Mangurra v Rigby
[2021] NTSC 6
•27 January 2021
CITATION:Mangurra v Rigby [2021] NTSC 6
PARTIES:MANGURRA, Johanness
v
RIGBY, Kerry Leanne
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 17 of 2020 (21931972)
DELIVERED: 27 January 2021
HEARING DATE: 21 July 2020
JUDGMENT OF: Kelly J
CATCHWORDS:
APPEAL – appeal against convictions in the Local Court for assaulting police officers in the course of their duties – whether convictions are unreasonable or unable to be supported having regard to the evidence – whether the Crown proved beyond reasonable doubt that the police officers were acting in the course of their duties – Held trial judge ought to have entertained a reasonable doubt that the force used by the police officers on the appellant was “not unreasonable” – appeal allowed
APPEAL – whether the decision of the trial judge to prohibit the playing of the body-worn footage during the cross-examination of the police complainants rendered the hearing procedurally unfair – appeal allowed
APPEAL – whether the trial judge erred in failing to give adequate reasons for the decision to prohibit the playing of the body-worn footage during the cross-examination of the police complainants – reasons not inadequate
APPEAL – whether the trial judge erred in failing to conclude that the use of a taser on the appellant was improper within the meaning of s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) – use of the taser not improper within the meaning of s 138
Criminal Code 1983 (NT), s 1, s 27, s 189A
Evidence (National Uniform Legislation) Act 2011 (NT), s 138, s 138(1)
Police Administration Act 1978 (NT), s 158Ashley v Balchin (2006) 161 A Crim R 497, referred to
Coleman v Power (2004) 220 CLR 1; Heiss v The Queen (1992) 2 NTLR 150; Lane v The Queen (2018) 265 CLR 196; Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; PW v The Queen [2020] NTCCA 1; R v Baden-Clay (2016) 258 CLR 308; Re K (1993) 46 FCR 336; R v Turner [1962] VR 30; Robinson v Woolworths Ltd (2005) 158 A Crim R 546; The Queen v Gehan [2019] NTSC 91; Walker & Anor v Hamm & Ors and Walker & Anor v Carter and Anor [2008] VSC 596; Wilson v Brown [2015] NTSC 89, applied
REPRESENTATION:
Counsel:
Appellant:P Coleridge
Respondent: H Riley
Solicitors:
Appellant:North Australian Aboriginal Justice Agency
Respondent: Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Kel2103
Number of pages: 42
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINMangurra v Rigby [2021] NTSC 6
No. LCA 17 of 2020 (21931972)
BETWEEN:
JOHANNESS MANGURRA
Appellant
AND:
KERRY LEANNE RIGBY
Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 27 January 2021)
On 2 March 2020, in the Local Court at Darwin, the appellant pleaded not guilty to four charges:
Count 1 – resisting a member of the police force in the execution of his duty, contrary to s 158 of the Police Administration Act 1978;
Count 2 – unlawfully assaulting a police officer, namely Constable David Woodbury, whilst in the execution of his duty, contrary to s 189A of the Criminal Code;
Count 3 – unlawfully assaulting a police officer, namely Sergeant Tony Bennett, whilst in the execution of his duty, contrary to s 189A of the Criminal Code;
Count 4 – behaving in a disorderly manner in a police station, namely Numbulwar Police Station, contrary to s 47(c) of the Summary Offences Act.
On 19 March 2020 the trial judge found the appellant guilty of all four counts. The appellant has appealed against the verdicts on counts 1, 2 and 3 on the following grounds:
Ground 1: The verdicts on charges 1, 2, and 3 are unreasonable or cannot be supported having regard to the evidence.
Ground 2: The decision of the learned hearing judge to prohibit the playing of the body-worn footage during the cross-examination of the police complainants rendered the hearing procedurally unfair.
Ground 3: The decision of the learned hearing judge to prohibit the playing of the body-worn footage during the cross-examination of the police complainants occasioned a substantial miscarriage of justice.
Ground 4: The learned hearing judge erred in failing to conclude that the use of the taser was improper within the meaning of s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT).
Ground 5: The learned Local Court judge erred in failing to give adequate reasons for the decision to prohibit the playing of the body-worn footage during the cross-examination of the police complainants.
The charges arose out of an incident that occurred in the Numbulwar Police Station on 27 August 2019 and the essential facts are non-controversial. The appellant had been on parole in relation to a sentence of imprisonment for three years for unlawfully causing serious harm, handed down on 10 March 2017. The appellant breached his parole by absconding from the Venndale residential rehabilitation program; his parole was revoked out of session by the chairman of the Parole Board on 18 December 2018; and a warrant was issued for his arrest. However, he was not arrested on that warrant until, a considerable time later, on 9 August 2019, he was arrested for unrelated traffic offending.
The appellant appeared before the Local Court at Darwin on 12 August 2019 and the traffic offending was dealt with. (He was sentenced to four days imprisonment backdated to take account of time served.) Unfortunately, the Local Court, for reasons which remain unclear, overlooked the parole revocation. The court did not cancel the appellant’s parole and commit him back into custody as it was obliged to do. Instead, it ordered the appellant’s release (the four days having elapsed), and he returned home to Numbulwar believing all outstanding matters had been finalised.
Two weeks later, on 27 August 2019, the appellant walked with his wife to the police station in Numbulwar to enquire about paying some fines.
In the meantime, unbeknown to the appellant, on 16 August 2019 Constable Woodbury had been tasked with arresting the appellant on the outstanding parole revocation. Initially, Constable Woodbury had some concerns about the validity of the arrest warrant, given the appellant’s recent arrest, court appearance, and release. Accordingly, he made enquiries with Community Corrections and the Deputy Director of Public Prosecutions and, when assured of the warrant’s validity by the Deputy Director, he determined to act on it.
When the appellant arrived at the Numbulwar police station on 27 August, Constable David Woodbury and Remote Sergeant Tony Bennett escorted him into an interview room in order to arrest him on the parole revocation warrant. The door of that room locked automatically when it closed and could only be opened with a swipe card.[1] The two officers entered the room with the appellant and what occurred thereafter is recorded on body-worn camera footage from the camera worn by Constable Woodbury.
