Martin v Abbott
[2019] ACTSC 140
•4 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Martin v Abbott |
Citation: | [2019] ACTSC 140 |
Hearing Date: | 31 January 2019 |
DecisionDate: | 4 June 2019 |
Before: | Burns J |
Decision: | See [75] |
Catchwords: | CRIMINAL LAW – Magistrates Court Appeal – hearing in Magistrates Court – finding of guilt – appeal from finding of guilt – consideration of oral evidence before the magistrate – consideration of CCTV footage – whether the CCTV footage should have created reasonable doubt in the mind of the magistrate – whether the finding of guilt was unreasonable |
Legislation Cited: | Criminal Code 2002 (ACT) ss 30, 31, 33, 42 |
Parties: | Ben Martin (Appellant) Craig Abbott (Respondent) |
Representation: | Counsel K Archer (Appellant) M Fernandez (Respondent) |
| Solicitors Kamy Saeedi (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 39 of 2018 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Theakston Date of Decision: 26 July 2018 Case Title: Abbott v Martin Court File Numbers: CC17/10445; CC17/10446; CC17/10447 |
BURNS J
On 26 July 2018, after a three day hearing on 7 May, 25 July and 26 July 2018, the appellant was found guilty of three offences in the Magistrates Court. These offences included one charge of common assault (CC2017/10445) and two charges of resisting a public official, being two police officers (CC2017/10446, CC2017/10447).
The facts before the magistrate were that a vehicle travelling south on Gungahlin Drive at about 2.55 am on 19 September 2017 was stopped by police, namely Constable Abbott and Constable Amberger. Police approached the driver, who identified himself as Ben Martin (the appellant). Police undertook a breath screening test on the appellant and the result of that test was positive. The appellant was taken into custody and the facts say that at this point the appellant became non-compliant. The appellant was ultimately guided into the “cage” of the police vehicle and was conveyed to Gungahlin Police Station for the purpose of undergoing a breath analysis.
The relevant offences arise out of an incident that occurred after the appellant arrived at Gungahlin Police Station. In the proceeding before the magistrate, the prosecution alleged that after arriving at the police station the appellant exited the caged police vehicle and was instructed to follow Senior Constable Janssen into the police station building. Three other police officers, Constable Eloise Amberger, Constable Abbott and Detective Sergeant Noble surrounded the appellant. As the group walked towards the police station, the appellant was alleged to have assaulted Senior Constable Janssen. Senior Constable Janssen, Detective Sergeant Noble and Constable Abbott attempted to restrain the appellant. The appellant allegedly ignored verbal commands from the police officers and resisted arrest. The prosecution alleged that police used Australian Federal Police approved techniques in order to gain control of the appellant and applied handcuffs.
This incident was captured on closed circuit television (CCTV) footage.
The appellant now appeals from the findings of guilt in the Magistrates Court, on the basis that the finding of guilt was unreasonable. This appeal came before me on 31 January 2019.
The evidence before the magistrate was in the form of oral evidence of the police officers present at the incident, and CCTV footage of the incident. During the proceedings before myself, it was accepted that there was oral evidence in front of the magistrate which could convince the magistrate that there was sufficient evidence to allow for a finding of guilt. However, the appellant contends that the CCTV footage of the incident was enough to create a reasonable doubt in the mind of the magistrate.
Proceedings before the magistrate
In the proceeding before the magistrate, Constable Abbott, Constable Amberger, Detective Sergeant Noble, Senior Constable Janssen and the appellant were all called to give evidence.
Evidence of Constable Abbott
Constable Abbott gave oral evidence before the magistrate on 7 May 2018. Constable Abbott confirmed that he had been on duty on Monday, 18 September 2017 from about 9 pm, partnered with Constable Amberger. He said that he and Constable Amberger were conducting a mobile patrol in Nicholls around 2.55 am on 19 September 2017 in a marked police vehicle. He formed a belief that a vehicle was travelling at a speed exceeding the speed limit. Constable Abbott pulled the vehicle over and the driver provided his licence to Constable Abbott, which identified the driver as Ben Martins (the appellant). Constable Abbott informed the appellant that he was required to undergo a breath screening test, which the appellant complied with. Constable Abbott then informed the appellant that he had the prescribed amount of alcohol on his breath, and that he would be taken into police custody to perform further breath analysis at Gungahlin Police Station. He also said that he informed the appellant that he would be searched. Constable Abbott said that the appellant became “very tense” and refused to be searched. The appellant refused to comply with directions, and both police officers present determined that he should be contained.
