R v McLeay
[2009] NSWLC 29
•12/18/2009
Local Court of New South Wales
CITATION: R v McLeay [2009] NSWLC 29 JURISDICTION: Criminal PARTIES: NSW Police
Gregory McLeayFILE NUMBER: PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 12/18/2009 MAGISTRATE: Magistrate Curran CATCHWORDS: Police Powers, “execution of duty” , arrest. LEGISLATION CITED: Crimes Act 1900
Law Enforcement (Powers and Responsibilities) Act 2000
APEC Meeting (Police Powers) Act 2007
Police Act 1990CASES CITED: Coleman v Power & Ors [2004] HCA 39
DPP v Carr (2002) 127 A Crim R 151
DPP v Coe (2003) NSWSC 363
DPP v Am (2006) NSWSC 348
Prasad (1979) 2 A Crim R 45
DPP v Gribble [2004] NSWSC 926
R v McLean (2008) NSWLC 11
R v Randle (decision of the Local Court NSW – unreported – Heilpern LCM, 21 October 2008)TEXTS CITED: REPRESENTATION: Mr Butterfield
Mr Corish of CounselORDERS:
BACKGROUND
1. The events that set the scene for the laying of the charges against the accused, Mr Gregory George McLeay, occurred on Friday, 7 September 2007 at about 2.00 p.m. This day was one that occurred within the period during which the APEC Meeting of Leaders was taking place in Sydney. The events occurred in Pitt Street and also in that part of the adjacent GPO building that can probably be called the colonnaded area that runs between the entrance to the Westin Hotel and in a northerly direction to the corner of Martin Place.
2. The delegations associated with the President of South Korea and the Sultan of Brunei were staying at this hotel. Because of this, that part of Pitt Street near the area of the entrance to the hotel was blocked off. In anticipation of the APEC meeting, the State Parliament had passed special legislation governing powers that were to be exercised by the police. This legislation was the APEC Meeting (Police Powers) Act 2007. This legislation effected a number of things: Part 2 created APEC security areas, variously referred to as Declared Areas and Restricted Areas, and gave to the police a number of special powers. The events that occurred leading to the laying of these charges occurred in what was designated as a Declared Area.
THE CHARGES LAID AGAINST THE ACCUSED
3. The charges bought against the accused were as follows:-
(a) Firstly, failure to comply with the direction given pursuant to Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 [LEPRA]. The direction relied upon was said to have been given under s.197. S.197(1) says relevantly as follows:-
(a) is obstructing … traffic”“A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place (referred to in this Part as "relevant conduct"):
S.197(2) states relevantly as follows:-
(a) reducing or eliminating the obstruction…”“A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of:
S.199 creates an offence for circumstances associated with s.197, and says as follows:-
“(1) A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this Part.
(2) A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct.”
The penalty is 2 penalty units, i.e. $220. The relevant direction that the Prosecution relied upon were contained in the words spoken by Constable William Swain Heather. They were as follows:-
“Mate, stop. Do not cross the road. Get off the road.”
(b) Secondly, the accused was charged pursuant to s.58 of the Crimes Act with assaulting a police officer (namely Constable Heather) in the execution of his duty, the assault being the pushing of the officer.
(c) Finally, the accused was charged pursuant to s.58 with resisting a police officer in the execution of his duty in so far as he was said to resist the arrest that was implemented following the push that I have just referred to.
4. As I have said, both the second and the third of the three charges that I have referred to is laid pursuant to the provisions of s.58 of the Crimes Act 1990 (NSW). That Section relevantly states as follows:-
…assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable…shall be liable to imprisonment for 5 years.”
THE EVIDENCE – PROSECUTION CASE
5. The Prosecution called a number of witnesses, both police and civilian. I will deal with the evidence of each of these witnesses in turn. Additionally, there was short film footage, recorded by employees of a television station, who were in the area at the time. There were also photographs and diagrams tendered during the course of the taking of evidence. The matter was first listed for hearing on 26 and 27 June 2008 and then further on 13 November 2008. Unfortunately, because the transcript of evidence taken on 26 and 27 June was not available on 13 November, the matter did not proceed into a second day that had been allocated for the hearing. The matter was then stood over for further hearing on 15 and 17 April this year but because of a bereavement in the Defendant’s family, those dates were vacated. The matter was finally listed for hearing on 2 and 3 November last.
6. The first witness called in the Prosecution case was DETECTIVE SENIOR CONSTABLE WILLIAM HEATHER. On the day of the events complained of this officer was wearing a reflective yellow vest, this being worn over the top of normal police uniform. He was stationed, initially (before these events unfolded) on the east side of Pitt Street near the intersection of this street with Rowe Street. This was opposite the Westin Hotel entrance. His duties included, inter alia, stopping all traffic both pedestrian and vehicular from time to time ensuring the safe passage of both members of the public and also APEC delegations. From this vantage point he says he noted a number of events occurring at about 2.00 p.m.:-
(a) Firstly, that a motorcade was moving south along Pitt Street towards the hotel entrance. This motorcade came to a halt in Pitt Street.
(b) Secondly, that there were 50-100 pedestrians spread out along either side of Pitt Street.
(d) Finally, the officer observed two adult males (one of whom was the accused) and a young boy walk up the western side of Pitt Street in the direction of the barrier I have described and then proceed to cross Pitt Street from the western to the eastern side, he says, in front of a fully marked police car. This vehicle was at the rear of the motorcade. The crossing of the road that I have described was just short of the alignment of the end of the GPO building with Pitt Street. This observation was made from a distance of about 25 to 30 metres. On this officer’s recall there were 6 other officers variously placed in the area where these events were to occur.(c) Thirdly, there was a blue and white police tape blocking off the footpath of the western side of Pitt Street between the Westin Hotel entrance but no such tape was set out on the eastern side.
7. Constable Heather proceeded to walk from his position already described, opposite the Hotel, and then proceeded in the direction of the three pedestrians. He approached the accused, who was now fully on the eastern footpath and said as follows:-
“ Sir, if you please, wait here for a moment; the road is blocked for a motorcade to pass.”
8. After this point of time the motorcade had largely passed and was entering into the entrance of the Hotel.
9. At this point the officer believed that the APEC legislation that I have referred to, potentially gave him the power to arrest the accused because the accused had crossed the road near the motorcade and this meant that he had entered into a Declared Area. The officer says further words were said as follows:-
“Stay there. If you do not mind, wait here. It should not be too long.”
10. The accused is said to have looked annoyed and replied:-
“Oh fucking hell! I want to go down there.” (indicating to the south).
The accused is said to have thrown his arms in the area. The Constable then observed him to step again onto the roadway causing the officer to immediately say as follows:-
“Mate, stop – do not cross the road. Get off the road.”
11. In his evidence in chief, Senior Constable Heather said the accused did not stop having been given this direction but proceeded to move off across the road.
12. The evidence of the Senior Constable in relation to the words that I have just referred to and what concurrently occurred are of importance because it is the direction implied in these words and the alleged failure to comply, that are said by the Prosecution to constitute the basis for the charge under Part 14 of the LEPRA provisions. This was the subject of some very particular cross-examination and in the course of this, the officer’s evidence was somewhat modified and, in particular, what actions were carried out by the officer upon the accused when these words were being said. There is no doubt that up to the saying of these words, although the officer believed that there had potentially been a breach of the APEC legislative provisions (that is he had entered a “Declared Area”) he had not committed any offence under Part 14 of LEPRA (see T.26/6/08, p.48.4-17 and T.26/6/08, p.49.29-30).