Constable Woodbury tried to explain to the appellant what had happened, and it is apparent from his responses on the body-worn camera footage that, at first, the appellant did not understand what was going on. Then, when Constable Woodbury said, “Alright, I know it is confusing, because we have had to check up on it as well ... but, that, um, community corrections is telling us that we have to arrest you again, alright, and you gotta go back before the Judge, and the Judge has to deal with it properly,” the appellant responded, “Can you call, ahh, my lawyer please?” Both the police officers and the appellant were speaking calmly to this point.
Constable Woodbury said, “Yep, now what we we’ll have to do is, I’ve gotta arrest you, and we’ve gotta put you in the cells. Then we will call up, ah, NAAJA, um, and let them know what’s happening … because you are an indigenous person okay, and they’ll ah, um, ask to talk to you, and we will let you talk to them. Now, unfortunately, we, we don’t have any say in this.” The appellant again responded, “Can you call a lawyer please?”
Constable Woodbury tried to tell the respondent that he could talk to a lawyer on the phone, but first they had to handcuff him and take him to a cell. Sergeant Bennett asked, “Are you going to cause us any trouble?” and the appellant said, “No.” Sergeant Bennett asked, “Are you sure?” and the appellant answered, “No. ... can you please call a lawyer please?” He was beginning to become somewhat agitated at this point.
It is not easy to be a hundred percent certain because the vision from the body-worn camera did not pick up all the movements of all parties but it appears that, at this point, one of the officers moved towards the appellant with some handcuffs. From that point, the appellant became more and more upset. The appellant moved into a corner of the room, behind the desk. He started wailing and yelling in high pitched tones, “Please! Don’t do that, please, don’t do that, please.”
Constable Woodbury told him, still calmly, “Mate, like I said, we don’t have a choice.” He repeated that, while the appellant in increasingly high pitched, distressed tones kept repeating, “Hey, hey, hey, please, don’t do that. Don’t lock me up, don’t do that, please.” He was also shouting out in Anindilyakwa to someone outside, presumably his wife.
At this point, Sergeant Bennett said, “Hey, I’ve asked you,” and Constable Woodbury said, “Show me your hands.” The voices of the police officers were becoming raised. The appellant was still wailing and repeating, “Don’t do that please. Don’t do that, please.”
Then Sergeant Bennett took out his pepper spray and said (presumably to Constable Woodbury), “Stand back,” and to the appellant, “I will spray you if you don’t cooperate, turn around and put your hands behind your back.” The appellant said, “Sorry,” but did not comply.
The appellant pulled his shirt over his head and Sergeant Bennett sprayed him. The spray had no discernible effect on the appellant or on the Sergeant who said he had expected some effect on himself in the confined space and expressed the opinion that the spray was defective.
The appellant continued wailing and shouting in English and Anindilyakwa. He repeatedly called out to his wife.
Sergeant Bennett said, “Turn around and put your hands behind your back.” He produced his taser and said, “Taser’s out – [undiscernible] -- I will taze you.” When that occurred, the appellant’s distress rose to new heights.
Sergeant Bennett kept repeating, many times, “Turn around, put your hands behind your back.”
The appellant showed no signs of complying or of moving out of the corner. Instead, while Sergeant Bennett was repeating, “Put your hands behind your back”, the appellant was repeating, “Don’t kill me! Please, don’t kill me, don’t do that, my heart is fucked, don’t do that, my heart. You’ll kill me. You’re killing me.” Both voices were raised.
There were times when the participants almost began to communicate meaningfully. At some point during these repetitions, Sergeant Bennett said, “I’m being nice,” and the appellant said, “I know, just, just put the thing down.” But then Sergeant Bennett said, “Then turn around …”
Constable Woodbury reminded the appellant, “You’re being recorded on my body worn camera,” and the appellant said, “Yeah I know.” Constable Woodbury said to him, “You need to calm down.” The appellant said, “I know,” but then he resumed his wailing, “My heart please, don’t do that, my heart, please.”
Constable Woodbury said again, “Johanness, you need to calm down, put your hands behind your back … and then we’ll call the lawyer,” but the appellant kept wailing and Sergeant Bennett kept repeating, “Put your hands behind your back.”
Constable Woodbury said, “Johanness, we’re trying to do it the right way,” and the appellant said, “Don’t do it, get him to put the thing down.”
At this point the appellant punched himself in the face three times and Constable Woodbury told him, “Hey, you need to turn around, you’re being recorded, the Judge can see you hitting yourself mate.”
The repetition continued. The appellant got up on the table and reached for the smoke alarm, but climbed down when he was asked to. There were two more threats to use the taser if the appellant was non-compliant and then the taser was deployed to the lower part of the appellant’s body and the appellant fell down.
A physical struggle ensured which resulted in the appellant being subdued and handcuffed. During the struggle, the appellant committed the acts – biting both officers – that resulted in the assault charges in counts 2 and 3. Once placed in the cells, the appellant behaved in a disorderly manner which resulted in the charge on count 4. (Count 1 was resisting police in the execution of their duty and was continuing from the time the appellant was asked to put his hands out until he was secured in the cell.)
Ground 1
The appellant contends that the verdicts on Counts 1, 2 and 3 are unreasonable and cannot be supported by the evidence because, having regard to the whole of the evidence, there is a reasonable doubt as to whether the officers were acting in the execution of their duty at the time of the conduct the subject of those counts.
General legal principles applicable to Ground 1
In M v The Queen,[2] Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
… in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
The plurality explained the application of the test as follows:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
Gaudron J agreed with the majority formulation of the test, as did Brennan J, although Brennan J said that the question as to whether it was “open to the jury” to be satisfied of guilt beyond reasonable doubt was to be resolved by asking whether the jury was “upon the whole of the evidence ... bound to have a reasonable doubt” or whether “the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused”.
In Libke v The Queen[3] Hayne J (citing the passage from the majority judgment in M v The Queen referred to above) said:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
Both parties agreed that the advantage enjoyed by the trial judge in this case in seeing and hearing the witnesses was not particularly significant. All of the relevant events were captured on body-worn camera footage that was played again on the hearing of the appeal and the bulk of the evidence-in-chief of one of the police officers was read aloud from his statement. The trial judge had the benefit of seeing and hearing the police officers, in particular during their cross-examination. The appellant did not give evidence. There are no issues of credit raised on the appeal. Hence the benefit enjoyed by the trial judge, though not non-existent, is not significant.
