R v King, Alex

[2017] NSWDC 374

District Court

New South Wales

Medium Neutral Citation:	R v KING, Alex [2017] NSWDC 374
Hearing dates:	31 August 2017
Date of orders:	11 September 2017
Decision date:	11 September 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Appeal dismissed. For orders see [161]
Catchwords:	CRIMINAL – Appeal – assault occasioning actual bodily harm of a police officer in execution of their duty – assaulting a police officer or constable in the execution of his or her duty – 18 year old aboriginal male – diagnosed mental health conditions – intoxicated at the time of arrest – in a public place –had asked police for a lift to residential premises where it was known he had an AVO against him – offender taken to police station instead – wrongful arrest, improper use of police force and that he acted in self-defence.
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) Intoxicated Persons Act 1979 Law Enforcement (Powers and Responsibilities) Act 2002 Summary Offences Act 1988
Cases Cited:	Alla v Gleeson NSWSC October 1985 R v Kaye (1993) 118 ALR 596
Category:	Principal judgment
Parties:	Regina (Crown) Alex King (Offender)
Representation:	Counsel: Ms. Turner (DPP Solicitor) Mr. Saunders (ALS Solicitor)
File Number(s):	2016/00128493
Publication restriction:	Nil

JUDGMENT

1. HIS HONOUR: Alex King appeals findings of guilt made at the Broken Hill Local Court on 19 December 2016. His appeal relates to three particular offences, of which he was found guilty, alleged to have been committed at Broken Hill on 27 April 2016. The three offences are respectively: One of assault occasioning actual bodily harm of a police officer in execution of duty contrary to s 60(2) Crimes Act 1900, and two offences of assaulting a police officer or constable in the execution of his or her duty pursuant to s 58 Crimes Act 1900.

2. The proceedings before the learned Magistrate at the Local Court were divided into two parts. There was a voir dire examination with a ruling by the Magistrate in August 2016 and then a later hearing, as I can best understand it, incorporating some of the evidence that was relevant from the earlier hearing in the Local Court at Broken Hill in December 2016.

3. The matter was conducted before me on the transcript and exhibits at the Local Court, and largely the same issues were litigated before me as were litigated before the Magistrate. I have read the transcript of the evidence given at various points. The appellant gave evidence twice, once on the voir dire and once in the hearing. I have read the Magistrate’s judgments although I am not reviewing the Magistrate’s rulings. I have to form my own view of the matters that were raised.

4. I have also examined the exhibits in the proceedings that were provided as copies to me and have viewed part of the closed circuit television film showing the appellant being escorted physically into the custody area of the Broken Hill Police Station by a number of police, and his actions giving rise to the charges. I only saw part of that footage, but I am told that I saw the relevant part that relates to the circumstances of the offences.

5. The assault occasioning actual bodily harm matter is concerned with the appellant punching Senior Constable Dohnt with his fist or his hand as the appellant was being place in the dock at the police station. The dock is a typical modern dock, a glassed enclosure through which one enters by a door being opened.

6. One assault matter involving the assault of Constable Chalmers, as I understand that matter, is an allegation of kicking Constable Chalmers in the lower back as the Constable was exiting the dock, although there is an allegation of her being spat upon.

7. The other assault concerned the appellant spitting at Constable Creswell. Again the evidence is somewhat confused in some respects. There was no dispute, however, at the Court below or here that the relevant conduct of the appellant, as particularised by the prosecution giving rise to the charges, could constitute the offences alleged. In fact, at the hearing before the learned Magistrate on the merits in December, the appellant admitted the actus reus of each of the offences alleged by the prosecution. The three offences arose within the confines of the Broken Hill Police Station custody area.

8. In relation to this matter there are a number of fundamental legal directions I am required to give myself. Firstly, the prosecution must prove the guilt of the appellant beyond reasonable doubt, must prove each and all of the essential ingredients of the particular charge brought against him.

9. In respect of the assault occasioning actual bodily harm allegation in respect of Senior Constable Dohnt, the Crown must establish beyond reasonable doubt a relevant assault that occasioned actual bodily harm in the execution of the lawful duty of the officer. An assault is essentially, in the context of this case, an unlawful application of force by the appellant. The application of force ought cause or occasion real bodily harm to the complainant. As to the issue of execution of duty I will come back to that when I deal with that aspect of the matter as it has been argued before me.

10. With regard to the other two offences, they required proof of the relevant complainants, as in respect of the assault occasion actual bodily harm matter being either relevantly police officers or constables, that there was relevantly an assault in the manner particularised, and that the police officer was relevantly acting in the execution of lawful duty.

11. The way the matter was conducted before me was threefold. Firstly, objection was taken to the evidence relied upon by the prosecution to prove each of the charges on the basis that the evidence adduced was obtained in consequence of illegal or perhaps improper conduct on the part of the police by reference to Pt 16 of the Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’) and thus I should exclude all evidence relating to the circumstances of his detention, including evidence relating to the events at the Broken Hill Police Station pursuant to the operation of s 138 Evidence Act 1995.

