James v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0252

WARREN JAMES	Applicant
v
THE KING	Respondent

---

JUDGES:	EMERTON P, KENNEDY and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2025
DATE OF JUDGMENT:	24 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 140
JUDGMENT APPEALED FROM:	DPP v James [2023] VCC 2195 (Judge Chambers)

---

CRIMINAL LAW – Conviction – Applicant convicted of three charges of resist emergency worker on duty – Applicant acquitted of assault emergency worker ‘on duty’ – Whether police ‘on duty’ – Police arrest of applicant – Whether arrest lawful – Whether police believed on reasonable grounds that applicant guilty of offence of assault – Whether jury directed sufficiently concerning lawfulness of applicant’s arrest – Whether open to jury to find applicant’s arrest lawful – Directions insufficient – Not open to jury to find arrest of applicant lawful – Appeal allowed – Applicant acquitted.

Crimes Act 1958, ss 31(1)(b) & (2), 458, 462, 462A, 459; Jury Directions Act 2015, ss 11(b)(i), 12, 13, 14 & 15; Road Safety Act 1986, s 16.

M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123, applied.

---

Counsel
Applicant:		In person
Respondent:		Mr J O’Connor
Solicitors
Applicant:	In person
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
KENNEDY JA
BOYCE JA:

Introduction

The applicant was a primary school physical education teacher. He taught at a school in rural Victoria. He drove to work on 25 June 2020 in his Nissan utility, parked, and then went inside the school in order to commence work. The applicant’s utility had registration plates affixed to the front and rear. The plates were not of the usual kind. They each bore the word ‘HALLELUJAH’, written in red. Whilst the applicant was at work at the school (apparently conducting a physical education class on the basketball court), three police officers arrived in two vehicles and parked near to the applicant’s vehicle in the school carpark. One of the police officers began removing the front ‘HALLELUJAH’ plate. He was authorised by law to do so. The applicant became aware of what was happening and approached. He protested at the removal of the ‘HALLELUJAH’ plate. Police informed the applicant of the legal basis for the removal of the plate. The applicant tried to take the plate back from the police. A tug‑of‑war over the plate ensued. Police arrested the applicant. A police officer placed the applicant in a headlock. That police officer alleged that the applicant bit him whilst in the headlock. The applicant was capsicum‑sprayed and threatened with a Taser. The applicant was ultimately handcuffed.
A County Court jury acquitted the applicant of one charge of assaulting an emergency worker on duty. This charge related to the alleged bite. But the applicant was found guilty of three charges of resisting an emergency worker ‘on duty’.[1] Each charge of resist was made referable to each individual police officer. The applicant’s resisting conduct was alleged to be his physical opposition to placing his hands behind his back so that he could be handcuffed. The applicant was sentenced on all charges to an aggregate fine of $1000 without conviction. The judge ordered that both ‘HALLELUJAH’ plates be forfeited.
[1]Crimes Act 1958, s 31(1)(b) (‘Crimes Act’).
The applicant represented himself at trial, and before this Court. He seeks leave to appeal against his convictions. He also seeks to overturn the forfeiture order referred to above and so, also, seeks leave to appeal out of time against his sentence. The applicant has numerous proposed grounds of appeal. We have found it necessary to consider only two areas of substance raised by those grounds; they are, first, whether the jury received appropriate instruction concerning the lawfulness of the applicant’s arrest; and, secondly, whether, had the jury received such instruction, the evidence adduced at trial was able to establish to the required standard that the applicant’s arrest was lawful. Both these areas of substance concern the issue of whether each of the police officers, the subject of charges 2, 3 and 4, were relevantly ‘on duty’.
Given the particular manner in which the prosecution case was left to the jury at trial, and in light of the matters that the applicant placed in issue at trial, we would uphold the applicant’s contentions made in respect of these two areas of substance. We would therefore grant the application for leave to appeal against conviction and allow that appeal. We would acquit the applicant. It is therefore unnecessary to consider the applicant’s proposed sentence appeal. Our reasons for these conclusions are as follows.

Evidence at trial

Introduction

The prosecution adduced oral evidence from Senior Constable Taylor (‘SC Taylor’), Leading Senior Constable Bateman (‘LSC Bateman’) and Constable Laidlaw (‘Const. Laidlaw’). The prosecutor read out to the jury the evidence of witnesses Ms Young and Acting Sergeant Trapnell (‘AS Trapnell’). The applicant did not give evidence.
SC Taylor, LSC Bateman and AS Trapnell were the three police officers who attended at the scene. Ms Young was the Assistant Principal at the primary school where the applicant worked. Const. Laidlaw was the informant. Much of what occurred between the applicant and police was recorded by a body‑worn‑camera (‘BWC’) worn and operated by LSC Bateman. Events were also recorded by a CCTV camera positioned some distance away at the school. What follows is a summary of so much of the evidence that was adduced by the prosecution at trial an appreciation of which is necessary for determination of the issues raised by the applicant. It is convenient to commence with a summary of the contents of the BWC and CCTV footage.[2]
[2]At the hearing of the appeal, the Court informed the parties that it had viewed the BWC and CCTV footage. The applicant encouraged the Court to view the footage. Submissions were made by both parties concerning the contents of the BWC footage. The Court considered it necessary to view the footage, and that there was a real forensic purpose in doing so: see R v ZT (2025) 99 ALJR 676, 692 [86], 693 [88] (Gordon, Edelman and Steward JJ); [2025] HCA 9.

The BWC footage

The BWC footage begins with the applicant speaking to SC Taylor and AS Trapnell, near the front of the applicant’s utility. SC Taylor tells the applicant that he is seizing the applicant’s number plates under s 16 of the Road Safety Act 1986 (‘Road Safety Act’). The applicant responds, telling SC Taylor that this is ‘not a legal act’. SC Taylor then removes the front plate and the applicant calls SC Taylor a ‘thief’. While the applicant and SC Taylor are standing between the applicant’s utility and a police vehicle (with SC Taylor in possession of the front ‘HALLELUJAH’ plate), it appears that the applicant grabs at the plate in an attempt to take it from SC Taylor.
At this point, an altercation occurs between the applicant and SC Taylor. It is difficult to see precisely how this interaction began. It is apparent, however, that within seconds the applicant is placed in a headlock by SC Taylor (the applicant’s head held under SC Taylor’s right arm, with the applicant bent forward). At this stage, SC Taylor has the plate in his left hand. AS Trapnell intervenes to assist SC Taylor restrain the applicant. AS Trapnell appears to remove an implement from his equipment belt with his left hand. One of the police officers can be heard to threaten to ‘spray’ the applicant. The applicant continues to struggle, while being held in the headlock.
SC Taylor then utters the words ‘fuckin’ bite me’, or words to that effect. The applicant is released from the headlock and stands next to his utility. He is held at bay by SC Taylor. It is apparent, by this stage, that the applicant is suffering discomfort to his facial area. He turns away and looks down, as if in pain. He appears disoriented. The applicant can be seen leaning up against the tray of his utility — his back to SC Taylor and AS Trapnell — rubbing his eyes and face and looking down as if in considerable discomfort.
AS Trapnell has the ‘HALLELUJAH’ plate in his possession (which is now somewhat bent out of shape) and he instructs the applicant to ‘put the Leatherman[3] down’. SC Taylor also instructs the applicant to ‘get down’. The applicant responds, ‘no way’. The applicant is asked again to put the Leatherman down, and a police officer can be heard to say ‘get your Taser out’. The applicant, still with his left hand to his forehead and clearly still in some physical distress, then moves forward to the bonnet area of his utility. The applicant is again instructed to ‘put the Leatherman down’ and to ‘get down’.
[3]The Leatherman was the implement used by SC Taylor to unscrew the front plate. It is also referred to as the ‘multi‑tool’.
At this point, the applicant turns to walk away from the front of his utility in the direction of the school; he still has his left hand to his face. As he moves towards the school, SC Taylor grabs the back of the applicant’s shirt to stop him moving away. By this stage, both of the applicant’s hands are at his face and it is evident that he is experiencing a level of distress. SC Taylor says ‘down’; the applicant says ‘no’. LSC Bateman then points what appears to be a Taser at the applicant. Whilst still holding the back of the applicant’s shirt, SC Taylor warns the applicant that he may have the Taser used upon him. SC Taylor says ‘down’. The applicant responds with ‘you are a disgrace’. SC Taylor and AS Trapnell, who are on either side of the applicant, force the applicant to the ground (which appears to be gravel), while LSC Bateman continues to point the Taser at the applicant.
AS Trapnell and SC Taylor push the applicant from behind towards the ground and instruct the applicant — twice — to place his hands behind his back. LSC Bateman then announces that she is putting the Taser away. The applicant is pushed down by AS Trapnell and SC Taylor. He is effectively on all fours on the ground. It seems that, by this stage, LSC Bateman is also attempting to secure the applicant physically whilst he is on the ground. The applicant says, ‘this is ridiculous’.
SC Taylor instructs the applicant to put his hands behind his back and then says, ‘you are under arrest for assault police’. The applicant says ‘no way’, and then another police officer says ‘you bit him’. It may be noted that this verbal instruction from police indicating that the applicant is under arrest occurs at around one minute and 58 seconds from the commencement of the BWC recorded footage. It occurs approximately one minute and 18 seconds from the point at which the physical altercation commenced between SC Taylor and the applicant. SC Taylor then repeats to the applicant that the applicant is under arrest for assaulting police, and that the applicant is to place his hands behind his back.
SC Taylor and AS Trapnell continue to hold the applicant down on all fours. LSC Bateman appears to be on the periphery, attempting to assist the other two police officers in this endeavour. SC Taylor instructs the applicant again, ‘hands behind your back … hands behind your back’. The police officers continue to hold the applicant on the ground. The applicant is held down principally by SC Taylor, but AS Trapnell assists also. LSC Bateman appears, at one stage, to be holding the applicant’s leg. SC Taylor again instructs the applicant to place his hands behind his back, ‘now’. It appears as if the applicant is struggling, and at one point it seems as if he is lying on the gravel. On a further two occasions the applicant is instructed to put his hands behind his back. The applicant responds, ‘I can’t see’.
While this is occurring, it appears that one police officer places his knee on the applicant’s back. A police officer can be heard to say, ‘you’re not getting up, you’re under arrest’. A police officer says, ‘put your hands behind your back and we’ll let you up’. The applicant responds with, ‘let me up’. Again, a police officer says, ‘put your hands behind your back and we’ll let you up’.
At this point, SC Taylor asks LSC Bateman for the Taser. The applicant, who is still being held down, says, ‘let me up please … I just want to stand’. A police officer instructs, ‘hands behind your back’. The applicant says, ‘I want to stand up’ and tries to stand up. SC Taylor attempts to push the applicant back down and says, ‘hands behind your back’. SC Taylor asks for the Taser again and the applicant says, ‘no, no’.
The applicant is then pushed back down towards the ground, with SC Taylor’s left hand on the back of the applicant’s neck. With his right hand, SC Taylor attempts to obtain his handcuffs. By this stage, it is clear that the applicant’s hands are behind his back. SC Taylor then affixes the handcuffs to each of the applicant’s wrists. Some four minutes and five seconds of the BWC footage has, by this stage, elapsed. The applicant can then be seen on his knees, on the ground, looking forward towards the school with his hands handcuffed behind his back.
LSC Bateman then picks up what appears to be the Leatherman from the ground. It is on the ground beside the applicant’s vehicle, but on the other side of the vehicle in comparison to where the physical altercation commenced. AS Trapnell can be heard telling the applicant that he bit SC Taylor and the applicant was lucky that he didn’t get Tasered. The applicant is given some water to drink while handcuffed. LSC Bateman then removes the rear HALLELUJAH plate from the applicant’s utility, and places both plates in a police vehicle. The applicant asks for more water and asks if he can stand up. He tells police, ‘I’m sorry if I upset you’. Police then apply more water to the applicant’s face.