Particulars
The appellant contends that there is reasonable doubt as to whether the police officers were acting in the execution of their duty at the time of the conduct the subject of Counts 1, 2 and 3 because there is a doubt as to whether the use of force, and the degree of force used, was justified under s 27 of the Criminal Code 1983 (NT) (“the Code”) as objectively necessary and proportionate to the occasion. In particular, the appellant contends that the use of the taser on the appellant amounted to unnecessary force and that that extended, by necessity, to the physical force used after that to secure the appellant in handcuffs.
Relevant principles
Section 27 of the Code provides (relevantly):
In the circumstances following, the application of force is justified provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or serious harm:
(a) to lawfully execute any sentence, process or warrant or make any arrest;
(b) to prevent a person who is being or who has been lawfully arrested from escaping or from being rescued;
The definition of “unnecessary force” in s 1 of the Code provides:
“unnecessary force” means force that the user of such force knows is unnecessary for and disproportionate to the occasion or that an ordinary person, similarly circumstanced to the person using such force, would regard as unnecessary for and disproportionate to the occasion.
The relevant legal principles are uncontroversial and can be summarized as follows.
(a)It is an essential element of the offence of resisting a police officer in the execution of his duty contrary to s 158 of the Police Administration Act 1978 (NT) that the officer be acting “in the execution of his duty” at the time the accused does the act or acts said to constitute the offence. Likewise, it is an essential element of the offence of assaulting a police officer in the execution of the officer’s duty contrary to s 189A of the Code that the officer be acting “in the execution of the officer’s duty” when the accused does the act said to constitute the offence.
(b)A police officer acts in the execution of the officer’s duty from the time the officer embarks upon a lawful task connected with the functions of a police officer, and continues to act in the execution of that duty for as long as he is engaged in that task.[4]
(c)It is not part of a police officer’s duty to engage in unlawful conduct.[5] The use of force by a police officer is subject to limits and, beyond those limits, is unlawful.
(d)If a police officer uses greater force than is justified the officer cannot be said to be acting “in the execution of his duty”.[6]
In terms of s 27, it is not contended by the appellant that the force used by the police officers to arrest the appellant was likely to cause death or serious harm. The contention, for the purpose of Ground 1 of the appeal, is that the sentencing judge ought to have entertained a reasonable doubt as to whether the force used was not “not unnecessary” and therefore, lawful.
There are two aspects to the definition of “unnecessary force” in s 1 of the Code:
(a)Force is “unnecessary force” if the user of such force knows it is unnecessary for and disproportionate to the occasion.
(b)Force is also “unnecessary force” if an ordinary person, similarly circumstanced to the person using such force, would regard it as unnecessary for and disproportionate to the occasion.
It is not contended by the appellant that the police officers in question knew that the force they used on the appellant was unnecessary or disproportionate to the occasion. The contention is that it was reasonably possible that an ordinary person, similarly circumstanced, would regard the use of the taser on the appellant as unnecessary for and disproportionate to the occasion; and hence the trial judge ought to have entertained a reasonable doubt about whether the force used was “not unnecessary” and therefore lawful within the meaning of s 27 of the Code. That being so her Honour ought to have entertained a reasonable doubt about whether the Crown had established an essential element of each offence - that the officers were acting in the execution of their duty when the appellant did the acts said to constitute Counts 1, 2 and 3.
The question is not whether the response was reasonable in the circumstances as the officer perceived them; it is whether the ordinary person in those circumstances, but perceiving them for herself (or himself), would have regarded the force as unnecessary for and disproportionate to the occasion. The proportionality of the force must be assessed against “the evil to be prevented” by the use of the force;[7] and the assessment of what an ordinary person would regard as unnecessary for and disproportionate to the occasion must be made in a “realistic manner” that takes into account “the reality that the officer has to make decisions quickly, often in emergencies and under pressure.”[8]
Appellant’s contentions
The appellant relies on the evidence of the police officers that they perceived “the evil to be prevented” by the use of the force as the risk of harm to the officers or the appellant and the risk that the appellant might escape. The appellant contends that, on a realistic assessment of the situation, there were obvious alternatives to the deployment of both the pepper spray and the taser to prevent these evils; and in view of those alternatives, it cannot be said that an ordinary person, similarly circumstanced, would view the use of the taser as necessary or proportionate. The appellant submits that, at the very least, there remains a reasonable doubt as to its objective necessity and proportionality.
The appellant advanced six propositions to support that conclusion.
(a)First, the appellant was already under arrest when force was used against him and there was no realistic possibility that he would escape from the locked room that required a key card to open.
(b)Second, there was no evidence that securing the appellant in handcuffs, and transporting him to a cell, was at all urgent and the police officers agreed in cross-examination that there were other well recognised “low-level” responses to threats: for example to “cordon and contain” them, or to “tactically disengage”. The body-worn footage shows that at no time did the appellant attempt to approach the officers, or strike them. Hence an obvious alternative was simply to slow down and attempt to calmly explain to the appellant what was going on. This may have taken more time than the two minutes Sergeant Bennett allowed before he produced the pepper spray, but there was no evidence that this time was not available to the officers.
(c)Third, the appellant’s confusion was, objectively, obvious. Constable Woodbury gave evidence that it was clear in his mind that the appellant was having difficulty understanding what was going on. This obvious lack of understanding was understandable in the circumstances and justified some patience being extended.
(d)Fourth, compounding that confusion was the appellant’s obviously limited English. Constable Woodbury agreed the appellant spoke a “limited amount of English.” This was borne out by the exchange recorded on the body-worn video. The appellant’s first three responses were monosyllabic and when the police attempted to explain what they accepted was a “confusing” state of affairs, the appellant’s initial responses were meaningless or non-sequiturs.