The appellant was subsequently transported to Gungahlin Police Station in the police vehicle. After arriving at the station, the appellant exited the vehicle and was escorted towards the door of the station:
So as we walked towards the door Senior Constable Janssen was in the front. The defendant appeared to step on the back of his heels. He’s turned around to face the defendant and put his hand up to say stop. At this point the defendant lunged towards Senior Constable Janssen and I saw – from the back I saw his body push Senior Constable Janssen up against the door, at which point I’ve grabbed him from behind and pulled him outside, because we were right at the door as you enter the police station, so the rear door, and so as I’ve pulled him back outside the police station and pushed him up against the wall, used my body against his body to hold him up against the wall… as I’ve done that … I was holding his left hand against the wall with my left hand and he was trying to pull that away from me. I was saying to him, “Just calm down.” I kind of just kept repeating, “Just calm down. Put your hands behind your back.” And he kept struggling, kind of trying to pull away. He’s then dropped his weight, dropped – lowered his centre of gravity, at which point Senior Constable Janssen took him to the ground.
10. Constable Abbott confirmed that he had not seen any contact between Senior Constable Janssen and the appellant before he saw the appellant “lunge towards” Senior Constable Janssen.
11. Constable Abbott said that once the appellant had been taken to the ground, he continued to struggle. The appellant had his left arm out to the left side, and Constable Abbott said he was holding his left arm and had his body weight across it. He said that the appellant was trying to drag his arms underneath himself. According to Constable Abbott, Detective Sergeant Noble was trying to gain control of the other arm. Senior Constable Janssen was controlling the appellant’s legs. Constable Abbott said that Senior Constable Janssen was able to control the appellant’s legs by performing three strikes to the back of his legs, at which point they were able to handcuff the appellant.
12. The witness was played the CCTV footage of the incident from the carpark viewpoint and a small portion of the hallway viewpoint. On viewing the CCTV it became apparent that the witness had, in his earlier evidence that day, misremembered the formation in which the police officers had surrounded the appellant.
13. In cross-examination, defence counsel put to Constable Abbott that the “three strikes to the legs” performed by Constable Janssen to the appellant were not reasonable strikes, and that they were not an approved technique of the AFP. Constable Abbott disagreed with these propositions and said that the strikes were an approved technique for situations where someone is resisting, and is used to control the legs of a resisting person when the legs pose a danger to the officers.
14. While under cross-examination, Constable Abbott also disagreed with the proposition that the appellant, who once taken to the ground had the full weight of Constable Abbott and Sergeant Noble on his back, was so restrained that he was unable to defend himself. He said that at that time, the police officers did not have control of him.
Evidence of Constable Amberger
15. Constable Eloise Amberger gave oral evidence before the magistrate on 7 May 2018. Constable Amberger confirmed she had been partnered with Constable Abbott for the evening of 18 September 2017, during which they conducted a mobile patrol.
16. She gave evidence that she had been with Constable Abbott when they observed the appellant’s car travelling at what they estimated to be above the posted speed limit, and that they had performed a traffic stop on the vehicle. She observed Constable Abbott perform a breath screen test on the appellant, and heard Constable Abbott tell the appellant that the test had returned a positive result. She said that she heard Constable Abbott say to the appellant, a number of times, “You’re in our custody. Please exit the vehicle.”
17. Constable Amberger gave evidence that the appellant “seemed to be quite aggressive towards Constable Abbott”. She said that Constable Abbott and herself told him that they needed to take him to Gungahlin Police Station for the purpose of breath analysis, and that they tried to direct him to the caged vehicle, but that he was uncooperative and did not want to follow directions. She confirmed that he was not frisk searched as he was not cooperating.