The CCTV footage

As observed above, the CCTV footage appears to be taken from the school. It does not depict all events. It depicts, for instance, the police vehicles but does not show the applicant’s vehicle. There is no sound. SC Taylor can be seen in possession of the front ‘HALLELUJAH’ plate. The applicant can be seen trying to take the plate from SC Taylor. The physical altercation then occurs. SC Taylor and AS Trapnell physically remonstrate with the applicant. From the angle offered by the CCTV footage, AS Trapnell can be seen spraying a substance into the face of the applicant. The applicant then separates from SC Taylor and faces towards his vehicle.

SC Taylor’s evidence

SC Taylor gave evidence that, on the day in question, he was carrying out general duties. He came upon the applicant’s utility parked in the gravel carpark of the primary school. He noticed the red ‘HALLELUJAH’ plates on the applicant’s vehicle. He checked that those plates were not registered on the VicRoads database. He parked beside the applicant’s vehicle. AS Trapnell and LSC Bateman were also present. SC Taylor commenced the process of removing the front ‘HALLELUJAH’ plate. He used a multi‑tool, with a screwdriver, known as a Leatherman. He said in evidence that he was authorised to remove the plate under s 16 of the Road Safety Act.
As he was unscrewing the plate, he noticed the applicant running towards him from the school basketball court. He thought that the applicant called out something like, ‘stop, that’s my property’. The applicant called SC Taylor a ‘thief’. The applicant approached SC Taylor and AS Trapnell. SC Taylor was kneeling in front of the applicant’s vehicle and AS Trapnell pushed the applicant away. SC Taylor said that he felt ‘uncomfortable’ and that the applicant seemed ‘angry’ and ‘really agitated’.
SC Taylor removed the plate and the applicant said, ‘that’s my property, you’re a thief’. SC Taylor told the applicant that he was seizing the plate under the Road Safety Act. The applicant wanted to show SC Taylor some paperwork, but SC Taylor said that he wasn’t interested. SC Taylor went to walk past the applicant with the plate and the Leatherman, he believed, held in one of his hands. SC Taylor said that he was blocked by the applicant in his pathway to the police vehicle.
SC Taylor said that the applicant then lunged ‘sort of at [him] and at the plates’. SC Taylor said that the applicant then ‘started to sort of wrestle with me to get the plates off me’. SC Taylor said that he wasn’t expecting this and that because he wasn’t ready, ‘um the edge of the plate was against my fingers, so it started to sort of cut into my fingers, I guess’. SC Taylor said that he had a small cut on his right hand. SC Taylor demonstrated the location of the cut and said that this was caused by the applicant ‘pulling at the plate’. He said that he let go of the plate and the Leatherman because it was painful. SC Taylor said that the applicant had the plate but that he didn’t know where the Leatherman went. He said that he assumed that the Leatherman was with the plate. But he didn’t see the Leatherman again until after the applicant was arrested.
SC Taylor said that it ‘just sort of escalated from there’. He said that he tried to grab the applicant in a headlock ‘um to sort of gain control, um and to place him under arrest’. SC Taylor then said that the applicant ‘bit me on my right forearm, so I pulled my arm away’. The witness demonstrated, in part by reference to a photograph taken of his arm, the location of the bite. He said that the bite was to the ‘inside aspect’ of the forearm ‘just approximate’ to the elbow. The bite did not cause any lasting injury. The bite ‘was painful, um and it was getting harder’; the applicant was biting down; the witness could feel the applicant’s teeth biting down. The bite did not last long at all. Because of the bite, SC Taylor let the applicant go.
SC Taylor said that he pushed the applicant back with his right hand and he used a small can of ‘OC spray’ that he had in his jacket to spray the applicant. The OC spray is used to ‘subdue’. He used the spray because the applicant had lunged at him, grabbed the plate and bit him on the arm. SC Taylor said that he was ‘concerned for [his] safety’. He spayed the applicant in the face. SC Taylor said that if the spray gets in your eyes then you can’t see anymore and that if it gets in your lungs it makes it harder to breathe. The severe burning caused by the spray could last about half an hour but then it could last for a couple of hours after that.
SC Taylor said that AS Trapnell used the spray as well. SC Taylor sprayed from ‘within a metre’. AS Trapnell sprayed from a similar distance. SC Taylor said that he then stood back because he was also sprayed by AS Trapnell. He said that he then repeatedly asked the applicant to get on the ground. He wanted to arrest the applicant. The applicant refused to comply with SC Taylor’s multiple requests to get on the ground. The applicant then started to walk off, and SC Taylor grabbed the applicant’s shirt. He told the applicant to get onto the ground but the applicant refused. SC Taylor then used his leg to kick, or push, the applicant to the back of his knee in order to ‘drop’ the applicant to the ground. SC Taylor then ‘took’ the applicant to the ground, and once he was on the ground, SC Taylor asked him to put his hands behind his back. He told the applicant that he was under arrest for assaulting police.
SC Taylor considered that he had asked the applicant five or six times to put his hands behind his back, but the applicant did not comply. He said that the applicant ‘struggled’; the applicant was ‘sort of on his side’ and ‘refused to give us his hands, he had them at the front’. SC Taylor said that they ‘were trying to pull [the applicant’s hands] to the back to handcuff him at the back … he sort of wrestled for it’. SC Taylor said that it was ‘policy’ to handcuff a person to the back. It took 30 seconds, to a minute, to handcuff the applicant. He said that police treated the applicant with water to relieve pain caused by the OC spray. SC Taylor treated himself with water as well. After some 20 minutes, the applicant was transported by divisional van to a nearby police station. SC Taylor said that he went to the doctor’s ‘straight after’ to get a tetanus shot.

SC Taylor was then shown the BWC and CCTV footage. He said that it was a ‘big shock’ that things with the applicant turned out as they did.
SC Taylor was then cross‑examined by the applicant. It is necessary to summarise only those parts of the cross‑examination that are of relevance.
SC Taylor said that his skin was broken by the bite to his right forearm. He said that he received a tetanus shot as a response to being bitten. SC Taylor agreed that it was possible that he showed his arm to the Assistant Principal of the primary school. He said that after the bite there was a mark where there had been no mark before. SC Taylor disagreed that it was physically impossible for the applicant to have bitten him, and that any contact with the applicant’s mouth was brought about by the pressure of SC Taylor’s arm applied to the applicant’s face. He disagreed with the proposition that he had lied about the bite because he realised that he should not have placed the applicant in a headlock.
SC Taylor agreed that the applicant had not ‘physically pushed’ him at any point. He agreed that the applicant had not ‘physically’ punched him. SC Taylor did say, however, that the applicant had ‘physically’ grabbed him. When SC Taylor was asked by the applicant to explain ‘the circumstances’, he said:
Ah, when you reached for the plate um, you can see in the footage there that um, we both end up, there’s physical contacts obviously, um, your hands would’ve touched my hands, you can see we made contact on a number of occasions.
SC Taylor said that the applicant had initiated the ‘contact’ — by way of ‘that grab’. He agreed that the applicant had ‘grabbed [him] when [the applicant] grabbed the plate’. SC Taylor also agreed that the applicant had used two hands to grab the plate.
SC Taylor said that he was unsure whether the applicant had taken the Leatherman or not. He agreed that he did not see the applicant take the Leatherman. He couldn’t be sure what happened to the Leatherman after he lost control of it.
SC Taylor said that he put the applicant in a headlock because he was ‘fearful that [he] would be further assaulted’. SC Taylor said that he was assaulted by the applicant before he placed the applicant in a headlock. SC Taylor said that he was assaulted by the applicant ‘when [the applicant] grabbed the plates from [his] hand’. He denied that the applicant made physical contact with him by kicking him ‘at any time’. He agreed that the applicant did not make physical contact by kneeing him.
SC Taylor said that he and the applicant made ‘contact, our arms, shoulders’ and that the applicant initiated that contact. The applicant asked SC Taylor whether he was placed in a headlock because SC Taylor had ‘[felt] contact when [the applicant] grabbed the plates’. SC Taylor answered this question in the following terms:
I just assessed the whole situation. There was aggression shown from the start.
…
Ah, saw you running from the school, shouting at me. You approached with real sort of purpose to your step, you were quick, you came in too close um, you were calling me a thief.
…
Your whole demeanour was agitated. Um, you blocked me, while I was tryin’ to walk back to the divisional van or the police vehicle. You then blocked me again when I tried to avoid you. You then lunged at me, and you pulled the plates from my hand, um yeah.
SC Taylor said that the applicant’s voice ‘was raised’. He said that he applied the headlock with the intention of gaining ‘head control essentially. Ah, with a plan of taking [the applicant] to the ground to arrest [him]’. SC Taylor said his forearm was across the applicant’s chin and chest. He was applying pressure to the applicant’s chin. The applicant’s chin was tucked into his chest and SC Taylor could not get his forearm onto the applicant’s throat. The applicant was ‘moving around’, as if in a scuffle, as was he.
SC Taylor said that the applicant ‘touched and grabbed’ him when the applicant was trying to ‘reach the plate’. SC Taylor believed that the applicant’s intent was to get the plate. However, he did not agree that any contact by the applicant was ‘incidental’ to the applicant grabbing the plate. The witness said ‘You grabbed the plates, and in doing so you, you’re grabbing me’. SC Taylor said that this could be seen on the BWC footage. SC Taylor identified a part of the BWC footage where, he said, ‘you can see your arm’s pushed up hard against mine’ and that this contact was initiated by the applicant. SC Taylor said that he placed the applicant in a headlock ‘to arrest [the applicant]’.
SC Taylor said that he notified the applicant that he was under arrest once the applicant was on the ground. He said that it took this time to notify the applicant verbally that he was under arrest because it was a ‘dynamic situation’: he had ‘just been bitten’ and ‘sprayed’; his ‘adrenaline was pumping’; and his ‘main goal was to secure [the applicant]’. SC Taylor said that ‘it was a pretty full‑on situation’. He said that he could not effect the arrest by the use of ‘mere words’ because the applicant was a ‘threat’.
As to whether the applicant resisted arrest, SC Taylor said, ‘the footage shows that you don’t comply with any directions given’. More specifically, SC Taylor said that ‘after you were told you were under arrest, you refused to put your hands behind your back’. SC Taylor considered that all directions given by him were reasonable in view of the threat that the applicant presented. This threat was constituted by the applicant grabbing the plate, the applicant having ‘lunged’ and grabbed the plate, and by the applicant ‘biting’ the witness. The witness did not believe that the applicant would have ‘fallen over’ if he had complied with the request to put his hands behind his back.
As to the seizure of the plate, SC Taylor said he believed that he was exercising a power conferred by the Road Safety Act. He considered that it was a proportional use of force to place the applicant in a headlock. He said that the reasonable grounds for placing the applicant in a headlock lay in the applicant having assaulted him and the threat that he faced. He agreed, however, that the applicant had not verbally threatened him. SC Taylor characterised the applicant’s assault as the applicant having ‘lunged and snatched the plates from [the witness’] hand’. He considered it ‘proportional’ for OC spray to have been directed at the applicant’s eyes from close range and that he had ‘reasonable grounds’ for the use of that force. He used the spray because the applicant had ‘just assaulted’ him and applying the spray assisted in carrying out the arrest because physical force was not working.
The applicant took SC Taylor to s 9 of the Victoria Police Act2013 (‘Victoria Police Act’) and the functions of police, which include the duty to preserve the peace. The following exchange occurred.
Applicant: So, this is s 9 of the Victoria Police Act, functions of Victoria Police including the following, preserving peace. So that’s um, ah, one of your main responsibilities, [SC Taylor]?
SC Taylor: Yes.
Applicant: So first and foremost is to keep the peace. So, can you tell me how was my private property disturbing the peace?
SC Taylor: Had nothing to do with—
Applicant: Okay?
SC Taylor: —that, Mr James.
Applicant: So, when you arrived at [the primary school at which the applicant was employed], would you say that ah, there was a state of peace existed?
SC Taylor: There was an offence being committed.
Applicant: Ah, was there a disturbance of the peace there at that time?
SC Taylor: No, Mr James.
Applicant: When you arrived, no?
SC Taylor: No, not until you arrived.
Applicant: So, you’re saying not until I arrived. What was your action that cause me to?
SC Taylor: I arrested you, Mr James.
Applicant: M' mm?
SC Taylor: I arrested you, that was my action.
Applicant: What was the — the initiation, what was for the first action?
SC Taylor: Ah, it was after you assaulted me and bit me.
Applicant: No, the first action, the disturb the peace?
SC Taylor: That was when you assaulted me.
SC Taylor agreed that the bite was ‘one allegation’ where the applicant made contact ‘intentionally’ with SC Taylor ‘at any time’. As to any contact between the two when the applicant grabbed the plate, he said:
Well the plate’s only this big. If my hands are on it and your hands are on it there’s probably, of course we’re gonna make contact.
…
It’s clear in the footage that we make contact.
…
Mr James, you made contact with me.
…
When you grabbed the plates.
SC Taylor characterised the applicant’s resistance to being arrested as the applicant’s failure to cooperate with any of his commands.

