Police v Ugarkovich
[2024] ACTMC 26
•11 November 2024
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Police v Ugarkovich |
Citation: | [2024] ACTMC 26 |
Hearing Date: | 7-9 August 2024 and 15 August 2024 |
Decision Date: | 11 November 2024 |
Before: | Chief Magistrate Walker |
Decision: | The prosecution has failed to discharge its evidentiary burden. Charge 7012/2024 is dismissed. |
Catchwords: | CRIMINAL LAW – RESIST TERRITORY PUBLIC OFFICIAL – Obstruct Arrest – Excessive Force – Criminal Code 2002 (ACT) |
Legislation Cited: | s 361 Criminal Code 2002 (ACT) s 212 Crimes Act 1900 (ACT) |
Cases Cited: | Hinchliffe v Sheldon [1955] 1 WLR 1207 Tankey v Smith (1981) 26 ACTR 19 Strano v Yates [2016] ACTSC 363 Fletcher v Harris [2005] ACTSC 27 |
Texts Cited: | AFP Commissioner’s Order No 3 Operational Safety (AFP CO 3) |
Parties: | Robert McLoughlin (Informant) Adam Ugarkovich (Defendant) |
Representation: | Counsel Kieran Ginges (Defendant) |
| Solicitors ACT Director of Public Prosecutions Kamy Saeedi Law (Defendant) | |
File Number: | CC 7012 of 2024 |
CHIEF MAGISTRATE WALKER:
Introduction
1․The uncontentious background to this alleged offence revolves around an incident involving Adam Ugarkovich (the Defendant), his wife Alex Ugarkovich, his brother Daniel Ugarkovich, and Daniel’s then fiancée, now wife, Angelina Ugarkovich. The couples both lived in townhouses opposite each other in a complex in the suburb of Macquarie.
2․On the evening of 17 November 2023, they along with others, were socialising in the city. Given the same surnames, I will respectfully refer to the protagonists by their given names. Daniel and Angelina returned home first. Adam and Alex returned later in a hire car; both had been drinking alcohol and were affected by it. They argued.
3․The argument became loud and spilled into the public area of the complex briefly. Alex called the police. Two police patrols responded and five police officers in total attended: Police Constable (PC) Robert McLoughlin, PC Jonathan Fangaiuha; PC Jessica Cox; PC Ben Scott and Acting Sergeant (A/SGT) Johanna Gossler.
4․There was no violence being perpetrated by anyone when the police attended. Alex was inside and upstairs, being loud. Adam was inside and answered the door to police when they arrived. Daniel and Angelina came outside into the communal area of the complex when Adam was engaging with the police.
5․Adam and Daniel were both arrested that morning. The charges which founded the arrests have fallen away.
6․The prosecution now proceeds on the single remaining charge against Adam, that is one count of obstructing a territory public official, PC Jonathan Fangaiuha, on 18 November 2023, contrary to section 361 of the Criminal Code 2002 (ACT) (the Code). On conviction, that offence carries a maximum penalty of 2 years imprisonment, a fine of up to 200 penalty units or a combination of both.
Directions
7․In assessing the evidence, I remind myself of the basic principles applicable to a criminal prosecution. The prosecution bears the burden of proving each and every element of the offence charged beyond reasonable doubt. The Defendant has no obligation to prove his innocence; if he raises an explanation consistent with his innocence, he is not required to prove it; it is for the prosecution to disprove it or demonstrate its irrelevance.
8․In respect to a strict liability offence or element of an offence, if the Defendant gives or points to evidence which suggests the reasonable possibility of exculpation recognised at law, then he has met the evidential burden, and it is for the prosecution to disprove beyond reasonable doubt.
9․In assessing the reliability or credibility of witnesses, I may take into account a range of factors, including what they say, how they say it, and their general impression upon me. In doing so, I may accept or reject some or all of their evidence. In assessing the evidence, I must be rational and dispassionate and may rely on common sense and experience.