12. Secondly, if the evidence was admissible it was submitted that the subsequent handling of the appellant by police from the time he arrived at the Broken Hill Police Station - bearing in mind events that had occurred earlier in the evening that caused him to be detained on the prosecution case - was such that the relevant police were not acting in execution of their duty. This issue was somewhat conflated into the consideration of the issues that arose in relation to the first matter that I have identified. But I appreciate that the first matter was more concerned with events at an earlier time than the circumstances of the assault. The issues that arose in relation to those two areas of debate I will deal with in greater detail later.

13. The third matter advanced on behalf of the appellant was that the prosecution had not negatived a self-defence. I will deal with that matter later.

14. With regard to the submissions of the parties I do not have a transcript of any of the proceedings to this point in relation to this matter but as best I could summarise the submissions. For the appellant it was put that the original detention of the appellant was illegal. He was not in a public place, he was not relevantly intoxicated as is defined in s 205 of the LEPRA and he was not relevantly “disorderly” as one of the Constables had alleged.

15. In the context of the manner of the purported detention it was pointed out that no enquiries were made as to the availability of a responsible person, it was pointed out in submission that Constables Skippington and Saunders, the relevant detaining police at first instance, contradicted one another as to the basis upon which the detention had occurred.

16. There was no information given to the appellant as to what was to happen to him. There was no proper record made in accordance with s 209 of the LEPRA. And that underlying all that occurred on this particular night, it is to be borne in mind the appellant was 18 years of age, he is an Aboriginal man, he had claimed mental health issues, he was clearly injured and in a distressed state. It was submitted in context of the issue going to the admissibility of the evidence to which I earlier outlined that there was a failure for the police to comply with s 206 such as to warrant a detention, nor were the bases for a detention under that section satisfied on the evidence.

17. So far as the admissibility of the evidence by reference to the discretion under s 138 it was submitted that the test I should apply, if I could paraphrase the submission, was that but for the illegal conduct of the police officers, their failure to comply with s 206 of the LEPRA particularly, the relevant incidents giving rise to the charges would not have occurred.

18. As to the issue of execution of duty it was submitted that the detention of the appellant was cavalier. No information was given to him before being placed in the van and that in the circumstances the detention of the appellant, from the time he arrived at the police station, occurred in circumstances where there was improper use of force by the police. His detention being illegal the police could not be executing their duty. There was no lawful reason when he was put in the back of the van outside 700 Chapel Street, Broken Hill where the detention occurred, for him not to be taken to hospital.

19. I was referred to an unreported judgment of Roden J sitting as a judge alone of Alla v Gleeson, a decision handed down on 25 October 1985, referring to and dealing with the former Act of Parliament which has been absorbed in to the LEPRA, the Intoxicated Persons Act which had a provision in s 5 very, very similar to what is now s 206 in the LEPRA. In respect of that decision I will come back to the passages that were referred to me.

20. So far as the self-defence issue it was submitted that the handling of the appellant at the police station not only was illegal but was excessive and that in all the circumstances the prosecution had not negatived self-defence on the part of the appellant, that is he acting in defence of himself in the face of improper and/or illegal conduct on the part of the police.

21. The prosecutor, relying upon the evidence of Constable Skippington, particularly at p 19, concluded that the appellant was relevantly and legally detained as an intoxicated person in a public place. She took me to various parts of s 206 and so far as the subsequent handling of the appellant when he arrived at the police station she specifically referred me to s 206(5) of the Act. She pointed out from the evidence on his own admission that the appellant was angry, that when he arrived at the police station he was aggressive and that prior to and during the time that he was within camera view he was thrashing around and the police were entitled to use such force as they did in the circumstances.

22. It was conceded that a relevant record had not been made in accordance with s 209 of the Act. I should point out that there is a photocopy of a notebook entry which reflects upon the fact of detention but, as I would understand it, that would not comply with s 209 in its terms. But that was a matter of no importance or relevance to the determination of the issues that relate to the legality or impropriety of the conduct of the police. She said that in her submissions there was no issue for the determination pursuant to s 138 of the Evidence Act. There was no question as to the police not acting in the execution of their duty and there was no realistic issue of self-defence.

23. If I could just turn firstly to the legislation that I am required to consider and particularly Part 16 of the LEPRA. S 205 refers to ‘definitions’ under the Act, replacing s 3 of the Intoxicated Persons Act 1979. A police station is an authorised place of detention. A detention officer can mean a police officer. An intoxicated person:

“means a person who appears to be seriously affected by alcohol or another drug, or a combination of drugs”.

24. A public place is defined to include a “school”. A responsible person includes any person who is capable of taking care of an intoxicated person including a friend or family member or an official or member of staff of a government or non-government organisation, or facility providing welfare or alcohol or other drug rehabilitation services.

25. Section 206 which is very critically at the heart of much of what was debated before me provides as follows:

“(1)   A police officer may detain an intoxicated person found in a public place, who is:

a. Behaving in a disorderly manner or in a manner likely to cause injury to the person or another person or damage to property, or

b. In need of physical protection because the person is intoxicated.