LSC Bateman’s evidence

On the day in question LSC Bateman was performing patrol duties with SC Taylor, in company with AS Trapnell. AS Trapnell was in a separate vehicle. While SC Taylor was attending to the ‘HALLELUJAH’ plate on the applicant’s vehicle, the witness saw the applicant approaching from the school at a ‘fast pace’, ‘kind of marching over, storming over’. After the applicant arrived the witness activated her BWC.
SC Taylor told the applicant that he was seizing the plates under the Road Safety Act and the applicant ‘wasn’t happy’ about this and wanted to show SC Taylor something. SC Taylor had removed the plate and a ‘scuffle ensued’ — ‘it was all about the number plate’. As the witness put it:
[SC Taylor] had the number plate and [the applicant] was trying to take it from [SC Taylor].
The struggle commenced at the front of the applicant’s car but ended up between the police car and the applicant’s car. It was ‘quite dynamic’ and ‘it just all happened all at once’. The applicant was trying to get the number plate back and ‘it was like it almost became a tug‑of‑war over the plate’. SC Taylor and AS Trapnell ‘were both sort of holding [the applicant] and … I believe they were telling him to get on the ground or get back’.
OC spray was ‘deployed’ at some point. Both SC Taylor and AS Trapnell deployed the ‘small can of OC spray’. SC Taylor said that the applicant had bitten him. This was said before the use of the OC spray. When SC Taylor said this
they were sort of all in very close proximity. Um, it — there was just arms and things flying around it — yeah it was very dynamic and fast‑paced and I couldn’t really get in there because they were sort of all in there …
This ‘struggle’ continued for maybe ’30 seconds to a minute … I’m not sure’. The applicant was not complying with police direction — ‘he was resisting’. When asked to describe how the applicant was resisting, she said ‘they were fighting. They — he wasn’t getting back, he wasn’t getting on the ground …’.
LSC Bateman remembered that either SC Taylor or AS Trapnell said that the applicant had possession of the multi‑tool that had been used to unscrew the plate. This caused her to become concerned for her own safety but she was more concerned for the safety of the other police members. She feared that they were going to get seriously injured. When the applicant was sprayed, the witness ‘sort of copped … secondary exposure’ which ‘sort of’ made her ‘start choking’. The applicant was sprayed in the eyes but he ‘was still sort of fighting through that’.
LSC Bateman said that the applicant ‘still wasn’t getting on the ground’ so she ‘pulled [her] Taser out’. The applicant eventually ended up on the ground, having been taken down to the ground by the two other police officers. Once the applicant was on the ground the witness restrained his legs so that he couldn’t kick out. She was sitting on his legs; she had one on either side holding him down. The applicant was ‘still resisting’; the police were trying ‘to get his hands behind his back to secure him in handcuffs’.
In terms of resisting conduct by the applicant that was directed specifically at the witness, LSC Bateman said:
I was trying to — I believe it was his left arm, I was trying to get his left arm behind his back.
LSC Bateman said that she was unable to ‘do that … because [the applicant] was resisting me’. The applicant was eventually secured by handcuffs at the front of his vehicle. His hands were cuffed behind him. Once he was secured by handcuffs the applicant’s ‘demeanour changed … from being aggressive and irrational’ to being ‘quite subdued’. The applicant was then provided with water to treat the effects of the spray. The applicant was taken to a nearby police station. The witness removed the rear ‘HALLELUJAH’ plate by use of the Leatherman. It had, by this stage, been located on the other (driver’s) side of the applicant’s utility.
Under cross‑examination, the witness said that she did not see the applicant bite SC Taylor. The witness could not remember seeing a mark on SC Taylor’s arm, although she said that she had given evidence at the committal to the effect that she had seen such a mark.
The witness clarified that by ‘fighting’ she meant that the applicant was ‘resisting’. She thought that such resistance was ‘active’ but that she did not know
what [the applicant] was doing because it was so dynamic. There was three of you all in very close proximity and there was just arms and legs and body parts are moving all over the face [sic].
The witness didn’t observe the applicant ‘do any specific thing’. After the spraying of the applicant, the applicant could not be just ‘left alone’, because SC Taylor had alleged that the applicant had bitten him. The witness had heard SC Taylor say that this had happened. She considered that the applicant needed to be ‘secured’ so that he no longer presented as a threat.
In terms of whether the applicant resisted LSC Bateman the applicant put to her that he had been ‘nearly passive’. To this LSC Bateman answered: ‘I don’t need to receive force to be resisted though.’ The witness said that because SC Taylor and AS Trapnell were at the applicant’s ‘top end’, that she ‘went to the bottom end to secure [the applicant’s] legs’.

Ms Young’s evidence

Ms Young’s statement was read into evidence by the prosecutor. She was the Assistant Principal at the primary school. She saw the applicant kneeling by his car with his hands behind his back. She saw two male police officers and one female police officer in the vicinity. One male police officer approached her and the Principal of the primary school. The officer extended his arm towards them so that they could both see it. The officer said that he had been bitten by the applicant, ‘but there was no mark’. The police officer also alleged that the applicant had taken his Leatherman from him. He said that he’d been pepper‑sprayed and that the applicant had been sprayed as well. The witness saw the female police officer pouring water over the applicant’s eyes. She saw the applicant removed in a police divisional van.

AS Trapnell’s evidence

This witness’ statement, and committal evidence, was read to the jury by the prosecutor.
AS Trapnell stated that he arrived at the school carpark with SC Taylor and LSC Bateman. He saw the ‘HALLELUJAH’ plates and saw SC Taylor begin to remove them. The applicant then approached. He had been teaching a class outside. The applicant accused the police of theft. The applicant got close to both male police officers and was acting in an aggressive manner. The witness had to push the applicant away, for their safety. SC Taylor told the applicant that the plates were being removed under s 16 of the Road Safety Act; the applicant said that this was not a ‘legal act’. The applicant repeatedly called SC Taylor a ‘thief’.
According to AS Trapnell, SC Taylor removed the front plate and walked towards the police vehicle. The applicant then ‘lunged’ at SC Taylor and grabbed the registration plate in his hand and they began to ‘wrestle’. The witness grabbed the applicant’s right arm and attempted to get the plate back. As they were ‘wrestling’ the witness heard SC Taylor say that he had been bitten by the applicant. As the witness managed to get the number plate back, he observed that the applicant had managed to get control of SC Taylor’s multi‑tool.
The witness stated that he immediately demanded that the applicant put the multi‑tool down which he refused to do. The witness then deployed his OC spray to the applicant’s face. SC Taylor used his spray at the same time. The applicant continued to struggle and resist both male police officers. They finally managed to gain control of the applicant and SC Taylor informed the applicant that he was under arrest for assaulting police. The applicant was secured by means of handcuffs. He was given water to wash the OC spray from his face and eyes. He was later taken to a nearby police station.
During cross‑examination at committal, AS Trapnell acknowledged that after SC Taylor had removed the applicant’s front plate, SC Taylor was uninterested in anything that the applicant might want to show him concerning the plate. The witness said that he was unaware of what the applicant was going to show them, ‘but nothing would have changed our power to take that plate’. The witness conceded that he was ‘curious’ as to what the applicant wished to show them. He agreed that the plate belonged to the applicant.
The witness said that the reason he deployed the OC spray in the applicant’s face was because the applicant was fighting with police. SC Taylor had said that the applicant had bitten him, and the applicant had SC Taylor’s multi‑tool ‘which has several sharp implements on it’. AS Trapnell said that the last thing that he wanted was for anyone to get hurt. He said that the applicant refused to drop the multi‑tool when asked. He said that his recollection was that he had asked the applicant to drop the multi‑tool before he used the OC spray.
When asked to define ‘wrestling’, AS Trapnell said that as far as he could recall the applicant and SC Taylor had their ‘arms around each other’ and were grappling over the plate. He heard SC Taylor say that the applicant had bitten him. The witness said that he was unable to remember whether the applicant was holding SC Taylor in any way. He did remember that the two were ‘wrestling over the number plate’. The witness believed that the applicant was trying to get control of the plate out of SC Taylor’s hands. The next thing that the witness recalled was that the applicant had the Leatherman in his hand and that the witness told the applicant to ‘put it down’. The applicant refused to do so, so in order for the wrestling to stop ‘[he] deployed [his] OC spray’.
AS Trapnell gave evidence that he did not see the applicant punch, elbow, head‑butt, kick, knee or strike SC Taylor. The witness remembered SC Taylor holding the applicant and that there was a wrestle over the plate. Both men were trying to get control of the plate. The witness said that the applicant was ‘holding’ SC Taylor with his arms; more specifically, ‘not around him, you [the applicant] were trying to grab the numberplate out of his hand’. The witness could not recall whether the applicant got complete control of the plate, but he did remember the applicant ‘getting the Leatherman’.
AS Trapnell could not remember how he gained control of the plate, but believed that he must have taken it from SC Taylor. He said that the applicant did not grab him; nor did the applicant push him. He said that the applicant was starting to get very close to him which made him worry about his own personal safety. He said that he may have pushed the applicant away with his hands (although this was probably at the initial stage). He agreed that the applicant did not push or strike AS Trapnell.
AS Trapnell was then shown the BWC footage, and it was put to him that he deployed the OC spray before becoming aware that the applicant had the Leatherman. The witness said that he was ‘fairly sure’ that the OC spray was used only after the applicant refused a request to put the Leatherman down. He agreed that he got the OC spray out of his pouch when the applicant and SC Taylor were wrestling. The witness agreed that this wrestling was the wrestling for control of the plate when SC Taylor had the applicant in a headlock.

