Police v Troyahan
[2006] QMC 7
•3 November 2006
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Troyahan [2006] QMC 7
PARTIES:
POLICE
(prosecution)
v
ADAM LESLIE TROYAHAN
(defendant)
FILE NO/S:
MAG43369/06(7)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
3 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
11 September 2006, 12 September 2006
MAGISTRATE:
Previtera T
ORDER:
Defendant is acquitted
CATCHWORDS:
CRIMINAL LAW – OFFENCES AGAINST PEACE AND PUBLIC ORDER – obstruct police – assault police – public nuisance
COUNSEL:
CJ Crawford for defendant
SOLICITORS:
Prosecution on own behalf
Gilmour & Associates for defendant
The defendant is charged with four offences, namely:
1. That on 3 March 2006 the defendant obstructed Senior Constable Simon Townsend in the performance of his duties.
2. That on 3 March 2006 the defendant assaulted Senior Constable Simon Townsend in the performance of the officer’s duties.
3. That on 3 March 2006 the defendant assaulted Constable Robert Kemper in the performance of the officer’s duties.
4. That on 3 March 2006 the defendant committed a public nuisance offence.
The hearing of these charges proceeded summarily on 11 and 12 September 2006 and comprehensive written submissions were received from the defendant’s counsel and the police prosecutor by 2 October 2006.
The court has had regard to all of the evidence and all of the submissions.
The onus is on the prosecution to prove each and every element of each of the four charges and the standard of proof is that of beyond reasonable doubt.
The prosecution called the following witnesses:
1. Senior Constable Simon Townsend, (hereinafter referred to as Townsend), the arresting officer;
2. Constable Brett Freshwater, (hereinafter referred to as Freshwater), the arresting officer in relation to a Matthew Waite, another person involved at the scene of the arrest of the defendant; and
3. Constable Robert Kemper, (hereinafter referred to as Kemper), who assisted Townsend in the arrest of the defendant.
The defendant gave evidence himself and called the following witnesses:
1. Scott Moerland, a friend of the defendant, who was with the defendant on the night in question;
2. Leah Collie, the defendant's partner, who was also present with the defendant;
3. Simon Troyahan, the defendant's brother, who was arrested by police prior to the arrest of the defendant.
4. Dr Graham Allen Morgan, who examined the defendant the next day at approximately 11am.
The only independent witness to give evidence before the court was Dr Morgan. An audio recording[1], undertaken by Senior Constable Freshwater, of the arrest of Matthew Waite, over the period relevant to the charges, was also admitted into evidence. The court has had cause to listen to this audio-recording several times, the quality of which appears to be better when played on other than court equipment. The recording is nonetheless of greater clarity in relation to the arrest of Waite than it is in relation to events involving the defendant as those events occurred at some distance, albeit a short distance, from Constable Freshwater.
[1] Exhibit 3.
Senior Constable Freshwater was in fact the only officer of approximately nine officers at the scene, who successfully used a recording device. It is not a legal requirement for police officers to use and activate audio-recording devices. In view, however, of the evidence of Townsend (the team leader of a number of officers involved in these events) that he instructs all members of his team to use audio-recording devices, it is a surprise to this court that no further recordings were made. Townsend failed to properly activate his device and Senior Constable Kemper had no device at all.
The lack of a clear audio-recording in relation to events specific to the defendant has made the decision of this court all the more difficult under the circumstances.
The court also admitted into evidence certain photographs, taken by the defendant early the next morning, of injuries sustained by the defendant on the evening in question and diagrammatical representations by witnesses in relation to their position relevant to other persons involved.
The following facts are not disputed:
1. The incidents relevant to the charges occurred in Felix Street, Brisbane City, in an apartment car park entrance at approximately 11.40pm on 3 March 2006.
2. Immediately prior thereto, Townsend was approached by security staff at the Victory Hotel and provided with information that there had been an assault in the hotel involving a number of people, including a female. Townsend then heard someone say “Run, it’s the fucken police.”
