Hood-Carberry v The King

[2024] NSWDC 295

District Court

New South Wales

Medium Neutral Citation:

Hood-Carberry v R [2024] NSWDC 295

Hearing dates:

15 March 2024

Date of orders:

15 March 2024

Decision date:

15 March 2024

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Conviction appeal upheld – the convictions and all orders of the court below are set aside

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction

CRIME — Violent offences — Resist/Hinder police officer in execution of duty — Assault police officer in the execution of duty

CRIME — Police powers under LEPRA — Police powers under Bail Act

Legislation Cited:

Bail Act 2013 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:

Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862

Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70

Charara v R (2006) 164 A Crim R 39

Dearman v Dearman (1908) 7 CLR 549

Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50

Director Public Prosecutions v Gribble [2004] NSWSC 926

Fox v Percy (2003) 214 CLR 118

McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298

Category:

Principal judgment

Parties:

Jacob Hood-Carberry (the offender)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
H Dreher solicitor for Aboriginal Legal Service (NSW/ACT)
A Edye solicitor for Public Prosecutions (NSW) (Crown)

File Number(s):

2023/187608

JUDGMENT – ex tempore revised

Introduction

1. After a hearing in the Local Court Jacob Hood-Carberry, was convicted of Resist Police in the Execution of Duty and Assault Police in the Execution of Duty. He appealed those convictions to the District Court.

2. This appeal against convictions involves a rehearing on the basis of evidence given in the original Local Court proceeding. The evidence before the Local Court, including police body worn camera videos, and the transcript of proceedings was put before me.

Basic principles

3. An appeal to the District Court requires demonstration of a factual, legal or discretionary error in order to succeed: McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298. I must be alive to the possibility that misapprehensions and errors of judgment can occur in a Magistrate’s evaluation of evidence: Crimes (Appeal and Review) Act 2001 (NSW), s 18. If error is demonstrated, I am obliged to give the “judgement which in its opinion ought to have been given in the first instance”: Dearman v Dearman (1908) 7 CLR 549 at [561].

4. There is no prohibition on the Court accessing the reasons for judgment in the court below, including the magistrate's findings as to the credibility of witnesses where the magistrate has had the advantage of hearing the oral testimony: McNab at [31]-[73] and [74]-[77]; Charara v R (2006) 164 A Crim R 39. I must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share: Fox v Percy (2003) 214 CLR 118 at [125]-[126].

Uncontested facts

5. Just before midnight on 12 June 2023, a number of police responded to town on the New South Wales South Coast. It is clear from the evidence that was before the learned magistrate that it was a volatile situation. A number of people were involved, and the police were attempting to find out what had occurred and defuse the situation. What occurred so far as the appellant, Jacob Hood Carberry, is concerned is captured on body-worn video of Constable Standley.

6. Constable Standley went through the premises with other police. In the backyard of the adjoining premises, he saw a man he knew to be Jacob Hood-Carberry, the appellant. Hood-Carberry was a few metres below him.

7. Hood-Carberry was asked to come up to the constable. The constable did not want to come down to him.

8. It is clear from all the evidence that Hood Carberry was in the backyard of premises that were not his own. On what limited facts are available to me, it seems fairly clear that he had moved from where the incident under investigation was to those premises.

9. When speaking to the Constable, Hood-Carberry admitted that he was in breach of his bail curfew conditions. It seems clear that Constable Standley knew Hood-Carberry and knew he was in breach of his bail conditions.

10. Hood-Carberry complained of being assaulted. From what I could see, he did have an injury to his head. He later complained of a broken finger.

11. Hood-Carberry did not cooperate with Constable Standley. So, Constable Standley descend to the yard where he was to where Hood -Carberry was.

12. Hood-Carberry did not cooperate with a direction the constable gave him to come with him and move out the front of the premises. Rather, he attempted to move away from the constable. He went into the premises’ laundry and then its garage.