10․No adverse inference is to be drawn from the fact that the Defendant chose not to give evidence.
11․If the prosecution fails to meet its high evidential burden, then the charge must be dismissed.
The Evidence
12․In the early hours of 17 November 2023, PC McLoughlin attended in response to a 000-call made by Alex just saying, “domestic violence”. He and his colleague were the first officers to arrive, followed by Constable Cox, Constable Scott and Acting Sergeant Gossler soon after.
13․Body worn camera (BWC) footage was available from all the officers who attended the scene. This was augmented by statements which were available to the Defendant and the officer’s oral evidence in court. The prosecution relied on agreed excerpts from the footage which captured police attendance at the scene, and particularly Adam’s arrest and its aftermath, from various angles.
14․The general circumstances of what occurred as reported by the police witnesses is corroborated by the BWC footage from each officer’s camera. There are significant differences, however.
15․I do note that no officer advised Adam that he was being filmed on BWC until he asked Angelina to video what was happening. This is an impropriety, contrary to legislation and Commander’s orders, but no issue was taken by the Defendant, in whose interest it was to have the footage played.
16․I turn firstly to the oral evidence of the police witnesses.
Police Constable Robert McLoughlin
17․PC McLoughlin heard wailing and screaming from upstairs when he arrived at Alex and Adam’s home. He spoke with Adam and asked to enter. Adam asked if the officer had a warrant. The officer explained that he did not require one, as he intended to enter in exercise of an emergency power under section 212 of the Crimes Act 1900 (ACT). No issue was taken with PC McLoughlin’s entry to the premises, nor with his decision to arrest Adam based on Alex’s complaint, and the officer’s observations of injuries on her elbow and leg.
18․The officer told PC Fangaiuha that he intended to arrest Adam, but did not convey that intention to his colleagues who were, at that stage, downstairs.
19․PC McLoughlin appropriately arrested Adam using the touch and tell method, that is, he touched him on the shoulder and said you are under arrest for “family violence assault”.
20․PC McLoughlin then said, “please place your hands behind your back” and took hold of Adam’s left arm. He intended to handcuff Adam because he had formed the view that Adam was argumentative, had been violent to his wife, and therefore may be violent generally, was intoxicated, and it was safer for Adam and the attending police to have him handcuffed.
21․Whilst the officer initially said in evidence that Adam pulled away from his grasp, he later accepted that this was a mistake and that he had in fact let go of Adam’s arm to deal with the dog that was bothering him. He accepted that this portion of his oral evidence, which was contrary to his statement made closer to the event and what is seen on BWC footage, was an unintended reconstruction of the incident.
22․In fact, PC McLoughlin was distracted from his arrest of Adam by Alex’s dog nipping him. He then decided to arrest Daniel because he had moved towards the melee in which his brother Adam was clearly being hurt.
23․PC McLoughlin was aware of a conducted energy weapon (CEW) being activated at least three times, without warning, against Adam whilst he was attending to Daniel. He sought to achieve Adam’s compliance differently. To this end, he shouted at him to “put your hands behind your back”. He accepted in evidence that Adam’s hands were already behind his back when PC McLoughlin yelled at him, although not yet cuffed.
Police Constable Jonathon Fangaiuha
24․PC Fangaiuha had been a constable for just over a year at the time of this incident and out of training for about 5 months.
25․PC Fangaiuha said that Adam looked at him and tensed up when PC McLoughlin told Adam that he was under arrest; he tensed the muscles in his arm and pulled his arms closer to his body, appearing to try to release the officer’s grip. Adam stepped towards the wall, then PC Fangaiuha pushed him against it; Adam pushed back and grabbed PC Fangaiuha’s arm (a bruise was later photographed on the officer’s arm). In fact, the BWC shows PC McLoughlin turning Adam with the left arm under his control, back towards the wall, followed by PC Fangaiuha pressing against Adam’s chest with his forearm and then wrapping his right arm (where the officer sustained a bruise) around Adam’s neck before throwing Adam to the ground.