3. A number of people, including Matthew Waite, the defendant’s brother Simon Troyahan and a female then ran from the hotel in the direction of Felix Street.
4. Police officers, including Freshwater, Kemper, Norden, Parker and one or two others followed the group on foot, while Townsend followed in the police van. The defendant, Leah Collie and Scott Moerland walked from the hotel behind them.
5. Upon arrival at the Felix Street location, Freshwater was provided with information about the incident at the hotel, from the Manager of the Victory Hotel, who had followed police. That information alleged the involvement of Waite in obstructing hotel staff in the removal of the female offender responsible for the assault.
6. Freshwater then stated his name and rank to Waite and immediately detained Waite for a breach of the peace in relation to what had happened inside the Victory Hotel. A number of other officers were separately restraining the female who had run from the Victory and the defendant's brother Simon Troyahan. None of those additional officers were called to give evidence.
7. Waite wanted to give the female her jumper. Freshwater then introduced himself to the female and Freshwater gave her the jumper. Up to this point, Waite was not causing any difficulty for police, although he then yelled out loudly “Hey look at this no Fucken.” There is to be heard on the audio-recording a commotion in the background and the continuation of shouting, screaming and raised voices which can be heard immediately prior to Waite’s exclamation. Freshwater then arrested Matthew Waite for obstructing an authorised officer. As Matthew Waite was not called to give evidence, the court can make no finding as to what Waite observed or heard which prompted him to make the above-mentioned outburst. (The female offender was likewise not called to give evidence in relation to the events of that evening).
8. Thereafter, Waite was taken to the ground, without incident, by Freshwater and Townsend came to offer assistance to Freshwater after Waite’s comment. It is not known whether the voice heard to ask Freshwater whether he wanted Waite cuffed was Townsend’s or another officer’s. Townsend was leaning over Waite with his hand on Waite’s back. Freshwater’s evidence was that Townsend was crouching over Waite with one hand on Waite’s back.
9. The defendant has then come on the scene and shouted words to the effect of “Oh I’m taking a photo of this. Youse are fucked.” The defendant’s evidence was that he said this in response to seeing his brother Simon on the ground with a number of police using excessive force towards Simon and that he wanted them to think that he was taking a photo of the violence. (There was no medical or independent evidence tendered to the court supporting allegations of excessive use of violence by police towards Simon Troyahan).
10. As the defendant said those words, the defendant moved forward, to the left of Townsend, with a mobile phone held in his outstretched and raised right hand, as if to take a photo. Townsend, with his left hand, grabbed the defendant by his right hand (the hand holding the phone). A physical altercation then occurred between the defendant and Townsend which included Townsend striking the defendant once to the chest/stomach area, with his right fist. Townsend states it was a reactive blow to the defendant having jabbed him twice in the stomach area after Townsend had grabbed the defendant’s right hand.
11. Kemper then rushed to assist Townsend to restrain the defendant, who was standing upright, with his arms outstretched, deliberately refusing to cooperate with Townsend and Kemper, and swearing at police, calling them “fucking cunts.” The phone remained in his right hand.
12. There was a group of people, between six and fifteen gathered at the scene, in addition to the persons already mentioned. There is no evidence that any of those persons moved away or fled from the area.
13. There was a struggle by the defendant with Townsend and Kemper who concede that they were required to use some force (although they deny the use of excessive force) as a result of the defendant’s refusal to cooperate and his deliberate resistance. The defendant was taken to the ground by Townsend and Kemper. Townsend yelled out to the defendant “Pull your arm out, pull your arm out”, as one of the defendant’s hands ended up underneath the defendant. The defendant’s right arm was stretched in front of him holding the mobile phone palm up on a metal grate. The defendant was yelling out loudly “fuck and “fucking cunts” and “aargh, aargh, aargh.”
14. On a number of occasions, Waite yelled out to the defendant “calm down… Adam, calm down, settle down… Adam, please settle down...Adam, turn around… please turn around.”
