R v Barlow

[2024] NSWDC 539

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Barlow [2024] NSWDC 539

Hearing dates:

21 October 2024 and 22 October 2024

Date of orders:

15 November 2024

Decision date:

15 November 2024

Jurisdiction:

Criminal

Before:

Catsanos SC DCJ

Decision:

Appeal dismissed

Catchwords:

CRIMINAL LAW – conviction appeal – assault occasioning actual bodily harm – whether any error by Magistrate – unreasonable use of force when making an arrest – defence of self-defence not made out

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 15A

Crimes Act 1900 (NSW) ss 59, 418

Crimes (Appeal and Review) Act 2001 (NSW) s 18

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 231

Cases Cited:

Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244

Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72

Lunney v Director of Public Prosecutions (2021) 105 NSWLR 236; [2021] NSWCA 186

McIntosh v Webster (1980) 43 FLR 112

McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298

Category:

Principal judgment

Parties:

Ryan Joseph Barlow (Applicant/Defendant)
Rex (Respondent/Crown)

Representation:

Counsel:
Mr B Haverfield (Appellant/Defendant)
Mr D Robinson (Respondent/Crown)

Solicitors:
Walter Madden Jenkins (Appellant/Defendant)
Office of the Director of Public Prosecutions (Respondent/Crown)

File Number(s):

2021/00124560

 Decision under appeal 

Court or tribunal:

Local Court of New South Wales

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

22 May 2023

Before:

Attia LCM

File Number(s):

2021/00124560

Judgment

Background

1. By notice of appeal dated 18 December 2023, the appellant, Ryan Joseph Barlow, appeals from the conviction entered by Magistrate Attia (Magistrate) in the Downing Centre Local Court on 22 May 2023 for the offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) (‘Crimes Act’).

2. The appeal is brought pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘Appeal and Review Act’).

3. Section 18(1) of the Appeal and Review Act provides that an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings.

4. As has been reinforced by the Court of Appeal in McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298 (‘McNab’) and Lunney v Director of Public Prosecutions (2021) 105 NSWLR 236; [2021] NSWCA 186 (‘Lunney’) the Court’s jurisdiction to intervene and set aside a conviction is dependent upon the appellant establishing error by the magistrate in the fact finding process, the identification of the law, the application of the law, or in exercising a discretionary power. ^[1] As was pointed out in McNab,^[2] “[d]emonstration of error may mean no more than satisfying the District Court judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt.”

   1. McNab at [88].

   2. At [91].

5. Again, as the authorities make clear, this Court, in the application of s 18 of the Appeal and Review Act, is entitled to have regard to the reasons provided by the magistrate. The appellate judge must, so far as able, form his or her own judgement of the facts, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the Local Court (see Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244, [17]-[18]).

6. As was pointed out in Lunney,^[3] s 18 of the Appeal and Review Act is not to be construed as requiring the District Court, in every case, to undertake a complete review of the whole of the evidence and form its own view as to the applicant’s guilt, regardless of the issues raised by the appellant. The extent of the review required in any individual case will depend on the circumstances of the case and the kind of error alleged.

   3. At [44].

7. In the reasons which follow, having regard to the operation of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), I will anonymise the identity of a number of witnesses who gave evidence, or are otherwise referred to in the evidence, before the Magistrate.

8. I will refer to the Magistrate’s judgment (J) , which was delivered orally on 22 May 2023, by referencing the pages of the transcript of that judgment.

The Short Facts

9. The short facts of the matter can be summarised as follows:

1. The appellant was an officer of the New South Wales Police Service.

2. On 1 June 2020, along with two other police officers, probationary constable Kovacs-Hegedus and probationary constable Schiavon, the appellant attended a residential complex in Surry Hills to deal with a disturbance.

3. There, the police officers saw a person of interest and pursued him unsuccessfully.

4. In the process, the police officers entered a local park in the area.

5. There, the appellant saw one young male person (referred to by the Magistrate as ‘the complainant’, a term I will adopt) as well as some other young males, although there was some controversy as to how many. ^[4]

   4. This was a controversy of no moment in my view and was appropriately treated as such by the Magistrate (J 16.38).

6. In due course, the appellant became engaged in conversation with one of the young males (‘Witness 1’).

7. At the same time, the complainant was involved in conversation with the two probationary constables. They were standing a distance of some metres from the appellant.