26․The officer’s rationale for needing to apply handcuffs was because “his demeanour was still aggressive, and he not wanting – he’s saying no, that he’s not under arrest, and I guess for our safety. Him not, I guess, attacking us if it leads to that, or escalating to that point”. (T135)
27․PC Fangaiuha initially stated that he did not believe that PC Cox’s use of the taser multiple times without warning was inappropriate. Having been shown the video footage of the incident, and the fifth activation of the taser, he did concede that “to some extent, yes” what he had observed was “just gratuitous violence”. However, he went on to indicate that he was “not too troubled (about the use of force), like at the time it seemed-seemed reasonable”.
Police Constable Ben Scott
28․PC Scott had graduated as a police officer about 10 weeks prior to this incident. He observed that Adam was intoxicated and somewhat combative in his attitude to police when they attended.
29․He observed PC McLoughlin apply the ‘touch and tell’ form of arrest and noted that Adam tensed up in response. He observed PC Fangaiuha grab Adam with both arms around him, in a hugging style, and that they lunged toward Constable Scott, who was in the process of putting his gloves on. He abandoned his second glove and held out his hands for self-protection, but also assisted Adam to the ground. He observed that Adam exerted force against himself and PC Fangaiuha, using his arms to push his bodyweight up and moving his body weight around.
30․When asked why it was necessary to handcuff Adam, Constable Scott responded that Adam refused to comply with instructions. He was overpowering “us”, presumably referring to himself and PC Fangaiuha, and that it was necessary to effect the arrest and ensure both Adam’s safety and that of the police officers present. PC Scott further stated, “he didn’t place his hands behind his back to allow us to put the handcuffs on him without using force, and so we used reasonable force to place his hands behind his back.”
31․PC Scott had no criticism of any officer for the level of force employed.
Police Constable Jessica Cox
32․PC Cox had four years’ experience as a police officer at the time of this incident, two years in the Victorian police from 2017 to 2019, and two years with the AFP from November 2021 to November 2023.
33․She observed on arrival that Adam was under the influence of an intoxicating substance. He would not provide her with his name or other details, but did consent for her to enter his home. She engaged briefly with Alex upstairs before returning to the outside of the townhouse.
34․Adam still refused to engage with her. She then saw PC McLoughlin come downstairs and effect Adam’s arrest. Her observations in respect to Adam’s arrest were as follows:
So, he (PC McLoughlin) has advised him he is under arrest. I have observed Adam sort of become rigid and stiffen up and argue it and question as to why he was being arrested, basically saying, “you’re not taking me”. He wasn’t willing to put his hands behind his back to be handcuffed, and then as Constable McLoughlin dipped away, I sort of watched him. To provide a picture, it’s like a bit of an alcove in the front door there and I sort of watched him thrust toward the wall, the brick wall of that alcove, and then a physical altercation…. And then a physical altercation occurred, and I observed Constable Fangaiuha, who continued to attempt to pull the Defendant to the ground, and then Constable Scott then grabbed the other side of the Defendant and eventually the Defendant was taken to the ground by police… I would say the Defendant was attempting to get back up to his feet. He was thrashing his body around. Police, so Constable Fangaiuha and Constable Scott, still hadn’t put the Defendant in handcuffs at that time and I could hear – obviously I told the Defendant to stop resisting, to get on the ground, and to give us his hand so that we could place him in handcuffs… Given we were unable to negotiate, and the physical restraint was insufficient to place the Defendant in handcuffs and effect the arrest, I drew my conducted energy weapon, or the taser, and I observed the Defendant being grabbed, as I had deserved (sic) – had observed the Defendant grabbed at a drain grate covering that was in the driveway area of the complex. Given that we were unable to resolve the matter less forcefully, I discharged my conducted energy weapon into the left shoulder region of the Defendant.… So, the initial discharge of the conducted energy weapon, there was no real behaviour change. He continued to resist and wouldn’t give us his hand. Given that there was no, I guess, less forceful means of restraining the Defendant, I then produced a second discharge of the conducted energy weapon.… I continued to attempt to negotiate with the Defendant, and then after my taser another time, basically warning him to give us his hands, he then asked me what he was under arrest for. I informed him that there had been an allegation of family violence assault, and he requested, I think it was Daniel’s partner, to film the incident, and at this point I informed him that all of our police body worn cameras were recording at the time. I then, as the Defendant had then been placed in handcuffs and it was deemed practicable to do so, I then re-holstered my conducted energy weapon.