The witness said that he did not see the applicant bite SC Taylor, but he heard SC Taylor complain that the applicant had bitten him. The witness said that he was ‘fairly confident the skin was broken [on SC Taylor’s] forearm. Only a little bit but I do recall seeing it there’. The witness said that he had seen a mark on SC Taylor’s arm as depicted in the photograph.
The witness said that he saw the applicant with the multi‑tool in his hand. He could not recall when or where the applicant may have put this tool down. He agreed that the applicant did not threaten him, or any of his colleagues, with the multi‑tool. When asked whether the applicant had threatened police at the scene, the witness answered:
At the very beginning you were getting in very close proximity to us. It made me start to worry what you were going to do next. Were you going to push us? Were you going to assault us? Were you going to wrestle with us? Like I said before, did you push me, punch me, threaten me verbally, anything like that? No, you didn't. But that doesn’t mean that nothing would have happened without warning.
It was put that the ‘only threat’ presented by the applicant was his ‘close proximity’. The witness answered, ‘and like I said, you were wrestling with my partner, okay?’ When asked what other time the witness felt threatened, he answered:
Well, when you were wrestling with my partner, when you had the Leatherman in your hand I didn't know what your intentions were with that Leatherman.
Later, the witness expanded on this answer:
I was worried for the safety of my partner. You weren’t directing anything towards me, you weren’t threatening me, you weren’t wrestling with me, I was worried for the safety of my partner.

Const. Laidlaw’s evidence

Const. Laidlaw was the informant. He conducted the formal interview with the applicant. The record of interview was played to the jury.
In the interview the applicant said that he was working as a physical education teacher at the primary school where these events occurred. He said that he saw a man tampering with his property. He told the man to leave his property alone, but he was ignored. He organised for another teacher to look after his class, and then went back to the police officer — SC Taylor. He told SC Taylor another couple of times to leave his property alone, but SC Taylor stole his property. The applicant said that SC Taylor then physically assaulted him by putting him in a headlock ‘without cause’. The applicant said that things then got worse. He said that he was then assaulted with a ‘chemical weapon’. As the applicant put it:
It was really quite brutal, the conduct, and it’s unacceptable. Totally unacceptable.
The applicant said that he asked SC Taylor on what authority he was stealing the plates. SC Taylor cited a certain act of Parliament. The applicant said that he told SC Taylor that this was not a ‘valid act’. He said that SC Taylor ‘was not interested at all’ and that was when ‘he completed the theft of my property’. He said that that was when he tried to get his property back. He said that the police were stealing his property but they are not above the law. The applicant said that he had not committed a crime and that SC Taylor’s behaviour towards him was ‘disgusting’ and ‘shameful’.
The applicant denied removing SC Taylor’s Leatherman. The applicant repeated that SC Taylor had placed him in a headlock ‘for no probable cause’ and that this constituted a physical assault. He said that he had the right to defend his property. He said that while he was in the headlock he thought that the Leatherman was on the ground. Again, he denied taking the Leatherman. He said that the Leatherman was on the ground so he did pick it up, but he then put it on the bonnet of his car.
The applicant denied that he had wrestled with SC Taylor. He said that spraying him with a ‘chemical weapon’ also constituted an assault. He said that SC Taylor had him in a headlock. He got out of the headlock, but was then assaulted with a ‘chemical weapon’ by both SC Taylor and AS Trapnell.
The applicant admitted that the ‘HALLELUJAH’ plates had not been supplied by VicRoads. But the applicant contended that these were ‘real number plates’. When asked his reason for resisting arrest, the applicant replied:
They were acting outside of their — of their boundaries. They were outside of their boundaries. ‘Thou shalt not steal.’ They should not be stealing my property. There is no justification for stealing my property. So they’re acting outside of what is expected of anyone … in policing who is enforcing common law — upholding common law. And what was I being arrested for? Is it right?
…
So it’s not right for Senior Constable Taylor to create that situation where he was — he was assaulting me. He’s stolen my property and assaulted me, and he is operating outside of boundaries — outside of his role.
Const. Laidlaw was then cross‑examined by the applicant. The witness said that he saw a red mark on SC Taylor’s arm. He saw this back at the police station. The witness said that there was a ‘slight tearing of the skin’.

The prosecutor’s closing

The prosecutor particularised the basis of the assault charge — charge 1 — as the alleged bite by the applicant to SC Taylor’s arm. As to charges 2, 3 and 4, the prosecutor argued that the jury should focus on the word ‘resist’. He told the jury that ‘resistance is just an ordinary word. It’s given its ordinary meaning as you define it to be, dictionary meaning. It just means resist’. As the prosecutor put it:
And you saw in the video behaviour that constitutes or amounts to resistance. How many times did you hear, ‘Put your hands behind your back’? And why couldn’t the hands be put behind the back? Because [the applicant] was resisting. And that’s what’s said to be the resisting with respect to Charges 2, 3 and 4. Matter for you as to whether it’s there and whether you see it, but it’s an ordinary word and it means what it says.
The prosecutor emphasised that the taking of the plates by the police officers was lawful under s 16 of the Road Safety Act. The prosecutor argued that the applicant was ‘belligerent and intimidating in his physicality before the wrestle started’. The prosecutor emphasised the ‘storming approach over, the finger pointing, the raised voice … the fact that he got so close at one point … that [AS Trapnell] has to push him back’ and that SC Taylor was — after removing the front plate — ‘headed off by the accused’.
But the prosecutor acknowledged that still, by this point, the applicant ‘has committed no crime’. The prosecutor then asked, ‘what happens that starts the fracas?’, answering his own question in the following terms:
It’s the accused grabbing for the plates. Trying to take back from the police something that had been lawfully taken from him. He’s not accepting that. He takes the law into his hands and tries to take the plate, unlawfully, back off the police. That’s what starts all of this.
The prosecutor submitted that what the police did in response was ‘a reaction’. It was not ‘the initiating action’. As the prosecutor put it:
And that’s important because, insofar as people might say they were acting in self‑defence, it’s difficult to maintain a self‑defence position when you start the fight, when you start the issue. This is a ball that was put in motion by the accused and the police reacted to it.
Now, you can’t start the ball rolling and then complain about the way the ball rolls, and that’s what happened here.
…
What you’ve got is reaction to the accused man’s action to initiate the physical exchange that results in the charges that you have to consider.
As to whether police could have carried out an arrest by the use of ‘mere words’, the prosecutor argued:
Mere words weren’t going to work with [the applicant] on that day, evidenced [by] the manner of his approach, the tone of his interacting with police and ultimately the grabbing of the plate without lawful justification, that started this ball rolling in the first instance.
As to the level of force employed by police, the prosecutor submitted:
[W]hat you’ve got here … is a graduated response by the police that executed increasing levels of force to bring the situation under control with him. And no more.
As to the use of the OC spray, the prosecutor argued that police ‘used the least severe option they have at their disposal, when simply physicality was not enough’. The prosecutor argued that the force employed by police was not disproportionate.
The prosecutor contended that police were at all times going about their lawful duty. The prosecutor explained:
[T]hat the illegality, such as it is, is fully in the accused man’s court. By seeking to take back that which was not his anymore, by virtue of law, it created the scene that he now complains about. And that’s now self‑defence. That’s unhappiness with the fact that he was wrong. He didn’t have the power.

The defence closing

In his closing to the jury the applicant argued that ‘the three resist charges rely on the arrest being lawful’. The applicant contended that the arrest wasn’t lawful because he was not guilty of charge 1 and did not assault SC Taylor. The applicant contended that he had been assaulted by being placed in a headlock, by being sprayed with OC spray and by being subjected to ‘excessive force’. He contended that police had stolen his plates, and that he had a right to get them back. He said that SC Taylor’s evidence of having been bitten was a ‘false allegation’. He argued that his arrest was unlawful and that he ‘was just being assaulted’. He also contended that his arrest was unlawful because he had not been informed in a timely manner of the basis for the arrest.

The judge’s charge

In her charge to the jury, the judge gave a separate consideration direction. This was to the effect that each charge should only be considered ‘in light of only the evidence which applies to it’. The judge told the jury:
In this case, for instance, the evidence you heard that is relevant to charge 1 — the charge of assaulting a police officer on duty, is relevant only to that charge and is not evidence that is relevant to your separate consideration of the three charges of resisting police on duty.
The judge then turned to the ‘issues’ that the jury would need to decide. The judge described the elements of charge 1 — the charge of assaulting a police officer by biting. One element requiring proof was that SC Taylor was ‘on duty’. As it was explained, SC Taylor ‘must have been acting lawfully, performing the duties and exercising the powers of a police officer at the time the force was applied’. The judge directed the jury that, as a matter of law, police were authorised to take the applicant’s ‘HALLELUJAH’ plates pursuant to s 16 of the Road Safety Act. The judge said:
In this trial you heard evidence that the police observed false number plates on the accused’s Nissan Ute. I direct you as a matter of law that s16 of the Road Safety Act of Victoria permits the police to take possession of any number plates that they have reasonable grounds to suspect are not being used or were not used in accordance with that Act. You must accept this is what the law provides. You must ignore any argument that the police were not authorised by law to take possession of the false number plates, they allege were on [the applicant’s] vehicle.
But the judge continued:
However, that is not the end of your consideration of whether [SC Taylor] was exercising the powers of a police officer at the time the force was applied. You must consider all of the evidence, including the evidence of what transpired after [SC Taylor] seized the plates. In this regard, you will consider the evidence of [SC Taylor], [LSC Bateman], and the evidence of [AS Trapnell], which was read to you by agreement regarding the circumstances leading to the alleged use of force by the accused. Of course, you will also consider the evidence of the footage from the body worn camera and the CCTV carefully.[4]
[4]Emphasis added.
The judge then turned to the issue of ‘excessive force’. The directions continued:
A member of the police force who uses excessive force is acting in excess of their authority and so is not acting in the execution of their duty. So your consideration of whether the prosecution has proved this element beyond reasonable doubt, will include whether [SC Taylor] used excessive force at the time he placed [the applicant] in a headlock up until the time he released him alleging he had been bitten.
If you find that [SC Taylor] used excessive force, he will not have been performing the duties of a police officer, and this element will not have been satisfied beyond reasonable doubt.
The judge reminded the jury that the prosecutor had argued that the police actions were proportionate in view of the applicant’s alleged belligerence. The applicant had argued that the force used was excessive. The judge instructed the jury concerning the other elements making up the charge 1 offence. The judge also gave directions about self‑defence in respect of charge 1. Reflecting arguments that had been made by the prosecutor, the judge told the jury that
[a] person cannot start an attack, and simply claim that he was then defending himself from the victim’s response to his original aggression …
The judge then turned to charges 2, 3 and 4 — the resist arrest charges. These charges needed to be considered ‘in light of each of those three separate police officers’. The judge instructed the jury that, in order to find the applicant guilty of these offences, they had to be satisfied that the person resisted was a police officer; that the officer was ‘on duty’; that the applicant knew that the person was a police officer, or probably a police officer; that the applicant resisted the officer; that the applicant intended to resist the officer, and that the applicant’s actions were without lawful excuse. It is necessary only to summarise those parts of the judge’s charge dealing with the elements that concern whether the police officers were ‘on duty’.
The judge directed the jury that the police officer in question had to be ‘on duty’ at the time that he or she was resisted. As with charge 1, this meant that police ‘must have been acting lawfully, performing their duties, or exercising the powers of a police officer’. The judge reminded the jury that a member of the police ‘who uses excessive force is acting in excess of their authority and so is not acting in the execution of their duty’.
As to the particular duty or power upon which reliance was placed by the prosecution in proof of charges 2, 3 and 4, the judge said:
In this case, the prosecution argue that the police repeatedly told the accused to put his hands behind his back in order to effect his arrest. The prosecution argues that the accused could not be arrested by mere words, that he demonstrated he would not listen.[5]
[5]Emphasis added.
The judge then directed the jury that:
It is for you to determine whether the police were actually performing their duties at the time [the applicant] was repeatedly asked to put his hands behind his back or whether they used excessive force.