13. Constable Heather then goes on to say as follows:-
“Q. Did you say anything else after that? Before he stepped onto the road?
A. Not immediately, no.
Q. He then steps onto the road and you say, as I understand your evidence, or you yelled at him, “Mate, stop. Do not cross the road. Get off the road?”
A. Yes. The get off the road part was after I had hold of him though.
Q. Sorry? After you had hold of him?HIS HONOUR
A. The get off the road part that part of my text that I – that I have said verbally, that was after I had hold of him.” (T.26/6/08, p.49.50 – p.50.1-10).
The importance of this section of the officer’s evidence will become apparent when I refer to how I dealt with the LEPRA charge on 2 November last.
14. The officer firmly took hold of the accused’s bicep area of the left arm. This action took place about two paces from the eastern footpath but on the roadway, as the accused was crossing back towards the western side of Pitt Street. The officer’s intention was to ensure that the accused did not leave and he then proceeded to walk him across the roadway from the eastern to the western side continuing to hold him firmly by the arm. He says that initially this verbal exchange started in a friendly tone. However, once he had taken hold of the accused, he says he did not intend letting him go because he was unsure as to the accused’s intentions and he was concerned for the accused’s safety and the security of the motorcade. The accused may have been in potential danger or he may have been a potential danger. At this point the officer did not identify himself although he was in police uniform. No particulars were given pursuant to s.201 of LEPRA. Once the officer had taken hold of the upper part of the accused’s arm he says that the accused said as follows:-
At the same time he says the accused tensed himself. The Constable says that the accused was progressively getting more agitated and angry.
“ Fucking let go of me.”
15. Having reached the western footpath the officer walked Mr McLeay to the colonnaded arcade which runs down the side of the GPO building, parallel to Pitt Street. The officer says that he intended to explain why he had done what he had done. Although he loosened his grip on the accused’s arm once he had reached the colonnaded area he says that he would not allow him to leave. The accused said to the officer as follows:-
“I was just trying to go for lunch. All I did was cross the road.”
He also indicated he worked in the area.
16. Once in the arcaded area Sergeant Darryl Shaw approached and asked Mr McLeay for identification. The accused then took his wallet out of his pocket and produced a credit card. He was asked for photo ID and he then provided a driver’s license. At this point the accused was standing about 1.5 metres in front of Sergeant Shaw and to the accused’s right was Senior Constable Heather. It was at this point that on questioning by the accused that both Heather and Shaw identified themselves by name. Heather also said he continued to attempt to explain to the accused what he had done that had led to the sequence of events that had occurred thus far. He says that he said the following to the accused:-
“ If you will listen I will try to explain to you you walked in front of a motorcade.”
The officer says the accused replied:-
“What fucking motorcade?”
17. Heather says that the accused appeared agitated and aggressive, this opinion reinforced by his observations of McLeay moving from foot to foot and also on listening to his voice which he said was short and sharp. He says that he was red in the face. He says that as the accused was asked for his identification he was pointing continuously at the officer’s. Heather believed his demeanour was, as I have said, aggressive and arrogant (T.26/6/08, p.64-66, p.70, p.72 and p.76). The officer also says that there was some gesticulating by the accused with his arms but for much of the time, at least in the arcaded area, the accused had his hands in his pockets. He further says that despite his attempts at explaining why he had taken the action he had in moving the accused off the roadway, he formed the view that McLeay was not listening to him. These words and actions of the accused occurred whilst Sergeant Shaw was obtaining, and writing down, the identification details of Mr McLeay in his notebook.
18. At this point, there is little doubt as to the views of Constable Heather as to the entitlement of the accused to move freely off if he wished. This is dealt with at the parts of the transcript as indicated:-
“ Q. If he tried to run would you have stopped him?
A. Well, yeh I would have.” (T.26/6/08, p.62.42).
And again:-
“Q. Mr McLeay was free to leave at that point, was he?
A. No, he would have been stopped.”
(T.26/6/08, p.63.47).
And finally as follows:-
“Q. Even within that triangle of three of you, even though you had let go of him?
Q. As far as you were concerned, Mr McLeay was not permitted to leave that particular location, is that right?A. Yes.
A. It was – I have answered the question that if he tried to move, or tried to leave the area, I would have stopped him. Because at that point we didn’t know who he was, what he was doing, what his intentions were or anything. He could have had a weapon on him, he could have had anything on him. I know that speculation but we just didn’t know.” (T.26/6/08, p.67.8)
19. Sergeant Shaw was writing down the accused’s details, had his head down and was looking at the notebook into which he was writing. As the Sergeant continued to write in his notebook, Heather and the accused both continued to talk to each other. It reached a point where the Sergeant turned to Heather and putting his arm out, just touching the Constable on the left arm, said as follows:-
“Bill, [i.e. Heather] don’t worry about it.” (T.26/6/08, p.37.20).
The Sergeant’s arm movements are observable on the DVD that I have referred to earlier and that was tendered into evidence.
20. In evidence in chief, the officer says that then “the accused stepped forward and got within a foot of Sergeant Shaw”. In cross-examination he said the step forward was done quickly. When asked to explain the apparent discrepancy, Heather said the advance was quick, as he said that if it had not been quick and perceived by him to be aggressive he would have done nothing. The following exchange took place in cross-examination:-
“ Q. You say he stepped forward, is that right?
A. He stepped forward at a fast pace, quickly.Q. But you agree that you never mentioned anything about him doing it quickly or fast in your statement?
A. Well, I didn’t but if he had of just stepped forward I probably wouldn’t have reacted like I did because, you know, he was a metre and a half away. One step would have probably put him about a metre away and that’s not an issue but when he walked forward, that’s what prompted me to react like I did, because in my opinion his movement was an aggressive movement and I reacted to that.Q. Did you just feel the need to add today that it was fast or it was quick or rushed?
A. No, I didn’t – I don’t feel the need to add today but I am telling you the way that it happened.Q. Yes, the stepping forward you did not say that it was done aggressively?Q. You did not say that it was aggressive in your statement, did you?
A. Well, his movement – what his movement was aggressive or?
A. Well, I didn’t think I needed – to have – I didn’t think I would have to, because my reactions at that moment would appear that my intention – my thought process probably was clear. I took it as an aggressive action. I was protecting Sergeant Shaw.” (T.26/6/08, p.70.25-50)
21. Heather also says that as the accused moved forward, his hands and arms were at his side (but not in his pockets) but he said that he was still concerned that the accused was about to assault Shaw and that “it only takes a short time to hit a person in the face”. (T.26/6/08, p.75.15). He formed the view that by moving forward to Shaw, he was moving into a zone where something would have occurred. This movement of the accused, as I have said, occurred in the context of conclusions that Heather had reached as to the demeanour of the accused, that is, as being aggressive and agitated.
22. With this observed movement forward by the accused in the direction of Shaw, Constable Heather immediately moved forward to the accused, stood between the accused and Shaw and placed his left open palm upon the chest of the accused, pushing him back but he says with only a little force saying at the same time:-
“Get back away from the Sergeant.”
The movement was described as “a check drill”.
Prior to this the accused in fact had touched no-one. This movement, referred to as a check drill movement, on the Senior Constable’s part, was the commencement of the physical exchange between the accused and the officer (T.26/6/08, p.77.46-47).
23. This check drill movement caused the accused to move back a foot or so. Heather says that immediately following this, the accused lunged at him and pushed him in the chest with both of his hands causing the Constable to stumble backwards a couple of steps and slightly lose his footing. He stepped forward and said:-
“You are under arrest.”