35․When asked why she decided to become involved in the arrest in the first place, the officer said, “as I had observed the physical altercation and to protect my colleagues and ensure their safety”. She was further asked, “And when you say ensure their safety, why did you consider it was necessary for you to become involved to ensure their safety?”. She responded, “As they – I observed them to be – I observed the Defendant to be actively like overbearing them and given the threat of harm or physical violence to my colleagues as AFP appointees, I sort of rendered assistance to them”.
36․The BWC footage captures five activations of PC Cox’s taser. There is no indication on the footage that Adam attempted to pull on the grate in order to extract it from the ground to use as a weapon (the likelihood of which seems quite far-fetched in the circumstances).
37․Under cross-examination, PC Cox agreed that it would have been appropriate to attempt to de-escalate the situation in respect to Adam’s arrest and that there was no attempt to do so.
38․She conceded that her recollection that Adam thrashed and placed himself against a brick wall could be wrong and that in fact he was actually pushed against the wall.
39․She recollected her use of the taser and confirmed that she gave no warning in respect to that use. She accepted that she had the opportunity to do so, that is, that it was practicable in the circumstances. However, for the second use of the taser she stated she did not think it was practicable to warn Adam because she thought he might use the grate that he was gripping as a weapon. She disagreed that she had used the taser four times or that she used it when Adam’s arms were already behind his back or handcuffed, even though this is apparent on the BWC footage. She agreed that had she done so that could have been deemed an excessive use of force.
40․On review of the video, PC Cox agreed that Adam was not in fact overpowering anyone when she activated her taser, although she noted that PC Scott was struggling to gain compliance to effect the arrest. Having been taken through the body worn camera footage in its entirety, ultimately PC Cox conceded that hers was an “unnecessary and unreasonable use of force”.
Senior Constable (then Acting Sergeant) Johanna Gossler
41․A/SGT Gossler engaged with Adam, whom she assessed as intoxicated and giving “attitude” on her arrival.
42․Daniel and Angelina came out from their home. They attempted to calm Adam. A/SGT Gossler spoke with Adam and the others for over 20 minutes subsequently without any particular issue.
43․She observed PC McLoughlin arrest Adam and said that Adam was then “resisting and violent”.
44․Following the arrest, she observed the incident involving Adam, but also engaged with Alex who had come outside to retrieve her dog.
45․She conceded that she not only placed her hand on Adam’s head but that she may have used some force in doing so, whilst trying to control it.
46․She agreed that none of the officers had announced the use of their BWCs.
47․She was not concerned that PC Cox’s “use of force” was excessive, although she did accept that no warning was given as to its use.
48․She did not think it necessary to raise any issue of concern with the attending officers or anyone more senior. The only impropriety she perceived was PC McLoughlin shouting at Adam when his hands were already behind his back, but she had not felt it necessary to raise this with the officer or anyone else.
Body Worn Camera Footage
49․A picture of what occurred on the morning of the alleged offence is well captured by piecing together BWC footage from the five attending police officers. A summary of particularly pertinent aspects of the footage follows.
50․PC McLoughlin spoke with Alex upstairs. Alex presented as intoxicated and emotional. PC’s Fangaiuha and Cox were present for parts of this discussion. PC Cox then went back downstairs.
51․Adam, Daniel and Angelina were conversing with primarily PC Scott and A/SGT Gossler downstairs.
