now advanced by the appellants to be the reason for his arrest. Rather, the high point of the appellants’ evidence is Constable McVicar’s statement “failure to produce identification, failed to follow police directions, resist police”. Had the true reason for the arrest been the history of previous interactions constituting hindering police, it is very clear that would have been identified at the time, but it was not.
For these reasons the evidence established beyond reasonable doubt that Mr Johnson was not informed at the time of the arrest of the (now asserted) true reason for his arrest and the circumstances were not such that he should have known the substance of the offence for which he was being arrested. The evidence therefore excluded beyond reasonable doubt the possibility that the arrest was lawful.
Fifth (and finally) it is necessary to say something about the third reason given at the time by Constable McVicar for the arrest, namely that Mr Johnson was arrested for resisting police. The first point is that the capacity to arrest upon suspicion of commission of the offence of resisting police could not render lawful the assault upon Mr Johnson involved in his initial arrest, because ex hypothesi, the resistance could only have occurred after that arrest was attempted. It therefore would have provided no answer to the charge which was complete when the officers laid hands upon Mr Johnson without lawful authority. The second point is that the magistrate found that Mr Johnson did not in fact resist. The third point is that the fact that for the reasons given above, the arrest was unlawful, means that the officers were not acting in the execution of their duty: Coleman v Power [2004] HCA 39; 220 CLR 1 at [118]. That means that the offence of resisting police “in the exercise of his or her functions as a public official” under s 361 of the Criminal Code 2002 (ACT) could not be established. Resistance such as that alleged by the appellants would have been lawful: “[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”: McLiney v Minster [1911] VLR 347; 17 ALR 336 at 351; R v Ryan [1890] 2 NSWR (L) 171 at 182, 205. Even if, contrary to the magistrate’s finding, Mr Johnson had resisted police, his conduct would not have been unlawful.
It is also necessary to address a submission made by counsel for the appellants in written submissions filed after hearing.
Counsel for the appellants made reference to the terms of the New South Wales bench book in relation to assault and submitted:
It follows that it is not enough to show that an arrest was unlawful to found a charge of assault in the circumstances (i.e. involving police officers on duty) - what the prosecution need to establish beyond reasonable doubt is that the conduct was without lawful excuse AND each of the appellants were aware that their conduct was without lawful excuse.
Counsel for the appellants was directed to provide any authority in support of his submission. He responded in writing: “I regret I am unable to provide an authority for the submission”. Notwithstanding that statement the submission was not withdrawn.
In the absence of any authority in support of the submission, I reject it. It is sufficient in a case such as the present that the appellants intended to apply or were reckless as to the application of force to Mr Johnson. The prosecution must prove beyond reasonable doubt the absence of lawful justification. It is not also required to prove that the appellants were aware that their conduct was without lawful excuse or reckless as to that fact. If it were necessary to be so satisfied then I would have found that, having regard to the transactions recorded on the video immediately prior to the arrest of Mr Johnson, both appellants were at least reckless as to the fact that their conduct was unlawful.
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 excessive force ground
In relation to grounds (h)-(i) the appellant submitted that his Honour found that the force used by the officers was excessive, despite the point not having been raised by either side at the trial. This is based upon the statement by the magistrate towards the end of his decision that:
There were no circumstances evident on either scenario portrayed within section 221, which would warrant the excessive use of force used by the first application by Senior Constable McVicar, and then the further application by the headlock by Constable Head.
The appellants contended that they were afforded no opportunity to address the claim of excessive use of force, and that the magistrate erred in making these findings based on the video footage without consideration of the prior interaction.
The respondent submitted that if the arrest was unlawful then, by definition, any use of force was excessive. Otherwise, his Honour’s remark was a fleeting one in the nature of obiter dicta. It was relevant only if, contrary to his finding, there had been a hindering of police.
In my view, the comments made by his Honour are merely consequences of his conclusion that when being pulled out of the car Mr Johnson had not been lawfully arrested. As a result, any application of force would be excessive. His Honour was not making a separate point that the arrest was otherwise lawful, but rendered unlawful by the quantum of force used during its execution. For that reason this ground is not made out.
Conclusion
For the above reasons the conclusion reached by his Honour was correct. Under s 218 of the Magistrates Court Act it is appropriate in each appeal to dismiss the appeal and confirm the conviction.
Orders
The orders of the Court are:
1. The order of the Court in Constable Head’s appeal is: Appeal dismissed and conviction confirmed.
2.The order of the Court in Constable McVicar’s appeal is: Appeal dismissed and conviction confirmed.
| I certify that the preceding one hundred and twenty‑eight [128] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 26 September 2019 |
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