He, and very shortly after, the other officers, grabbed hold of the accused who was said to have tensed his body and he began to try to lift his arms. He was pushed up against the wall of the GPO, his back being against the wall. This was accompanied by police saying to the accused as he moves towards the wall of the GPO:-
“On the wall, on the wall!”
Shortly after this point in time the camera man, whose footage was on the DVD shown in Court, picks up the action. It is clearly observable. Senior Constable Heather says that the accused continued resisting police and was pulled forward and then to the ground. Three police officers were initially involved in this manoeuvre. The accused’s resistance was described by the Senior Constable as being violent and it continued even when the accused was on the ground. He would not allow his hands to be taken from underneath his body to a position behind his back. He initially kept them under his chest. He was told loudly by police officers repeatedly to stop resisting. The accused is heard to say on the audio recording on the DVD:-
“I am trying to save my glasses.”
A fourth officer joined the other three, this officer grasping the accused around the back of his neck and pushing downwards. He was again told by an officer to stop resisting and release his hands and again the accused repeats what I have said above about his glasses. There is no issue (and this is observable on the DVD) that he did indeed have glasses on at the time. Eventually his hands were pulled behind his back and he was handcuffed. He was then lifted to his feet physically by the officers and then taken by a number of these officers to the basement of the Westin Hotel and thereafter transported by caged police vehicle to the Surry Hills Police Station.
24. In cross-examination it was put to Constable Heather that the accused did not in fact push him immediately following the check drill. He maintained that this was in fact the case, that is, that the accused pushed him. Further, it was put to the officer that the accused did not swear at him at any time but again he maintained that he had been sworn at.
25. The next witness in the Prosecution case was CONSTABLE DARRIN GROWLEY. He had performed duties as a pilot car operator in the Sultan of Brunei’s motorcade. However, at the time these events occurred this officer was standing outside the Westin Hotel, on the western side of Pitt Street on the footpath. He heard Constable Heather loudly telling a member of the public that the road was blocked for a motorcade (in fact the Sultan of Brunei’s motorcade had just passed). He looked in the direction from whence he had heard these words and saw a police officer and a person he now knows to be the accused, Mr McLeay. They were on the eastern side of Pitt Street. This man was near Senior Constable Heather. The words said between the two of them were inaudible but he saw McLeay turn and proceed to walk westerly across Pitt Street. However, he did not see him step from the eastern footpath onto the roadway. He heard Heather say as follows:-
“Mate. Stop. Do not cross the road. Get off the road.”
To his observation the accused neither stopped nor did he get off the road. He saw the officer take hold of the accused’s upper arm and heard the accused say, as best he could recall:-
“Fucking let me go.”
This occurred on Pitt Street, near the western side footpath.
26. Crowley then started to walk towards the exchange, as did other officers, and also Sergeant Shaw was in the area. He got sufficiently close to Shaw to hear Shaw say as follows:-
“Sir, have you got some identification?”
He observed the accused take out his wallet, hand it to Shaw and saw Shaw starting to write in his notebook. He then departed the scene, returning to the entrance of the Westin Hotel.
27. Some short time later (perhaps a couple of minutes at most) he heard, from a distance of about 15 to 20 metres, the following words:-
“Stop resisting, release your hands.”
He looked in the direction that these words had come from and saw the accused on the ground, face down, with numerous police officers trying to place the accused’s arm behind his back. The accused was handcuffed, taken to his feet and then walked towards the entrance to the basement of the Hotel.
28. In cross-examination, when it was put to him the accused had not used the word “fucking”, he maintained he did and it was said just after Constable Heather took hold of the accused’s arm.
29. SERGEANT DARRYL SHAW next gave evidence in the Prosecution case. Immediately prior to the complained of events occurring, this officer had been on Pitt Street near the entrance to the Westin Hotel. He was the supervising uniformed officer in this area of Pitt Street at the time. From this position outside the Hotel, he observed, to the north, on Pitt Street, the man now known to be the accused, cross from the western to the eastern kerbside of the street, accompanied by another male (who is now known to be Stephen Carter) and a young boy (now known to be the accused’s son). He saw Constable Heather following them and words were said. He then saw the accused throw his arms in the air, turn and walk back across Pitt Street. Heather was then heard to say:-
“Mate, get off the road.”
Constable Heather was then seen to approach the accused whilst he was still on the roadway, take hold of his left upper arm and walk him to the western kerb, and up to the colonnaded area of the GPO building reaching a point about 30 metres south of the corner of this building on Martin Place. The Sergeant then approached the pair.
30. The Sergeant, at this stage, had formed the view that McLeay may have committed an offence, which in his view was at best one of not obeying a police direction. However, he was also aware that the area was a “Declared Area” under the APEC legislation (T.26/6/08, p.22 and 23).
31. Having approached the pair, the Sergeant asked McLeay for ID. He heard McLeay say as follows:-
“I have no respect for you.”
He says he appeared to be agitated – he was red in the face, moving from foot to foot and seemed annoyed.
32. It is important to note the Sergeant’s view of the situation McLeay was in as he approached him to request identification. This is dealt with succinctly in the transcript as follows:-
“ Q. Mr McLeay was not free to leave at that particular point was he?
A. No, he had been detained.” (T.27/6/08, p.25.31-32).
33. When it was suggested to the Sergeant by Mr Corish that in fact the accused was under arrest the following exchange took place in cross-examination:-
“ A. He wasn’t under arrest.
Q. Well, he wasn’t free to go was he?
A. No, he had been detained.” (T.27/6/08, p.27.18-21).
34. Mr McLeay provided a credit card then a driver’s license. The accused seemed to calm down. The Sergeant was clear that on his recollection the accused did not hand over his wallet at this or any other time (T.27/6/08, p.24.1-6). The Sergeant proceeded to take a note of the relevant details from Mr McLeay. As this was being done they were standing about 2 metres apart. He heard Heather say as follows:-
“ Sir, the reason I stopped you was because you walked in front of a motorcade.”
The accused was then heard to reply:-
“I work in this street.”
35. The accused was then heard to ask the police for their identification. Heather was heard to provide his name as did the Sergeant. The accused appeared to be getting agitated again. The accused was again heard to say:-
“I have no respect for any police officer, you are all idiots.”
The accused was then heard to say to Heather:-
“And you are a short idiot.”
36. Sergeant Shaw said that at this point he regarded both Heather and McLeay to be talking over each other and just wanted them both to stop as the exercise was becoming fruitless. At this point, Shaw told Heather not to bother talking to the accused. The Sergeant put his arm up to Heather motioning him away (T.26/6/08, p.125.21-24 and T.27/6/08, p.31.18-27; also observed on the DVD).
Up to this point Shaw said he did not intend doing anything more than obtaining the relevant ID details and let the accused leave without charge. He did not intend taking any further action against him (T.27/6/08, p.30.28-32 and again at T.27/6/08, p.56.8-11).
37. The accused then said to Shaw as he took a pace forward:-
“Hurry up, give me my license.”
The Sergeant described this movement as quicker than normal but not rushed.
38. As the accused took this pace forward, the Sergeant was focussed on him. He was asked the following as to how he felt about this movement of the accused:-
Q. Are you able to describe the speed at which he moved towards you?“ Q. Did you consider doing anything on the basis he was moving towards you?
A. I didn’t really have time to consider doing anything.
A. I wouldn’t say rushed at me but certainly quicker than you would normally move.” (T.26/6/08, p.126.19-24).
As to how the Sergeant felt just before the accused stepped forward, the following was said:-
“Q. You certainly weren’t concerned at that stage were you?