52․After having spoken with Alex, PC McLoughlin expressed the belief that Adam had assaulted her and that she was in fear of further violence.
53․Whilst upstairs, PC McLoughlin discussed his intent to arrest Adam with PC Fangaiuha.
54․Immediately before those officers arrived downstairs, Adam was laughing and joking with his brother Daniel and PC Scott.
55․PC Fangaiuha went down the stairs first and walked past Adam, who was standing shirtless and with his arms crossed over his torso leaning against the wall just inside the doorway to his home. PC Fangaiuha passed him, crossing the threshold of the door into the small outside porch, which was the same width as the door. As the officer was passing, Adam asked, smiling, if the police could now leave his home. PC McLoughlin was just behind PC Fangaiuha, such that Adam was then between them both in the hallway.
56․The following exchange then took place:
PC McLoughlin: You’re under arrest for family violence assault. Please place your hands behind your back.
Adam: No, is this for real? No way!
[As he said this, PC McLoughlin placed his hand on Adam’s left shoulder]
[PC McLoughlin then grasped Adam’s upper left arm]
PC McLoughlin: Out of the house…
PC McLoughlin: OK, out of the house man.
Adam: Is this for real? No, no, no, no, no, no [still smiling]
57․As Adam was questioning what was happening, PC McLoughlin twisted Adam’s left arm behind his back and pushed him out of the doorway, causing Adam’s body to turn towards the left-hand outside wall.
58․PC McLoughlin released his hold on Adam to deal with Alex’s dog which was barking and bothering him.
59․At the same time, PC Fangaiuha was pulling Adam out of the doorway and then placed his forearm across Adam’s chest and pressed him back towards the wall.
60․PC Fangaiuha encircled Adam with both arms, one encircling Adam’s neck. He pulled Adam to the ground by spinning him round twice. PC Scott was in their path as they lurched forwards and held out his arms towards them. Adam landed on his back on the concrete driveway. Along with PC Cox, the officers then manipulated Adam’s legs in order to turn him face down.
61․Adam was placed face down on the concrete and in part across a metal grate which covered a drain. PC Fangaiuha placed his knees across Adam’s thighs. Adam grabbed on to the grate and continued to question the basis of his arrest.
62․Three officers were holding Adam down, PC Fangaiuha to Adam’s right side, managing to secure Adam’s right hand in a wrist lock; PC Scott held on to Adam’s left arm after it was detached from the grate and tried to bring both of Adam’s hands together to cuff him. PC Cox positioned herself to the left of Adam’s upper body.
63․Having screamed at Adam to release his left arm, and without warning, PC Cox applied a conducted energy weapon (CEW), commonly known as a taser, to Adam’s left shoulder.
64․Adam continued to ask what he had done; PC Cox told him that there was an allegation of family violence assault. He was told to release his arm and that he should stop resisting. The taser then arced, that is, made noise without energy discharge.
65․PC Cox then applied the taser again in the same location, without warning.
66․A/SGT Gossler joined in and placed her hand on the rear of Adam’s head whilst he was face down, with both hands held behind his back, although still moving his upper torso and possibly pulling his hands about. This action impeded Adam’s ability to lift his face off the grate.
67․PC Cox applied the taser again in the same location, without warning.
68․When Adam’s hands were restrained behind his back, the right in a wrist lock, the left already cuffed, PC McLoughlin screamed into Adam’s ear to stop resisting. PC Cox responded with “Relax, it’s all good Rob”, then let off another taser burst into Adam’s shoulder, again without warning.
69․Even after being handcuffed, Adam was held by four police officers face down on a metal grate.
70․He was eventually rolled over and allowed to sit up. He continued to remonstrate verbally as to why he had been arrested, demanding details of what he was alleged to have done.
The Law
71․Section 361 of the Code provides that:
(1)A person commits an offence if –
(a)the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and
(b)the person knows that the public official is a public official; and
(c)the public official is a territory official; and
(d)the functions are functions as a territory public official.