18. Constable Amberger said that she made a call for backup from a police unit located nearby. The audio recording of Constable Amberger’s request for backup was played to the magistrate.
19. After making the call for backup, Constable Amberger said that the appellant became increasingly more argumentative and belligerent, and that she and Constable Abbott made the decision to convey the appellant to the Gungahlin Police Station and to conduct the frisk search at the police station, with more assistance from other officers, rather than undertaking the frisk search on the side of the road.
20. Constable Amberger gave evidence that on arrival at the police station, they were met by Senior Constable Janssen and Detective Sergeant Gary Noble who assisted with getting the appellant out of the vehicle. She said that she had been the last to leave the vehicle, and that Constable Abbott, Senior Constable Janssen and Detective Sergeant Gary Noble were walking him towards the station, led by Senior Constable Janssen.
21. Constable Amberger described the events as follows:
I could see from where I was standing the defendant kept stepping on the back of Constable Janssen’s shoes – Senior Constable Janssen’s shoes as he was directly in front of the defendant at the time. I then saw Senior Constable Janssen – I assume he was turning around. He had started to turn to face our direction to face the defendant and then I saw the defendant with his right fist strike Senior Constable Janssen in the ear in the back of his head, which pushed Senior Constable Janssen into the front door of the station…
Detective Sergeant Gary Noble and Constable Craig Abbott along with Senior Constable Janssen attempted to take the defendant to the ground to restrain him. I … ran in front of the defendant as he wasn’t – he wasn’t cooperating, he wasn’t obeying commands to get down on the ground. I drew my OC spray in an attempt to subdue the defendant but I couldn’t get a clear range where I was standing. I saw my colleagues manage to take the defendant down to the ground. However, he was pulling his arms underneath his body and he would constantly – I think I said a few times stop resisting. He was constantly resisting attempts of police to pull his arms out in order to handcuff him and restrain him…
In an attempt to grab the arms of the defendant in order to place them behind his back to restrain him and handcuff him. I saw Senior Constable Janssen apply some strikes. I don’t remember if they were effective immediately but I know we did manage to get his hands out from under his body before I could apply cuffs.
22. Constable Amberger said she handcuffed the appellant and he was subsequently taken into Gungahlin Police Station.
23. In cross-examination, the witness confirmed that the strikes applied to the appellant by Constable Janssen were an attempt to release his grip so that handcuffs could be applied. She confirmed that the closed fist strike is taught as a defence tactic, and is an approved method.
24. In cross-examination it was put to Constable Amberger that the appellant walked into the back of Constable Janssen, at which point Constable Janssen turned around and either pushed or struck the defendant, who pushed back at Constable Janssen, resulting in Constable Janssen being pressed against the door and simultaneous with that her colleagues started grappling with the defendant. Constable Amberger disagreed with this characterisation of events.
25. It was also put to Constable Amberger that the CCTV footage showed that when the police officers and the appellant entered the doorway of the police station, Constable Janssen turned around and struck the appellant around the head or face, or the upper body, and then in response the appellant’s arms come up in the region of Constable Janssen’s head or face. After the footage was shown to the Constable, frame by frame, she disagreed that the footage showed this version of events.
Evidence of Senior Constable Janssen
26. Senior Constable Adrien Janssen gave evidence on 25 July 2018. He confirmed that he was attached to the Gungahlin Police Station on the night of the incident and that he had commenced his shift, in the front office, at about 9 pm on the evening of 18 September 2017. At about 3 am the following morning, the witness confirmed that he received a phone call from Constable Abbott in relation to an intoxicated driver that they had in custody, in which Constable Abbott requested assistance with getting him out of the transport vehicle on arrival at Gungahlin Police Station.
27. Senior Constable Janssen said he met up with Detective Sergeant Noble, who was also at Gungahlin Police Station that morning. When the police vehicle arrived back at the station, the appellant was asked to get out of the vehicle. After a short period, the appellant starting sliding forward and proceeded to follow Constable Janssen to the rear of the police station.