15. The defendant, once both hands were freed, was cuffed by police and Townsend removed the mobile phone from the defendant and inspected it to find that there was no recording of the incident and indeed no facility for the taking of photographs at all.
16. Waite and the defendant were then taken to the police van and then to the watch house, from where they were released at approximately 3.00am the next morning. The defendant’s phone and other belongings were returned to the defendant upon his release from the watch-house. (The defendant asserts, however, that messages had been deleted and other information altered).
17. The defendant, immediately upon returning home, took photos of the injuries he says he sustained as a result of the use of excessive force upon him by the police. He also made an appointment to see Dr Morgan at approximately 11.00am the next day. Dr Morgan took a blood sample, the result of which indicated that there was no alcohol in the defendant’s bloodstream as at the time of the appointment.
18. The arrested female subsequently pleaded guilty to a charge of assault occasioning bodily harm; Waite subsequently pleaded guilty to obstructing an authorised person and obstructing police; and Simon Troyahan subsequently pleaded guilty to being disorderly on licensed premises and obstructing police.
Particulars
In relation to the charges, the prosecution rely on the following particulars:
1. That when the defendant initially rushed in the direction of Townsend, Freshwater and Waite, the defendant struck Townsend on his (Townsend’s) left shoulder with his (the defendant’s) right shoulder, knocking Townsend off balance, causing him to stumble and lose grip on Waite.
2. That after Townsend had, with his left hand, grabbed the right hand of the defendant (in which was held the mobile phone), the defendant punched Townsend twice in the stomach.
3. That while Townsend and Kemper were attempting to place handcuffs on the defendant, having brought him to the ground, the defendant kicked out at Kemper, striking him twice to the knee.
4. That, while on the ground, the defendant has used obscene and insulting language to the police officers and has twisted the thumb of Townsend.
Matters in Dispute
The Defendant disputes the charges of obstruct and assault police on the basis that at no time were any of the police officers involved acting in the execution of their duty. It is submitted by the defendant that the police conduct was in fact unlawful, commencing with the unlawful detention and arrest of Matthew Waite; the use of excessive force by the police towards the defendant's brother Simon Troyahan and continuing with the use of excessive force by police towards the defendant.
In relation to the charge of public nuisance, the defendant submits that such responses by him were the direct result of his reaction to the illegal actions of police; and therefore not within the ambit of Section 6 of the Summary Offences Act.
THE CONDUCT OF THE POLICE
The detention of Matthew Waite by Constable Freshwater
S 42 of the Police Powers and Responsibilities Act 2000 provides:
42 Dealing with breach of the peace
(1) This section applies if a police officer reasonably suspects –
(a) a breach of the peace is happening or has happened; or
(b) there is an imminent likelihood of a breach of the peace; or
(c) there is a threatened breach of the peace.
(2) It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the breach of the peace happening or continuing, or the conduct that is the breach of the peace again happening, even though that conduct prevented might otherwise be lawful.
Examples for subsection (2) –
The police officer may detain a person until the need for the detention no longer exists.
Freshwater gave evidence that he had been directly advised by the Manager of the Victory Hotel that Waite had been involved in an incident in the hotel relating to an assault by the absconding female; that he (Freshwater) followed Waite, the defendant’s brother Simon and the female when they ran from the Hotel immediately thereafter and that he received further information from the Manager of the hotel who attended at the Felix Street location to link Waite to the disturbance in the hotel.
The audio-tape indicates clearly that it was within a very short period of time after Freshwater activated his audio-recording device that Freshwater approached Waite, immediately stated his name and rank and advised Waite that he was being detained for a breach of the peace in relation to the incident at the Hotel.
Freshwater gave evidence that, under those circumstances, he was concerned that there was a likelihood of a further breach occurring. Whilst there is no evidence that at the time of Waite’s detention, he was being anything other than compliant and was simply requesting that police provide the female with a jumper, the court accepts that, as a result of the information provided to Freshwater immediately prior, the close proximity in time to the provision of that information of the flight of Waite from the hotel and Waite’s interception by police, there were valid grounds for Freshwater to reasonably suspect that a breach of the peace had happened.