Maximum penalty: 200 penalty units, imprisonment for 2 years or both.
(2)Absolute liability applies to subsection (1)(c).
(3)Strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official.
(4)In this section:
“function” –
(a)in relation to a person who is a public official – means a function that is given to the person as a public official; and
(b)in relation to a person who is a territory public official – means a function given to the person as a territory public official.
72․As noted earlier, there is no issue that PC Fangaiuha was a territory public official, in this case, a police officer, and that the Defendant knew him to be such.
73․Section 212(2) of the Crimes Act 1900 (ACT) provides:
A police officer may, without warrant, arrest a person for a family violence offence if the police officer suspects on reasonable grounds that the person has committed or is committing the offence.
74․Adam’s arrest was lawful, but PC Fangaiuha was not making an arrest; rather he was trying to handcuff Adam in order to take him into custody following the arrest made by PC McLoughlin.
75․The AFP Commissioner’s Order No 3 Operational Safety (AFP CO 3) addresses the use of force by police officers. It is relevant to a consideration of whether PC Fangauiha was exercising a function given to him as a territory public official.
76․Relevant extracts of AFP CO 3 include:
5. AFP Operational Safety Policy
5.1 Any use of force against another person by an AFP appointee in the course of their duties must be lawful and in accordance with this order.
…
any application of force must be reasonable, necessary and proportionate to the threat or resistance offered.
…
Negotiation is the preferred means of confrontation management wherever possible.
Communication should be active and ongoing wherever possible.
Cordon and containment options are preferred wherever possible.
…
5.4 AFP appointees may use force in the course of their operational duties for a range of purposes, including:
· defending themselves or another person;
…
· effecting an arrest;
…
5.5 The principles of negotiation and conflict de-escalation are always emphasised as being primary considerations prior to using physical force including in public order management and crowd control incidents. The safety of AFP appointees and members of the public are of paramount importance.
…
5.7 When effecting an arrest, an AFP appointee must not:
· use more force than is reasonable or necessary to make the arrest or prevent escape of the person after arrest;
· do anything likely to cause death or serious injury unless it is reasonably necessary to protect themselves or others from death or serious injury.
…
11. Conducted electrical/energy weapons
11.1 AFP appointees must only use CEW’s lawfully and in accordance with this order.
11.2 AFP appointees may only use the CEW against another person or animal where they believe on reasonable grounds the use is necessary:
· to defend themselves or others from the threat of physical injury in circumstances where protection cannot be afforded less forcefully;
· to resolve an incident where a person is acting in a manner likely to injure themselves, an appointee or another person and the incident cannot be resolved less forcefully
…
11.3 Where practicable and before discharging a CEW, AFP appointees must:
· identify themselves as a police, federal agent, or federal officer
· give a clear oral warning of their intention to use a CEW
· ensure there is sufficient time for the warning to be complied with before using CEW, unless they believe on reasonable grounds this would:
o unduly place them at risk of injury
o create a risk of injury to other people
o be clearly inappropriate or ineffective given the circumstances of the incident
…
13. Handcuffs and other restraints
13.1 AFP appointees must only use handcuffs and other approved restraints, lawfully and in accordance with this order.
13.2 AFP appointees must only apply handcuffs or restraints to persons in custody if it is lawful to do so.
13.1 In deciding whether to use handcuffs or restraints AFP appointees must consider:
1. their safety and that of other persons and the person in custody;
2. the nature of the offence or breach of law;
3. the conduct and demeanour of the person either by words or actions;
4. whether the person has previously attempted to escape or is likely to attempt to escape;
5. whether the person should be restrained to prevent the loss, concealment or destruction of evidence;
6. whether the person has a history of violent behaviour or the demeanour of the person is violent or aggressive;
7. whether the person threatens to expel a bodily fluid or has done so;
8. the number of other persons in custody at the time;
9. the parity/disparity in physical attributes of the appointees and the person in custody;
10. the likelihood of injury to the appointee, other persons or the person in custody;
11. the person’s mental health history including incidence of self-harm;
12. the requirement to prevent escalation of an incident;
13. the circumstances and location of the incident.