13. In his statement, Exhibit 1, in the court below, par [9], Constable Standley says:

“I started speaking to the accused and whilst doing this he began to walk away from me. I jumped the side fence and approached the accused. The accused was argumentative and would not comply with my direction to come with me out to the front of the house. I removed the accused through the house and walked him out to the street.”

14. The body-worn video adds detail to that bland statement. While both he and the appellant were in the premises, Constable Standley used force to enforce compliance with his direction, “come with me out to the front of the house.” On the recording I heard him say, “Don’t let me punch you again,” or words to that effect. He does not try to talk to Hood-Carberry in order to persuade him to leave the premises. He attempts to use force to remove him. The more force used that was used on him, the more Hood-Carberry responds by further noncompliance.

15. The constable continually asked Hood-Carberry not to resist him. In response Hood-Carberry makes excuses, but it is clear that he is noncompliant with the original directions and continues to be so.

16. Hood-Carberry is then taken out the front where he continues to be noncompliant. The constable then makes number of what, are described euphemistically, as, “distractionary technique strikes” are made. They include a hit to the head with a fist while holding a torch and a leg sweep that brings Hood-Carberry to the ground.

17. Hood-Carberry continually complains about his injured finger and requests an ambulance. He resists being handcuffed. He resists being put into the back of the van. As he is being put into the back of the van, on my review of the recording, he clearly kicks out at Constable Standley.

The Magistrate’s findings

18. Hood-Carberry was later charged. The matter came before Magistrate Dick. His Honour convicted Hood-Carberry, of Resist Police in the Execution of Duty and Assault Police in the Execution of Duty. His Honour’s judgment was succinct. He accepts and summarises the evidence of Constable Standley and the corroborating officer, whose evidence is not in dispute. His Honour concluded (at p 14 of the transcript):

19. “I am quite satisfied the actions of Mr Hood-Carberry [in terms of the assault] were deliberate and not the result of an accident or even recklessness. In relation to the offence I am satisfied that Mr Hood-Carberry knew he was under arrest, he knew the police were executing their duties, he resisted police and he also assaulted police.”

Submissions

20. I have been assisted by the written careful submissions provided to me on appeal by Ms Dreher of the Aboriginal Legal Service and Mr Edye, Director of Public Prosecutions. Mr Edye drew my attention to the decisions of Wilson J in Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862 and Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50.

21. The prosecution submission is that the constable was at all times acting in lawful execution of his duty because it was clear, as the constable said in evidence in the court below, that both he and Hood-Carberry knew he was in breach of the Bail Act 2013 (NSW).

Consideration

22. The appellant was never explicitly told he was under arrest for the breach of Bail Act. The officer said at p 3 of the transcript, in answer to the question:

“Q. Did you tell him he was under arrest?

A. Not to those explicit words your Honour, not until we had him back at the station, we informed the accused the exact reason why he was under arrest.

Q. Why did you not do that at the time?

A. During the interaction I’ve just tried to gain control of the accused. The accused wasn’t free to leave at any point and he’s under my control, tried to be under my control.”

23. In the appellant’s submission, that answer needs to be deconstructed. It is absolutely clear that Constable Standley communicated to the appellant that he was not free to leave at any point. He did this by words and the use of force.

24. Hood-Carberry was not under his control, and it is clear that the appellant did not cooperate with the police officer, as he resisted the attempts by Constable Standley to control him. That resistance continued after he was handcuffed and put in a van. The recording indicates that it included a deliberate strike with the foot, which would constitute an assault.

25. The question for determination in both matters is:

1. Was Constable Standley exercising his police powers?

2. Did the offences occur during the execution of his duty?

26. Police officers have a difficult job. This is particularly so at night in volatile situations where a number of people are involved. They have a duty to investigate exactly what had occurred and who was or was not the victim or the perpetrator of a crime.

27. The execution of duty sometimes requires them to take action to defuse a situation, an example, which well known to me, is Director Public Prosecutions v Gribble [2004] NSWSC 926.