8. Another of the young males (‘Witness 2’) was standing nearby and, in due course, commenced filming events on his mobile phone.

9. A further member of the group of young males (Witness 3) was also standing nearby.

10. Video evidence in relation to the events which unfolded was tendered before the Magistrate. That evidence came from four sources, namely, body-worn footage of each of the three police officers and the phone camera footage taken by Witness 2.

11. It is clear from the audio, particularly that which accompanied the phone camera footage, that there was an exchange of words between the appellant and Witness 1, with Witness 2 apparently also making various comments and observations.

12. Parts of the complainant’s conversation with the two probationary officers are also audible on the video.

13. In the midst of these verbal exchanges, which lasted a matter of minutes, there was some exchange concerning whether the appellant had sworn and whether Witness 1, or perhaps another of the young males, had sworn.

14. It is not controversial that, at one point while still standing some metres from the appellant, the complainant said, “I’ll crack you across the fucking jaw bro”.

15. Immediately, and in response to the complainant’s words, the appellant advanced on the complainant, took hold of him physically, and turned him around so that the complainant’s back was towards the appellant, at which point the appellant was holding the complainant’s arms behind his back.

16. In that process, the appellant is heard to say, “Turn around” and “Down on the ground”. Moments later, the appellant is seen to perform a manoeuvre known as a ‘leg sweep’, whereby, in a sweeping action with his right leg, he struck the complainant’s legs, taking them out from under him, resulting in the complainant falling heavily to the ground while his arms were still being held by the appellant.

The Issues

10. It is not controversial that the complainant suffered actual bodily harm as a result of the leg sweep perpetrated by the appellant and the fall which ensued.

11. The issue at the heart of the dispute is whether the appellant assaulted the complainant and, specifically, whether the appellant’s conduct was without lawful excuse.

12. The appellant raises two matters which he says provide lawful excuse.

13. Firstly, the appellant relies upon s 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) and, in particular, the statutory imprimatur to use such force as is reasonably necessary to make an arrest.

14. Otherwise, the appellant relies upon s 418 of the Crimes Act 1900 (NSW), contending that the action of sweeping the legs out from under the complainant was an act of self-defence.

The Errors Contended For

15. As the respondent outlines in its written submissions, the appellant effectively advances five errors on the part of the Magistrate. As I understand the appellant’s case, those errors can be stated as follows:

1. Factual errors by the Magistrate in finding that the appellant spun or turned or moved the complainant twice without resistance (in the lead up to the leg sweep) and finding that there was no evidence on which he could comfortably conclude the complainant resisted the appellant.

2. A factual error by the Magistrate in finding that the leg sweep technique employed by the appellant is not the methodology taught to New South Wales police officers.

3. The Magistrate gave weight to an extraneous matter, namely, the appellant’s failure to mention the complainant’s kick or attempted kick.

4. The Magistrate gave insufficient weight to the evidence of the appellant as regards the appellant’s perception of the circumstances then occurring.

5. The Magistrate gave too much weight to the evidence of the complainant in relation to whether or not the complainant resisted the appellant.

16. As outlined earlier, it is incumbent upon the appellant to establish relevant error on the part of the Magistrate to ground the appeal he pursues. Accordingly I turn to a consideration of the errors contended for.

Error in finding that the complainant offered no resistance and finding there was no evidence to comfortably conclude the complainant resisted the appellant

17. A core element in a number of the appellant’s complaints lies in what are said to be failures by the Magistrate to appreciate shortcomings in the reliability of the video evidence and/or placing undue weight on that evidence as compared to the evidence given by the witnesses. I will deal with those complaints in the context of the asserted error presently under consideration, although my comments apply to other instances where the appellant raises concerns about the video which are said to undermine the conclusions drawn by the Magistrate.

18. In argument, counsel for the appellant advanced the proposition that video evidence might suffer from “foreshortening” and “playback timing issues”. My understanding of the substance of this argument is that video evidence can be unreliable and suffer from a lack of dimension or the depth which is available to the human eye. It was said that the brain processes things more quickly than what might be seen on film. In short, the appellant contends that just because it does not appear on the video doesn’t mean it didn’t happen.

19. I am conscious of the authorities which highlight the need for caution when considering photographic evidence, including video recordings, given the potential for photographs to distort or otherwise not accurately depict the subject matter. In Herne Investments (NSW) Pty Limited v Don Watson Proprietary Limited [2016] NSWCA 72, Sackville AJA said at [42] (omitting the cases cited):

“The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.”