- A. Not at that stage, no.” (T, 26/6/08, p.38.16-17).
This state of mind of the Sergeant was again referred to as follows in re-examination:-
“ Q. In cross-examination, Sergeant Shaw, You said initially about when you were asked about whether the accused had his hands in his pockets, you responded with that you weren’t concerned at that stage. At the point where you say that the accused began to move towards you, do you say you had any concern?
A. I didn’t really have time to have a concern I was aware he had moved towards me but before I could react Senior Constable Heather had stopped the accused from coming further.” (T.27/6/08, p.35-42).
39. The Senior Constable stepped forward and placed the palm of his right hand on the accused’s chest and said:-
“Move away from the Sergeant.”
The accused moved no further forward in the direction of the Sergeant but turned in the direction of Heather. The accused then pushed the palms of both of his hands against Heather’s chest, causing the officer to stumble backwards slightly. Heather was heard to say to the accused as he took hold of his left upper arm:-
“Right, you’re under arrest for assaulting a police officer.”
40. The accused was then seen to put his arms upwards and tried to turn away from Constable Heather. Another police officer moved in and took hold of the accused’s right arm as he twisted and continued to twist his upper body. Two other officers joined in and the accused was taken to the ground. He heard one of the officers say repeatedly: “Stop resisting”. The Sergeant said that when the accused was taken to the ground by the other police officers he was standing about two metres away. As the accused was on the ground the observations of the Sergeant were as follows:-
The accused was eventually handcuffed.
“ Q. Were you watching what was going on on the ground?
A. Yes, but I was standing at such a point that all I could see was the police officers; I could see the accused underneath them.” (T.27/6/08, p.41.11-13).
41. The Sergeant said that during his dealings with the accused he heard no swearing by the accused at all. In particular, he did not hear the accused say to Heather when reference was made to the motorcade: “What fucking motorcade?” When asked during the course of his evidence about numbers of members of the public in the area, the Sergeant said that he thought there were about 15 to 20. They were not protesters – just pedestrians who were on the footpath.
42. In re-examination Sergeant Shaw said that from the time of taking down the accused’s details and the scuffle on the ground there was a time frame of somewhere between 30 and 45 seconds.
43. ANTONIO LOPEZ was the next witness to give evidence. He was a chauffeur, working on the day for the Brunei delegation. He was standing beside his car which in turn was parked on the eastern side of Pitt Street, immediately opposite the Hotel. He was wiping some excess water off the motor vehicle. The motorcade for the Sultan of Brunei had in fact just driven past and shortly after this he heard the following words from a distance:-
“Do not cross the road.”
The words, he observed, were from a police officer who was standing about 8 metres away, to his right. The officer was talking to another man. He saw the man throw his arms above his head. Then he saw the man go to walk from the eastern to the western side of Pitt Street, then saw the police officer walk briskly after him, take the man’s arms and walk him to the western side of Pitt Street still holding onto his arm. He then saw them move to the colonnaded area of the GPO building and he lost sight of them. He then heard words said and eventually saw police officers walking a man (the accused) to the loading dock entrance of the Hotel.
44. At the time he first heard the officer tell the accused not to cross the road, he estimates that there were about 5-10 pedestrians in the area.
45. The next witness called in the Prosecution case was MR CAMERON McDONALD. He was at the time an equities trader employed by the Macquarie Bank. At the time these events unfolded he was standing in the GPO colonnaded area but that part which was at the corner of Pitt Street and Martin Place. He was finishing his lunch break and having a cigarette. He observed motor vehicles (including police vehicles) upon Pitt Street. He also saw police at various locations nearby, some directing cars. He saw a few pedestrians including a group of three. He saw two of this group, but one of them side-stepped a police officer. He now knows this police officer to be Senior Constable Heather. He saw this officer move quickly in front of the person who had side-stepped him who he now knows to be the accused. They appeared to talk to each other but he himself could not discern the words that were being said. He saw the accused move his arms up and down at the side and then observed him to move off in his direction, i.e. from the eastern side of Pitt Street to the western side. Constable Heather then moved off quickly and moved in front of him and the accused stopped. Shortly after, the accused moved again and McDonald heard the officer say loudly: “Sir! Sir!” The officer moved after the accused and then grabbed him by the elbow. He said that the accused yelled but he did not recall what he said. The police officer then “propelled” the accused across Pitt Street, to the western kerb. Words continued to be said but the witness does not remember what was said. He said that he saw the pair move into the arcaded area of the GPO building. Mr McDonald moved to a position such that he says he had an unobstructed view of what was going on further along the arcade to the south. He says that he was standing about 10 metres away from the group (given Sergeant Shaw’s evidence, I would think it was somewhat more than this). He says at no time did he see Senior Constable Heather let go of the accused’s arm (T.27/6/08, p.111.27).
46. He says that subsequently he saw the accused “windmilling” his arms (T.27/6/08, p.111.45 and 13/11/08, p.20.25-31).
47. In cross-examination he is quite specific about this movement of the arms. The following is said:-
“ Q. Just waving his arms around like this, as to exaggerate a conversation? Would that be a fair way of describing it?
A. I would say more pronounced than that.” (T.13/11/08, p.20.8-10).
48. He thus described his observations of the accused when he was standing in the arcaded area talking to the other two officers. Obviously, when the witness gave his evidence on 13 November 2008, he was relying upon his recall. I note that at this particular point, the DVD which was displayed in Court also depicted the scene, albeit from a different angle. The evidence of this witness in relation to these matters can be compared to what is recorded on the DVD. No windmilling of arms is depicted.
49. A more senior officer approached, obviously, Sergeant Shaw. He said he saw the accused hand the Sergeant his wallet (T.27/6/08, p.114.5). In this regard, I note that in cross-examination on 13 November 2008, when Mr McDonald continued his evidence, he was uncertain as to whether the wallet was handed over or not (T.13/11/08, p.24.34) and then concedes he did not see the wallet in the Sergeant’s hand (T.13/11/08, p.25.14).
50. He says that initially the accused appeared to calm down but then appeared to become agitated again. This occurred as the Sergeant was facing him, i.e., the witness (T.13/11/08, p.21.11). He said he saw the accused step forward appearing to be talking forcefully, but he could not make out what was being said. He did not notice what he was doing at first with his hands. He then observed the accused make a “double handed” push/shove – against Constable Heather but he did not see what immediately preceded this. This push appeared to come “out of the blue” and the push caused Heather to take one step back (T.27/6/08, p.114.31). At this stage, the three were standing in a triangular formation, with the accused closest to the GPO building. He then heard Heather say:
“That’s it. You’re under arrest.”
51. He then grabbed the accused by the shoulder. He put him in an arm lock turning him around, so that the accused was now facing towards the side of the GPO building. He said he observed other officers come in to grapple with the accused and eventually take him to the ground in a manner described as half wrestling. Other officers then came on the scene and they assisted in holding the accused down. Eventually, he says, 5 to 8 officers were involved in holding down the accused.
52. The next witness called in the Prosecution case was RICHARD WILES, a cross-platform editor with Nine MSN. He was working in the city on 7 September, to observe any protests that might have been taking place and if so to record them. He had with him a high definition video recorder operator. This man’s name was Jaye Savage. They were walking down Pitt Street and had just crossed Martin Place. They were on the eastern side of the roadway and they were heading in the direction of Pitt Street Mall. He observed a number of police present in the area. A motorcade passed him. At this point he heard what he described as a ruckus. He readied the camera to operate and noted the ruckus was coming from across the road in the arcaded area of the GPO building. He saw police officers talking to an individual (undoubtedly the accused). His companion started the operation of the camera, initially taking a view from the eastern side of the roadway looking to the west.