‘Obstruct’
77․Passive non-cooperation is not an obstruction for the purposes of the section; to obstruct requires some positive act which makes it more difficult for the public official to carry out their function, including delaying or preventing the performance of the function (see Hinchliffe v Sheldon [1955] 1 WLR 1207 per Lord Goddard; Tankey v Smith (1981) 26 ACTR 19). It must be intentional and without lawful excuse (see Strano v Yates [2016] ACTSC 363 at [23]).
78․Physically struggling may amount to an obstruction provided it is specified what function is being obstructed and the conduct occurs at the relevant time. For example, struggling before or after an arrest has been made may not constitute obstructing the arresting official in respect to their function to arrest, although it may obstruct another function if that function is properly identified (see Fletcher v Harris [2005] ACTSC 27 at [32]).
The Issues
79․The issues in this case are two-fold:
1.whether PC Fangaiuha was exercising a function given to the person as a territory public official in the window of time identified by the prosecution; and
2.whether Adam obstructed PC Fangaiuha in exercising that function.
Submissions
80․The prosecution submits that the conduct which amounts to obstruction is “pulling away from the officers and holding on to the grate of a drain, thereby preventing police from placing handcuffs on him (captured on the BWC footage of PC Cox from 36 seconds to 1 minute 14 seconds)”. That is the 38 seconds of the incident. All that follows thereafter, the prosecution submit, is irrelevant as the offence is made out in the identified window of time. This conduct, it is submitted, amounts to “obstructing” PC Fangaiuha in his function as a public official, that is assisting PC McLoughlin to effect Adam’s arrest by handcuffing him, which it is submitted was reasonable to ensure Adam’s safety and that of attending police officers.
81․The Defendant submits that whilst Adam’s initial arrest was lawful in the sense that PC McLoughlin reasonably formed a suspicion that he had committed an offence and may continue to do so if not arrested, what followed during the attempt by PC Fangaiuha to handcuff the Defendant was rendered unlawful as a result of the use of excessive force by PC Fangaiuha and other attending police officers. Further, the Defendant’s conduct in not succumbing to having his hands cuffed behind him and holding on to the grate was not intended to obstruct PC Fangaiuha, but rather his attempt to understand the reason for his arrest in the context of violent police conduct. Therefore, the whole of the incident is relevant in determining the issues.
Consideration
82․Where there is discrepancy between what the police witnesses recollected in their evidence and what is clearly captured on BWC, I rely on the latter. I adopt my summary of what I observed following repeated viewing of the tendered footage from all five police witnesses.
83․The significant facts which I find are these:
(a)Following PC McLoughlin telling Adam that he was under arrest, the incident escalated very quickly.
(b)PC McLoughlin conveyed the fact that he was under arrest to Adam appropriately. Adam’s response to being arrested was incredulous, not violent.
(c)Having regard to AFP CO 3 sections 13.1-13.3, there is a very real question as to whether the use of handcuffs was warranted in order to effect Adam’s arrest at all. However, the Defendant challenges not the intended use of handcuffs, rather the manner in which PC Fangaiuha effected compliance with their application.
(d)After initially seizing Adam in an attempt to apply handcuffs to him, PC McLoughlin withdrew from the arrest process to attend to the dog that was harassing him and perceived possible intervention by Daniel in Adam’s arrest.
(e)PC Fangaiuha interpreted PC McLoughlin’s release of Adam as being effected by Adam pulling away, as opposed to PC McLoughlin releasing him. This was erroneous.
(f)The presence of an uncontrolled dog and emotional complainant in Alex, appears to have increased the chaos.