20. I have carefully viewed the video evidence. The video taken from the mobile phone of Witness 2 is, in my view, the most useful. The mobile phone footage is clear and physically proximate to the events taking place. My impression was that the mobile phone video provided a reliable view which was largely in keeping with what would be seen by the eye of an observer in that position. Adopting the terminology of Sackville AJA, I regard the mobile phone video as providing “cogent evidence” of the events which took place.

21. In the course of argument, attention was directed to Exhibit 5 before the Magistrate, which is a series of still photographs distilled from the video evidence taken by Witness 2. I did not see anything inconsistent between Exhibit 5 and the video from which it was taken, although obviously the still photographs are moments in time and, to be properly contextualised, need to be considered in conjunction with the moving picture.

22. Counsel for the appellant argues that, effectively, the Magistrate gave undue weight to the video evidence without having adequate regard to the evidence given by the witnesses.

23. In the context of the proposition that the Magistrate erred in his conclusions that the complainant offered no resistance, the appellant relies upon the responses he gave in an electronically recorded interview on 20 July 2020 in which he said that the complainant tensed his upper body and shrugged his shoulders in an upward direction, leading the appellant to feel that the complainant was breaking free or potentially would break free of his grip.

24. In support of his argument that the complainant resisted arrest, the appellant also relies on the evidence given by probationary constable Schiavon and probationary constable Kovacs-Hegedus, being, respectively, that the complainant moved his shoulder a bit and that the claimant appeared somewhat tense.

25. It is said that the Magistrate did not give sufficient weight to the evidence relied upon by the appellant as opposed to what the Magistrate had described as the “most significant evidence in the prosecution case”, namely, the video evidence.

26. I do not accept the criticisms of the approach taken by the Magistrate.

27. Having viewed the video evidence, the Magistrate concluded, “…there is nothing that I can see that shows resistance by the complainant” (J 7.20). That is consistent with my assessment of the video evidence.

28. However, the Magistrate did not ignore the other evidence touching on this issue.

29. At J 10.05, the Magistrate refers to Witnesses 1, 2 and 3 all giving evidence that they did not see the complainant do anything consistent with resisting arrest.

30. The Magistrate considered the evidence given by each of the probationary constables but, for reasons he explained, treated it with some caution (see detailed discussion at J 12-15).

31. Notably, (at J 13.40-13.45), the Magistrate referred to the evidence given by probationary constable Schiavon when asked if she could recall the complainant doing anything with his body that was consistent with him resisting the appellant. She answered, “No. Not particularly not”, which she clarified to be that she had no memory of him resisting.

32. At J 14, the learned Magistrate continued to quote from the evidence of probationary constable Schiavon in relation to the complainant moving his shoulders and pointed out the officer gave evidence that her focus was on the other two males. Ultimately, the Magistrate expressed doubts as to the extent to which probationary constable Schiavon’s evidence assisted him (J 14.30). Those doubts are reasoned and appropriate in my view.

33. The Magistrate turned to consider the evidence of probationary constable Kovacs-Hegedus (J 14-15) and, specifically, her evidence that the complainant’s body appeared to be “somewhat tense”, although she was unable to say whether that was a result of something that was done by the complainant or as a result of something done by the appellant.

34. Notably, the Magistrate made an express finding that certain aspects of the evidence of probationary constable Kovacs-Hegedus lacked credibility (J 15.15).

35. At J 16-17, the Magistrate considered the COPS event completed by the appellant and at J 16.50-17.05 said, “The suggestion in the document [the COPS event] that the complainant began to pull his hands up, as constituting the resisting of arrest, is not corroborated by the video, or by any of the body-worn footage that I have seen. It is not consistent with the defendant’s account later anyway about the complainant resisting. The description of it as ‘‘violent resistance’’ is quite simply not correct either. It does not equate that description with what I have seen. What I have seen on the video cannot be described in that way, that is, a form of violent resisting at all”.

36. Clearly enough, the Magistrate placed weight on the video evidence in resolving the factual contest before him, including the contention that the complainant resisted the appellant. However, in my view, he did not do so disproportionately, nor did he ignore other evidence.

37. I consider the Magistrate’s reliance on the video evidence was appropriate and was not to the exclusion of other evidence. In my view, there was no factual error in the Magistrate’s determination of the question of whether the complainant offered resistance in the course of being arrested.