28. Senior Constable Janssen gave evidence that, at this point, the appellant trod on the rear of his work boots twice. After the second time, Senior Constable Janssen said he turned around and the appellant continued to walk towards him. The witness said that he put his hands up to stop the defendant from pushing forward towards him, and at that stage, the appellant’s right arm came up and struck him in the left side of his head. The witness said that he moved backwards as the appellant moved toward him and subsequently struck his head on the door. After that, Senior Constable Janssen grabbed hold of the appellant’s right arm and moved or pushed him over to another wall adjacent to the building, when Constable Abbott and Sergeant Gary Noble had hold of him.
29. The witness gave the following account of the subsequent events during his evidence in chief:
[Ms Purvis:] Did you see where they had hold of him?---[Senior Constable Janssen:] I believe that Constable Abbott had him around the back and the shoulders. I’m not sure exactly how, and I’m not sure exactly where Sergeant Noble was holding onto.
What’s then happened?---I told the defendant to stop resisting.
Yes?---He wasn’t complying with that direction. His fist was clenched. I couldn’t get him with the other officers, down on the ground or to (indistinct) handcuff (indistinct). I proceeded then to move his right leg and pulled his leg from underneath him and he’s fallen to the ground with the other officers.
What’s happened then?---He still wasn’t complying with the officers’ directions to release his arms. (Indistinct) given three fist strikes to the back of his hamstrings to help comply with further directions that the other officers were doing. At that stage he’s complied and he’s put his hands behind his back and he was handcuffed.
Did you do anything else after you used the fist strikes?---Yes, I removed the defendant’s shoes and put him in a leg lock and just held his legs.
30. Senior Constable Janssen was played the CCTV footage of the incident and was questioned in relation to what appeared in the footage. The witness was asked why he had pulled the appellant’s leg out, and the witness confirmed that he was trying to gain control of the appellant, as they had not been able to isolate him against the wall. Senior Constable Janssen confirmed that this is something that they were trained to do.
31. In relation to the three strikes that he applied to the appellant’s hamstrings, the witness said that this was a method of “pain compliance”, which he explained as “if you can shock them into distracting them, you can actually get in control of other parts of their body.” Senior Constable Janssen confirmed that this is a tactic that he is allowed to use, and something that he was taught in training.
32. In cross-examination, Senior Constable Janssen was questioned in relation to his use of pain compliance. In the course of this questioning, the witness confirmed that the strikes were applied to the hamstring which he said he targeted because it was the largest area of muscle on the leg that he could access.
33. Counsel for Defence showed Senior Constable Janssen screen captures from the rear carport CCTV from that night. The witness agreed that when he had turned around, he had pushed against the appellant and that the appellant moved to the left as a result. The witness maintained that the appellant had been travelling forward at the time he put his hands up.
34. In re-examination, Senior Constable Janssen described the order of events as:
He was moving towards me. My hands would have touched him as he was moved forwards, and then as he touched me, then I grabbed hold of him and that’s subsequently he’s been pushed back.
Evidence of Detective Sergeant Noble
35. Detective Sergeant Noble gave evidence on 25 July 2018. Sergeant Noble said that on the morning the incident occurred he had been the supervisor of the two-person patrol vehicle that was occupied by Constables Abbott and Amberger. He was working by himself in a separate patrol vehicle. He confirmed that at about 2.58 am he heard a radio transmission to the effect that the two-person patrol had stopped a vehicle in Gungahlin area and that they were having difficulties with the driver of that vehicle. He took steps to drive towards the other patrol vehicle in order to assist, but then subsequent radio transmissions advised him that there was no need for backup, the subject was under control, and they would meet Detective Sergeant Noble at the police station. At this point, Sergeant Noble returned to Gungahlin Police Station.