(2)   A police is not to detain a person under this section because of behaviour that constitutes an offence under any law. It was not submitted either at the Local Court or here that the accused or the appellant had committed any offence under any law.

(2A) However a police officer may detain an intoxicated person under this section even if behaviour constitutes an offence under s 9 of the Summary Offences Act 1988, if the detention is not for the person of taking proceeding for the offence.” (S 9 of that Act makes it an offence for a person who is the subject of a move on direction to be intoxicated or disorderly in a public place. There was no suggestion that any move on direction had been made to this particular appellant).

“(3)   An intoxicated person detained by a police officer under this Part is to be taken to and released into the care of a responsible person willing immediately to undertake the care of the intoxicated person.

(4)   An intoxicated person detained by police under this Part may be taken to and detained in an authorised place of detention if:

(a) It is necessary to do so temporarily for the purpose of finding a responsible person willing to undertake the care of the intoxicated person or,

(b) A responsible person cannot be found to take care of the intoxicated person or the intoxicated person is not willing to be released into the care of a responsible person and it is impractical to take the intoxicated person home or,

(c) The intoxicated person is behaving or likely to behave so violently the responsible person would not be capable of taking care of and controlling the intoxicated person.”

26. It seems to me that although, as I will analyse in a moment, Constable Saunders and Skippington had different reasons for exercising power under s 206(1), they both purported to exercise the power to take and detain the appellant in an authorised place of detention because it was “necessary to do so temporarily” as required under s 206(4)(a).

27. Returning to the section, s 206(5) provides an intoxicated person detained under this Part may be detained under such reasonable restraint as is necessary to protect the intoxicated person and other persons from injury and property from damage. It would seem to me that s 206(5) is the relevant provision to be considered in conjunction with what had occurred earlier arising under s 206(1), in determining whether the constables who were in fact detaining or restraining the accused were acting lawfully at that particular time.

28. I do not need to cite 206(6). With regard to s 207, that is a provision relating to the detention of persons in authorised places of detention and deals with what occurs after the person has been detained. Again, s 207 does not directly arise here because by the time the appellant was effectively detained at the authorised place of detention, that is in the custody area of the police station he was then, because of his conduct, placed in the dock, it would seem to be charged in relation to these matters and in fact was so charged, hence the matters the subject of appeal.

29. Section 209 relevantly provides that a record containing particulars prescribed by the Regulations must be made by a police officer who detains an intoxicated person under this Part and takes the person to an authorised place of detention. As I said, it was conceded this was not done by either Constable Saunders or Constable Skippington and is a matter I have taken into account in a factual sense assessing the credibility of their accounts.

30. Section 138 Evidence Act 1995, states that evidence that was obtained (relevantly (at (1)(b)))... “in consequence of an impropriety of a contravention of an Australian law is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.”

31. Subsection 3 of that section provides that without limiting the matters that the Court may take into account under the s 138(1) the Court “is to take into account amongst other matters”:

“(a) the probative value of the evidence and,

(b) the importance of the evidence in the proceeding,

(c) the nature of the relevant offence, cause of action or defence, the nature of the subject matter of the proceeding.

(d) the gravity of the impropriety or contravention,

(e) whether the impropriety or contravention was deliberate or reckless

(f) whether the impropriety or contravention was contrary to or inconsistent with the right of a person recognised by the international government on civil and political rights and there are other provisions.”

32. I was not, I hasten to say, taken to any particular of s 138 with which I should concern myself. That is not a criticism of counsel but no particular matter was the subject of specific submission.

33. So far as the evidence in this case is concerned I do not propose to review the evidence beyond summarising some matters that were established in the evidence relevant to the issues to be determined. However, I propose to deal with the evidence in two parts, firstly, with the circumstances surrounding the initial detention of the appellant and then deal with the circumstances of the appellant’s detention from the time of his arrival back at the Broken Hill Police Station.

34. The evidence establishes clearly that the appellant at 3am was banging on the door of a property at 700 Chapel Street, Broken Hill. The appellant did not know the occupants. He was asking to be let in. The owner rang the police, having some concerns for his safety and the safety of his family. It is clear on the evidence that the owner saw the appellant or saw some people I should say, which may have included the appellant, involved in an altercation in the front yard of the property.

35. The appellant spoke to the occupant in the premises and both the appellant and the occupant agree that the appellant asked the occupant to ring the police. I believe the appellant asked the occupant to ring the police for his own safety at that particular point of time.

36. I accept that the appellant was injured. He had some minor injuries on his body, he apparently had an injured ankle and he had blood on his body perhaps from other people. I will not go into the circumstances in which Constable Saunders and Skippington arrived. It would seem that Constable Skippington was on duty in the station not patrolling the streets and that she and Saunders went out in a caged vehicle shortly after 3am because nobody else was around.