Factual error in finding that the leg sweep technique adopted by the appellant is not the methodology taught to New South Wales police officers

38. This complaint arises from the Magistrate’s conclusions at J 27.12.

39. As I perceive it, the complaint is that just because the technique adopted by the appellant was not taught, does not mean it could not be used if the prevailing circumstances required it.

40. The respondent points out that, at J 15, the Magistrate deals in detail with the evidence of Sergeant William Watt, who gave evidence in relation to the teaching and use of the manoeuvre known as the leg sweep. The Magistrate says, “The effect of his evidence is that the leg sweep, as employed by the accused, is not a method that is taught to members of the NSW Police Force as part of their training; however, it is not prohibited. The defendant gave evidence to say that he had learnt that manoeuvre as part of his training. In any event whether it is part of training, prohibited or not, the question remains for me as to whether the use of force by the accused in the performance of the leg sweep was, reasonably necessary to make the arrest of the complainant or not.”

41. The Magistrate repeated as much at J 27.20.

42. In my view, the Magistrate’s findings in this regard were open to him and are entirely consistent with the evidence. His Honour’s judgment discloses no factual error in terms of the techniques adopted by the NSW Police Force when teaching the sweep manoeuvre. In any event the Magistrate did not dwell on the issue but, rather, addressed the correct question, namely whether the sweep employed by the appellant was a proportionate response in the circumstances.

43. In my view the Magistrate committed no factual error of the type suggested here.

Weight attached to the appellant’s failure to mention the complainant’s kick

44. The appellant argues that the error here is that the Magistrate “has given an adverse finding to a failure by the Appellant (or any of the police then present) to mention the kick when explaining the reason for the arrest”, without appreciating that the appellant’s explanation was as to the reason for the arrest rather than the reason for the sweep being employed.

45. The “kick” to which the appellant refers in this context is the kick the appellant says the complainant was trying to effect on him, which caused the appellant to employ the leg sweep.

46. The appellant’s complaint is that any failure by the appellant or the other police to mention the kick was because they were explaining the reason for the arrest of the complainant and the “kick” was not relevant to that explanation. Thus, it is said, giving weight to the failure to mention the kick was to give weight to an extraneous matter.

47. As I perceive it, the appellant’s submissions in support of this complaint are potentially twofold. Firstly, they concern events at the scene. In that context, the Magistrate (at J 22 and following) sets out, at some length, excerpts from the agreed transcript of audio evidence extracted from the videos. His Honour points out that the complainant, after the leg sweep, asked for an explanation. His Honour observes, “Yet the very conduct alleged to have been committed by the complainant, that is, attempting to kick the officer, or to kick towards other officers, in particular, Constable Kovacs-Hegedus, is not raised once by any of those officers. It is not raised between them either on any of their respective body-worn footage”.

44. It is clear that the learned Magistrate was expressing concerns in relation to the absence of any reference to a kick by the appellant in the contemporaneous unfolding events following the leg sweep. The exchanges in question were not limited to the reasons for the arrest.

45. The Magistrate (at J 23.20-23.25) also refers to the evidence relating to the attendance of the complainant’s mother at the scene after the event and the fact that, when speaking to her, there is no mention by the appellant of the complainant having attempted to kick the appellant. Again, the Magistrate quotes from the audio contained in the video evidence, with the appellant saying to the complainant’s mother, “He’s threatened to punch my head in. It’s all on body-worn video. I’ve attempted to place him under arrest. He resisted arrest, and he’s been taken to the ground, alright”.

46. The dialogue quoted by the learned Magistrate makes it clear that the appellant purported to tell the complainant’s mother why the complainant was “taken to the ground” and so the conversation, on a reasonable assessment, is not limited purely to the reason for arrest.

47. I see no error in the Magistrate’s approach. In my view, it cannot be said that in forming his conclusions and referencing the absence of any contemporaneous mention of the kick by the appellant, the Magistrate was giving weight to an extraneous factor.

48. Secondly, the appellant’s complaint that the Magistrate erred in his treatment of the appellant’s failure to mention a kick by the complainant might be taken to refer to the observations made by the Magistrate at J 17 as to the absence of any reference to a kick or attempted kick by the complainant in the COPS event document completed by the appellant shortly after the incident. The COPS event was not limited to providing an explanation for the arrest. As was pointed out by the respondent in submissions, this is a telling omission, given the contemporaneity of the COPS event which purported to provide a detailed narrative of the relevant facts and circumstances surrounding the incident.