36. Sergeant Noble said that once he arrived at the police station, it was himself and Senior Constable Janssen in the office. He said that they waited at the back door for the vehicle driven by Constables Abbott and Amberger to arrive. That vehicle arrived at about 3.14 am. He saw Constables Abbott and Amberger get out of the vehicle, open the back of the “cage” and escort the appellant out of the vehicle. He said that he assisted in escorting the appellant from the vehicle into the police station.
37. The witness said that while escorting the appellant into the police station, the four police officers who were present, that is himself, Senior Constable Janssen and Constables Abbott and Amberger moved in a formation around the appellant. Senior Constable Janssen walked in front of the appellant, Sergeant Noble was to the side of the appellant, and the other two officers walked on the other side of the appellant and behind the appellant.
38. Sergeant Noble said that during this escort he had heard a noise which he thought was the sound of Senior Constable Janssen hitting his head on the door. At this point the witness looked up and saw “a look of shock” on Senior Constable Janssen’s face. He said that the appellant was making “violent, jerky type of reactions”. Constable Amberger moved to the side, and Senior Constable Janssen, Constable Abbott and Sergeant Noble were pushed backwards. Sergeant Noble said that he used a “straight arm bar take down”, an approved AFP technique, to assist in bringing the appellant down to the ground. In doing so, he said he was able to grab hold of the appellant’s left arm and assist in bringing the appellant to the ground.
39. Sergeant Noble gave evidence that he had a conversation with Constable Janssen after the incident. Constable Janssen said that his ear was sore and pointed to his left ear, and Sergeant Noble observed that his left ear was redder than his right ear. Constable Janssen also showed Sergeant Noble that his neck was marked and that there was another mark on his left forearm. Constable Noble took photographs of these injuries, and these photographs were tendered before the magistrate.
40. In cross-examination, Sergeant Noble said he could not recall seeing any of the officers using a closed first to strike the appellant. He confirmed that his understanding of the sequence of events was that it was his “arm bar take down manoeuvre” that took the appellant to the ground. He said that after this manoeuvre he had ended up on top of the appellant on the ground. He also said that this method of an “arm bar take down” was the most appropriate way to ground the appellant. It was clear that the witness either could not recall, or had not seen the strikes applied by his colleague, Constable Abbott, to the hamstrings of the appellant. The CCTV footage of the incident was played to the witness in court, and he acknowledged that the footage showed Constable Abbott applying three closed fist strikes to the appellant.
Evidence of the appellant
41. The appellant gave evidence before the magistrate on 25 July 2018. The appellant recalled that on the day preceding the offence, he and his wife began to discuss certain issues at about 7 am. These discussions proceeded until 7 pm that night. He said that he had been drinking beer and high proof bourbon from about 10 or 11 am that day. He estimated that he had about 20 standard drinks between 11 am and 7 pm that day. He said that when he came to police attention in the Gungahlin area, he had been in the car for the purpose of committing suicide by gassing himself in his car. He said that he had rehearsed the suicide in his garage at home and obtained everything he needed to carry that out, which he said included a hose, a knife, tape and rags.
42. The appellant said that after his car was pulled over by police, the police officer had asked whether he had been drinking, to which he replied that he had been drinking “[t]he best sort of alcohol”. He said that he had been asked to blow into the “machine”; he recalled failing to do so on the first go. The appellant recalled that once a reading had been obtained, he had been asked to step outside the vehicle. After getting out the vehicle, the appellant said that he recalled the male police officer “getting in [his] face” and shouting “[g]et in the fucking car”. The appellant said he responded by asking the police officers to “Taser” him to get in the car, which the appellant said was said “jokingly”. He gave evidence that he then heard the female officer radio for back-up and then, on her request, he got in the back of the police van. He did not recall any discussion about being searched.
43. The appellant said that on arrival at Gungahlin Police Station he was asked to exit the vehicle, which he did, and to follow a police officer that he recognised as being Constable Janssen into the police station. The appellant said that as he followed Constable Janssen, the Constable stopped at the door to the building and that the appellant continued to walk into the back of the Constable’s shoe. The appellant said that:
Then everyone, you know, choked me, grabbed me, tried to bring me down to the ground, like throw me to the ground, and then everyone’s shouting “He’s resisting, he’s resisting” an yes, then they finally got me down and cuffed me.