In the absence of hearing evidence from Waite, the court is not prepared to find that the detention of Waite was unlawful under those circumstances.
The arrest of Matthew Waite by Constable Freshwater
S 198 of the Police Powers and Responsibilities Act 2000, as it was at the time of the offence stated:
(1) It is lawful for a police officer, without warrant, to arrest an adult the police officer reasonably suspects has committed or is committing an offence if it is reasonably necessary for 1 or more of the following reasons—
(a) to prevent the continuation or repetition of an offence or the commission of another offence;
(b) to make inquiries to establish the person’s identity;
(c) to ensure the person’s appearance before a court;
(d) to obtain or preserve evidence relating to the offence;
(e) to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;
(f) to prevent the fabrication of evidence;
(g) to preserve the safety or welfare of any person, including the person arrested;
(h) to prevent a person fleeing from a police officer or the location of an offence;
(i) because the offence is an offence against section 790 or 791;
(j) because the offence is an offence against the Domestic and Family Violence Protection Act 1989, section 80;
(k) because of the nature and seriousness of the offence;
(l) because the offence is—
(i) an offence against the Corrective Services Act 2006, section 135(4); or
(ii) an offence to which the Corrective Services Act 2006, section 136 applies.
(2) Also, it is lawful for a police officer, without warrant, to arrest a person the police officer reasonably suspects has committed or is committing an indictable offence, for questioning the person about the offence, or investigating the offence, under chapter 15.
The audio-recording indicates that Waite was not arrested by Freshwater for obstructing an authorised person until after Waite yelled out very loudly “Hey look at this no Fucken” It is accepted that it was at this point that Waite changed from being compliant to using language in the direct presence of police which “certainly could result in his arrest.”[2]
[2] Defence submissions page 18.
The audio-recording has Freshwater indicating to Waite that he (Waite) had tensed when Freshwater went to grab him. Freshwater’s evidence was that Waite was arrested because Freshwater was concerned that if he did not arrest Waite he would assault police. Whilst this court would not be satisfied that the mere tensing by a person when police are about to grab them is sufficient to found a charge of obstructing police (as was proffered against Waite); in the absence of evidence from Waite, the court is satisfied that Freshwater reasonably suspected that Waite had committed an offence and that it was reasonably necessary for him to arrest Waite to prevent the continuation or repetition of an offence or the commission of another offence;[3] or to preserve the safety or welfare of any person, including the person arrested.[4]
[3] S 198(1)(a) Police Powers and Responsibilities Act 2000.
[4] S 198(1)(g) Police Powers and Responsibilities Act 2000.
However, even if either or both of the detention and arrest of Waite by Freshwater was unlawful, the undisputed evidence is that Townsend was provided with information from security at the Victory Hotel about the involvement of the female in an assault on other hotel patrons and the obstruction by Waite of security personnel involved with the female offender; that he heard someone say “Run, it’s the fucken police”; that Waite and the female ran from the Victory Hotel; and that, upon his arrival at the Felix Street location, he observed Waite being detained by Freshwater and another police officer restraining the female and other police officers restraining Simon Troyahan. He then assisted Freshwater with the arrest of Waite.
The court finds that, as a result, Townsend reasonably suspected that Waite had committed an offence and was therefore acting in the execution of his duties when assisting Freshwater in the arrest of Waite.[5]
[5] Veivers v. Roberts ex parte Veivers (1980) Qd R 226. per D.M. Campbell J. “A constable may have reasonable grounds for believing that an offence has been committed although he is under a misapprehension as to the law.”
The taking of the defendant’s phone
The first contact which Townsend himself initiated with the Defendant was to grab the hand of the defendant which held the mobile phone which the defendant had indicated to police he was using to take a photo of their conduct.
