Police v Frank - [2008] NTMC 81

CITATION: Police v Frank [2008] NTMC 081

PARTIES: POLICE

GABAI CHARLIE FRANK

TITLE OF COURT: COURT OF SUMMARY JURISDICATION

JURISDICTION: Criminal

FILE NO(s): 20728938

DELIVERED ON: 29 December 2008

DELIVERED AT: Darwin

HEARING DATE(s): 20 May 2008 and 10 December 2008

JUDGMENT OF: Ms Sue Oliver SM

CATCHWORDS:

CRIMINAL LAW – Police Powers - Protective Custody- Public place

Police Administration Act s 128

Bunning v Cross (1978) 141 CLR 54
Hardman v DPP [2003] NSWCA 130
Doolan v Edgington [1999] NTSC 130
Knox v Anderson (1983) 76 Cr.App.R 56

REPRESENTATION:

Counsel:
Plaintiff: Mr Ledek
Defendant: Ms McAlister & Mr Morton

Solicitors:
Plaintiff: ODPP
Defendant: NAAJA

Judgment category classification: A
Judgment ID number: [2008] NTMC 081
Number of paragraphs: 30

IN THE COURT OF SUMMARY JURISDICATION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20728938
[2008] NTMC 081

BETWEEN:

POLICE
Plaintiff

AND:

GABAI CHARLIE FRANK
Defendant

REASONS FOR DECISION

(Delivered 29 December 2008)

Ms Sue Oliver SM:
1. The defendant is charged with six counts of assaulting a member of the Police force in the execution of his/her duty on 27 October 2007. He is further charged with two counts of resisting police in the execution of their duty on the same day. The offences allege assaults on four different officers; two of the Officers alleged to have been assaulted twice.
2. The assaults are alleged to have occurred both inside and outside of the unit at which the defendant resides with his partner at around 7.30am. The evidence of Officers Christopher O’Connell and Daniel Craske was that they received a request from police communications, shortly after coming on duty at 7.00am, to attend a domestic disturbance at a unit in Cornwallis Circuit.
3. When they arrived, they found the defendant’s partner Ms Kelly and two other males sitting on chairs on the patio area at the front of the unit and the defendant close by his vehicle. At least some of the group were drinking alcohol. The windscreen of the vehicle was damaged. Ms Kelly gave evidence that she had earlier hit and damaged the windscreen of the defendant’s vehicle in an argument with him.
4. The defendant was not seated with the others and was near his vehicle with loud music playing from the car stereo. One of the officers asked him to turn it down so they could speak. The defendant turned the music up. There was an approach by Officer O’Connell to the vehicle and the defendant then reached in and turned the music down. The officers said they observed him to be extremely intoxicated. His level of intoxication is not in dispute and conceded to have been high.
5. A decision was made to take him into protective custody and remove him from the scene. The defendant, according to Officer Craske, was about 3-4 metres from the door of his unit to the rear of his vehicle. Officer Craske said he was in the car park area approaching them. The officers each took hold…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Frank

Details

AGLC: Police v Frank [2008] NTMC 81
Case: [2008] NTMC 81
Decision Date: 29 December 2008

CaseChat Overview and Summary

In the Court of Summary Jurisdiction at Darwin, the defendant, Gabai Charlie Frank, was charged with six counts of assaulting police officers in the execution of their duty and two counts of resisting police. The alleged incidents occurred on 27 October 2007 both inside and outside of the defendant's residence. The defendant was observed to be highly intoxicated and was taken into protective custody by the police. A struggle ensued leading to multiple assaults on the officers and resistance to their apprehension. The court had to determine whether the initial apprehension was lawful and if the defendant's actions constituted assaults and resistance.

The court examined whether the initial apprehension of the defendant was lawful under s 128 of the Police Administration Act, which allows for the apprehension of intoxicated individuals in public places or on private property. The court found that the area where the defendant was apprehended was accessible to the public and thus qualified as a public place. Therefore, the initial apprehension was lawful, and the officers were acting in the execution of their duty. The court also considered the specific acts of assault and resistance, finding the defendant guilty of all charges based on the uncontradicted evidence of the officers.

In summary, the court found that the initial apprehension of the defendant was lawful, and the subsequent acts of assault and resistance were proven beyond a reasonable doubt. The defendant was found guilty of all charges.

Orders