53. Initially there was no physical exchange going on – just loud words. His attention was divided between instructing Mr Savage, and observing what was happening on the other side of the road. His attention was also drawn to a young child who was very nearby. The exchange became physical between police officers and the man. Initially, it was pushing and shoving. This was observation and is not on the DVD that was shown in Court. The two then crossed the roadway, and as they got closer, they observed the accused being forced up against the wall of the GPO building with notable officers in attendance. By this time they had commenced to video record (and sound record) the exchange.
54. It was apparent from this witness’ evidence that the audio attachment to the camera picked up sound but depending upon where the camera was focussed, the words or sound recorder did not correspond necessarily with what was being filmed. It was only when the camera was focussed on the source of the sound that you then also had the picture of what was occurring combined with the sound. As I have said, although the DVD shows the recording from the eastern side of Pitt Street, there is a gap in what is seen occurring on the western side that appears to happen when the two of these men crossed quickly from the eastern to the western side and go up to the arcaded area. As I have said, the DVD does not show the commencement of the exchange between the police officers and the accused.
55. It is probably convenient to now describe briefly what was seen on the DVD which was tendered in evidence.
56. What is shown on the DVD obviously speaks for itself. However, I will set out briefly, by way of description, as to what it shows. As noted in Mr Wiles’ evidence, the recording device records both sound and image. What is captured on the DVD is divided into images taken from two different vantage points. Firstly, from the eastern side of Pitt Street looking to the arcaded or colonnaded area of the GPO building and, secondly, images taken quite close up to where the exchange is taking place between the accused and the various police officers involved.
(a) The first view from the eastern side depicts two police cars on the roadway, one blue and stationary on the roadway itself with the warning lights activated and one red vehicle that appears to be parked on the western side of Pitt Street.
(b) The camera is then focussed on three people in the colonnaded area of the GPO building. It zooms in. There are two police officers. One is moving about, moving his arms and the other (obviously Sergeant Shaw) is stationary, and has his back to the camera. The accused is in front of the Sergeant but partially obscured by the Sergeant. The accused has his hands in his pockets initially. All three are fairly close to each other in roughly a triangular formation.
(c) It is noted that there are a few pedestrians in the area.
(d) The Sergeant is obviously looking at something or writing down something given the positioning of his arms and head viewed from the rear.
(e) At about 1 minute 17 seconds into the DVD, the Senior Constable is seen to move to the left, and the blue car moves off to the left of the screen, and then the Senior Constable is seen to move back. The accused then becomes fully visible and he turns to the Senior Constable and they appear to engage in conversation. At this stage the accused’s left hand remains in his pocket but his right hand is raised and there is some fairly mild gesticulation with the hand. The right hand is then placed back in his pocket. The Senior Constable is seen to raise his right arm, pointing in the direction of the street, that is, in the direction of the camera, moving his arm back and forth horizontally.
(f) At 1 minute 40 seconds the Sergeant is seen to raise his left arm in the direction of the Senior Constable, who then moves off to the left, and a further police officer is seen to arrive. At this stage a bald headed man in civilian clothes moves into the line of view of the camera operator. His back is to the camera (this gentleman is apparently Mr Carter, the man who was accompanying the accused and his 12 year old son on the journey to Chinatown for Yum Cha). This man is approached by a newly arrived Constable and it would appear that he is directed to move away. Another police officer in a yellow top then arrives. As this occurs, Mr Carter moves off to the right, the camera follows him, and then the young boy (obviously the 12 year old son) comes into view, standing near the parked red police vehicle that I have referred to earlier.
(g) Whilst the camera is focussed on the child, something obviously occurs in the colonnaded area, because the camera operator moves very quickly and the lens of the camera is moving side to side consistent with the operator moving across the roadway in the direction of the colonnaded area of the GPO. The DVD does not show, as I have said, the start of any physical interaction between the accused and the police officers.
(h) When the camera man arrives in the colonnaded area, the camera focuses again upon the action that is taking place. This is the start of the footage from the second vantage point that I have referred to, namely, that on the western side of Pitt Street up near the covered part of the colonnaded area. The audio becomes far more discernible, and words can be made out. Prior to this point, while some words can be made out, it requires considerable effort to actually discern what is being said. However, at this close vantage point, the words that were being exchanged become quite apparent.
(i) The Sergeant is seen to continue to assiduously write in his notebook, standing about two metres to the right of the action. The accused is being held from behind by an officer in uniform. Two other officers in red tops are at the front of the accused, one holding onto each of the accused’s arms. There are then heard raised voices from the police officers directed at the accused repeatedly saying “ stop resisting” . All are near the wall of the GPO. The accused is then moved forwarded by the three police officers and forced forward and in a downward direction towards the paved surface. My assessment of the exertions of the three police officers towards the accused at this stage, as seen on the DVD, is that it was with considerable vigour and force. The accused does not appear to be exerting much, if any, discernible force in reaction to what is being exerted against him. He appears to go bodily with the actions of the police officers. As the accused goes to the ground, a fourth officer joins in. There are also the other two officers that I referred to holding the accused’s arms and one officer was behind him pushing him forward. As the accused is being moved forward and then forced in a downward direction face first towards the paving, it is obvious the accused is wearing glasses.
(k) Two police officers appear to be pulling at the accused’s hands (one on each arm) in an endeavour to get the arms from under the accused’s chest to the rear. This is accompanied by loud words from the officers of “ Get your arms behind your back” . Then the accused is heard to say quite discernibly:-(j) When the accused is on the ground, his arms appear to be under or near his chest area. His head is partially up, but an officer has hold of the back of his neck and appears to be forcing the head in a downward motion towards the pavement.
“I am trying to save my glasses.”
(l) Through all of this the Sergeant continues to stand (seemingly unperturbed) about two metres away continuing to write into his notebook.
(m) Two further police officers are seen to move into the area just where these events are occurring. The accused is seen to have his arms held behind his back, one officer on each of his arms, a further officer is on the accused’s legs and another continues to have his hand on his neck. At this point, 2 minutes 47 seconds into the footage, there are six police officers plus the Sergeant in the area. Three more arrive shortly afterwards and one of these directs the camera man to move off, which he does.
(n) At the point the accused is constrained on the ground, it would seem that at least ten police officers were in the area although only four or five are involved in restraining the accused.
(o) The camera moves a short distance to the north and takes footage over the balustrade looking down to where the accused is on the ground. It can then be observed that there are four police officers over him, one standing and three squatted down beside him. There appears to be the placing of what looks like a wallet onto the ground beside the accused.
(p) At about 4 minutes 40 seconds into the DVD the accused is then raised physically by police to his feet and moved off, one police officer on each of his arms. He is taken in a southerly direction along Pitt Street, past the Hotel entrance, and down into the car park. The accused and the accompanying officers are seen to proceed down the car park entrance and disappear from sight. This is about 5 minutes 22 seconds into the video.
(r) I looked at the DVD on numerous occasions as it was repeatedly shown in Court over the days of hearing. I could not observe any action during the restraining of the accused that could in any way be described as “violent resistance” as referred to by the Senior Constable, on the part of the accused.(q) The first 10 seconds of the footage that was show in Court displayed scenes which are not associated with the matters being dealt with by the Court so that the length of the DVD that is relevant for the unfolding of the events that are the subject of these proceedings lasts for about 5 minutes 12 seconds.
next gave evidence in the Prosecution case. His duties on 7 September were to perform rear escort duties in the motorcade for the Sultan of Brunei. It was as he approached the Westin Hotel that he heard raised voices. He rolled down his window and heard an officer he now knows to be Senior Constable Heather say, as he stood on the eastern kerb of Pitt Street as follows:-
“ Sir, would you please wait here for a moment, the road is blocked for a motorcade.”