Townsend also gave evidence that, after the defendant had been taken to the ground, he took the phone from the defendant and inspected it to see whether there was any recording of the incidents on the phone. Townsend then realised that there was in fact no facility for the taking of photographs on the phone.
The defendant did not consent to Townsend taking or inspecting the phone. The defendant held onto the phone until it was removed from his hand by Townsend when the defendant was on the ground. The evidence of the defendant that the phone settings had been changed, certain messages deleted and the background picture deleted was uncontested.
Contrary to the prosecution submissions, therefore, the phone was not taken by Townsend for safe-keeping. The court finds that it was taken specifically to confirm or otherwise whether or not any images of the relevant incidents had been recorded on the phone.
There is no law preventing a person from taking photographs of police conduct in public. More relevantly, there is no power under the Police Powers and Responsibilities Act allowing police officers to take possession of property under those circumstances or for those purposes without a warrant.
This court accepts the totality of the submissions of the defence and finds that the conduct of police in taking the defendant’s phone and interrogating the defendant’s phone under these circumstances was unlawful.
The offences against Police
In addition to the independent evidence, the credibility of the witnesses must be considered in a determination of the events relative to the charges.
Townsend
Townsend was keen to have established before the court his extensive experience, qualifications, training and expertise in relation to public order issues. However, despite clearly stating that he insists on members of his team activating audio-recorders to record events of this kind he did not properly activate his recorder and there is no evidence that any officer, other than Freshwater, even had possession of a recorder on the night in question.
Townsend also gave evidence that he took notes in relation to the incident but that those notes had gone missing in a recent move.
Townsend conceded that evidence given in chief was the first time he had mentioned that he had struck the defendant once to the stomach area after grabbing the defendant by the arm which was holding the mobile phone. He agreed that such detail was absent from both the QP9 and the statement prepared for the hearing.
In each of the QP9, his statement and his evidence, however, Townsend has included very specific and unequivocal assertions, commonly included QP9s, that the “defendant smelt strongly of alcohol, had glazed eyes and slurred speech:”[6] and “I observed the defendant’s speech was heavily slurred, his eyes were very glassy and he smelt strongly of intoxicating liquor. I formed the opinion that he was very heavily under the influence of alcohol.”[7]
[6] Contained in the QP9 prepared by Townsend.
[7] Townsend’s statement.
The uncontested evidence of the defendant and his partner Leah was that the defendant had not consumed any alcohol or intoxicating substance that night and it is conceded by the prosecutor that, having regard to all of the evidence, Townsend was mistaken in relation to his observations of the defendant’s indicia.
Townsend gave evidence that no person at the Felix Street location was shouting, obstructing or otherwise causing difficulty until the arrival of the defendant after Waite had been taken to the ground. This is not consistent with the audio-recording which indicates a background of shouting, yelling and screaming prior to the arrest of Waite.
Townsend was adamant that the defendant, whilst holding the phone in his outstretched and raised right hand, obstructed Townsend by pushing with his right shoulder against Townsend’s left shoulder while Townsend was bending over Waite with his hand on Waite’s back. Freshwater’s evidence was that Townsend was crouching over Waite. There was no evidence that the defendant stopped, slowed down or bent over to perform this action. The undisputed evidence was, in fact, that Townsend was facing into the garage, in the opposite direction of the defendant. The court is not satisfied, to the required standard, having regard to the physical descriptions of the actions involved and the relative placements of Townsend and the defendant relative to each other, that it was even likely that the defendant would be able to execute the movement as described.
In relation to the assault upon Kemper, Townsend gave evidence that when the defendant was taken to the ground, his hands were underneath him and hence the direction given by Townsend to “pull your arm out, pull your arm out.” All of the evidence in fact places the defendant on the ground on his stomach on the pavement. Townsend gives evidence that “it was only through brute strength that we were able to get the hand out.” Townsend agreed that the defendant would have had his head pressed to the ground and police officers would have been applying pressure to him and that it was extremely difficult to get the defendant’s hands out.