(e)Fifth, the appellant made repeated requests to speak to a lawyer. It was evident that the appellant was understandably confused; that he either did not understand what he was being told by police or, if he did, that he was concerned about the lawfulness of what they were doing. It was clear that the appellant wished to clarify what was going on with an authority he trusted. True, the police indicated that they would facilitate a call once the appellant was secured in a cell, but even if one were to assume the appellant understood this, it would not have addressed his concern that, as a result of some mistake, he was about to be unlawfully handcuffed and led to a cell. An obvious alternative to the use of force was to facilitate the call to the appellant’s legal representatives. There was, if not a probability, then a real possibility that the call would have brought the exchange to “a resolution”. It was not established, beyond reasonable doubt, that this alternative was precluded in the circumstances, even after the appellant had become distressed. He did not make a move towards them. All the police needed to do to assess the feasibility of obtaining the mobile phone was ask, “OK Johanness, if we call NAAJA will you sit quiet?”
(f)Sixth, the “risk” that the appellant might harm himself or others was insufficient to justify the force used. It was unnecessary to taser the respondent, the officers could have used a hands on approach to arrest and handcuff the respondent. Sergeant Bennett identified that risk as a risk that someone, the appellant or the officers, might fall over and injure themselves on the table or “fall backwards on [their] arm or [their] elbow or [their] wrist.” To accept that this was possible did not justify the use of the taser. There is always a possibility that, during an arrest, someone might fall over. Such a rationale would sanction the use of a taser in any case in which it is possible an arrest target, or the police, might fall over. In any case, shooting the appellant with the taser did not mitigate this risk; it compounded it. A taser is likely to incapacitate a person, thus causing them to fall to the floor. It is more dangerous to fall to the ground when one is incapacitated in this way, and therefore unable to break one’s fall. The Police General Orders warn against the use of a taser where there is a risk of a fall.[9] Nor did Sergeant Bennett explain why, if the risk of harm to the appellant was his concern, it was safe to entirely ignore the appellant’s pleas that he not be tasered because his “heart was fucked” and the taser would “kill” him.[10] Ultimately, even if some degree of force was justified it was not established that a lesser degree of force would not have brought the situation to a resolution. The police officers weighed 110kg and 130kg. They outnumbered the appellant. They had him contained in a secure room. The appellant had made no attempt to move towards or strike at them. He was cornered. In those circumstances, there is a doubt that the force used was, objectively, necessary and proportionate.
The appellant also relied on the following extracts from the Police General Orders in support of the contention that use of the taser was unnecessary and disproportionate in the circumstances (or rather that there was a reasonable doubt that it was necessary and proportionate). The Police General Orders:
(a)recognise that, far from eliminating resistance, the use of unnecessary force “may provoke resistance from the person being arrested”;[11]
(b)stress that a taser is an alternative to “lethal force” and justified only where there is “an immediate physical threat of serious harm to the member, the person, or others”;[12]
(c)require additional justification for the use of the taser in the case of a person who “appear to be suffering from serious medical conditions such as serious cardiac conditions”;[13]
(d)require additional justification for the use of the taser in the case of a
person “who [is] at elevated risk of serious injury due to falling”;[14]
(e)require additional justification for the use of the taser in the case of a person “who [is] handcuffed or otherwise secured”.[15]
The respondent’s contentions
The respondent referred in detail in written submissions to the findings made by the trial judge and submitted that these findings were open and that the evidence regarding the justification of the use of force is not such that this Court can find that it was not open to the trial judge to be satisfied of the appellant’s guilt beyond a reasonable doubt. The respondent made the following submissions in support of that contention.
(a)The appellant’s submission that the appellant was already under arrest when the force was used against him is misconceived. The question is not whether the appellant was under arrest but whether the use of force by police was justified in the execution of their duty. Provided the force is justified, it is immaterial whether it is used to place a person under arrest, during the process of effecting an arrest, or following an arrest in order to restrain or detain a person.
(b)The officers’ lawful execution of their duty did not end with the arrest of the appellant. The officers were duty bound to bring him before the Local Court as soon as possible. Handcuffing the appellant and detaining him in the cells was clearly intended as a means to that end.
(c)The force was deployed in circumstances where the appellant was unrestrained and resisting the efforts of police to handcuff him and take him to the cell (where he could call his lawyer). He was behaving erratically, had repeatedly failed to comply with the clear directions of police, had for a time (on the evidence of the police officers) taken up a fighting stance and was positioned in a small room in such a way that going ‘hands on’ posed significant risk to the safety of the officers and the appellant.
(d)Sergeant Bennett did not think the room was a safe place to facilitate a phone call given the appellant’s erratic conduct. He was concerned the appellant would hurt himself, he was concerned for his safety and the safety of Constable Woodbury and he was concerned the appellant may damage property. In any event, there was no phone in the room.
(e)There were also objects in the room the appellant could have used as weapons and police could not retreat without turning their backs to the appellant because of the way the door was locked. These factors meant alternative methods such as a tactical disengagement by leaving the room or cordoning and containing the appellant within the room were inappropriate.
(f)The officers did attempt to explain the situation to the appellant and made multiple verbal directions to him to put his hands behind his back. Approximately 15 verbal directions were ignored by the appellant before the pepper spray was deployed. Sergeant Bennett also tried holstering the taser in order to calm the appellant down. None of these efforts had any success. The appellant did not calm down, he only became more erratic.
(g)While the appellant did not attack the officers, he did physically resist the initial efforts of Constable Woodbury to secure his hands and place handcuffs on him by pushing out with one hand and putting the other hand into a fist. He also had an object resembling a lighter clenched in one of his hands.
(h)The evidence of Sergeant Bennett, which was accepted by the trial judge, was that he deployed the taser out of a concern about the risk of serious harm (to police or the appellant himself) from tripping or falling if a hands on approach had been taken. The appellant’s position in the corner of the room, next to the table limited the access for the officers to take a hands on approach. He was concerned about the appellant violently attacking the officers, including the risk of pushing their heads into the nearby wall or arming himself with weapons that were available in the room. He considered there was an immediate risk of serious harm.
(i)Sergeant Bennett only deployed the taser after the appellant raised his hand towards the officers and he aimed the taser at the appellant’s thigh in an effort to concentrate the effect on the appellant’s legs and lower stomach area and not his chest area.
(j)There is no basis to conclude that leaving the obviously agitated and distressed appellant alone in the interview room was likely to have assisted in de-escalating the situation or securing the appellant’s compliance.
(k)While it was certainly open to find that the appellant was confused about details of why he was being arrested, it is clear he understood that he was being placed under arrest. His confusion as to the details did not grant him the right to resist his arrest or render the arrest unlawful.