37. When they arrived the appellant was in the front yard of the premises, without a shirt but wearing a pair of pants and shoes and to them he had obvious signs of injuries as I said. It is clear on their version and his own version that the appellant was in a distressed state. On their version he gave confusing and contradictory information. I am satisfied the appellant initially spoke to police from within the property but as there is no evidence the police dragged him or pulled him or took hold of him within the property at 700 Chapel Street, it is clear that the appellant walked out of that property to speak to the police in the vicinity of the van that had been driven there.

32. Having regard to the observations of the police who saw him, that is Constables Skippington and Saunders, and the appellant’s evidence given twice in the proceedings as to the quantity of alcohol that he had, I am satisfied that the appellant was relevantly ‘intoxicated’ for the purposes of s 206. His evidence on the voir dire proceedings was that he had six or seven cups of whisky and coke and four or five cups of moselle. At one point he suggested he drank beer and then he withdrew that suggestion. He drank this alcohol over an 11 hour period. He described himself as “pretty intoxicated” putting himself at a seven or an eight on a scale between one to ten with one as sober and ten being “drunk”.

33. I noted his additional evidence at the hearing on the merits. He said he also smoked three cones of marijuana which he had smoked at about 10 or 11pm and at one point of his evidence he described himself as being “drunk”. Although I accept the use of that word is fairly liberally applied sometimes without having a great deal of exact meaning.

34. Part of the relevant background of the appellant is that he said in his evidence that he suffered what he described as mental health issues, “bipolar schizophrenia, speech psychosis, ADHD and dyslexia”.

35. As I earlier noted and I take into account he was 18 years of age at the time. Whilst he was known at least to Constable Skippington who was aware as it turned out that there was an AVO in place taken out against the appellant by, as I understand it, the appellant’s sister, there is no evidence that Skippington would have known or did in fact know that the appellant had mental health issues.

36. The appellant, I am satisfied on the evidence, was yelling out and spoke to the police about a fight that had occurred where his father’s “teeth” were knocked out. He gave either a false or wrong name to the police officers calling himself at one point Jack Kennedy and then Jack King. In fact, he was specifically challenged as to his name by Constable Skippington who knew him as Alex King.

37. She knew there was an AVO in place. It is worthwhile quoting from their statements and the evidence that they gave at the Court below. This is from the statement of Lorinda Saunders:

“Constable Skippington and I asked King where he was living and offered to give him a lift home. He asked to be taken to 187 Mercury Street, Broken Hill. Constable Skippington advised me that she believed the male to be Alex King and he has a current apprehended violence with (sic) his sister, Roxanne, who lived at that address.

King was standing at the back of the police vehicle saying, ‘Come on you dog cunts, give me a lift’. Constable Skippington opened the caged area and King got in the back. Due to the level of intoxication, how aggressive King was being towards police and not having an address to take King to, Constable Skippington and I conveyed King back to Broken Hill police station.

Constable Skippington advised me she was aware there was a current apprehended violence order between King and his sister with King being the defendant. Constable Skippington and I did not know what conditions were enforceable and I thought it was best not to take him to that address.”

44. It is apparent from that version of events, a conclusion that Constable Saunders had reached was that the appellant was intoxicated, he was in a public place - I am satisfied of both those matters - and that he was “in need of physical protection because he was intoxicated” (see s 206(1)(b)). I will come back to her oral evidence in a moment.

45. Constable Skippington gave a different account in its detail. She said, apart from a greater detail about the words that the appellant was saying, after she had told the appellant that she knew he was Alex King and that she had “dealt with (you) heaps of time”

“Constable Saunders and I decided to convey the accused back to Broken Hill police station for his own safety due to his highly intoxicated (state) and that he clearly had some injuries which we could arrange an ambulance to come and take a look at him. The accused was informed of this and he climbed into the rear of the police vehicle without issue or assistance.”

46. On first blush this seems to suggest the same basis that Saunders had concluded that the appellant should be detained, but when she gave evidence about the matter it morphed into something different. She gave evidence about the fact of the AVO and the fact that he could not be taken to the premises of his sister, which I accept to be true and no suggestion was put to contrary.

47. She said in relation to the matter (at p 19 of her evidence),

“It was my observation that he was quite well affected by alcohol or another drug. He was rambling quite a lot about his dad. He wasn’t quite clear but I observed that he had some scratches. He had blood on him. We did not feel that he should have been left alone in that state. He was clearly very upset because something had happened. We didn’t know what had happened because he continued to ramble on about his dad. He was pretty upset, hence why that was another reason why we detained him as an intoxicated, potentially to get him in an ambulance to take a look at him. He was upset and he was screaming, ‘my father, my father’ was those terms that he was saying over and over again but we couldn’t really get much out of him apart from that.”

48. This is, I hasten to say, in cross-examination of the officer by Mr Saunders who appeared on the appeal. It was put to the officer, that the order of events in which she described in her statement had not occurred;

“Q. I’m going to suggest to you that chronologically that is incorrect. That he climbed into the police vehicle and then Constable Saunders and you had a discussion about the AVO because you weren’t sure what to do?

A. I don’t believe that’s correct. I do remember mentioning that briefly to Constable Saunders before he got into the truck.”