Proposed grounds of appeal

The applicant has raised three grounds of appeal with detailed particulars. It is necessary to set them out in full:
1. The verdict of the jury is unreasonable or cannot be supported having regard to the evidence;
l. The arrest was unlawful; and,
l. There is duplicity of charges where duplicity of charges is not warranted — one charge of assault, one arresting employee of POLICE DEPARTMENT [VlC.], trading as VICTORIA POLICE, yet three charges for one arrest; and,
2. Each and every of the three employees of POLICE DEPARTMENT [VlC.], trading as VICTORIA POLICE, was without reasonable grounds to effect any arrest of [the applicant]; without a warrant; and,
3. An arrest can be effected by mere words — There is no requirement for [the applicant], to be seized or subjected to physical force; and,
4. Arrest is a measure of last resort; and,
5. The prescribed reasons for physical force in effecting an arrest were absent; and,
6. [The applicant], was found ‘not guilty’ by a jury of eleven for the charge of ‘Assaulting an emergency service worker on duty’: The claim upon which the arrest is made is a false claim — entirely without foundation or merit — therefore the arrest is unlawful; the maxim of law states, Out of fraud no action arises [Cowper, 343; Broom’s Max. 349], as such the charges of ‘resisting’ can not stand; and,
7. The arrest must be the subject of a lawful announcement. A man must do everything that a reasonable man in the circumstances would do to inform the man being arrested that they are under arrest: one minute and sixteen seconds elapsed from when [the applicant], was first assaulted by [SC Taylor] until such time that he communicated the arrest; and
8. [SC Taylor] and [AS Trapnell] used excessive force both jointly and severally, when assaulting [the applicant], for around one minute and sixteen seconds prior to [SC Taylor] communicating that [the applicant] … was under arrest; and,
9.The assault of [the applicant], by [SC Taylor] and [AS Trapnell] continued after [SC Taylor] communicated that [the applicant] was under arrest; and,
10. The assault inflicted upon [the applicant], by [SC Taylor] and [AS Trapnell] involved the application of a headlock, the discharge of two cans of Oleoresin Capsicum [O.C.] aerosol into the eyes and face of [the applicant], grabbing, pulling, pushing, squeezing the back of neck, and kicking, and multiple threats to discharge an Conducted Energy Device [CED; TAZER]; and,
11. [The applicant] was severely incapacited [sic] by extreme pain and blindness caused by the O.C. aerosol and sufferered [sic] distress and disorientation; and,
2. All elements of the ‘resist’ charge are not evident; and,
1. The use of excessive force against [the applicant] renders the actions of [SC Taylor] and [AS Trapnell], beyond the limts [sic] of theirs [sic] duties as members of POLICE DEPARTMENT [VlC.], trading as VICTORIA POLICE, they are therefore deemed to be off duty; and,
2. No physical force was applied by [the applicant], to [SC Taylor], [AS Trapnell], or [LSC Bateman], and no claim exists that physical force was applied by [the applicant] to ‘resist’ against [SC Taylor], [AS Trapnell], or [LSC Bateman]; and,
3. Evidence does not exist of the intention to cause harm or inflict pain by the use [of] physical force against [SC Taylor], [AS Trapnell], or [LSC Bateman]; and,
4. Self-defence is a lawful excuse against the use of excessive force: the use of excessive force may be resisted: and
3. [F]or any other reason there has been a substantial miscarriage of justice (CPA 2009 s 276(l)).
1. The jury were not instructed as to the elements that constitute a lawful arrest and conversely what elements would make an arrest unlawful; and
2. The jury were mislead [sic] that, ‘the term “resist” is an ordinary English word. It is up to you [jury] to determine whether [the applicant’s] acts amounted to resistance …’; however, physical force must be applied, and, with the intent to cause harm or pain; and,
3. The jury were mislead [sic] by the judge when she stated, ‘self‑defence is not a lawful excuse for “resist”’; and,
4. The ‘Forfeiture order’ made by [the sentencing judge] for the private property of [the applicant] is arbitrary and unrelated to the charges of ‘resist’; and,
5. The private property made subject to the ‘Forfeiture order’ is not ‘tainted property’; and,
6. The ownership of the private property made subject to the ‘Forfeiture order’ is undisputed and resides with [the applicant].
As indicated above, it is necessary to consider only certain aspects of the applicant’s proposed grounds: the sufficiency of judicial direction concerning the lawfulness of the applicant’s arrest, and the sufficiency of the evidence adduced by the prosecution to support the lawfulness of the arrest.

Given the particular manner in which the prosecution case was left to the jury in this case, if there was error in the directions concerning the lawfulness of the applicant’s arrest, and if the evidence adduced by the prosecution could not establish that the applicant’s arrest was lawful, then the jury’s conclusion that police were relevantly ‘on duty’ when they arrested the applicant must be called into question. It was, of course, necessary for the jury to conclude that the police were ‘on duty’ in order for the applicant to be convicted of the resist arrest charges.

Analysis — Directions to jury

‘on duty’ — Lawfulness of arrest — Reasonable grounds[6]

[6]Proposed ground 3.1.