(l)The appellant may not have spoken English as a first language but the interactions between him and the police on the body-worn footage show that he was sufficiently proficient in English to be able to understand that he would be allowed to call his lawyers from the cells.
(m)Facilitating a phone call to the appellant’s lawyer might possibly have helped de-escalate the situation but this is speculation with the benefit of hindsight. In any event, for the reasons outlined above, the room the appellant and the officers were inside was not appropriate for facilitating a phone call and it did not contain a phone.
(n)The officers were aware that the appellant had a history of noncompliance with police and was in breach of his parole. He had marks on his knuckles that looked to be from punching someone. The appellant’s behaviour was significantly more erratic and agitated than a suspect in a recorded interview where one officer might reasonably exit the room and leave his offsider alone with the suspect.
(o)When assessing the lawfulness and propriety of the actions of the police, it is necessary to recognise that the police officers did not act with the benefit of hindsight or time for quiet reflection of how best to proceed. Rather, they unexpectedly came into contact with a parole violator with a history of evading police that they needed to deal with. Their repeated efforts to explain the situation to the appellant did not calm him down. Their clear, simple and repeated verbal directions were ignored. The appellant’s agitation and erratic behaviour continued to elevate. The officers were the only two police in a remote station with an agitated arrest target unrestrained in the station while screaming out in language to his family outside. While screaming to his family the appellant punched himself in the head repeatedly. Both officers suspected the appellant was trying to make it look as if the police caused the injuries.
(p)When the whole of the evidence is reviewed and due allowance is given to the fact that the police officers were required to make immediate decisions in the heat of the moment, there is insufficient basis to conclude that the trial judge must, as distinct from might, have entertained a doubt about whether the force applied was justified. Rather, it was open to her Honour to be satisfied of this issue beyond a reasonable doubt and it is not dangerous to let her verdict stand.
Analysis
The respondent’s contentions
It is unsurprising that the officers formed the belief that the appellant was trying to make it sound as though the police were attacking him – the evidence of the body-worn camera footage supports this view. It is also uncontentious that the two officers were the only two officers in a remote police station. However, I regard these matters as of marginal relevance, if any, to the issue to be determined on appeal. The officers did not say they tasered the appellant because they were afraid his efforts might bring an armed mob to his aid or anything of that nature. Their rationale for doing so was twofold: to prevent escape and to preserve the safety of themselves and the appellant.
I am of the view that the use of the taser could not be justified to prevent the appellant from escaping. He was in a locked room that required a key card to unlock. One of the officers gave evidence that he did not know how secure the door was, in terms of being able to be broken, but the appellant was making no attempt to move towards the door or away from the corner.
It may be accepted that the appellant’s confusion as to why he was being arrested did not grant him the right to resist his arrest or render the arrest unlawful. The appellant has not suggested as much. That is not the issue. The issue is whether it is reasonably possible that the force used was unnecessary and disproportionate – ie reasonably possible that an ordinary person, similarly circumstanced, judging the situation for himself, would have considered the force used to be unreasonable and disproportionate.
There is no challenge to Sergeant Bennett’s evidence, which was accepted by the trial judge, that he deployed the taser out of a concern that there was a risk of serious harm to police or the appellant himself if a hands on approach had been taken, or his evidence about the particular concerns he had (for example, someone tripping and hitting their face into the table or falling backwards and injuring their elbow or wrist). However, the question is not whether Sergeant Bennett honestly held those concerns. The question is an objective one: is it reasonably possible that the use of the taser in those circumstances was unreasonable and disproportionate to the occasion, applying the “ordinary person” test.
Similarly, there is no challenge to Sergeant Bennett’s evidence that he did not think the room was a safe place to facilitate a phone call given the appellant’s erratic conduct. However, again, Sergeant Bennett’s opinion is not the end of the matter. The question is a more objective one.
The appellant’s behaviour was erratic and agitated, more so than would usually be the case during a recorded interview with a suspect. However, it does not follow that it would not have been reasonably possible for one officer to have left the room to fetch the mobile telephone. (There must have been one available for use in the cell.)
The appellant’s contentions
The focus of the appellant’s contentions was on the existence of other reasonably available alternatives to the use of force. Counsel for the appellant submitted that if there was a reasonable possibility that there was a readily available alternative, the verdict must have been unreasonable on the evidence and should be set aside.
In analysing and considering the reasonable availability of alternative options, the question arises, at what time the assessment must be made: at the beginning of the encounter in the interview room; the moment before the force was used; or some time in between?
From the body-worn camera footage, it is apparent that, at the very beginning there was no suggestion of the appellant being agitated or upset. Constable Woodbury explained to the appellant very calmly (almost apologetically) that they needed to arrest him and take him to the cell and then he could talk to his lawyer. Then it started to escalate very quickly and the appellant became very agitated so that the officers’ assessment of the risk would have, of necessity, been changing second by second. On one view of the matter, there was a window of opportunity that the officers had at the beginning to agree to allow the appellant to sit in the interview room and talk to his lawyer, but as the appellant’s behaviour escalated, there came a time when the use of force became the only option.
The appellant contended that this was not the case; that, as one of the officers stated in evidence, an assessment of what force is necessary in given circumstances is circular rather than linear – at each stage there are decisions to be made. The appellant contended that at each step, as the behaviour became more agitated or elevated, the decisions made, in particular, by Sergeant Bennett, escalated, rather than de-escalated the situation. On that analysis, the assessment of whether the force used was arguably unnecessary should be made at the time the force was used, but taking into account the context leading up to that decision. I agree.
It does seem to me that in the rather unusual circumstances of this case, it would have been perfectly reasonable for the officers to have acceded to the appellant’s request to talk to a lawyer when he first requested it, for all of the reasons outlined in the appellant’s submissions. The appellant had been released from custody by a court. He had reason to believe that all of his matters, including the parole revocation he had gone to court for, had been finalised. It was clear that the appellant, like Constable Woodbury, wished to clarify what was going on with an authority he trusted.
I agree with the appellant’s contention that, even after the appellant had become agitated, there is a reasonable possibility that acceding to his request to speak to a lawyer before he was handcuffed and taken to the cells would have de-escalated the situation and avoided the need for force. Although he was very agitated, there are signs that the appellant was still, to an extent, responsive and open to communication. Those communications focused chiefly on two things – talking to a lawyer and having Sergeant Bennett put down the taser.