It was also suggested to her that she never told the appellant that they were going to take him to the police station. She said, “No I did”. She was asked this question,

“Q. You said you had fears for his safety. Did he indicate that in any way that he was going to self-harm?

A. No.

49. He was heavily intoxicated. He was close to a public road. He wasn’t that far from the Barrier Highway that at that time of time there’s several road trains that usually come at that time. I felt that he was on his own and clearly well affected that he - he could potentially get run over by a car. He could trip over and hurt his head. He was swaying quite a lot.”

50. She went on to give further evidence about that aspect of the matter. In the context again of the matters that were required under s 206 she volunteered that she thought that he was - this answer to this question. When asked about the detail of her statement by Mr Saunders at p 22,

“Q. In fact, for the reasons given in your statement of why you detained him, disorderly conduct wasn’t one of those reasons?

A. I believe it was at the time.

Q. You said for his own safety due to highly intoxicated state and that he clearly had some injuries which we could arrange an ambulance to come and take a look at him. They were the reasons you gave?

A. Okay.

Q. It’s fair to say that this being written two months after the incident, in fact, three months ago, now it’s probably a more accurate recall of what happened on the night than now five months later?

A. It could be. It was an incident that was stuck in my mind. I’ve dealt with Alex on a few different occasions. It was a stressful night for everyone so it does stick in my mind.”

51. This raises, in the context of some earlier evidence, the spectre of s 206(1)(a). Ultimately it seems to me the common thread, although there is some conflict in the evidence between the two officers, is that the offender was at least detained for the reason that he was in need of physical protection because he was intoxicated at the time.

52. I should, however, come back to two other aspects of the evidence. One is the oral evidence of Constable Saunders which was at the heart of some of the cross-examination of the later evidence of Constable Skippington and the evidence of the appellant in relation to what occurred. With regard to Constable Saunders, putting aside the issues going to whether he was in a public place, she noted in her oral evidence that he was “very aggressive and wasn’t very cooperative” in terms of “he was very abusive towards us”. She was unaware that he had asked for the police to be called. She was asked this question:

“Q. Your initial assessment is that you would drive him home?

A. Yes, initially when I arrive.

Q. Were you aware that he had an ankle injury, quite a serious ankle injury?

A. Well he didn’t disclose any ankle injury to me at the time.

Q. I’m going to suggest to you that when you asked him where he would like to be taken, he gave you the address of 187 Mercury Street?

A. Yes, that’s correct.

Q. And you made an undertaking to take him to 187 Mercury Street?

A. No.

Q. You didn’t tell him that you would drive him to 187 Mercury Street?

A. No.

Q. You did offer him a lift somewhere though earlier?

A. Yes well we offered him to give him a lift if he was able to provide an address to us so that we would put him in the care of a responsible person due to his level of intoxication.

Q. But you didn’t say that in your statement because you offered him a lift home, you didn’t offer him a lift to a responsible person?

A. Well that’s what I was thinking at the time I might have missed it in my statement.

Q. And you might have missed telling my client that’s what your intention was?

A. No.

Q. So you told him that specifically?

A. Told him what specifically?

Q. That you would take him to a responsible person?

A. We, well we offered to give him a lift home due to his level of intoxication.”

53. She denied that the conversation with Skippington about the AVO was when the appellant was already in the back of the vehicle. But I am not satisfied on the evidence available to me that it was a conversation that involved the appellant. It is in fact clear on the versions of the two police whenever that conversation occurred it was a conversation between themselves, not as a conversation which included the appellant as a participant and that in the context of the evidence that he gave in relation to the matter, I accept his evidence that he was not aware that he in fact was not being taken to his sister’s place. It is clear to my mind that he would not have been thinking in terms of whether he was likely not to be taken to the premises that he had nominated as an address, which he clearly had nominated to the , on the basis that there was an AVO in place.

54. The intricacies of the operation of an AVO to prevent him being taken there would not have weighed upon his mind. In any event, as I summarised them, they were the issues that arose from the evidence in the hearing of the matter at the Local Court as to the circumstances of his detention as I have earlier indicated. I am satisfied that at relevant times he was detained in a public place and he was intoxicated.

55. I am satisfied on the evidence that the appellant got into the back of the truck believing that he was being taken to his sister’s place. There is however, no obligation under the Act, apart from a matter of courtesy, for consultation with an intoxicated person. That is, for an intoxicated person to be consulted about the authorised place of detention that they are being taken to or even being consulted as to a relevant responsible person. Although it would follow that ordinarily an intoxicated person would be asked which people may be able to take care of that person.

56. It is clear in my mind from the evidence that the appellant was not told that he was being taken to the police station. As I have earlier said, the issue of the AVO was not a matter, if discussed between the police officers even if discussed in the “presence” of the appellant, which involved a discussion with the appellant himself.