The applicant submitted that it was apparent, from the manner in which he conducted his defence at trial, that he had placed in issue whether at any stage he had been lawfully arrested. He submitted that he had placed in issue whether he had assaulted SC Taylor when he sought to regain control of the ‘HALLELUJAH’ plate.[7]
[7]As he said in his record of interview, the applicant alleged that he had been placed in a headlock ‘without cause’ or ‘for no probable cause’. He denied biting SC Taylor.
The applicant contended that he was assaulted by being placed in a headlock by SC Taylor, and by being sprayed with capsicum spray by both SC Taylor and AS Trapnell. The applicant denied biting SC Taylor. He contended that any physical resistance that he had offered police, when police tried to force him to the ground and handcuff him, was a proportionate response to what was a continuing assault committed upon him by police. In short, the applicant submitted that he had placed in issue whether police were, at any stage, ‘on duty’ in the sense that there existed ‘reasonable grounds’ justifying a belief held by police which warranted him being placed under arrest. This issue, the applicant submitted, was quite separate from whether the force employed by police in arresting him was excessive.
The applicant submitted that the judge’s directions to the jury concerning whether the police officers were ‘on duty’ invited the jury to assess this particular element solely by reference to whether those officers had employed excessive force. The judge’s directions did not invite the jury to consider whether there were lawful grounds for the applicant’s arrest in the first place. The applicant further submitted[8] that it was essential the jury be directed to consider whether lawful grounds for his arrest existed, that is, whether police believed on reasonable grounds that the applicant had committed an offence.
[8]In accordance with his proposed ground concerning an ‘other reason’ why there had been a substantial miscarriage of justice, namely, that ‘[t]he jury were not instructed as to the elements that constitute a lawful arrest and conversely what elements would make an arrest unlawful’.
The respondent acknowledged that the jury had not been invited to consider whether there were lawful grounds for the applicant’s arrest, in the sense that there existed reasonable grounds justifying a belief by police that the applicant had committed an offence. The respondent contended, however, that the judge’s failure to give a direction about the need to consider the lawfulness of the arrest did not result in a substantial miscarriage of justice. The respondent contended that had the direction about the lawfulness of the arrest been given, the jury would inevitably have concluded that there was a lawful basis for the applicant’s arrest, and thus that police were relevantly ‘on duty’.
Consideration of the applicant’s identification of error calls attention to the particular way in which the prosecution case was left to the jury. For the moment, our analysis will focus on the actions and state of mind of SC Taylor. How the respective positions of AS Trapnell and LSC Bateman might impact upon matters will be considered later in these reasons.
Given that SC Taylor was authorised to take possession of the applicant’s ‘HALLELUJAH’ plate under s 16 of the Road Safety Act, it may be accepted that he was acting in execution of his duty ‘from the moment he embark[ed]’ upon this task; and that he ‘continu[ed] to act in execution of that duty for as long as he [was] engaged in pursuing the task and until it [was] completed, provided that he [did] not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein’.[9]
[9]Re K (1993) 71 A Crim R 115, 120 (Gallop, Spender and Burchett JJ).
The general functions of police are described in s 9 of the Victoria Police Act. Section 51(a) of the Victoria Police Act confers upon police officers the ‘duties and powers of a constable at common law’; and s 51(b) invests a police officer with ‘any duties and powers imposed or conferred on a police officer by or under this or any other Act or by or under any subordinate instrument’.[10] In R v Waterfield,[11] Ashworth J made the following observations concerning the duties of police officers:
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
Thus, while it is no doubt right to say in general terms that police constables have a duty to prevent crime and a duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of a private person, the powers of constables are not unlimited.[12]
[10]See Crimes Act, s 31(2A); Sentencing Act 1991, s 10AA(8), (9)(a): where the terms ‘emergency worker’ and ‘emergency worker on duty’ are defined.
[11][1964] 1 QB 164 (‘Waterfield’).
[12]Ibid 170–1 (Lord Parker CJ, Ashworth and Hinchcliffe JJ).
Sections 458 and 459 of the Crimes Act confer upon a police officer the power of arrest of a person without warrant. For an arrest under s 458(1)(a), it is necessary[13] that the person carrying out the arrest ‘find[]’ the person to be apprehended ‘committing’ an indictable or summary offence. Section 462 extends the expression ‘finds committing’ in s 458(1)(a) to ‘the case of a person found doing any act or so behaving or conducting himself in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence’. Section 459 authorises a member of the police force to arrest a person that he or she believes on reasonable grounds ‘has committed’ an indictable offence.[14] Under s 459, the person carrying out the arrest must have believed that a particular indictable offence occurred, and not simply any indictable offence.[15] ‘Reasonable grounds’ requires the existence of facts which are sufficient to induce the belief in a reasonable person,[16] and a belief is a more certain state of mind than a suspicion.[17] A belief involves an ‘inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances leave something to surmise or conjecture’.[18]
[13]Albeit not sufficient: see s 458(1)(a)(i)–(iv).
[14]In this case no material distinction need be drawn between ‘has committed’ and ‘finds committing’ (in the sense in which the meaning of that latter expression is extended by s 462A).
[15]R v Vollmer [1996] 1 VR 95, 122 (Southwell and McDonald JJ, Ormiston J agreeing at 175).
[16]George v Rockett (1990) 170 CLR 104, 112.
[17]Ibid 115.
[18]Ibid 116.
It was not disputed before this Court that consideration of what police were ‘actually doing’, in the sense described in Waterfield, relevantly commenced in this case with the placement of the applicant in a headlock.
It could perhaps have been contended at trial that SC Taylor was justified in arresting the applicant on the basis of a belief held by him, on reasonable grounds, that by attempting to regain possession of the ‘HALLELUJAH’ plate, the applicant had committed the offence of obstructing police ‘on duty’.[19] Alternatively, there may have been some other source of power which authorised his actions.[20] It is unnecessary to consider whether such avenues may have been properly open at trial to the prosecution. As will be seen, this was not the way the prosecution case was left to the jury.
[19]Crimes Act, s 31(b).
[20]And see Kershaw v The King [2024] NSWCCA 27, [78] (Leeming JA) (‘Kershaw’).
In the present case, beyond instructing the jury that SC Taylor was authorised to take possession of the ‘HALLELUJAH’ plate, the judge gave the jury no direction about any precise ‘duty’ or ‘power’ exercised by police which might have permitted SC Taylor to place the applicant in a headlock.[21] In determining whether SC Taylor was on ‘duty’ at the time that he placed the applicant in a headlock, the jury were directed simply to consider whether police were ‘lawfully performing the duties and exercising the powers of a police officer at the time the force was applied’.[22] And, in considering this issue, the jury were expressly invited to consider the police evidence, including in particular, the evidence of SC Taylor.
[21]See Crimes Act, s 31(2A); Sentencing Act 1991, s 10AA(9)(a).
[22]Emphasis added.
Importantly, the only evidence given at trial that related to a particular ‘power’ or ‘duty’, the exercise of which might justify SC Taylor placing the applicant in a headlock, was SC Taylor’s evidence of his belief that he had been assaulted by the applicant when the applicant attempted to take control of the ‘HALLELUJAH’ plate that had been removed from the front of his utility. This was when the applicant and SC Taylor engaged in a tug‑of‑war over the plate. SC Taylor said that he had reasonable grounds for the belief that he had been assaulted; and it was this belief — on SC Taylor’s account — which permitted SC Taylor to ‘arrest’ the applicant by placing him in a headlock.
No other ‘duty’ or ‘power’ justifying the placement of the applicant in a headlock was described to the jury. As will be seen, it was the exercise of this particular power, grounded in this particular belief on SC Taylor’s part, that was ultimately relied on by the respondent, before this Court, to justify SC Taylor placing the applicant in a headlock.
Moving, then, to the particular ‘duty’ or ‘power’ upon which the prosecution relied in proof of charges 2, 3 and 4 (the applicant’s physical resistance to placing his hands behind his back so that he could be handcuffed). This was — again — the performance of the police power of arrest. It is clear that this second stage of the applicant’s arrest was said to be justified — again — by SC Taylor’s belief that he had been assaulted (including his belief that he had been bitten by the applicant).
As to this second stage of the applicant’s arrest, SC Taylor alleged that he was bitten by the applicant after he placed the applicant in the headlock. Capsicum spray was applied to the applicant either after,[23] or perhaps at the time of,[24] the alleged bite. The protagonists then separated. Police then forced the applicant to the ground, and attempted to place his hands behind his back so that the applicant could be handcuffed. This was a process that the applicant physically resisted. SC Taylor described this as an arrest.
[23]According to the police evidence.
[24]As suggested by the BWC footage.
Given, therefore, the particular manner in which the prosecution case was left to the jury, for SC Taylor to have lawfully placed the applicant under arrest, he must at least have believed, on reasonable grounds, that the applicant was guilty of the offence of assault. A person who has been arrested unlawfully may use reasonable force to resist such arrest in self‑defence.[25] Although, generally speaking, a police officer may commit an unlawful act and yet still be ‘on duty’,[26] in the particular circumstances of this case, where the only police ‘power’ or ‘duty’ described in the prosecution case was the police power of arrest (grounded in SC Taylor’s belief that he had been assaulted by the applicant), if this arrest was unlawful then SC Taylor cannot have been ‘on duty’.
[25]See, for example, Kenlin v Gardiner [1967] 2 QB 510, 518–19 (Winn LJ, Widgery J and Lord Parker CJ agreeing at 520); Bales v Parmeter (1935) 35 SR (NSW) 182, 186 (Jordan CJ).
[26]See Nevill v Halliday [1985] 2 VR 553.
Authority allows for the possibility that an arrest may be valid if the arresting officer misapprehends a lawful basis for the arrest and mistakenly relies on a basis that is unlawful.[27] An arrest may also be valid, in certain confined circumstances, if a lawful basis for the arrest is not brought, or not brought with sufficient precision, to the attention of the person arrested.[28] It is unnecessary — in this case — to consider this authority. At no stage at trial, or ultimately before this Court, was it contended by the prosecution that SC Taylor had misapprehended a lawful basis for the applicant’s arrest and mistakenly relied on a basis that was unlawful. Nor was it ever acknowledged by the prosecution that SC Taylor had failed to bring a lawful basis for the applicant’s arrest to the applicant’s attention. Indeed, to the contrary. Given the manner in which argument on this appeal was presented, it is also unnecessary to decide whether on appeal it is permissible for the prosecution to rely on a basis justifying an arrest that was not relied upon at trial. As will be seen, in the circumstances of this particular case any such approach could have made no difference to the outcome of this appeal.
[27]Warke v Daire [1983] 32 SASR 321. See, also, Kershaw [2024] NSWCCA 27, [78] (Leeming JA).
[28]Christie v Leachinsky [1947] AC 573, 587–8 (Viscount Simon).
Before this Court it was not submitted by the respondent that any police ‘duty’ or ‘power’ — other than the police power of arrest — justified SC Taylor’s physical restraint of the applicant. And, given the manner in which the prosecution case had been left to the jury, it was not ultimately apparent that the respondent sought to justify the applicant’s arrest on any basis other than the fact of SC Taylor’s belief that he had been assaulted by the applicant. So much is evident from the following exchange taken from the oral argument before this Court. The respondent’s counsel was, at this stage, dealing with whether it was inevitable that the applicant would have been convicted should the Court uphold the applicant’s present contention of error.
[Respondent’s counsel]: The next submission we make is that if this Court comes to the view that that direction was inadequate in the circumstances, nevertheless there was no substantial miscarriage of justice because conviction was inevitable and on the question of the validity of the exercise of arrest powers, 458 being the relevant section that was referred to multiple times by the prosecutor, 459 also had a role to play but the question devolves to the same one, whether there is a reasonable belief that an offence has been committed. A jury would inevitably have found, in our submission, that there was a reasonable basis to believe that [the applicant] had committed an offence in that first altercation.
Boyce JA: What offence, given the evidence of [SC Taylor]?
[Respondent’s counsel]: Given the evidence of [SC Taylor], I have to accept that the subjective belief he held was that an offence of assault had been committed.
Boyce JA: Does he have a reasonable basis for that belief, which is that there’d been an assault.
[Respondent’s counsel]: That there was an assault, your Honour.
Boyce JA: Yes.
Kennedy JA: Where’s his reasonable basis then?
[Respondent’s counsel]: The reasonable basis is having personally been involved in the confrontation with [the applicant].
When the respondent’s counsel was pressed on whether it was inevitable that the alleged bite provided reasonable grounds for SC Taylor’s belief that the applicant had committed an assault, counsel responded:
[Respondent’s counsel]: To be clear, I think I’ve made a secondary position. That is there was a reasonable – the jury would’ve inevitably found there was a reasonable belief that Taylor had been assaulted.
Emerton P: Either by being bitten or otherwise.
[Respondent’s counsel]: That’s right, your Honour.
Thus, given the manner in which the prosecution case was left to the jury, and was defended by the respondent in this Court, in determining whether SC Taylor was ‘on duty’ the jury were at least required to consider whether they had a reasonable doubt that there were reasonable grounds for SC Taylor’s belief that — in trying to wrest control of the ‘HALLELUJAH’ plate — the applicant had assaulted him.
Once it is appreciated that the relevant ‘duty’ or ‘power’ left to the jury by the prosecution said to justify the restraint of the applicant was the police power of arrest arising from SC Taylor’s belief that he had been assaulted, the applicant’s submission that he challenged the lawfulness of this arrest must be accepted. It is clear from the applicant’s version of events in his record of interview, and from the manner in which he cross‑examined police witnesses at trial (in particular, SC Taylor), that the applicant challenged the lawfulness of his arrest. His case was that his arrest was unlawful, in part, due to an absence of support for SC Taylor’s belief that the applicant had assaulted him.
On this basis, the jury should have been directed to consider whether there were lawful grounds for the applicant’s arrest.
However, no such direction was actually requested at trial.
Part 3 of the Jury Directions Act 2015 (‘JDA’) is entitled ‘Request for Directions’. Had the applicant been represented at trial, defence counsel would have been required, pursuant to s 11(b)(i) of the JDA, to inform the trial judge whether ‘each element of the offence charged was in issue’. Defence counsel would then have been required to request that the trial judge give, or not give, to the jury ‘particular directions’ in respect of the ‘matters in issue’.[29] The judge would have been bound to give the direction, had it been requested, unless there were ‘good reasons for not doing so’.[30] However, as the applicant was unrepresented at trial, the judge was required to comply with Part 3 of the JDA
as if the accused had informed the trial judge that all matters referred to in section 11(b) were in issue and had requested every direction that it was open to the accused to request under section 12, had the accused been represented by a legal practitioner.[31]
[29]JDA, s 12.
[30]Ibid s 14.
[31]Ibid s 13(1).
Even in the instance of an unrepresented litigant, the judge retained the ability not to give a particular direction if the trial judge considered that ‘(a) there are good reasons for not giving the direction; or (b) it is otherwise not in the interests of justice to give the direction’.[32]
[32]Ibid s 13(2).
Given the centrality to the applicant’s trial of the lawfulness of his arrest (and, in particular, whether police believed on reasonable grounds that the applicant had committed the offence of assault), we do not consider that there were ‘good reasons’ for not directing the jury to consider whether there were lawful grounds for the applicant’s arrest. Nor — for these reasons — do we consider that it was not in the interests of justice to give such a direction.