When he initially became upset, the appellant was focused on not being arrested. He was saying things like, “Please, don’t do that. Don’t lock me up, don’t do that, please.” Constable Woodbury told him calmly, “Mate, like I said, we don’t have a choice.” However, at that point, when it was apparent that the appellant didn’t understand why this was the case, in my view there was a significant possibility that, if the officers had said, “We’ll get the phone and your lawyer can explain it to you,” the situation would have de-escalated. Of course there is the possibility that, after the lawyer had explained the situation to him, the appellant may have become upset and agitated again about being arrested – but he may not have.
Instead, Sergeant Bennett took out his pepper spray and said to the appellant, “I will spray you if you don’t cooperate, turn around and put your hands behind your back.” The appellant (admittedly still in agitated tones) said, “Sorry,” and pulled his shirt over his head to protect his face. Although the spray appeared to be ineffective, its use (and the threat of its use) escalated the situation. It did not persuade the appellant to comply with the officer’s requests; it simply made him more upset and agitated.
Sergeant Bennett’s response was to take out his taser. He produced it and threatened to tase the appellant. When that occurred, the appellant’s distress rose to new heights.
However, even at that stage, communication on some level was still taking place. While the appellant was wailing and shouting, “Don’t kill me! Please, don’t kill me, don’t do that, my heart is fucked, don’t do that, my heart. You’ll kill me. You’re killing me.” Sergeant Bennett said, “I’m being nice,” and the appellant said, “I know, just, just put the thing down.” There was an opportunity then to continue that communication, to say something like, “OK, if I put the taser down, will you calm down and co-operate?” accompanied by a lowered voice, putting the taser away and stepping back. Instead, Sergeant Bennett said, “Then turn around …” (At one point, Sergeant Bennett did put the taser away and this had no effect. However, it was not accompanied by any verbal negotiation.)
At another point Constable Woodbury said to the appellant, “You need to calm down,” and the appellant said, “I know.” This dialogue was not continued.
A little later, after asking the appellant to calm down, Constable Woodbury said to him, “Johanness, we’re trying to do it the right way,” and the appellant appeared to respond meaningfully, “Don’t do it, get him to put the thing down.” Once again, the dialogue was not continued, Sergeant Bennett followed up with several more threats to taser the appellant and then did so.
I agree with the appellant’s contention that, at each step, Sergeant Bennett in particular escalated rather than de-escalated the situation, by producing and then deploying first the pepper spray and then the taser; that there were reasonably available options (continuing to talk when the appellant made meaningful responses; negotiating to put the taser away and talk; giving the appellant the option of checking with his lawyer before handcuffing him and taking him to a cell); and that it is at least reasonably possible that utilizing those options would have avoided the need for the use of force.
Given the above finding, it is not necessary for me to form a view on the appellant’s other contention that use of the taser was unnecessary given that there were two substantially built police officers in the room (one just under and one just over 6 foot tall) weighing 110kg and 130kg, who ought to have been able to subdue the more slightly built appellant and handcuff him. The evidence is that both options carried risks given the appellant’s position in the corner behind a desk where only one person could approach him. Although the appellant did not move towards the officers or move to hit them before being tasered, and his demeanour appeared to me to be upset rather than aggressive, police officers who are experienced in assessing such matters said that he had adopted a fighting stance at some point and they were aware of his criminal history.
I have a reasonable doubt whether the police officers were acting in the execution of their duty when the appellant did the acts (biting the police officers) the subject of Grounds 2 and 3, and it is a doubt which in my view the trial judge must, not might, have entertained on the evidence. Some of the acts constituting Ground 1 (resisting police in the execution of their duty) occurred before the use of force which gives rise to that reasonable doubt, but the particulars of the charge include acts done during and after that use of force. The appellant contended that, such being the case, the appeal should be allowed in relation to Count 1 as well, and the respondent did not contend otherwise.
The appeal will be allowed on Ground 1. The convictions on Counts 1, 2 and 3 will be set aside and verdicts of acquittal entered.
Grounds 2, 3 and 5
It is not strictly necessary for me to deal with Grounds 2, 3 and 5 given my decision in relation to Ground 1. However, I will deal with them for the sake of completeness.
In Grounds 2 and 3 of the appeal, the appellant contends that the decision of the trial judge to prohibit the playing of the body-worn footage during the cross-examination of the police complainants rendered the hearing procedurally unfair and occasioned a substantial miscarriage of justice. In Ground 5, the appellant complains that the trial judge did not give sufficient reasons for this decision.
During his cross-examination of Constable Woodbury, defence counsel asked for the body-worn video to be played through to a certain point and then paused. The following exchange occurred between the trial judge and defence counsel:
HER HONOUR: Why do we need to watch it again? We’ve already seen it. Why don’t you ask your question? He might remember what he saw.
COUNSEL: Your Honour ... respectfully, I’d like to because there are matters said in there …
HER HONOUR: Well, tell him what …
COUNSEL: … that I would like to …
HER HONOUR: I’m sure you’ve got a note of it. I don’t think we need to watch it again. We’ve all just sat through it …
COUNSEL: With respect, I …
HER HONOUR: ... less than an hour ago.
COUNSEL: … seek …
HER HONOUR: Just put your question.
COUNSEL: Well, it’s in respect of specific remarks. Your Honour, I do think …
HER HONOUR: Yes, you’ve got – I’m sure you’ve made a note. You put to the officer what you say that he said or why he said what he said, whatever your question is.
COUNSEL: It’s going to be very difficult because I’m going to ask …
HER HONOUR: Well just ask. Ask your question and we’ll start from your question.
Counsel put to the Constable that the appellant had said something on the video, the Constable said he didn’t recall it, and counsel renewed his application. It was again refused. Her Honour said:
No I’m not going to play it; we’ve all heard it. If its on the body worn footage, we’re going to accept you that that’s your information, that that’s what he said. The body-worn footage speaks for itself. This officer, you’re asking him to recall things, putting that to him, that he doesn’t recall, “Oh yes, I hear it,” we all hear it, we’ve already heard it. We don’t need to – you don’t need to put it.