49. Accordingly, however construed, I do not accept the appellant’s complaint that the Magistrate gave undue weight to the appellant’s failure to mention a kick or attempted kick by the complainant.

Giving insufficient weight to the evidence of the appellant as regards the appellant’s perception of the circumstances

54. The submissions made by the appellant in support of this ground of the appeal are, in some respects, an extension of submissions and criticisms made in relation to the weight attributed by the Magistrate to the video evidence.

55. It was argued that the appellant’s subjective perceptions inform the application of s.418(2) of the Crimes Act and, specifically, whether the appellant believed his conduct was necessary to defend himself or another person and, beyond that, whether the response was reasonable in the circumstances as the appellant perceived them.

56. The short point which the appellant puts is that, even if there is some doubt as to whether the complainant, in fact, kicked or attempted to kick the appellant or one of the other officers, if the appellant believed that to have been the case, it was appropriate for him to employ the leg sweep as he did.

57. The appellant also submitted that the Magistrate committed a similar error in failing to have regard, or give sufficient weight, to the appellant’s perception of events in the application of s.231 of LEPRA.

58. As was done before the Magistrate, the appellant’s counsel took me to the decision of Connor J in McIntosh v Webster (1980) 43 FLR 112 at 123, where his Honour said:

“[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.”

59. I accept that the arrest and the events surrounding it must be considered in the context of a dynamic unfolding situation and should not be analysed under a microscopic lens of hindsight.

60. However, it is not correct, in my view, to say that the Magistrate gave insufficient weight to the appellant’s evidence of his perceptions. The various matters discussed in the judgment all point to the Magistrate being satisfied that the mobile phone video was compelling evidence as to the circumstances of what happened. Nonetheless, his Honour undertook an analysis of the explanations provided by the appellant and how those explanations ought be considered in light of what was said by the various witnesses who gave evidence.

61. Notably, in introducing his judgment, the Magistrate said, “As to whether the defendant may have believed the leg sweep was necessary for self-defence, I must consider the circumstances as the defendant perceived them to be, at the time of the performance of the leg sweep. I must take into consideration any extraordinary attribute or attributes of the defendant which bears on his perception of those circumstances, and which had a bearing on any such belief he may have formed” (J 4.25).

62. The Magistrate (at J 16-17) discusses the COPS event document prepared by the appellant and sets out the respects in which the contents of that document differed from the video. In my view, the aspects of the video discussed by the Magistrate do not involve any realistic potential for distortion or inaccuracy in the context in which the Magistrate refers to them. The Magistrate says (at J 17.02-17.15), referring to the appellant’s account that the complainant offered violent resistance:

“The description of it as ‘violent resistance’ is quite simply not correct either. It does not equate that description with what I have seen. What I have seen on the video cannot be described in that way, that is, a form of violent resisting at all. There is no mention, pertinently, of any kick or attempted kick by the complainant, at or towards the defendant, and certainly no mention of kicking at or towards the other officers either. There is simply no mention of kicking at all.

There is mention of the leg sweep, but the narrative purports to suggest that after being taken to the ground, the complainant continues to resist arrest; that when taken to the ground by the leg sweep, the complainant, on the video was clearly, audibly and visibly in significant pain. To describe the complainant in a way as continuing to resist, is not an accurate description set out in the [Witness 2] video or in any of the respective body-worn footage either”.

63. The Magistrate went on to refer to the record of interview conducted with the appellant which was exhibit 11 before him. It is unnecessary to refer in detail to that record of interview here, but it contains what, unquestionably, is an account not previously referenced in the COPS event, namely, the complainant beginning to kick back with his right leg in the direction of the appellant’s groin, causing the appellant to fear that the complainant was intending to carry out the earlier threat.

64. At J 18, the Magistrate referred to the appellant’s oral evidence in which he said, in explanation of his actions, that he could see the complainant’s trapezius muscle tensing through his clothing. As the Magistrate observed, the footage shows the complainant to be wearing what appears to be a loose-fitting hoodie. The Magistrate goes on to say, “I cannot accept evidence of the viewing of the tensing of the complainant’s muscle or muscles in the way described by the defendant” (J 18.20). The Magistrate also points out that the appellant’s evidence about the complainant’s muscles tensing was not supported by other evidence, nor by the video taken by Witness 2.