Dr Morgan’s evidence was that the injuries to the defendant’s face were consistent with having his face pushed hard down on the ground. The court is not therefore satisfied, to the requisite standard that the defendant, from the position described, kicked Kemper in the knee, as demonstrated by Townsend and Kemper, during Kemper’s evidence.
In re-examination, Townsend gave evidence that Waite was actively resisting Freshwater when being placed under arrest. This is inconsistent with the evidence of Freshwater and that of the audio-recording. The audio-recording indicates Freshwater to refer only to the tensing by Waite when Freshwater went to grab him. Freshwater in fact is heard to refuse an offer by another officer to cuff Waite as he was on the ground.
Freshwater
Freshwater could not recall in evidence-in-chief the altercation between Townsend and the defendant; the words used by the Defendant; the exclamation made prior to Waite’s arrest or the exclamation made by Waite using words to the effect of “This is fucken wrong, this is fucken wrong” because, he said, there was a great deal happening at the time.
Under cross-examination, Freshwater stated that he only saw the defendant lurch forward at the time that Townsend grabbed the defendant’s right arm. Whilst he stated that he made the comment “he’s just hit a copper” in relation to the assault of the defendant upon Townsend, he conceded that he could not recall seeing this assault. He later conceded, under cross-examination, that he didn’t know what he was referring to when he made that comment.
Kemper
Kemper was inconsistent in relation to his evidence about the alleged obstruct of Townsend. Kemper stated that Townsend was standing when the defendant obstructed him but under cross-examination he stated that that Townsend had one hand on Waite while Waite was on the ground. Kemper also stated that the defendant, in addition to having his right hand with the mobile phone raised, also had his left hand raised. This leaves the court in some doubt as to whether then it was possible for the defendant to have obstructed Townsend by pushing him with his left hand.
The court has already referred to the demonstration by Townsend and Kemper as to the assault on Kemper. Kemper’s evidence, following that demonstration, is the first evidence to suggest that the defendant was not on his stomach whilst on the ground but on his side. Even if the defendant was on his side, the movement required of the defendant to kick Kemper as demonstrated is difficult to picture.
The defendant
Certainly, the defendant, when consulting Dr Morgan the day immediately after the events, was not forthright in relation to how he came to be involved with police.
The defendant, however, gave consistent evidence in relation to the events of the evening. His evidence was supported by the witnesses Scott Moerland and his partner Leah Collie. The defendant and his partner Leah had not consumed any alcohol although Mr Moerland had consumed approximately 6-7 Bourbons and Coke.
The defendant conceded that he had used obscene and insulting language. The defendant conceded that he had resisted the attempts of Townsend and Kemper to arrest him and take him to the ground after Townsend had grabbed the hand that was holding the mobile phone. He conceded that he continued to resist them in making it difficult for them to pull his hand out from underneath his body in order to place handcuffs on him. The defendant concedes that he was aggressive and agitated as a result of what he says were his observations of the use of excessive force towards his brother Simon.
The court makes little of what the court accepts was confusion on the part of defence counsel in relation to his instructions as to how the defendant was brought to the ground. The defendant’s version of events is not inconsistent with the police version of how the defendant was brought to the ground.
The prosecution are incorrect in asserting that the defendant was confused as to whether or not he had been kneed or kicked. His evidence was quite clear that whilst there was so much weight on his back that he could not see, he was kneed at least three times in the back; that all he could feel were knees in his back pinning him down. This is consistent with the evidence of Collie, Moerland and Simon Troyahan who also gave clear evidence, which was not successfully challenged, that they saw the police knee the defendant three times.
The defendant’s evidence that he did not rush in to assist his brother is consistent with the police version that he power-walked over to the police. It is also consistent with his use of the mobile phone to give an impression of the taking of a photograph.
It is suggested by the prosecution that the medical evidence does not support the defendant’s submissions of excessive force used by the police. The defendant’s evidence of his face being forced against the floor is, however, supported by the evidence of Dr Morgan.