Counsel renewed his application later in the proceeding and this exchange occurred:
COUNSEL: There are matters in the witness statement I want to …
HER HONOUR: Well, put them to him.
COUNSEL: ... put to him in the presence of the body worn …
HER HONOUR: No, I’m not allowing you to play it again.
COUNSEL: As your Honour pleases.
HER HONOUR: We’ve seen it. It’s in evidence. Unless there’s some disagreement in relation to what the video actually says as opposed to what the witness’ recollection is, then I’m not going to allow you to play it again.
COUNSEL: The witness has given evidence about Mr Mangurra’s demeanour in the lead up to the deployment of the taser.
HER HONOUR: Yes.
COUNSEL: I would be cross-examining on the basis of that demeanour.
HER HONOUR: Off you go, cross-examine away.
COUNSEL: Your Honour …
HER HONOUR: I know, he said that.
COUNSEL: … I require …
HER HONOUR: But the witness has seen the video here this morning. You are now in a position where you need to cross-examine on that video. Put your questions. You’re entitled to cross-examine on the video.
The appellant contends that this decision denied the cross-examiner the opportunity to challenge or clarify generalised assertions about the police officers’ perceptions of the appellant’s demeanour and the alternatives which were available to them at the crucial points in the interaction.
In their evidence-in-chief, the officers used ambiguous expressions such as “fighting stance” and “pre-attack indicators” to describe the appellant’s demeanour. The appellant contends that a legitimate use of the video in cross-examination would have been to tie down these generalised and ambiguous assertions. For instance, counsel could have played a section of the footage to one of the police officers and asked them to clarify precisely when the appellant was, on their evidence, said to have transitioned from mere distress and confusion to something oppositional; or when he had adopted a fighting stance; or precisely what was meant by a “fighting stance”; or to indicate whether any of what were styled “pre-attack indicators” were, in their view, apparent on the body-worn footage. Had this been permitted, the trial judge would have been in a much better position to assess the reliability of the officer’s perception as against the objective record of the body-worn video; equally, the officer may have conceded that their recollection did not accord with the footage.
The appellant contends that it was open to the cross-examiner to employ this approach in an attempt to raise doubt about the officers’ perceptions, recollections and interpretations of the interaction. It was not precluded by any rule of evidence. I agree.
The appellant contends further that this may have cast doubt on the genuineness of the officers’ assertions that they knew that their use of force was necessary for, and proportionate to, the occasion.[16] Thus, the error or irregularity in prohibiting this cross-examination denied the appellant a “chance of acquittal fairly open to him”. Such an error or irregularity constitutes a substantial miscarriage of justice.[17]
I agree. The key issue in the trial was whether the officers were acting in the execution of their duty when the acts said to constitute the offences occurred. The evidence of the officers about their perceptions of the appellant’s demeanour during the relevant period captured by the body-worn footage was very important evidence on this issue. The decision to deny counsel the opportunity to cross-examine the officers by reference to the footage, in order to challenge their evidence in this regard, precluded the defence from challenging the officers’ assertions about the appellant’s demeanour in any but the most generalized terms. In effect it made it very difficult for defence counsel to meaningfully challenge those assertions or to provide meaningful submissions, supported by detailed examples, to assist the trial judge to assess the officers’ evidence.
The respondent contended that the officers’ evidence of their perceptions of the appellant’s demeanour and conduct went beyond generalised assertions and gave the following examples.
(a)Constable Woodbury gave the following evidence in cross-examination about the appellant adopting a “fighting stance” and about “pre-attack indicators”.
Q: And he was - he was essentially - would you agree that he was cowering in the corner trying to almost press himself as much as he could into the corner of that room?
A: No, quite the opposite. He’d backed into the corner and turned his body side on into more of a fighting stance.
Q: Okay. And when you say a fighting stance what - could you just describe what you mean by a fighting stance?
A: So one of our pre attack indicators is most people will turn their shoulders and that side on because that delivers more force when they punch. Cowering is more of the opposite where they hunch over and they attempt to protect themselves. He stood there and was ready to fight.
Q: And you’re basing that entirely upon the position of his body being side on?
A: Yes.
Q: Okay. And you agree that he didn’t actually raise his fists in a fighting stance motion like I’m demonstrating now with my arms up, do you agree that?
A: Initially no
…
Q: So I’m suggesting fists raised in front of the body perhaps below the head.
A: Yes.
Q: He wasn’t displaying any of these pre attack indicators, do you agree with that?
A: Not at that time.
The respondent contends that this part of the cross-examination demonstrates that defence counsel was able to question Constable Woodbury on the details that formed the basis of his belief without recourse to the body-worn video. I disagree. This is precisely the kind of cross-examination which may have been able to be conducted far more effectively and in more detail, with greater hope of successfully challenging the officer’s initially stated perceptions, by reference to specific parts of the video footage being shown to the officer after the officer had described the conduct in question.
The respondent also contends that the re-playing of the footage was unnecessary for the stated purpose for which the appellant’s counsel sought to use it, as the first time he asked for the video to be played counsel was asking the witness if he recalled the appellant saying something, and the second time he was asking how many times the appellant had asked to talk to a lawyer. I agree that it would have been unnecessary to replay the video for those purposes. However, the third time defence counsel asked for the video to be replayed, he articulated a legitimate basis for the request – namely that he wanted to cross-examine the officer about the evidence in his statement about the demeanour of the appellant in the presence of the body-worn video footage. Counsel did not elaborate further, but, as the above exchanges show, he was not given much opportunity to elaborate further.
Finally, the respondent characterized the submission that the ruling had denied the appellant a chance of acquittal that was fairly open to him and this occasioned a substantial miscarriage of justice as “idle speculation”. I disagree, for the reasons set out above.
Had it been necessary to consider this ground of appeal, I would have allowed the appeal and ordered a new trial.
I do not, however, agree with the appellant’s contention that the trial judge did not give sufficient reasons for her ruling. In the passages set out above, her Honour gave sufficient reasons for the ruling on each occasion the application was made, keeping in mind that the rulings were made in the course of a summary trial in the Local Court.