65. At J 19-25, the Magistrate refers at length to matters going to the reliability of the appellant’s evidence. Notably, at J 25, having referred to the appellant’s refusal to make a concession to straightforward propositions put in cross-examination, the Magistrate said:

“What it does show in terms of the exchange, is an example, however, as to how I accept the defendant’s evidence. The accused’s account was difficult to follow in some instances. He had difficulty making what would otherwise be inconsequential concessions. That example [of a refusal to make a concession] is one of them … Other examples, including the lack of appropriate concessions in relation to the physique of the complainant, when the [COPS event] document prepared by him had not dissimilar wording.

What I had the most difficulty reconciling, however was his answer to a key question: that he did not give the complainant time to comply with his directions. He answered that directly by saying that he gave the complainant 3.02 seconds to do so. The answer was on the back of his agreement in cross-examination, that he had moved the complainant twice, in that short time, he had done so quickly, and he had moved him without any further verbal instruction; that is, in approaching the complainant, he says ‘You’re under arrest, get on the ground’, and then moves him on two occasions in that short period but in the 3.02 seconds before affecting the leg sweep.”

66. These adverse impressions of the appellant’s evidence were open to the Magistrate. However, although he had reservations in relation to the appellant’s expressed belief of the circumstances as he perceived them to be (J 28.18), the learned Magistrate turned his attention to what he described as the objective test as to whether the appellant’s conduct in performing the leg sweep was a reasonable response to the danger as he perceived it (J 28.20).

67. As is acknowledged by the appellant in submissions, the Magistrate properly stated the law as regards section 231 LEPRA and section 418 of the Crimes Act.

68. The Magistrate gave detailed consideration to the question of whether the use of the leg sweep was reasonable and proportionate to any risk perceived by the appellant (J 26-28).

69. The Magistrate’s conclusion (at J 27.35) that “The risk of danger sought to be prevented was either minimal or non-existent at best” was well open to him on the evidence and is a view I share.

70. His Honour acknowledged the appellant’s evidence that the risk to be prevented was physical force to him and/or others and to maintain control of the arrest process, observing however, that the appellant did have control at all times (J 27.35-27.40). In terms of any perceived risk of being kicked, the Magistrate, referencing his earlier analysis of the evidence, concluded beyond reasonable doubt that the use of the leg sweep was not a reasonable response to the danger as he said he perceived it (J 28.25 – 28.40).

71. In the end result the Magistrate, in light of his conclusion that the leg sweep was objectively not a reasonable response in the circumstances as perceived by the appellant, found that the appellant's conduct was without lawful excuse for the purposes of section 231 LEPRA and that the Prosecution had negatived the issue of self-defence.

72. In my view, it cannot be said that the Magistrate failed to give fulsome consideration and appropriate weight to the appellant's perception of the prevailing circumstances. The conclusions reached by the Magistrate were compelling and entirely appropriate on the evidence. They betray no error on his part.

Giving too much weight to the complainant's denial of resisting arrest

73. The appellant argues that, in giving [disproportionate] weight to the complainant's evidence that he did not resist arrest, the Magistrate clouded the principles to be considered in the application of section 231 LEPRA and section 418 of the Crimes Act.

74. As discussed in relation to the earlier complaints raised by the appellant, the Magistrate, in my view, gave detailed consideration to all of the evidence impacting on the issues raised by the appellant and weighed that evidence as part of the evaluative process he was required to undertake, informed where necessary, by the credit findings he made. As I have outlined, the conclusions reached by the Magistrate on the issue of whether the complainant resisted arrest was reasoned and, in like fashion, involved a consideration of the competing evidence. I do not accept the proposition that the Magistrate attached inappropriate weight to the complainant’s evidence. Indeed, the Magistrate’s approach was to test the complainant’s evidence by reference to the video footage and the accounts given by the various witnesses.

75. His Honour's exposition of the prevailing legal principles is not in issue and, in my view, it cannot be said those principles were “clouded” either in their articulation or application.