44. The appellant said that the first instance of physical interaction that the he could remember, after stepping on Constable Janssen’s shoe, was being choked. The appellant also said that he could not say that he had pushed Constable Janssen at all, and that he could not see in the CCTV footage that Constable Janssen had made contact with the door.
45. The appellant said that he was not aware of exactly what had happened in the course of this interaction, but that he struggled back when the police began to struggle with him.
46. The appellant was cross-examined before the magistrate on 26 July 2018. It was put to the appellant that, after his vehicle had been pulled over by police, he had not been compliant with the police officers’ directions because he was fixated on committing suicide. In response, the appellant said that he thought he had followed basic commands, but accepted that he had not been fully compliant with what the police were saying to him.
47. It became clear during the cross-examination that there were parts of the events that night that the appellant could not recall, which the appellant accepted. It was put to the appellant that he had started to get aggressive with the police. The appellant refuted this on the basis he “would never” be aggressive. It was put to the appellant that he had refused to be searched, which he disagreed with on the basis that he could not recall having been asked to be searched. It was also put to the appellant that he had clenched fists when dealing with police, which the appellant disagreed with as he said he would not have had clenched fists. He did not remember that he had been told to turn around and to place his hands on the vehicle, and accepted that he had not done this.
48. The prosecutor suggested to the appellant that there was a possibility that the appellant had “blacked out” parts of his memory of the incident where he acted in a manner abnormally relative to his usual manner. The appellant agreed with this but later disagreed that he was making up parts where he did not remember exactly what happens.
49. The appellant said that he could remember that after he was pulled over by Constables Abbott and Amberger, Constable Abbott was “standing over” him and “shouting in [his] face”. He also said that he recalled that the statement that he made to police at that time, being “[w]hy don’t you Taser me”, was said jokingly. He recalled feeling deflated and argumentative at the time he was pulled over by Constables Abbott and Amberger and denied any recollection of aggression, but also agreed that he had been argumentative.
50. The appellant could recall some of the events at Gungahlin Police Station. The appellant said that he exited the vehicle when told to by police, and that he began to follow Constable Janssen. He trod on Constable Janssen’s shoes and he turned around. The appellant said that the next thing he remembered was the police officers “pulling and choking [him]”. He disagreed that he had struck Constable Janssen, but accepted that there was a gap in his memory between stepping on Constable Janssen’s shoes and being restrained by the police officers.
51. The appellant was shown the CCTV footage of the incident and he maintained his disagreement with the proposition that he had struck Constable Janssen in the head. He agreed that he had resisted the police officers taking control of his body and said that when he was on the ground, he could not fight against the police officers as he was face down to the concrete floor.
Magistrate’s findings
52. The magistrate made findings on 26 July 2018.
53. The magistrate observed that the evidence before the court raised the defence of self-defence. He correctly directed himself on the elements of self-defence.
54. The magistrate observed that the facts raised an issue of self-induced intoxication, and correctly directed himself that intoxication could not be taken into account in relation to whether the fault element of basic intent exists (ss 30 and 31 of the Criminal Code 2002 (ACT) (‘Criminal Code’)). The magistrate also correctly directed himself that, in relation to self-defence as applied to the offence of resisting a territory public official, that he may take into account the defendant’s intoxication in relation to the question of whether or not he believed the conduct was necessary, but he cannot do so in relation to whether or not the conduct was a reasonable response in the circumstances as the appellant perceived them (ss 33(3) and 42 of the Criminal Code).
55. In relation to the evidence given by Detective Sergeant Noble, the magistrate noted that although he was impressed with the way the Detective Sergeant gave evidence, the Detective Sergeant had readily acknowledged that his memory of the events was unreliable and so the magistrate said he placed little weight on the Detective Sergeant’s evidence. The magistrate said that he viewed the evidence of Constable Abbott, Senior Constable Janssen and Constable Amberger as frank and responsive, and could not see any sense of prevarication or avoidance. In relation to the evidence given by the appellant, the magistrate said he had no doubt that the appellant attempted to give truthful evidence but questioned the reliability of his evidence, given that he readily admitted that he was “highly intoxicated” by the time the incident had occurred. The magistrate said it was clear that throughout the appellant’s evidence there were parts he did not remember and parts he believed he remembered.