(g)Whilst Adam does appear to have tensed up when he was grasped by PC McLoughlin and PC Fangaiuha, he did not offer any violence. He was told to put his hands behind his back. That was by PC McLoughlin. PC Fangaiuha was trying to make Adam put his hands behind his back throughout the 90 second incident. Both officers demanded this with a view to applying handcuffs to Adam. However, Adam was not initially told that the police considered it necessary to apply handcuffs, or intended to, he was just told to put his hands behind his back. Adam did not cooperate either initially or throughout the incident by putting his hands behind his back.
(h)With no clear communication to Adam, and no time for him to consider, let alone reject, any instruction to allow handcuffs to be applied, PC Fangaiuha acted precipitously in grabbing him around the neck and body and tackling him to the concrete ground. PC Fangaiuha applied excessive force in order to correct Adam’s perceived non-compliance.
(i)PC Fangaiuha conducted himself on the basis of a misapprehension of the circumstances, namely believing that Adam had broken free from PC McLoughlin’s grasp, as opposed to being let go. PC Fangaiuha then acted in contravention of AFP CO 3 by failing to attempt to de-escalate or utilise communication to elicit compliance, jumping straight to aggression and force. These failures infected PC Fangaiuha’s conduct such that I cannot be satisfied beyond reasonable doubt that he was engaging in a function given to him as a Territory public official.
(j)Insofar as the prosecution seeks to rely on a defined portion of the incident to make out the physical elements of the offence, this is artificial. Just as Adam’s conduct in those seconds cannot be considered in isolation, neither can that of PC Fangaiuha.
(k)PC Scott became embroiled in the effort to control Adam as PC Fangaiuha and Adam came tumbling towards him. He joined in assisting PC Fangaiuha in what by now was an excessive use of force.
(l)Whilst on the ground, Adam was attempting, albeit futilely, to end the violence being meted out to him, by asking for details of what he had done, indicating that he felt his rights were being ignored, demanding that the officers get off him, all the while trying to lift his head from the ground to remonstrate and at times using his left hand to push up on the grate to allow him to speak out. There was no indication that he intended to use the grate as a weapon, as PC Cox stated in her evidence, or that it would have been possible for him to do so.
(m)Within the 90 second duration of this incident, Adam was tasered four times with between three or four police officers restraining him at any one time during that period, whilst also face down.
(n)The use of excessive force was significantly aggravated by the actions of PC Cox. Her application of a taser four times to Adam’s shoulder was without warning and solely for the purpose of effecting compliance with the demand that he succumb to being handcuffed. The unlawful application of the taser four times to Adam’s shoulder was inexplicable and amounted to gratuitous violence. Whilst intended to achieve compliance, it clearly had the opposite effect.
(o)PC Fangaiuha’s complicity by silence with the unlawful use of a CEW by PC Cox on Adam further infects his continued course of conduct in subduing Adam with excessive force.
Conclusion
84․The police are empowered to use force when necessary to effect an arrest. It is neither fair nor practicable to judge decisions made and actions taken in the heat of the moment to a nicety.
85․As strict liability applies in relation to s 361(1)(d) of the Code, i.e. that the functions are functions as a territory public official, it is for the Defendant to point to evidence that raises the possibility that the function being exercised was not a function of a territory public official. The defence case squarely did that.
86․A function carried out unlawfully, such as with excessive force, as occurred here, cannot be a function as contemplated by the section.
87․I have no difficulty in concluding that on this occasion, the conduct of police, whether through poor judgement or inexperience, caused the situation to escalate rapidly into a violent episode which went far beyond what could be conceived as reasonable, necessary and proportionate to effect Adam’s arrest.
88․I am satisfied that because of the excessive use of force by PC Fangauiha, the officer’s conduct in forcing Adam to succumb to being handcuffed was unlawful and therefore not a function of a Territory public official.
89․It follows that the prosecution has failed to discharge its evidentiary burden.
90․Charge 7012/2024 is dismissed.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker. Associate: Maddy Holloway Date: 11 November 2024 |
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