58. He saw these remarks directed at a male, who replied loudly but the words this male used were not discernible. The male was waving his arms about. He saw the male go to cross the western kerb, and heard the Constable say further:-
“Stop mate, do not cross the road. Get off the road.”
59. The male continued to cross the road and the Constable advanced and took him by the left upper arm. He escorted him to the western side. Other officers were nearby. A loud exchange ensued and the accused appeared to be acting aggressively and appeared to be agitated. As soon as Sergeant Shaw approached and saw production of something from a wallet by the accused. He heard the accused say loudly:-
“What is your name? What is your badge number?”
He thinks these words were directed at the Sergeant. He does not recall Senior Constable Heather yelling out anything. At this point the officer moved off in his motor vehicle towards the Hotel entrance. He did not see the accused again until he was taken along Pitt Street under police escort and down in to the basement car park of the Hotel.
60. CONSTABLE GLEN GIMBLE next gave evidence. He was working in the Westin Hotel at the time of the events complained of. He did not see any of the events relied upon to found the alleged charges. However, he took some photographs of the area near where the events took place afterwards. He also made unsuccessful attempts to contact a person by the name of Mr Ali Ismail, who I assume was a prospective witness, but because he could not be contacted he gave no statement and was not available to give evidence. In the way this matter ultimately proceeded no submissions were made in relation to the unavailability of that particular witness.
61. On 13 November last, two statements were tendered in the Prosecution case, namely statements of Constable Darian Hardy and Constable Mishant Ramavat. The first of these two officers was working outside the Westin Hotel when he saw two officers struggling with a person he now knows to be the accused. He went over to assist. He saw a Constable he knows as Constable Suesskow and Senior Constable Heather present. He also said that he observed the accused to be lying on the ground, on top of his hands. He heard Constable Suesskow say:-
“Stop resisting! Stop resisting!”
He then says he heard the accused say:-
“You will break my glasses.”
62. The accused was eventually handcuffed after some struggling this officer described as being fierce. He was then frisked, searched, and then assisted to his feet and escorted off to the entrance of the loading dock area of the Westin Hotel.
63. Constable Ramavat was carrying out duties outside the Hotel. He observed Senior Constable Heather and Constable Suesskow trying to control a male, obviously the accused. This male looked agitated and aggressive. He went over to assist. He also heard Constable Suesskow say as follows:-
“Stop resisting! Stop resisting! Release your arm.”
64. He heard the accused who was face down on the ground say as follows:-
“I am trying to protect my glasses.”
65. He then says that the accused was lifted to his feet and he heard Senior Constable Heather say as follows to the accused:-
“It did not have to be this, like this was, mate.”
He heard the accused reply as follows:-
“You wanted it this way.”
He then says that after the accused was handcuffed he was taken towards the entrance to the dock area of the Hotel.
SUBMISSIONS MADE ON THE COMPLETION OF THE PROSECUTION CASE
66. No further evidence was called or tendered in the Prosecution case. Following its completion, Mr Corish, on behalf of the accused, made submissions that there was no prima facie case to answer on each of the three charges. In relation to the two s.58 charges, he firstly submitted there was no lawful arrest or, alternatively, if this was not the case, then the interrogation of the accused was a wrongful exercise of authority. In either case, he submitted, it was sufficient to constitute an impropriety for the purposes of s.138 of the Evidence Act, and that as such, the Court should exclude the evidence of what occurred as a result of the arrest or what occurred during the course of the interrogation and not exercise its discretion to admit the evidence. In relation to the resist, Mr Corish says that there is no more evidence other than the accused tensing his muscles once he had been taken hold of, and, given the rather vigorous exchange shown on the DVD, this would be a spontaneous result of anyone in the situation thus displayed on the DVD. I indicated for reasons that I gave at the time that I was not satisfied that there was sufficient evidence to allow me to conclude that there had been an arrest such as to constitute an impropriety, and hence triggering the provisions of s.138. Putting these considerations to one side, it was my view that there was sufficient evidence in the Prosecution case, at least at prima facie level, to establish the s.58 assault charge. I was also satisfied, that the evidence disclosed some resisting if not violent resisting.
67. However, on the charge bought pursuant to s.199 of LEPRA, I was satisfied that there was a prima facie case on the evidence. I initially asked Mr Corish to address me on the second leg of May v O’Sullivan, namely, that there was insufficient evidence to convince the Court beyond reasonable doubt. I say initially, because having further heard from both parties, I thought it was more appropriate that I give myself a Prasad direction in relation to this charge.
The direction is so called because of what King CJ said in Prasad (1979) 2 A Crim 45 at 47:-
“It is, of course, open to the jury at any time after the close of the case for the Prosecution, to inform the Judge that the evidence that they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more…..I have no doubt that a Tribunal which is the Judge of both law and fact [as is the Local Court] may dismiss a charge at any time after the close of the Prosecution case, notwithstanding the fact that there is evidence upon which the Defendant could lawfully be convicted, if that Tribunal considers that the evidence is so lacking in weight and reliability that no reasonable Tribunal could safely convict on it.”
It was my view that at the close of the Prosecution case in relation to this charge, the evidence was insufficient to justify a conviction because it lacked weight and reliability and it was not reasonable to safely convict on it.
68. My difficulty with the Prosecution case was caused by what was said and what happened when Senior Constable Heather approached the accused and gave him the direction, the breach of which direction was relied upon to found the charge. I have set out in some detail the evidence of Senior Constable Heather, particularly the evidence given in cross-examination in relation to words and actions that took place on the eastern side of Pitt Street. I accepted that his version of events was in varying degrees different from the observations of, for instance, Constables Crowley and Gibb, and Sergeant Shaw, and to a lesser extent, Mr Lopez. However, Constable Heather was the witness present at the event and a participant in the exchange. All the others were attending to various other duties at the time and their attention was drawn from those duties by way of distraction of the loud words they heard. Allowing for the momentary inattention as they refocussed from their other individual tasks at hand to the event that were occurring up the street, perhaps 10 maybe up to 20 metres away, depending upon the positioning of these witnesses, I had no difficulty in accepting Senior Constable Heather’s evidence as the acceptable version of what in fact occurred at the spot of the exchange between himself and the accused. This is set out at page 49-50 of the transcript of evidence of 26 June 2008. I have set this out fully earlier. Put simply, the sequence of events was as follows:-
(a) Senior Constable Heather says “Mate, stop. Do not cross the road.”
(c) To again refer to the Senior Constable’s evidence, it was only after he had thus taken hold of the accused’s arm that he completed the direction by using the words “ Get off the road” .(b) At this point, the accused’s arm is taken hold of firmly, that is before the direction was completed and before he had an opportunity to comply or not comply.
69. Section 199 creates the offence for failure to comply with a direction given under s.197. Section 199 sub-section 2 clearly states as follows:-
“A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct.”
70. It is obvious on the evidence that there was no opportunity, given the firm hold the Constable had of the accused, for the accused to either comply or not comply. This failure of compliance is an essential ingredient for the Prosecution to prove in the establishing of this offence and I was of the view that given the evidence of the Senior Constable no such failure could possibly be established on the evidence. I therefore dismiss this charge.
71. However, as I have said, I was satisfied that there was a prima facie case to answer in relation to both the s.58 charges.