56. The magistrate made findings about the events that were leading up to the incident at Gungahlin Police Station that were consistent with the evidence of Constable Abbott, Constable Amberger and Senior Constable Janssen.
57. He found that the appellant had been directed to undergo a breath screening test after being stopped, in his vehicle, in Gungahlin by Constables Abbott and Amberger. The test came back positive, and he was taken into custody for the purpose of a further breath analysis. The appellant undertook “repetitive and unhelpful questioning” of Constable Abbott as to why he had been taken into custody. As he moved towards the back of the police caged vehicle the appellant was observed to have clenched fists and remained argumentative. He refused to be searched and invited the officers to Taser him.
58. After arriving at Gungahlin Police Station, Constables Abbott and Amberger spoke with Senior Constable Janssen and Detective Sergeant Noble. The four police officers escorted the appellant from the vehicle toward the rear of the police station. Senior Constable Janssen was positioned in front, followed by the appellant who was followed by Constable Abbott. Detective Sergeant Noble was behind Constable Abbott and Constable Amberger was positioned to the side.
59. His Honour considered the CCTV footage of the events at the police station, and specifically in relation to the incident commencing in the doorway of the police station. He said:
I note that there is CCTV footage of that event from three angles. Neither vantage point provides a clear indication as to what happened in the doorway. From the carpark the image is taken from a distance. What is observable is simply silhouettes as to what occurred in the doorway and it is very difficult with any precision to form a view as to precisely what limbs were moved where precisely when, and it is my view that it would be dangerous to rely upon that footage to make any clear determination in the absence of any other evidence.
The footage from above the doorway is unhelpful in relation to what occurs in the doorway, but it is helpful as to what occurs when the defendant is ultimately taken to the ground, and I will return to that shortly. The footage from within the police station pointed towards the doorway appears to have a very slow frame rate which provides very little assistance.
60. After noting that the CCTV footage did not provide assistance in detailing the incident, the magistrate said that he made findings about the incident at the police station based in particular on the evidence of Senior Constable Janssen and Constable Amberger, and that this evidence was also consistent with that of Constable Abbott. His Honour accepted that as Senior Constable Janssen walked under the doorway, the appellant stepped on his heels twice, and after the second time the Senior Constable turned to face the appellant and placed his hands up to stop the defendant walking into him and touches the appellant. In response, the appellant struck Senior Constable Janssen to the left-hand side of his head. The Senior Constable then pushed the appellant, with some force, and the appellant pushed the Senior Constable back again. The Senior Constable then moved back and fell against the open door in the doorway.
61. The magistrate said that at this point, Constable Abbott placed his arms around the shoulders of the appellant from behind and pulled him backwards. The Constable then took hold of the appellant’s left arm and Detective Sergeant Noble took hold of the right arm. Senior Constable Janssen simultaneously moved around the appellant and took hold of a leg and pulled him to the side. The appellant then went to the ground, with Constable Abbott and Detective Sergeant Noble on top of him. At this point, Senior Constable Janssen applied three or possibly four strikes to the rear hamstring area of the appellant. The magistrate accepted that the appellant had been struggling before the strikes were applied, but eventually acquiesced to his hands being placed behind his back and handcuffed.
62. In relation to the charge of assault, the magistrate said that it was clear that the appellant had applied force to Senior Constable Janssen and he inferred that he did so intentionally and without lawful excuse. The magistrate then turned to consideration of self-defence, noting that he considered it to be questionable whether the evidential onus had been triggered, but that he would proceed nonetheless. His Honour found beyond reasonable doubt that the appellant, putting aside his intoxicated state, held the belief that it was necessary to protect himself to apply that force and that even if he did, his Honour found that it was unreasonable in the circumstances. The magistrate also observed that even taking into account his intoxicated state, he would make similar findings, and therefore, the offence of common assault was proved.