57. It is clear on the evidence of Skippington that the appellant was being taken to the police station so he could be examined by the ambulance. She was aware at least and Saunders was aware that he was injured. Having been at Broken Hill recently, having had to go to 732 Chapel Street to photograph a house there as belonging to a friend of mine who was born in Broken Hill in 1917 and whose aunt lived at that particular address and taking a photograph for him back here in Sydney, although he is over 100 years of age, I am pretty familiar with the layout of Chapel Street and its relationship to both the hospital and the police station. The hospital and the police station would fairly be described from that part of Chapel Street which is on the Northern or Eastern side of the city to be equally distant. Why he was not taken to the hospital is to my mind beyond comprehension.

58. It follows, however, from the findings of fact that I made that there was no particular illegality or relevant “impropriety” that can be considered pursuant to s 138 arising out of the detention of the appellant. It was, in my view, within the power of the police to detain him for the purposes of at least s 206(1)(b). It seems also clear to me that the police station was not an appropriate place for him to be taken at that particular point of time.

59. I mentioned earlier that I was referred by learned counsel for the appellant to the decision of Alla v Gleeson. I do not need to cite that decision at length. Justice Roden pointed out this was the first occasion that the relevant provisions of the Intoxicated Persons Act had been considered at least by a Judge sitting alone in the Supreme Court on a question of law.

60. Of course this case was a very different case than the matter that I am concerned with now. The issue of whether the police station was a public place was a matter for the Magistrate to determine. The learned Judge found against the Magistrate’s finding in that regard. The relevant applicant in that question of law to the Supreme Court of New South Wales had gone to the Wollongong Police Station as I understand it to chase up a friend of his who had been detained by police as an intoxicated person. He wandered into the police station and was in fact wandering down the hallway of the police station when he was confronted by several police officers. Very different factually than the case with which I am now concerned. However, it is worthy of note to point out as Justice Roden pointed out, that it is not an offence under the provisions to be “intoxicated”. He made the finding that the then relevant section indicated that the power to detain is only exercisable when the circumstances described are currently occurring. He made the point that:

“The object is to bring that state of affairs to an end either for the protection of the person detained or for the protection of others or of property. Once the person concerned has removed himself from the public place, the appropriateness of such action disappears. If it were otherwise the Act might be expected to authorise the detention of persons who were found intoxicated anywhere and behaving in a disorderly manner.”

61. He pointed out:

“If the Act made it an offence to be found intoxicated in a public place and behaving in a certain fashion, then a person reasonably suspected of having committed that offence might be pursued for the purpose of his being arrested, but that is not the purpose and effect of this Act and once the state it appears upon which the authority to detain depends no longer obtains the authority itself must end and one might have thought that ordinarily the detention would end once he had been removed to an authorised place.”

62. However, in this particular matter with regard to the circumstances of the appellant, the events that gave rise to the offences being committed bought into sharper focus the terms of the s 206(5) of the Act to which I made earlier reference.

63. I just want to deal however before I leave Constable Skippington and Saunders with some particular matters that arose from the submissions. Even if they were not directly addressed or some of them were directly addressed. The terms of the statements of the two officers prepared by them, in the case of Saunders four weeks after the relevant events in the case of Skippington six weeks after the relevant events, are not exactly compatible. This of course establishes that the two officers had not “put their heads together” about the circumstances of the initial detention.

64. I have taken into account the distinctions in their evidence in assessing the credibility of their claim of compliance with the Act. It was raised with them in the hearing of the Local Court as to whether, particularly Skippington, had fashioned her oral evidence to conform with her now understanding of the operation of s 206 of the Act. These are valid matters to raise with a witness but I cannot conclude that she fashioned her evidence accordingly.

65. There was some recent invention in her evidence but it did not ultimately in my view reflect adversely upon her credibility to the point where I did not or could not find that it had been established on balance that she had not exercised powers in accordance with s 206 of the Act to initially detain the appellant.

66. I have taken into account however, the differences between the two officers in assessing their credibility in terms of what is required by the prosecution to establish, that is the lawfulness of the conduct of the officers. However it stands clear on the evidence that the appellant was still, whether intentionally or recklessly, treated in a somewhat cavalier fashion.

67. As I cannot find a relevant illegality and I cannot find a relevant impropriety following upon an illegality, I cannot conclude that I should consider an exercise of discretion available pursuant to s 138 of the Evidence Act.

68. I should point out again that there is no requirement under the Act, save for obtaining relevant information to satisfy the powers under the Act for appropriate consultation to be taken with a person who is proposed to be detained. Certainly it is obvious to my mind that the events that occurred at the police station were very much informed by the fact that the appellant when he arrived at the police station was angry to discover that he was not in fact taken to his sister’s place but was in fact taken to the police station.

69. So far as the second issue of proof by the prosecution, that is the issue of whether the circumstances of the alleged assaults were committed on officers or constables in the execution of their respective duties and not committed in self defence, a matter as I said the Crown must negative, I note that the test to be applied in the course of the understanding what constitutes lawful execution of duty is reflected in the passage from the decision of R v Kaye (1993) 118 ALR 596, which I took from the ‘Butterworth Practice’. It would appear to be fairly comprehensive without further assistance from the parties. “A police officer acts in the execution of duty from the moment he or she embarks upon a lawful task connected with his functions as a police officer and continues to act in the execution of that duty as long as he or she is engaged in the task and provided the officer does not do anything outside the ambit of his or her duty so as to cease acting within it or therein.”