The defendant’s evidence that his hand was stomped on by police wearing shoes is not supported by the medical evidence of Dr Morgan only to the extent that Dr Morgan would have expected, under those circumstances, to see more swelling of the hand. Dr Morgan does state that such injuries to the hand are consistent with being injured on the back of the hand by something, including someone standing on the hand.
Whilst Dr Morgan did not support the assertion that the bruising between the shoulder blades was consistent with a knee in that area, he stated that the photographs would support the notion of someone applying fairly firm force to the area of the back and someone resisting that force.
Certainly, however, Dr Morgan stated that he did not see, either himself or in the photographs, any injuries consistent with being repeatedly kicked or kneed to the back on the left side, although he said that the defendant had complained of an injury to the upper left side. Dr Morgan was of the view that the injuries to the leg were consistent with falling against something, being kicked or being punched.
The use of a certain amount of force by police is confirmed by Kemper’s evidence in relation to the manner in which the defendant was brought to the ground and Townsend’s evidence that “sheer brute force” was required to get the defendant’s hand out from under him.
The defendant’s evidence as to the force used by the police officers to his brother Simon was supported by his brother Simon’s evidence and that of Scott Moerland and Leah Collie. There is, however, no independent evidence of the injuries sustained by Simon Troyahan and the court has not heard evidence from the police officers involved in that arrest. On that basis, the court would not intend to make findings in relation to the use or otherwise of excessive force towards Simon Troyahan.
Moerland
Moerland is a friend of the defendant, although much closer to the defendant’s brother Simon. He conceded that he had consumed 6-7 Bourbons and coke and that he had had some discussions with the defendant about the incident immediately thereafter but not since. He conceded that the defendant could have twisted back the thumb of Townsend but that he did not see it.
Moerland gave clear, concise and consistent evidence and was not successfully challenged under cross-examination. Moerland wrote his own statements of events, with assistance only from his sister. The manner in which he described the police restraint upon both Simon and the defendant was consistent with the evidence given by the defendant and Simon Troyahan, although not using the same terminology, but otherwise creating the same impression. The court is satisfied that there has been no collusion between Moerland and the defendant or Moerland and Simon Troyahan in relation to their evidence.
The court makes nothing of the fact that assertions made by Moerland as to alleged police statements to give the defendant “another one” do not appear on the tape. There are many agreed statements made during the incident which do not appear on the tape and others to which reference has not been made in the evidence. For example, someone can clearly be heard to be shouting “What have I done? What have I done?” and later in the audio-recording the words “I told you there was nothing…” can also be heard.
Moerland’s attitude to police and the manner in which he gave his evidence was more the result of bravado than bias or collusion with the defendants or fabrication of his evidence.
Leah Collie
Collie also gave clear, concise and consistent evidence. She was not successfully challenged under cross-examination. She confirmed that the defendant’s arm was underneath his body and that he was flat on his stomach on the ground. She states that she screamed out for the police to get off him. The audio-recording clearly indicates some screaming by a female, although the specific words or the identity of the speaker is not clear.
Simon Troyahan
The defendant’s brother gave evidence consistent with Moerland and the defendant in relation to the manner in which both he and the defendant were assaulted. He was not successfully challenged in relation to that evidence. He did concede that he had pleaded guilty to the offences with which he had been charged and that he had lied to the court at that time in relation to his acceptance of the facts because he was unable to afford legal representation and simply wanted the matter over and done with.
Unfortunately, this court is regularly faced with defendants who wish to enter pleas of guilty simply to meet their convenience even though they dispute the facts relied upon by police or dispute that the facts prove the commission of the offence beyond reasonable doubt. The court does not give the requested weight, therefore to Simon Troyahan’s evidence as to his representations to the court when entering a plea of guilty to the offences with which he was charged.