28. Police have obligations under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’), and they have obligations under the Bail Act. The provisions under the Bail Act are different than those under LEPRA. As Wilson J and Rothman J both point out, in respectively Bugmy [2023] and GW, there is a reason for that difference.

29. Bail Act breaches do not always require or allow for a police officer to respond by ticking off a checklist of requirements before acting. If they had to, the grant of conditional bail might not achieve its purposes of protecting others. Regard has to be had to emergency situations. As Wilson J noted, “Laws must be capable of being applied consistently and effectively in a range of situations without the need to read extra words into a statutory provision.”: Bugmy [2023].

30. Here Constable Standley, was faced with noncooperation. He felt that he had to act, and he could not have simply walked away from Hood-Carberry and left him where he was. He had a duty to inquire and investigate.

31. He had a duty if he felt that there was a potential breach of the peace, or that was Hood-Carberry was in a position where lawfully he should not have been, to remove him from those premises. He had a power to arrest under the Bail Act.

32. The question I have to ask is: was he exercising that power at the requisite time? When I read his initial statement, there is no indication that he was exercising any power other than acting as he did because the appellant was argumentative and would not comply with his direction to come with him out the front of the house. He was seeking to remove the appellant from where he was and take him out to the street.

33. Police have no power to assault or arrest people because they are noncompliant with directions without explaining that they are under arrest and why. Police can, and the officer could have, arrested Hood-Carberry for breach of bail conditions, but that is a discretionary power.

34. The mere fact that someone is in breach of their bail conditions does not of itself justify their being assaulted or detained, then retrospectively arrested for the bail breach.

35. Bugmy and GW were situations where it was obvious that the arrest was for the breach, and it was equally obvious the arrest was necessary to prevent further breaches of the Bail Act.

36. There was no reason to arrest the appellant here to prevent further breaches of the Bail Act. The only reason to arrest was to bring a noncompliant Hood-Carberry out the front so that further police investigations as to what had in fact occurred, could be made.

37. It was possible, given the assertions of Hood-Carberry, that he was in fact the victim of the offence who was trying to avoid further assaults, as he had asserted. It was possible that he had committed a further offence. It was possible that all the officer was doing at this particular time was, as he said in his statement, was trying to ensure compliance with a direction to come out the front of the house. But I cannot find that, at that time Officer Standley believed he was exercising a power to arrest lawfully to given him. If he had, defence submit, all he had to say was, “You’re in breach. You’re under arrest.” He just presumed that he had a power to detain, assault and restrain, someone who was not compliant and refusing directions.

38. That presumption may have retrospectively been justified, but it is not at all clear to me that he believed at the time he was exercising any power lawfully given to him under the Bail Act, nor was he complying with his LEPRA requirements. The mere fact that the appellant was in breach of his bail appears to me a retrospective justification for his actions at the time the initial blow was taken, and to which Hood-Carberry responded by resisting.

39. I do not accept the officer was acting in the exercise of his duty under the Bail Act, nor does it appear that he was exercising his powers according to LEPRA.

40. I appreciate the volatility of the situation but with a moment’s thought, he could have defused the matter by telling Hood-Carberry in clear, uncertain terms, not just to, “do what you’re told”, but also the reason why it was essential he do what he was told.

41. Thereafter, no attempt was made to explain to Hood-Carberry why he was being handcuffed, why he was being assaulted, that is subject to strikes, or why he was being put into the police van. Even though the appellant was continually explaining he wanted an ambulance and explaining he was himself the victim of crime.

42. While I have all due sympathy for police acting in a volatile situation, while Constable Standley having run to the scene and been confronted by a noncompliant person who was in breach of their bail, I do not find that at the relevant times he was acting in the execution of his duty.

43. Accordingly, I am not satisfied beyond reasonable doubt either of the offences had been proved. I set aside the convictions and all orders of the court below.

*NOTE: On 25 March 2024 in Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70, an appeal was allowed, from the decision in Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862. The conviction was set aside, and the charge dismissed.

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Decision last updated: 17 July 2024