70. In each Court Attendance Notice the particulars of each charge referred respectively to the rank of the relevant officer. Not as a “police officer” or “officer”. S.58 Crimes Act refer to an officer being a “constable”, but no issue was raised with the way in which the Court Attendance Notice had been particularised in this regard.

71. The issue in relation to the proof of the charge so far as lawful execution of duty was concerned was whether the officers at the relevant time as they described in the evidence were exercising powers to use such reasonable force associated with the detention of the appellant pursuant to the LEPRA. As I said earlier, analysing it logically the relevant provision is s 206(5):

62. “An intoxicated person detained under this part may be detained under such reasonable restraint as is necessary to protect the intoxicated person and other persons from injury and property from damage”.

63. I point out that I have seen the way in which the appellant was being detained or restrained as he was brought into the custody area. It would seem that what I see in the images is a continuation of a state of affairs that existed at sometime from the time that he left the police vehicle to be escorted into the custody area. Of course this issue might have been easier to resolve had the initial detention of the appellant had been found to be illegal.

64. The evidence available from the police is in essence that when the van arrived at the police station the two Constables, Skippington and Saunders, got out of the vehicle and went into the custody area leaving behind the appellant in the van. In my view this was a mistake in light of what had previously happened. To leave someone just locked up in the back of a van while you go about seeking assistance in circumstances where you cannot be necessarily certain that you need assistance reflects some lack of regard for the comfort of an intoxicated injured person.

65. The Custody Manager was advised that the detaining police would need some assistance because of what they described as “his aggressive state”. It is clear on the evidence the police and notwithstanding the evidence of the appellant I am prepared to accept it. But the appellant was making noises within the van reflecting his displeasure at the realisation that he was stuck in the back of a police car and understanding that he was back at the police station.

66. They gave accounts of the appellant jumping out of the van and then glaring at the waiting police, waving his hands in the air and shouting incoherently. I pause for a moment that the Crown in its submissions sought to correct Mr Saunders when he put a submission that nothing had been said to the appellant on his return to the police station. Yes, it is true words were addressed to the appellant, but the words were simply “jump out”. He was not told anything about the reason why he was back at the police station.

67. The police gave evidence that he was looking “very aggressive”. One officers account was that his eyes were “wide” and not blinking and that he was breathing “loudly”. In this presentation two of the officers took a hold of his arms. I pause for a moment to point out the obvious that I have concluded that he was lawfully detained for the purposes of being taken back to the authorised place of detention for the purposes of the Act.

68. They started to walk him through the corridor towards the charge room, obviously by holding his arms in the manner that is shown in the closed circuit television. Because I am not in a position, even allowing for the evidence of the appellant, to second guess the presentation of the appellant when he got out of this van, I cannot conclude that the use of force to the extent that they held onto his arms was excessive.

69. It was, as he was being held in the manner that I have described, that he began to thrash his arms and attempted to pull his arms away from the officers as he was being in reality pushed into the dock. The assault occasioning actual bodily harm as I have described it occurred as he was being pushed into the dock as did the two assaults that occurred. I have had particular regard to the accounts given by Constable Cresswell between paragraphs 7 and 14, Constable Chalmers between paragraphs 7 and 13 and the very brief account given by Constable Dohnt of the circumstances in which he was struck.

70. In my view the appellant’s account of what happened at the police station on the hearing of the appeal sheds almost no further light contrary to the account given by the police. I point out that his evidence-in-chief on 19 December 2006 the only question he was asked about the circumstances of the actual events immediately before and leading up to the assault were:

“Q.  And you remember getting out of the police (sic)? A. I remember getting out, that’s it yeah, and the rest of it. And played up. Yeah”.

81. In cross-examination, appearing between pp 21-23 he was asked these questions:

“Q, Anyway you end up at the police station and you were yelling, you were very upset, weren’t you, when you got there?

A. No, I wasn’t actually, I calmed down heaps when I got out the back, walking fine, I wasn’t playing up, anything.

Q. At first though when you arrived you were yelling because the police have said they could hear you at the other end of the police station?

A. No.

Q. But you see your memory is not too good, is it?

A. Yeah, it’s good enough because I wasn’t yelling anything when I got out of the van, I was walking fine.”

82. Then there was some argy-bargy about whether there was footage of what happened when he got out of the van. The question was asked of him:

“Q. We’re talking about the noise you were making and the mood you were in, you were very angry, and when you got out of the police truck a male police officer had to take you by one arm, and a female police officer took you by the other arm, do you remember that?

A. No. All I remember is that he grabbed me by the back of the neck, and grabbed me by the back of--“

83. His answer was interrupted. He said that it should be on the CCTV footage. Then he was asked these questions:

“Q. And then you punched Constable Dohnt. He was one of the officers who had your arm, you punched him in the face, didn’t you?