76. I do not accept that the Magistrate erred in his approach to the evaluation of the complainant’s evidence.

Disposition

77. It follows that, in my view, the judgment of the Magistrate does not contain error in the respects complained of.

78. However, I must consider whether, those complaints aside, in the context of the issues which have been raised on this appeal, the Magistrate should nonetheless have found the offence was not proven beyond reasonable doubt. To that end, in accordance with the authorities outlined earlier, I must form my own judgment of the facts so far as I can, having regard, where appropriate, to the benefit the Magistrate had in seeing the witnesses firsthand.

79. It is unnecessary for me to canvas at length ground and the exposition of my reasoning that has already been covered in detail in my consideration of the appellant’s complaints, nor to review all of the evidence. Rather, I will address the correctness of the decision of the Magistrate in the context of the issues thrown up in this appeal.

80. As I have indicated, the correctness of the Magistrate’s statements of principle is not in issue. It is clear enough from submissions made orally and in writing that the mainstay of the appeal is the argument that the Crown did not satisfy its onus by establishing that the appellant’s conduct was without lawful excuse, having regard to s.231 LEPRA, nor negativing self-defence, as contemplated by s 418 of the Crimes Act.

81. In particular, as the earlier discussion makes clear, the appellant in justification of the leg sweep, relies upon evidence said to support a genuine perception on his part that the complainant was resisting arrest and was going to kick him or one of the other officers. He advocates caution in the weight to be attributed to the video evidence.

82. For the reasons already outlined, I consider the video evidence, particularly the camera phone video taken by Witness 2, to be compelling. I find no basis to conclude that it is not an accurate depiction of the events it shows.

83. The evidence establishes the complainant was a young person at the time. The appellant accepted that the complainant’s behaviour did not cause him to feel intimidated, it was only the words the claimant had used that he felt were intimidating. Having viewed and listened to the video and the conversations leading up to the incident, I cannot accept that anything in the complainant’s conduct could reasonably be construed as intimidating. The words he used were unfortunate. However, they were said from some metres away, they were not said aggressively and they were against a background of non-aggressive conversation between the complainant and the probationary constables.

84. When the appellant advanced on the complainant to arrest him, again based in large measure on the video evidence, I am satisfied that the complainant offered no resistance in allowing his hands to be placed behind his back by the appellant.

85. I consider it implausible that the appellant could see the complainant’s muscles tensing through the loose fitting clothing he was wearing and, like the Magistrate, I discerned no resistance by the complainant in the few seconds prior to the leg sweep, while he was being manoeuvred around by the appellant.

86. Ultimately, the evidence of the probationary constables did not, in my view, provide any credence to allegations that the complainant was resisting arrest or potentially going to kick anyone. The adverse comments made by the Magistrate in relation to the evidence of probationary constable Kovacs-Hegedus about the complainant’s foot being raised and posing a threat of kicking one of the officers (J 15.5), is something to which I have regard, as is the fact that it sits uncomfortably with what is seen on the video evidence.

87. My review of the video footage does not show the complainant kicking or shaping to kick. His legs and feet are seen to move as he is being manoeuvred and he appears to be off balance. I do not accept that the video has failed to show something that was there.

88. The absence of any reference to a kick in the contemporaneous verbal exchanges and the COPS event prepared by the appellant is in my view conspicuous. One would expect the complainant’s threatening behaviour would be provided as an explanation for the leg sweep and would otherwise be an important part of the narrative. The Magistrate’s adverse comments in relation to the appellant’s evidence discussed earlier, are also something I take into account.

89. As I have explained at some length, I consider the various conclusions reached by the Magistrate on the evidence in relation to the issues bearing on this appeal were not only available, but accord with those I have reached.

90. In particular, having reviewed the evidence, I am satisfied that if there was a risk perceived by the appellant, his use of the leg sweep was objectively unreasonable and disproportionate. I have reached that conclusion having regard to the prevailing circumstances where the complainant was compliant, physically restrained, compromised if not precluded from being able to kick anyone and off-balance. It was highly likely, if not inevitable, that as occurred, the leg sweep would result in a heavy unprotected fall to the ground.

91. I am comfortably satisfied that the Crown has negatived self-defence and established beyond reasonable doubt that the appellant’s use of the leg sweep was conduct without lawful excuse.

92. It follows that the offence has been proven beyond reasonable doubt and that the decision of the Magistrate discloses no error.

Orders

93. For those reasons the appeal is dismissed.

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Endnotes

Amendments

15 November 2024 - Pinpoint reference removed from case citation on cover page.

Decision last updated: 15 November 2024