63. In relation to the two offences of resisting territory officials, the magistrate said the following:
It is clear that once the strike was thrown [by the appellant] that police were applying force, what they described as “hands-on” to the defendant, in an attempt to control the situation, and it is clear from the findings I have made the defendant was, in fact, resisting the application of those hands and that force in circumstances it was always open to him to acquiesce either physically or verbally, for example.
64. The magistrate found that the police officers’ attempt to restrain the defendant was within their functions as territory public officials, and that the appellant knew this. The magistrate also said that “[t]he concept that police are entitled to control a violent person is a very, very simple concept, and notwithstanding the defendant’s admitted significant intoxication I am comfortable and persuaded well and truly beyond reasonable doubt that he would have known that is the case.” His Honour said that he made this finding notwithstanding the appellant’s intoxication.
65. In relation to the question of self-defence, the magistrate noted that under s 42 of the Criminal Code, the defence is made out if the appellant believed the conduct was necessary to defend himself and also if the conduct was a reasonable response in the circumstances as the appellant perceived them. With regard to the first limb, the magistrate found beyond reasonable doubt that the appellant did not believe that the conduct was necessary. With regard to the second limb, the magistrate said that this was a case in which he had found positively that the appellant had thrown a strike at a police officer, and that the conduct was not reasonable in the circumstances known to the appellant. He noted that there had been no suggestion that the appellant’s capacity to perceive was so limited he did not know what was going on.
66. The magistrate found the offence of assault and the two offences of resist a public official that arose out of the incident in the doorway at the police station, proved beyond reasonable doubt.
67. A further charge of resisting a territory public official arising out of the roadside stop of the appellant in Gungahlin was found not proved and dismissed.
Appeal
68. I heard the appeal from these findings on 31 January 2019.
69. The position taken by the appellant on appeal was that the oral evidence was such that the magistrate, had he accepted the oral evidence, could find the appellant guilty of assault. The appellant said that the CCTV footage, however, created reasonable doubt as to the sequence of events that were put forward by the police officers in their oral evidence.
70. The application before me turned on the CCTV footage of the incident, and the depiction of that series of events within the CCTV footage. The appellant said that there was no evidence that the appellant was permitted the opportunity to comply with police directions. The appellant said that the footage, played at a slow motion, clearly showed that Senior Constable Janssen was the instigator or aggressor in the incident, and that he was not struck by the appellant. Counsel for the appellant also put forward an argument that the strike to the Senior Constable to the left-hand side of his head, as found by the magistrate, was not in the oral evidence of Constables Janssen and Amberger. According to the appellant, it was not open to the magistrate to make the findings that he did.
71. Additionally, the appellant said that in relation to the charges of resisting a territory official, it had not been clear from the oral evidence of the officers, whether Sergeant Noble gave any direction to the appellant at all.
72. The respondent made submissions before me on appeal to the effect that, had the only evidence before the magistrate been the CCTV footage, it was unlikely any conviction could have been ordered. The CCTV footage was only enough to place the incident within or near the doorframe of the police station, that there was an incident that evening, and that the appellant did strike Senior Constable Janssen to the left-side of his face. The respondent noted that, although the CCTV footage was insufficient to come to any conclusion, the magistrate did have the evidence of Constable Abbott, Senior Constable Janssen and Constable Amberger which he considered favourably. Counsel for the respondent submitted that the respondent’s case did not fall on the CCTV, but the evidence of these police officers which had been accepted by the magistrate.
73. The three videos of this incident from the three vantage points, those being from the carpark, from above the doorway, and from within the police station were available to me on appeal and the carpark footage was played in the appeal proceedings. The magistrate was entitled to determine the charges before him on the oral evidence. The oral evidence does not lead me to conclude that the convictions imposed by the magistrate were unsafe or unsatisfactory.
74. In my view, the CCTV was not such as to enable any conclusion. The CCTV was, in effect, neutral.
75. The appeal is dismissed.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 4 June 2019 |
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