A. Yeah.

Q. And you also punched the other officer Cresswell in the face, didn’t you?

A. Yeah.

Q. And you spat at Constable Chalmers, and you also kicked her in the back, didn’t you?

A. Don’t remember that bit.

Q. You don’t remember that bit. Do you remember spitting at her?

A. Yeah.

Q. All right. I’m going to put to you that when you were in the dock you did kick her in the back, what do you say about that?

A. What do you mean?

Q. Did it happen or not?

A. Yeah, happened, yeah?

Q. Did happen?

A. Must of.

Q. And you said things like, ‘You white dogs, white cunts, et cetera, et cetera’, you were very angry that night, weren’t you?

A. Yeah.”

84. I have read that passage of transcript to just emphasise the point that I have just made that there is little in the way of evidence from the appellant that sheds further light upon what was asserted by the police. In the circumstances I am not in a position to reject their account of the way in which he was “restrained”.

85. It is in these circumstances that I have concluded that when the appellant was getting out of the van he was angry. His anger was not necessarily misplaced. As I said earlier, he did not expect to be at the police station. His intoxication also affected his capacity to consider the situation rationally.

86. I am not in a position to conclude that the prosecution has not established on balance that the handling of the appellant was contrary to what is required under s 206(5) of the Act.

87. Of course the police who took hold of him were not the same police who had detained him earlier in the night. They were not in a position to assess the rights and wrongs of the detention that had earlier occurred, or even to understand the reason for his anger. As I pointed out earlier, the only words said to him before he got out of the van were, “jump out”. No information was provided to him as to why he was at the police station. He was not told that he was going to be examined by an ambulance officer. On anybody’s version little regard in fact was had to his comfort, or his personal circumstances, it would seem at that particular point. I am not for a moment excusing what conduct he admits to participating in, but it seems to me, with respect, that the situation that subsequently arose that I saw in the closed circuit television could have been avoided in a range of ways.

88. It is a matter of regret that the appellant, in my view, was not told where he was going in the van, and was not properly informed of what precisely was going to happen to him. If done, the situation that arose later at the police station may have been very different.

89. I notice with some irony that one of the police, I am not sure whether it is the police officer who was spat on, or kicked in the back, or otherwise assaulted, rushes back towards the glass dock, in anger clearly, and throws her body against the glass in the direction of the appellant. She may well have been entitled to be “angry”.

90. I make no comment upon her lack of control, which is self-evident in the film, but it brings us back to the point I was making just a moment ago of what was to be expected in some sense of the appellant when he is stuck in the back of a van, denied information about the circumstances which brought him back to Broken Hill Police Station. Her state of mind, clearly demonstrated by her conduct, reflects to my mind something of what might have otherwise been expected to be his state of mind notwithstanding his level of intoxication.

91. This brings us finally to the issue of self-defence. Shortly, in the context of the findings of facts I have made earlier, I am not satisfied that the Crown has failed to negative self-defence. The law recognises the right of a person to act in self-defence from an attack, or a threatened attack, or improper physical treatment. This is a matter for the prosecution to eliminate as an issue by proving beyond reasonable doubt that the accused’s act was not done in self‑defence. The prosecution may do this by proving beyond reasonable doubt either that the appellant did not believe at the time of the act that it was necessary to do what he or she did in order to defend him or herself, or that the appellant’s act was not a reasonable response in the circumstances as he perceived them to be.

92. In the scheme of things I am satisfied, whichever way the matter is looked at, taking into account the intoxication of the appellant as it is relevant to the second matter, that the prosecution has proved beyond reasonable doubt either, or both of those matters. Thus in the circumstances I am not prepared to dismiss the charges brought against the appellant on the basis that the prosecution has failed to negative self-defence. Yes, Mr Saunders, is there anything else?

93. SAUNDERS: No, your Honour.

94. HIS HONOUR: Mr King, do you understand the effect of the decision I have made?

95. OFFENDER: Yes, your Honour.

96. HIS HONOUR: I have decided that I should dismiss your appeals. I have concluded that I do not think that you were treated particularly well, and that the situation that arose that led to the assaults occurring could have been avoided by some greater respect for your right at least, if not set out in the legislation, but your right as a citizen to at least be told what was going on. Because I am certainly not satisfied that you were told you were being taken to the police station. And I have got no doubt that you believed that you were being taken to your sister’s place because it is clear on the evidence that you asked for a lift, and you were offered a lift, and the only information you had given the police as to where you wanted to go was the address at Mercury Street. In those circumstances you might have reasonably have expected that when you got in the back of the van that that is where you were being taken.

97. The best place for you to have been taken, in my view, was the hospital. I do not understand why you should be taken all the way to the police station for the ambulance to be called out to come over and see you, when in fact you could have been taken to the hospital and examined by somebody there. If somebody had the patience and the time to undertake that. There is nothing else, Mr Saunders?

98. SAUNDERS: No, your Honour.

99. HIS HONOUR: Thank you very much, Mr King, you’re excused. What’s happened to Mr King’s other matters, Mr Saunders?

100. SAUNDERS: I believe we have a hearing date in September.

101. ADJOURNED

Decision last updated: 10 January 2018