In those circumstances, the applicant’s contention of error must be upheld. It was necessary for the jury to receive directions concerning the lawfulness of the applicant’s arrest. Given the manner in which the prosecution case was left, it was necessary that the jury be directed that before they could conclude that SC Taylor was ‘on duty’ the prosecution needed to establish — beyond reasonable doubt — that there were reasonable grounds for a belief held by SC Taylor that the applicant had committed the offence of assault. The jury received no such direction.
In the result, there has been an irregularity in, or in relation to, the trial. However, it remains to consider whether this gave rise to a substantial miscarriage of justice.[33]
[33]Criminal Procedure Act, s276(b)
For the reasons developed further below, it is clear that the absence of the direction was an error or irregularity that may have affected the result of the trial. In such a case there will be a substantial miscarriage of justice unless the respondent establishes that the conviction was inevitable.[34] It becomes necessary, then, to consider the respondent’s submission that such error did not produce a substantial miscarriage of justice because, even had the necessary direction been given, it was inevitable that the jury would have found that there were lawful grounds for the applicant’s arrest and that there were reasonable grounds for SC Taylor’s belief that the applicant had committed the offence of assault.
[34]Karam v The King [2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA), applying Baini v The Queen (2012) 246 CLR 469.
Taking the matter in stages, we consider that it was far from inevitable that the jury would have concluded that there were reasonable grounds for SC Taylor to believe that the applicant had assaulted him. Focussing upon the moment when the applicant initially attempted to take the ‘HALLELUJAH’ plate from SC Taylor, it is enough to note that the BWC footage (as well as an appreciation of the police evidence) shows that the applicant’s sole focus and intent was to regain possession of the plate. The applicant entered into a tug‑of‑war with SC Taylor over the plate. The evidence is clear enough that, at all material times, both of the applicant’s hands were pulling on the plate. Any other contact between the protagonists seems entirely incidental.
Then there is the alleged bite. The bite was alleged to have been inflicted after the applicant was placed in a headlock, and either before, or at the time of, the deployment of capsicum spray to the applicant’s face. This bite was said to provide reasonable grounds for SC Taylor’s belief that he had, yet again, been assaulted. It was said to provide justification for the second stage of the arrest. But the jury acquitted the applicant of the assault charge based on the bite. In the circumstances of the present case, and as will be described in greater detail below, that acquittal might be thought to have created a significant obstacle to the jury being satisfied, beyond reasonable doubt, that the bite provided reasonable grounds for SC Taylor’s belief that he had been assaulted.
Moreover, even if something in the nature of the bite had actually occurred, there was at least a real question concerning whether the prosecution could prove — beyond reasonable doubt — that such an act was other than a proportionate response to what was already a potentially unlawful act by police in placing the applicant in a headlock (and perhaps, also, subjecting him to capsicum‑spray). In these circumstances — and particularly in view of the acquittal on the assault charge — it could hardly be said that the jury would inevitably have concluded (had they been directed to consider this issue) that SC Taylor believed on reasonable grounds that he had been assaulted by the applicant even after the applicant had been placed in a headlock.
But even if it was inevitable that the jury would, in the absence of a direction concerning the lawfulness of the applicant’s arrest, have found reasonable grounds for SC Taylor’s belief that the applicant had committed the offence of assault, or perhaps even the offence of obstruction of police on duty,[35] we do not consider that it was inevitable that the jury would have found SC Taylor to have been ‘on duty’ for the purposes of charges of which the applicant was found guilty. In light of the applicant’s acquittal of the assault charge, had the jury received proper instruction concerning the lawfulness of the applicant’s arrest[36] we consider it to be far from inevitable that the jury would have found that the force used — the placement of the applicant in a headlock, the use of capsicum spray and his detention in handcuffs — was not disproportionate to the objective of arresting him. Had the prosecution case been characterised instead as arrest for the offence of obstruction, the prosecution would have had to contend with the fact that this particular offence was not the offence brought to the applicant’s attention when he was informed of the reason for his arrest.
[35]The only other offence hypothesised in argument in this Court which might perhaps have provided a basis for SC Taylor’s belief that an offence had been committed.
[36]Be it on the basis of assault or the offence of obstruction.
Thus, if the lawfulness of the applicant’s arrest was to be sourced in the arrest performed by SC Taylor, we do not accept the respondent’s submission that the judge’s failure to direct the jury in the manner discussed did not give rise to a substantial miscarriage of justice. More particularly, we do not accept that it was inevitable that, had the direction sought by the applicant been given, the jury would have been satisfied of the existence of a belief on SC Taylor’s part which justified the applicant’s arrest or that SC Taylor was otherwise relevantly ‘on duty’.[37]
[37]Ibid [216] (d).
It is at this point that the respective roles of AS Trapnell and LSC Bateman need to be considered. In oral submissions, the respondent initially suggested that if it was not inevitable that the jury would have found SC Taylor’s arrest to be lawful, it was nevertheless inevitable that the jury would have found both AS Trapnell and LSC Bateman to have possessed a belief on reasonable grounds that the applicant had committed the offence of assault. It was submitted that this was so because these two officers overheard SC Taylor say that he had been bitten. But counsel for the respondent did not ultimately pursue this line of argument. The respondent conceded that it was no part of the prosecution case at trial to contend that the jury might, as it were, have differentiated between the resist arrest charges referrable to the individual police officers. So much emerges from the following exchange.
Boyce JA: So can we at least take it that you’re not seeking to compare and contrast, as it were, between the charges in defending or in presenting your case?
[Respondent’s counsel]: No, on reflection, no, your Honour, given the way in which the trial was conducted. I’ve attempted to go down that path I must say on a couple of occasions on a purely conceptual analysis.
Boyce JA: Yes.
[Respondent’s counsel]: But your Honour quite rightly makes the point that’s not how the trial was conducted.
Boyce JA: Sure, thank you.
…
[Respondent’s counsel]: If the Court is against me in relation to [SC Taylor], that would at least be in part because there was no reasonable basis to believe that the bite occurred.
Boyce JA: Yes.
[Respondent’s counsel]: Conceptually, it may well be the case that the other officers had a reasonable belief but in circumstances where the prosecutor did not go to the jury on the basis that well even if you’re not satisfied regarding Taylor, you might find the applicant guilty with respect to the other two. I don’t make that submission. It would be artificial having regard to how the trial was conducted.[38]
[38]Emphasis added.
Thus, the respondent may be taken to have accepted that the trial proceeded on the basis that the ‘duty’ exercised by LSC Bateman and AS Trapnell was concerned with assisting in the performance of SC Taylor’s arrest. If SC Taylor’s arrest was without legal justification, then neither AS Trapnell nor LSC Bateman could be said to have been ‘on duty’ at the stage that they offered such assistance.[39] It was not suggested that AS Trapnell or LSC Bateman were executing a ‘duty’ or ‘power’ separate to, or independent of, the exercise of SC Taylor’s power of arrest.[40] Certainly the jury received no instruction, and heard no evidence, that pertained to any separate, or independent, exercise of such a ‘duty’ or ‘power’.
[39]Nguyen v Elliot (1995) 19 Crim LJ 342; Coleman v Power (2004) 220 CLR 1, 58 [120] (McHugh J); [2004] HCA 39. Cf Kershaw [2024] NSWCCA 27, [76] (Leeming JA, Wright J agreeing at [129], Wilson J agreeing at [130]). It was proper for the respondent’s counsel to adopt this position. It reflected how the applicant’s trial was run. As the prosecutor said when he objected to the applicant’s cross‑examination of LSC Bateman (at a point when the applicant put to LSC Bateman that she could have carried out the applicant’s arrest by the use of ‘mere words’): ‘She’s not the arresting officer.’ And, at another point in the applicant’s cross‑examination of LSC Bateman, the prosecutor objected, and declared: ‘It’s [SC Taylor] that’s making the arrest.’
[40]Such as the police duty to keep the peace or AS Trapnell’s and LSC Bateman’s own individual power of arrest.
We are therefore satisfied that the failure to direct the jury to consider the lawfulness of the applicant’s arrest gave rise to a substantial miscarriage of justice. Such a finding would normally warrant a re‑trial; that is, unless it can at least be established that even had the jury received the direction that ought to have been given, it still would not have been open to the jury to be persuaded that police were ‘on duty’ on the basis that SC Taylor had reasonable grounds for believing that the applicant had committed the offence of assault.

Analysis — Unsafe and unsatisfactory

‘on duty’ — Lawfulness of arrest — Reasonable grounds[41]

[41]Proposed grounds 1.1, 1.1.2 and 1.1.6.

Having submitted that whether police were relevantly ‘on duty’ necessarily entailed determining whether SC Taylor’s arrest of the applicant was lawful, the applicant further submitted that the jury would necessarily have found that the prosecution evidence was unable to sustain a finding, beyond reasonable doubt, that there were reasonable grounds for SC Taylor’s belief that he was assaulted by the applicant and was relevantly ‘on duty’. Again, a major premise in the applicant’s argument was that it was not open to the jury to find that he had resisted a lawful arrest in circumstances where the jury acquitted him of the assault charge connected with the alleged bite.
For the sake of clarity, it may be helpful to summarise how the prosecution case was left to the jury. SC Taylor said that he formed a belief that he had been assaulted by the applicant when the applicant attempted to take the ‘HALLELUJAH’ plate from him. SC Taylor then arrested the applicant by placing him in a headlock. SC Taylor then alleged that he had been bitten by the applicant. There was, to a degree, conflicting evidence concerning whether the alleged bite occurred before, or at the time of, the point at which the applicant was capsicum‑sprayed by SC Taylor and AS Trapnell. Police and the applicant then separated. On the strength of SC Taylor’s belief that he had been assaulted by the applicant (including by being bitten), SC Taylor continued in his quest to arrest the applicant. LSC Bateman and AS Trapnell assisted SC Taylor in this endeavour. The applicant was forced to the ground and handcuffed. The applicant’s alleged criminality (insofar as the offences of which he was found guilty are concerned) lay in his physical refusal to place his hands behind his back so that he might be handcuffed. The legality of the applicant’s arrest, and thus the justification for all three police officers being ‘on duty’, was to be sourced in SC Taylor’s belief, on reasonable grounds, that the applicant had assaulted him: initially by attempting to wrest control of the ‘HALLELUJAH’ plate, and later by being bitten by the applicant.
This was the case that the respondent sought to defend in this Court. The respondent contended that it was reasonably open to the jury to conclude that SC Taylor believed on reasonable grounds that he had been assaulted by the applicant — both initially during the struggle over the ‘HALLELUJAH’ plate, and later when he alleged that he had been bitten — thus leaving it open to the jury to find that he and the other two police officers were ‘on duty’.
The applicant, in this respect, relies upon s 276(1)(a) of the Criminal Procedure Act 2009, which provides that this Court must allow an appeal against conviction if satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. In the usual case, the Court is required to ask itself whether it thinks that upon the whole of the evidence it was ‘open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[42] The Court must make its own independent assessment of whether, on the evidence as a whole, there is a reasonable doubt as to the guilt of the applicant. And in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.[43] In this case, the applicant asks this Court to make that determination on the hypothesis that the jury received the direction already described.
[42]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); Pell v The Queen (2020) 268 CLR 123, 147 [45]–[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12.
[43]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63.
It is necessary, given the way that the prosecution case was left to the jury, to consider SC Taylor’s initial arrest of the applicant when the applicant was first placed in a headlock. In short, we do not consider that it was reasonably open to the jury to find — beyond reasonable doubt — that this arrest was lawful, and therefore that police were ‘on duty’ when SC Taylor placed the applicant in a headlock.
Taking the matter in stages, we consider that it was not open to the jury to find the that SC Taylor held a belief on reasonable grounds that he was assaulted by the applicant when the applicant first sought to wrest control of the ‘HALLELUJAH’ plate.[44] It is plain from the BWC footage that the applicant’s sole intent, when he discovered that police were removing the plate, was simply to try to regain possession of it. It is telling, again, that the BWC footage appears to show, and police evidence confirmed, that the applicant grabbed the plate with both hands and a tug‑of‑war over the plate then ensued. The applicant was then immediately placed in a headlock by SC Taylor.
[44]That is, either at common law or according to s 31(1)(a) of the Crimes Act (see the definition of ‘assault’ at s 31(2) which proscribes the intentional, or reckless, infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty (whether or not the consequence inflicted is the consequence intended or foreseen)).
Even if it was open to the jury to conclude that, when each party was pulling on the plate, there were reasonable grounds for SC Taylor to believe that the applicant had applied force to SC Taylor’s body, or caused SC Taylor to apprehend the immediate application of force to his body, it would not have been open to the jury to conclude — beyond reasonable doubt — that there were reasonable grounds for SC Taylor to believe that the actual or potential application of force was the result of an intentional, or reckless, act by the applicant. Again, it seems clear from the BWC footage that the applicant’s sole purpose was to regain possession of the ‘HALLELUJAH’ plate by means of a two‑handed tug‑of‑war.
Moreover, the evidence adduced at trial does not suggest that the applicant attempted to manipulate SC Taylor’s body in some manner so as to gain control of the ‘HALLELUJAH’ plate. And it is telling that, according to SC Taylor (and leaving aside the alleged bite, for the moment), the only other contact that took place between him and the applicant was when the applicant grabbed the plate. It is also telling that SC Taylor’s impression was that the alleged bite was the only time the applicant made intentional contact with him.
It follows, for the same reasons, that even if it was open to the jury to conclude that the applicant had applied force directly, or indirectly, to SC Taylor’s body, clothing or equipment, we do not consider that it was open to the jury to conclude — beyond reasonable doubt — that SC Taylor held a belief on reasonable grounds that this was as a result of intentional, or reckless, infliction by the applicant of ‘bodily injury, pain, discomfort, damage, insult or deprivation of liberty’ which then resulted in the infliction of such a consequence on SC Taylor (whether or not the consequence inflicted was the consequence intended or foreseen).[45]
[45]Statutory assault: Crimes Act, s 31(2).
We can see no basis for the jury to have been satisfied — beyond reasonable doubt — that there were reasonable grounds for a belief on SC Taylor’s part that any contact made by the applicant with SC Taylor was other than unintended and/or entirely incidental to the applicant’s sole purpose of retrieving the ‘HALLELUJAH’ plate.
One then moves to the next stage of the arrest process. SC Taylor gave evidence that he was bitten by the applicant when the applicant was placed in the headlock. But, as has been already emphasised above, the jury acquitted the applicant of the assault charge connected with this alleged bite.
In view of the fact that the jury did not have drawn to their attention the particular police ‘power’ or ‘duty’ that was said to justify the applicant’s being placed in a headlock, it is difficult to know what the jury might have made of the instruction inviting them to consider whether the applicant’s placement in a headlock constituted ‘excessive force’ utilised by police in the performance of any such ‘power’ or ‘duty’. In these circumstances, it seems likely, if not inevitable, that the jury must have acquitted the applicant of assault on the basis that they were not satisfied that the bite itself had occurred.
It may be accepted that the jury’s failure to be persuaded to the required standard that the applicant assaulted SC Taylor by biting him may not necessarily correlate with a failure to be persuaded beyond reasonable doubt that SC Taylor had reasonable grounds for believing that he had been assaulted in such a manner.[46] But, in the circumstances of the present case, the acquittal must tell against it having been open to the jury to be persuaded beyond reasonable doubt of the existence of such reasonable grounds. In the particular circumstances of the present case, if the jury were not persuaded that the bite occurred, it is difficult to identify any basis in the evidence to justify a belief on SC Taylor’s part (held on reasonable grounds) that he had been bitten.
[46]See, for example, Clark v Trenerry (1996) 125 FLR 260, 262–3 (Martin CJ). And, as stated at s 461(1) of the Crimes Act: ‘Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.’