EVIDENCE IN THE ACCUSED’S CASE
72. The only witness called in the defence case was the accused, Mr Gregory McLeay. He is a 56 year old accountant. He says that on 7 September he had been to his Pitt Street office in the morning for an appointment with a client, Mr Stephen Carter. As it was a holiday in the Sydney area, because of the APEC meeting, he had taken his 12 year old son to the office that morning. At the conclusion of the appointment appointment, he had decided to go with his son and Mr Carter to Chinatown for Yum Cha. The group set out from the office and proceeded to walk south on Pitt Street on the western footpath. Mr McLeay says he was aware that some parts of the city were blocked off for the APEC meeting, in particular, the Quay area, to the north of where he was walking. He was not aware of any other areas being restricted to pedestrian thoroughfare. As he proceeded past the GPO building, he noticed some blue and white tape across his pathway, near the entrance to the Westin Hotel. A policeman was present. This officer hand signalled that the group should not continue south but rather cross Pitt Street, i.e. go to the eastern footpath. This the group did and proceeded then to walk south past the Commonwealth Bank towards Rowe Street. Here a barrier was placed and a further police officer was present. Mr McLeay asked if it was in order to proceed, but was told that it was not, but when he asked how you should proceed to Chinatown, he was told by the officer to return to Martin Place and thence go down to George Street and then proceed to the south.
73. He turned with the other two, retraced his foot steps for about 20 metres, now heading in a northerly direction. As he saw no traffic on Pitt Street (although having subsequently seen the DVD he concedes that there may well have been at least a police car present upon Pitt Street at the time) he proceeded to cross again east to west and had taken about two steps onto the roadway when he heard the words: “Don’t cross the road.”. He heard no other words. His arm was then seized around the bicep area. He now knows the words and the seizure were from Senior Constable Heather. This was not the police officer that he had encountered at the Rowe Street barrier. This was another officer. Thus seized, he was escorted across the road, i.e. from the eastern side of Pitt Street to the western, and thence up to the colonnaded side of the GPO building. It was only on arrival at the colonnaded area that Senior Constable Heather let go of his arm. He says that on this journey to the colonnade he did not swear. He says that as he was taken across the road, Senior Constable Heather said:-
“I am arresting you for crossing the road.”
He said that on this being said he replied:-
“We were following directions told to us by a policeman.”
74. On arrival at the colonnaded area, he believed he was under arrest and not free to leave. This belief was reinforced by being held by the arm in the manner described. He says he was told by the Senior Constable for a second time that he was under arrest. In the colonnaded area he met Sergeant Shaw, who said as follows:-
“Please provide me with some identification.”
75. He says that at about this time he asked Senior Constable Heather for his identification. He says that he did not recall at least at this time being told by the Senior Constable his identification. However, during the course of his evidence Mr McLeay, on viewing the DVD and, in particular, listening very carefully to the audio track, he conceded that at one point the Senior Constable did say his name which he, McLeay, repeated when told. He says that he also asked the Sergeant for his identification and this was given. He also says that as the Senior Constable was wearing a yellow vest his name tag was not open to view. This was not the case with the Sergeant.
76. Mr McLeay says he took his wallet out of his pocket and handed over his license to the Sergeant. He conceded that he may have first handed over a credit card. He was then asked for the wallet which he handed over. He continued to believe he was not free to leave. Discussion ensued. The Senior Constable continued in attendance. He again said he, the accused, had crossed the road after he had been directed not to do so. He again said he was on his way to Chinatown. He says that he used his arm to point out where the officer had been who had directed him to take the route he was taking, i.e. the officer at the barrier on Rowe Street. He said that the position he found himself in at this stage was both embarrassing and confusing. He was told by the Senior Constable he had walked in front of a motorcade. He asked the Senior Constable:-
“ What motorcade?”
77. The discussion with the Senior Constable became contentious. Sergeant Shaw continued to write down details of his identification into his notebook whilst this was going on. He stood about a metre or so from the Sergeant. At one point the accused said that the Sergeant indicated to the Senior Constable, who was standing nearby and verbally interacting with Mr McLeay, that he should move away, which the Senior Constable did briefly.
78. The accused said that during the exchange with the Senior Constable he mentioned that he was an accountant. He says the Senior Constable questioned this.
79. In the course of this exchange, the accused said to Sergeant Shaw:-
“Can I have my wallet back?”
He says that simultaneously he reached out with his hand up. Senior Constable Heather then took a step forward, and put both his arms, palm on palm, against his chest and said:-
“Get back. Get back.”
He says that the Senior Constable may have also said as follows:-
“Get back from the Sergeant.”
80. He says that the putting up of the hands on his chest caused him to slightly move backwards and in so doing lost his footing causing him to move his hands in an upward direction out in front of himself, to steady himself. He concedes that his hands may have brushed against the Senior Constable’s shirt. He says all of this occurred at close quarters, each to the other. Then the Constable was heard to say:-
“You have assaulted me mate.”
Mr McLeay replied:-
“What do you mean?”
The Senior Constable replied:-
“ You have touched me. That’s assault. You are under arrest for assault.”
81. He says that the Senior Constable immediately grabbed hold of his arm and two other officers immediately moved in and took hold of him as well. He was pushed towards the wall of the GPO, with his face to the wall. He was turned around, then moved forward being pushed and pulled. In the process, he heard the words:-
“Watch out, we are being filmed.”
(it was just before this that the DVD begins to show the action close up).
He said he did not resist in any way. He said he went with the movement of the police officers as best as he could. He said that he felt belittled and mortified. There was yelling and screaming then he heard someone say as follows:-
“Brace yourself. We are going to take you to the ground.”
82. He was taken to the ground, face first. He felt weight on his back and neck. He said the following:-
“Look out for my glasses.”
83. When on the ground, when asked to release his arm from in front of him, he indicated that he was “protecting my glasses”.
84. He remained on the ground for a short period, his arms eventually being placed behind his back and subsequently he was handcuffed. He was eventually lifted by the police officers to his feet and, in his words, “frog marched” down Pitt Street and then down into the Westin Hotel carpark.
85. During cross-examination Mr McLeay was asked whether he had handed over his credit card, his license or his wallet. The accused said that he gave over all three items, in that order. It was put to him that he did not hand over his wallet. His recall was that he did. He conceded that he did appear to have his wallet when he was on the ground, following viewing of the DVD. However, what in fact was the case does not appear to be of any great significance to me. The reality is that he did present satisfactory identification.
86. Mr McLeay conceded that Constable Heather may have mentioned the motorcade but he said he did not see one or recall seeing one. It was put to him that the first time that arrest was mentioned was following the alleged assault. Mr McLeay would not agree with this. He said the word had been mentioned twice before the arrest following the alleged assault. He also denied that at any time had he pushed the Senior Constable with both his hands, as he stepped towards the officer. He conceded that after the other officers had taken hold of him and were pushing and pulling him, he may have tensed up, but that was reactive. He said he was not resisting what the officers were doing. He did say that when he was on the ground he did initially refuse to move his arms out from under his body but he said that this was because he was protecting his glasses.
ANALYSIS
87. The first issue that must be dealt with by the Court is the question of whether the accused was under arrest when he was taken hold of by Senior Constable Heather when he was standing on Pitt Street. The second issue is whether, if there was an arrest, it was a lawful arrest. The issue is important, because of the nature of the two charges that remain to be dealt with: they were laid pursuant to the provisions of s.58 of the Crimes Act. An essential element of this charge, that must be proved beyond reasonable doubt by the Prosecution, is that the officer, who was assaulted and/or resisted, was acting “in the execution of his or her duty (as a police officer)”.