(a)When it appeared from the context of the request made by counsel, and the question being asked, that the purpose of the request to replay the video was to ask the witness if he recalled something being said, or how many times the appellant had asked for a lawyer, the reason for the refusal was that it was unnecessary: the video had recently been played, the video footage speaks for itself, counsel had notes and “we’re going to accept, if that’s your information, that that’s what he said.” She later added a caveat: “Unless there’s some disagreement in relation to what the video actually says, as opposed to what the witness’ recollection is, then I’m not going to allow you to play it again.”
(b)When the basis of the application was a desire to cross-examine the officer about matters in the witness’s statement concerning the appellant’s demeanour in the presence of the video footage, her Honour said that he was entitled to cross-examine on the video and that the witness had seen it that morning. As stated above, I do not think the ruling was correct, but the reason for it was made tolerably clear.
Ground 4
In Ground 4, the appellant contends that the trial judge erred in failing to conclude that the use of the taser was improper within the meaning of s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (UEA).
UEA s 138(1) provides:
Exclusion of improperly or illegally obtained evidence
(1) Evidence that was obtained:
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
The onus was (and is) on the appellant to show that the evidence was improperly obtained within the meaning of s 138
For conduct by police to be “improper” within the meaning of s 138(1) it must be clearly inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement; it is not sufficient that the conduct merely contravene those standards in some minor respect.[18]
The appellant relies on the general orders relating to the use of tasers set out at [41] above and contends that, on balance, the use of the taser was clearly inconsistent with the minimum standards to be expected of the police officers.
The respondent contends that, while a failure to comply with the General Orders may place a police officer outside the execution of the officer’s duty, it does not automatically follow that any noncompliance with the General Orders means an officer is no longer acting in the execution of his or her duty. As the Court of Criminal Appeal held in Heiss v The Queen:
[t]he General Orders make good sense and ought to be carefully observed, but they do not have the force of law and are for guidance only. They cannot effect the lawfulness of an arrest (sic).[19]
The respondent also quoted the following passage from the decision of Angel ACJ in Ashley v Balchin:[20]
In my view whilst the arrest may be (sic) have been inappropriate in the sense that it was strictly unnecessary and whilst there may have been a breach of standing orders, the arrest was effected in good faith and for the purposes for which the power of arrest exists, that is, to bring the person arrested before a Justice and conducting a prosecution, and not for some ulterior purpose. The arrest was not high-handed or in contumelious disregard of the Police Regulations or Standing Orders or the rights of the offender.
Had it been necessary for me to determine this ground of appeal, I would not have allowed it. It is one thing to say that it is reasonably possible that the force used was unnecessary, given the availability of reasonable alternatives, and quite another thing to say that in the circumstances the police officers’ actions were “clearly inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement” when the onus of establishing that is on the appellant.
The officers were attempting to effect a lawful arrest and were faced with a non-compliant individual whose behaviour had quickly escalated and who was not responding to repeated requests to “turn around and put your hands behind your back.” He was shouting out loudly in English and Anindilyakwa to someone outside, and pretending that he was being assaulted by police when he was not. There is no challenge on the appeal to the evidence of Sergeant Bennett who deployed the taser that he did so out of a concern that there was a risk of serious harm to police or the appellant himself if a hands on approach had been taken, or his evidence about the particular concerns he had (for example, someone tripping and hitting their face into the table or falling backwards and injuring their elbow or wrist). Nor is there any challenge on the appeal to the evidence of the officers that they perceived the appellant to be adopting a fighting stance and demonstrating “pre-attack indicators”. Decisions had to be made in a rapidly developing situation and Sergeant Bennett made a judgment call. It may well have been preferable for the matter to have been handled differently from the outset, but in those circumstances I am not prepared to say that the conduct of the officers was “improper” within the meaning of UEA s 138.
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[1] At that point, the appellant was neither “able to leave physically [nor] free to leave,” and Constable Woodbury agreed that, from that point, he was under arrest and physically detained. Nothing turns on the exact moment when the appellant was arrested.
[2][1994] HCA 63; (1994) 181 CLR 487 at 493; See also PW v The Queen [2020] NTCCA 1 at [107] – [108] per Kelly J and Riley AJ. The authorities refer to cases in which the tribunal of fact is a jury. Somewhat less institutional deference is paid to a judicial officer as tribunal of fact, but the general principles are not different.
[3] [2007] HCA 30; (2007) 230 CLR 559 at 596-597 [113]; See also R v Baden-Clay (2016) 258 CLR 308 at 329 [65].
[4] Re K (1993) 46 FCR 336 at 340-341 per Gallop, Spender and Burchett JJ cited with approval in Coleman v Power (2004) 220 CLR 1 at p57 [117] per McHugh J
[5] Coleman v Power per McHugh J at [117]
[6] Wilson v Brown [2015] NTSC 89 at [57] per Southwood J
[7] See eg, R v Turner [1962] VR 30 at 36
[8]Walker & Anor v Hamm & Ors and Walker & Anor v Carter and Anor [2008] VSC 596 at [55] per Smith J.
[9] Exhibit 4, Police General Order, “Use of Force”, at 32 [247.7].
[10] In fact Sergeant Bennett did explain that he had doubts about the appellant’s truthfulness about his heart and that, in any event, to be on the safe side, he directed the taser at the appellant’s lower body – abdomen and leg.
[11] Exhibit 4, Police General Order, “Arrest”, at 6 [24].
[12] Exhibit 4, Police General Order, “Use of Force”, at 31 [245.1].
[13]Exhibit 4, Police General Order, “Use of Force”, at 32 [247.4].
[14] Exhibit 4, Police General Order, “Use of Force”, at 32 [247.7].
[15]Exhibit 4, Police General Order, “Use of Force”, at 32 [247.8].
[16] The genuineness of the officers’ assertions as to their perceptions and beliefs was not challenged on the appeal, but it was in issue at the trial.
[17] Lane v The Queen (2018) 265 CLR 196 at [52] per Gageler J.
[18] Robinson v Woolworths Ltd (2005) 158 A Crim R 546 at [23] per Baston JA; The Queen v Gehan [2019] NTSC 91 at [8] and [9] per Grant CJ
[19] Heiss v The Queen (1992) 2 NTLR 150 at 160 per Gallop, Martin and Mildren JJ (Clearly the term intended to be used was “affect the lawfulness”.)
[20](2006) 161 A Crim R 497 p 503 at [23]
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