The question then essentially becomes whether it was open to the jury to find — beyond reasonable doubt — that SC Taylor believed on reasonable grounds that he had been assaulted by the applicant by being bitten in circumstances where it was not open to the jury to find beyond reasonable doubt that the placement of the applicant in a headlock was lawful, and where the jury were not persuaded to the required standard that any assault by biting had occurred.
In all these circumstances, we do not consider that it was reasonably open to the jury to find — beyond reasonable doubt — that SC Taylor had reasonable grounds for a belief that he had been assaulted by the applicant (even at the stage after SC Taylor alleged that he had been bitten by the applicant). As such, we would uphold the applicant’s submission that it was not open to the jury to find that SC Taylor was ‘on duty’ when it was alleged that the applicant physically resisted attempts by the police officers to place the applicant’s hands behind his back.
Given that the answer to whether police were ‘on duty’ was to be sourced in the lawfulness of SC Taylor’s arrest of the applicant,[47] if it was not open to the jury to be persuaded of that — and, thus, that SC Taylor was ‘on duty’ in for the purposes of charge 2 — then it cannot have been open to the jury to find that the other police officers were ‘on duty’ for the purposes of charges 3 and 4.
[47]As referred to above and as was conceded by the respondent.
It follows that the verdicts of guilty on charges 2, 3 and 4 must be set aside and the applicant acquitted of those charges.

‘on duty’ — Lawfulness of arrest — Excessive force[48]

[48]Proposed grounds 1.3, 1.4, 1.5, 1.8 and 2.1.

There is an additional reason why it was not open for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of charges 2, 3 and 4.
As set out above, the jury were directed to consider whether police were ‘on duty’ by reference to whether police had exercised ‘excessive force’. And, as has already been noted, it is difficult to comprehend what the jury might have made of this direction in the absence of any precise formulation, by means of jury instruction, of the particular ‘power’ or ‘duty’ relied on by the prosecution in the first instance. For example, SC Taylor’s placement of the applicant in a headlock was not expressly linked by the judge to SC Taylor’s exercise of the arrest power or, in particular, to SC Taylor’s belief that the applicant had committed the offence of assault when he tried to regain possession of the ‘HALLELUJAH’ plate.
Section 462A of the Crimes Act1958 states as follows:
A person may use such force not disproportionate to the objective as he believes on reasonable grounds to be necessary to prevent the commission, continuance or completion of an indictable offence or to effect or assist in effecting the lawful arrest of a person committing or suspected of committing any offence.
Prior to the enactment of s 462A, in R v Turner[49] the Full Court held that a statutory provision conferring a right to use force to effect an arrest should be construed as authorising only such force as is reasonably necessary to do so.[50] In the context of a police officer’s power under the common law to arrest a person who has committed, or is about to commit, a felony, the Court said that the reasonableness of the force used by the arrester depends upon two factors:
He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of the felony or the escape of the felon).[51]
[49][1962] VR 30 (‘Turner’).
[50]Ibid 36.
[51]Ibid.
The tests for disproportionate force found in s 462A and Turner are similarly expressed. The jury instruction concerning the possible use by police of excessive force did not adhere to the terms of s 462A and, for this reason, we doubt the sufficiency of this direction. No submission made by the applicant attacked the manner in which the judge directed on ‘excessive force’ and, for reasons expressed below, it is unnecessary to express a concluded view on this issue. .
As has already been emphasised, in view of the evidential foundation for the alleged bite, the jury’s acquittal on the assault charge presented an insurmountable obstacle to them finding beyond reasonable doubt the existence of reasonable grounds which might have justified SC Taylor’s belief that he had been bitten. Nevertheless, if, say, reasonable grounds had existed for SC Taylor’s belief that the applicant assaulted him in an attempt to regain control of the ‘HALLELUJAH’ plate, then such an assault can only have been a very technical or minor one.
Thus, had the issue of ‘excessive force’ been tethered by the judge, in her directions, to the particular performance of the arrest power by SC Taylor (that is, when it came to SC Taylor placing the applicant in a headlock, spraying him with capsicum spray and, in light of the acquittal, attempting to handcuff him), we cannot accept that it would have been open to the jury to have been satisfied — beyond reasonable doubt — that such force as was inflicted on the applicant by police was not disproportionate either by reference to the manner in which the jury were directed, or in the sense contemplated by s 462A). It would not, therefore, have been open to find that police were ‘on duty’.
The same conclusion follows even if SC Taylor’s arrest of the applicant had been differently characterised (say, as an arrest in the belief that the applicant had committed the offence of obstructing police, or as the performance by SC Taylor of some other police function, power or duty). In light of the matters already identified, we cannot accept that it would have been open to the jury to have been satisfied beyond reasonable doubt that the force inflicted was not disproportionate.[52]
[52]It is important to note, in this respect, that the burden of SC Taylor’s evidence was that he had no idea where the Leatherman had gone once he placed the applicant in a headlock. SC Taylor did not allege that the applicant had possession of the Leatherman. So long as the police restraint of the applicant was to be sourced in SC Taylor’s actions, AS Trapnell’s view that the applicant had possession of the Leatherman could have been of no consequence on this alternative construction of the prosecution case.
For these reasons, in view of the manner in which the prosecution case was left to the jury, we consider that the verdicts of guilty sustained by the applicant on charges 2, 3 and 4 must be set aside and the applicant acquitted of those charges.

Acquittals due to error

As discussed, the success of the ‘unsafe’ ground requires the applicant to be acquitted of charges 2, 3 and 4. However, had we not been persuaded that the verdicts of guilty were ‘unsafe and unsatisfactory’ and had only the ground based on the misdirection of the jury been made out, we would still have been disposed to direct that the applicant be acquitted of the charges.
At the hearing of the appeal, the Court raised with counsel for the respondent whether, if the applicant’s complaint of error was upheld, the respondent would seek to re‑try the applicant on the outstanding charges. Counsel responded that he had no instructions concerning that particular issue but indicated that he did not ‘intend to be making any concessions’. We take it that no concession was made in this regard, but counsel was on notice that the Court might direct an acquittal on the error ground.
A broad discretion is conferred upon this Court in deciding whether to order a re‑trial or direct a verdict of acquittal.[53] The High Court in Director of Public Prosecutions (Nauru) v Fowler[54] established a two‑stage test when it comes to the exercise of this particular discretion:
[T]he Court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case ... Then the Court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.[55]
[53]See R v De’Zilwa (2002) 5 VR 408, 424 (Charles JA, Ormiston JA and O’Bryan AJA agreeing); [2002] VSCA 158.
[54](1984) 154 CLR 627; [1984] HCA 48.
[55]Ibid 630.
Kirby J, in Dyers v R,[56] referred to instances where the High Court had refrained from ordering a re‑trial, including
where the only basis upon which the prosecution could succeed at a new trial would be by propounding a different case from that presented at the first trial, permitting which would constitute a serious injustice to the accused. This Court has said ‘it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case’; [and]
where the length of time that has elapsed since the events giving rise to the charges is great. That consideration, together with others, may be determinative against an order for a new trial.[57]
[56](2002) 210 CLR 285; [2002] HCA 45.
[57]Ibid 314 [82].
Even if there was sufficiently cogent evidence upon which a jury might convict the applicant on a re‑trial, we do not consider that it would have been just to order that the applicant be re‑tried. These events took place almost five years ago. The applicant was — moreover — acquitted by jury of the assault charge, clearly the most serious charge that he faced in terms of alleged objective criminality.

Analysis — Forfeiture of property

Given that we would acquit the applicant of the charges of which he was found guilty, it is unnecessary to consider the applicant’s application for leave concerning his notional sentence appeal. It is by means of this notional appeal that the applicant seeks to impugn the judge’s order for forfeiture. The quashing of the applicant’s convictions will mean that the applicant’s sentence and all orders associated with that sentence, must fall away.

Conclusion

We must emphasise, yet again, that our conclusions in this case flow from the manner in which the prosecution case was left to the jury at trial. That case might perhaps have been presented differently. Important to our conclusion that there was error and that the applicant’s convictions are ‘unsafe and unsatisfactory’ are the following particular features of this case: first, that the legality of police action was to be sourced in an arrest of the applicant performed by SC Taylor; secondly, that SC Taylor’s arrest was based upon his belief that the applicant had assaulted him; and, thirdly, that the jury acquitted the applicant of the assault charge.
Our conclusions follow, also, from a clearer appreciation of the matters that the applicant placed in issue when it came to the presentation of his defence. It must be noted that the judge canvassed with the parties the directions that she intended to give to the jury. The applicant communicated his express agreement with the approach that was outlined by the judge. This might normally have presented a significant hurdle for the applicant on appeal. It is indeed regrettable that the applicant was unable to describe as clearly to the trial judge what he was able to make abundantly clear to this Court.
Lastly, as the various exchanges between the Court and the respondent’s counsel extracted above attest, and mindful of the fact that the applicant also represented himself in this Court, it is appropriate to note the conspicuously fair manner adopted by the respondent’s counsel when it came to the presentation of the Crown case in this Court.
The application for leave to appeal against conviction must be granted, the appeal allowed, and judgments of acquittal entered in respect of charges 2, 3 and 4.
---

[2025] VSCA 140

24 June 2025