Having regard to the totality of the evidence, the undisputed facts and the issues relevant to credibility of the police witnesses whose evidence must satisfy the court of the elements of each of the offences beyond a reasonable doubt, the court accepts the evidence of the defendant and defence witnesses where there is any conflict in the evidence and makes the following findings of fact:
1. The defendant, Moerland and Collie were walking in the direction of Felix Street, Brisbane City, following Waite and his girlfriend after they had been evicted from the Victory Hotel. Neither the defendant nor Collie had consumed any liquor. Moerland had consumed 6-7 Bourbons and coke.
2. The defendant, Moerland and Collie arrived in Felix Street at a time when the defendant’s brother Simon had been arrested by police, Waite had been arrested by Freshwater and the female was also being detained. There was a lot of screaming and yelling in the vicinity.
3. The defendant has observed the arrest of his brother Simon, has heard his brother screaming “I’m complying, I’m complying” and observed the police to be using what he considered to be excessive force on his brother.
4. In an attempt to have the officers desist from the use of that force, the defendant reached for his mobile phone while walking quickly in the direction of his brother Simon, raised his right hand in which he held the mobile phone and said to police “I am taking a photo of this. Youse are fucked”. He was hopeful that once the police thought that their conduct was being recorded, they would desist from further conduct of that kind. The police did not desist from their conduct towards Simon Troyahan whose arrest continued.
5. What in fact was the result of the defendant’s conduct in indicating to police that their conduct was being recorded was that Townsend grabbed the right arm of the defendant in which was held the mobile phone, the defendant has been swung around by the force of that grab and an altercation has occurred between Townsend and the defendant in which Townsend has punched the defendant. The defendant has yelled out “aargh, he punched me.” It is likely, although the court cannot be satisfied beyond reasonable doubt, that there was then a scuffle between Townsend and the defendant in which Townsend may have been struck. The court does not accept that the defendant intentionally struck Townsend as alleged.
6. Kemper has then come to assist Townsend with the defendant who has resisted his detention by spreading his arms out and maintaining such a stance as to require the officers to use some considerable force to bring the defendant to the ground. Once on the ground, at least one police officer, Kemper has placed a knee or knees on the defendant’s back and together with other officers, the defendant’s face has been forced into the ground as the defendant lay on the ground on his stomach with one hand underneath him and the other hand outstretched still holding the mobile phone. The defendant’s partner Leah Collie shouted to police to get off the defendant, to no avail.
7. Townsend yelled out to the defendant to get his arm out from underneath him. The defendant was unable to do so because of the force upon his back by police officers involved in his arrest. He was eventually handcuffed after the use of force by police in removing the defendant’s arm from beneath him. The defendant has then been handcuffed and restrained on the ground. The court cannot be satisfied that he was told by any officer with what offences he had been charged or why he had been arrested.
8. The mobile phone was immediately removed from the defendant’s hand by Townsend who then checked see whether any photos were in fact taken. The audio-recording does indicate someone stating the words “I told you there was nothing….” Townsend had by then realised that the phone had no photography facility at all.
9. The court finds that it was the phone that was always the focus of police attention and not any behaviour on the part of the defendant otherwise to obstruct police or which did obstruct police. It was the hand which held the phone which was grabbed, it was the hand which held the phone which suffered injuries indicated by Dr Morgan and the phone was the subject of immediate interrogation once forcibly removed from the defendant’s grasp. The phone settings were also altered as a result of the interrogation of the phone.
10. The conduct of police, commencing with the grabbing of the defendant’s hand which held the mobile phone and continuing with the strike to the defendant, the restraint of the defendant and the arrest of the defendant was unlawful and the police were, therefore, not acting in the execution of their duties as police officers as submitted by the defence.
Accordingly, the defendant is acquitted of the charges of obstructing Townsend, assaulting Townsend and assaulting Kemper.
The offence of Public Nuisance
In light of the above findings, and in acceptance of the defence submissions in their entirety in relation to this offence, including the relevance of the circumstances under which the words and conduct the subject of the charge were committed, the defendant is also acquitted of the charge of public nuisance.
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