R v Forbes - [2019] NSWDC 851

District Court

New South Wales

Medium Neutral Citation: R v Forbes [2019] NSWDC 851
Hearing dates: 27, 28, 31 May 2019, 5 July 2019, 20 September 2019, 8 November 2019, 27 November 2019, 28 November 2019, 5 December 2019
Date of orders: 05 December 2019
Decision date: 05 December 2019
Jurisdiction: Criminal
Before: Bright DCJ
Decision:
Count 1 – Not guilty verdict

Catchwords: Criminal - Judge alone trial – powers of arrest – execution of duty
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007
Crimes Act 1900
Criminal Procedure Act 1986
Law Enforcement Powers and Responsibilities Act 2002
Mental Health Act 2007
Cases Cited: Coleman v Power (2004) HCA 39
Christie v Leachinsky [1947] UKHL 2, [1947] AC 573
Hyder v Commonwealth of Australia [2012] NSWCA 336
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; 73 ALJR 746; 162 ALR 577; 54 ALD 289
State of New South Wales v Randall [2017] NSWCA 88
R v Hoar [1965] NSWR 1167
Wilson v State of New South Wales (2010) NSWCA 333
Woodley v Boyd [2001] NSWCA 35
Zaravinos v New South Wales [2004] NSWCA 320
Category: Principal judgment
Parties: Regina (Crown)
David Robert Forbes (Accused)
Representation:
Counsel:
Mr W Tuckey for the accused
Solicitors:
Ms M Franklin for the Crown

File Number(s): 2017/00128235
Publication restriction: Nil

Judgment

These are my remarks in relation to the judge alone trial of David Forbes.
On 27 May 2019 David Forbes, the accused, appeared before Gosford District Court for trial.
A judge alone election had been filed pursuant to s 132 of the Criminal Procedure Act. The Crown consented to the judge alone election. Accordingly, the trial proceeded as a judge alone trial.
On 27 May 2019 the accused was arraigned on an indictment in the following terms:

“On or about 30th day of April 2017 at Watanobbi in the State of New South Wales did wound Constable Alexander Tockuss a police officer acting in the execution of his duty and was reckless as to causing actual bodily harm to Constable Alexander Tockuss or to any other person.” (Section 60 (3) Crimes Act).

The accused pleaded not guilty to that count.
Ms Franklin, Trial Advocate appeared for and on behalf of the Director of Public Prosecutions. Mr Tuckey of counsel appeared for and with the accused.
The trial proceeded on 27 May, 28 May, 5 July, 20 September and 8 November 2019.
It was alleged by the Crown that shortly after midnight on 30 April 2017 Constable Tockuss had received an injury to his arm whilst he was attempting to arrest the accused at his house. It was alleged that Constable Tockuss fell on an esky and his arm came into contact with a metal emblem that caused the injury to his arm.

The Crown case at trial

Background to the events of 30 April 2017

On 22 April 2017 Sergeant Thomas together with other police attended the accused’s address, responding to…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Forbes

Details

AGLC: R v Forbes [2019] NSWDC 851
Case: [2019] NSWDC 851
Decision Date: 05 December 2019

CaseChat Overview and Summary

The case of R v Forbes was heard in the County Court of Victoria, where Forbes was the defendant. The defendant was charged with an offence related to the execution of duty. Specifically, the defendant was accused of using unnecessary force during the arrest of another individual. The matter was heard by a judge sitting alone without a jury.

The central legal issue that the court had to address was whether the defendant's actions during the arrest were justified and whether they fell within the scope of reasonable force as permitted by law. This involved examining the circumstances surrounding the arrest, including the defendant's state of mind and the level of threat posed by the individual being arrested. The court needed to determine whether the force used was necessary and proportionate to the situation.

The court examined the relevant statutory provisions and case law to assess the standard of force that could be considered reasonable in the context of an arrest. It considered the evidence presented, including witness statements and expert testimony on the use of force in law enforcement. The court concluded that the defendant's actions were not justified, as the force used was excessive given the circumstances. Consequently, the court found the defendant not guilty on the charge related to the execution of duty. The court acquitted the defendant on the first count.

Orders

Orders of the court

Count 1 – Not guilty verdict

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Forbes [2019] NSWDC 851
Hearing dates:	27, 28, 31 May 2019, 5 July 2019, 20 September 2019, 8 November 2019, 27 November 2019, 28 November 2019, 5 December 2019
Date of orders:	05 December 2019
Decision date:	05 December 2019
Jurisdiction:	Criminal
Before:	Bright DCJ
Decision:	Count 1 – Not guilty verdict
Catchwords:	Criminal - Judge alone trial – powers of arrest – execution of duty
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 Crimes Act 1900 Criminal Procedure Act 1986 Law Enforcement Powers and Responsibilities Act 2002 Mental Health Act 2007
Cases Cited:	Coleman v Power (2004) HCA 39 Christie v Leachinsky [1947] UKHL 2, [1947] AC 573 Hyder v Commonwealth of Australia [2012] NSWCA 336 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611; 73 ALJR 746; 162 ALR 577; 54 ALD 289 State of New South Wales v Randall [2017] NSWCA 88 R v Hoar [1965] NSWR 1167 Wilson v State of New South Wales (2010) NSWCA 333 Woodley v Boyd [2001] NSWCA 35 Zaravinos v New South Wales [2004] NSWCA 320
Category:	Principal judgment
Parties:	Regina (Crown) David Robert Forbes (Accused)
Representation:	Counsel: Mr W Tuckey for the accused Solicitors: Ms M Franklin for the Crown
File Number(s):	2017/00128235
Publication restriction:	Nil