88. The events complained of occurred during the operation of the APEC Meeting (Police Powers) Act 2007. There is no issue between the parties that the location of these events was within what was an APEC security area as allowed for in s.5 of the Act.
89. Section 5 allows for two types of APEC security area. Section 5(a) allows for a Declared Area. There is no issue that the area relevant to the events that bring this matter before the Court occurred in a “Declared Area”. Section 5(b) allows for a Restricted Area.
Section 36(2) of the Act specifically states as follows:-
“(2) Nothing in this Act limits the operation of section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002.” [LEPRA]
Section 10 allows for the setting up of check points and the cordoning off of areas within an APEC security area by a police officer.
Section 15 allows for a police officer to close any road in a security area for the purposes set out in s.15(1).
Section 12 allows for a police officer without warrant to stop a person seeking to enter an APEC security area (ss.(1)(a)), for the purposes of a search. This power also applies to a person already in a security area (ss.(1)(b)). Again s.12(2) specifically states that s.201 of LEPRA applies to such a search.
90. There is no issue on the evidence that the area where the complained of events occurred met the requirements of one or more of those sections:-
(b) The footpath near the Hotel that the accused initially approached firstly at the southern end of the GPO building on the western footpath, and again on the eastern footpath, near Rowe Street, were cordoned off as allowed for in s.10.(a) Pitt Street was closed, albeit temporarily, to facilitate the “movement of vehicles that are being …used for conveying participants in the APEC meeting to or from their accommodation…” [s.15(1)(c)]. In the matter before the Court, the participant was the Sultan of Brunei and his entourage and the accommodation was at the Westin Hotel.
Rather, the Prosecution relies upon s.14 as providing the relevant power to a police officer, namely, the power to give a reasonable direction. Relevantly, that Section states as follows:-However, there is no evidence that Mr McLeay was stopped for the purposes of a search as allowed for by s.12 of the Act.
(1) A police officer may give a direction to any person…in an APEC security area.
(2) Such a direction must be reasonable in the circumstances for the purpose of substantially assisting in promoting the security or safety of … its [an APEC meeting] participants ….
(3) A direction under this section is to be given orally …”
91. There is no issue that Senior Constable Heather gave a direction recited earlier. There is no issue, as far as the Court is concerned, that it was reasonable in the circumstances, i.e. for Mr McLeay to get off the road to allow for the passing of a motorcade and the direction was oral. For reasons I have already given when I dismissed the charge laid pursuant to the provisions of s.199(1) of LEPRA, there was no failure on the part of the accused to comply with the direction given pursuant to s.14.
92. Given the operation and application of the APEC legislation, to the place and circumstances of the matter before the Court, the power to give a reasonable direction allowed for in s.197 of LEPRA is not specifically relied upon, although it would seem that even without s.14, s.197 of LEPRA would have provided adequate power in any event. However, s.201 of LEPRA does apply to a s.14 direction, given the specific legislative provisions that I have referred to.
93. Section 201 states relevantly as follows:-
“(1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following:
(2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)):
(a) evidence that the police officer is a police officer (unless the police officer is in uniform),
(b) the name of the police officer and his or her place of duty,
(c) the reason for the exercise of the power.
(a) if it is practicable to do so, before or at the time of exercising the power, or
(b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power.[Subsection (2B) is not relevant in the circumstances of this case](2A) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B).”
(3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act):
(a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and
(b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence.
(a) a power to search or arrest a person,…
(f) a power to stop or detain a person (other than a power to detain a person under Part 16) …,
(g) a power to request a person to disclose his or her identity or the identity of another person,…
(i) a power to give a direction to a person,…”
94. Relevant to the consideration of the events before the Court, the following are the legislative provisions governing the conduct of a police officer:-
(a) The officer had the appropriate power in s.14 of the APEC legislation to give an oral direction to Mr McLeay. That direction on the evidence was as follows:-
“ Mate, stop. Do not cross the road. [The officer then took hold of the accused’s arm firmly]. Get off the road”
(b) The officer was exercising a power at this stage pursuant to s.14, such that the method of exercising such a power being governed by s.201 of LEPRA. It operates in conjunction with s.14 of the APEC legislation (as it does with s.197 of LEPRA).
(c) By the use of the word “must” in s.201(1) and s.201(2A), and s.201(2C), the legislation mandates that in exercising this power, the Senior Constable must do the following in relation to the person who is the subject of the exercise of the power, i.e. Mr McLeay:-
(i) Evidence that the police officer is a police officer (unless the police officer is in uniform);
(ii) The name of the police officer and his or her place of duty,
(iii) The reason for the exercise of the power;
(iv) In relation to exercising a power pursuant to s.201(3)(i) [and s.14 of the APEC legislation] all of the above requirements must be complied with, if it is practical to do so, before or at the time of exercising the power to give a direction (s.201(2A)). As the direction was given to one person, s.201(2B) does not apply;
(vi) A warning must be given, as soon as reasonably practicable, that in making the direction that the person is required by law to comply with, the failure to comply with the direction is an offence.(v) There is no question that in the circumstances of this case, it was practical to do so either before or at the time of exercising the power. There were very few people around. It was not a bustling crowd. It was not a demonstration. There may have been one car on the roadway nearby, the police car, which was at the rear of the motorcade.
95. At the time the giving of the direction, with the exception of the fact that the Senior Constable was in uniform, s.201(1)(b) and (c), and s.201(2C) were not complied with. I set this out because, although I dismissed the third sequence charge for other reasons, if required to do so, I would have found that the direction was in any event given and carried out in contravention of the provisions of s.201, given the failure to comply with the mandatory provisions of s.201. The direction, whilst itself within power, by the way in which it was carried out, rendered the subsequent actions by the Senior Constable as not being in conformity with the requirements in LEPRA for the exercise of the power that he was seeking to exercise.
96. Given what I have said, the subsequent situation following the direction needs to be considered.
97. Mr McLeay says that while still on the roadway, but after he had been firmly taken hold of, he was told by the Senior Constable he was under arrest. Unfortunately, this was not put to the Senior Constable so it is difficult to fairly conclude one way or the other as to whether these words were in fact used. However, it seems to me not to be determinative of what the situation was in any event. I note the following:-
(a) There is no doubt that Senior Constable Heather took firm hold of the accused’s arm at the time that the direction was being given.
(b) The accused was then, in the words of Mr McDonald, “propelled”, thus held, to the colonnaded area of the GPO, some distance from where he had first been taken hold of. This movement was from just near the eastern footpath on Pitt Street, across Pitt Street, across the western footpath, and then up to this colonnaded area.
(c) There is no doubt, on the evidence, (and I would so conclude) that the accused’s arm was not let go of until he and the Senior Constable arrived at the colonnaded area.
(e) From before the time the exchange between the accused and the Senior Constable commenced, during what is said to be the resistance of the accused, the Sergeant is seen on the DVD to be writing into his notebook, the relevant particulars of the identification. Therefore, at this stage, the particulars that the Sergeant wished to obtain had not been completed and therefore the accused continued not to be free to leave.(d) From the moment he was taken hold of by the Senior Constable the Senior Constable did not regard the accused as free to leave. Mr McLeay was of the same view. Sergeant Shaw was also of this view, once he had made contact with the accused, and he was obtaining identification particulars from the accused. The Sergeant did not regard the accused as being free to leave, at least until those particulars had been satisfactorily obtained, and written into the Sergeant’s notebook. Once this had been completed, it was the Sergeant’s intention to then tell the accused that he was free to go.
98. Given these undisputed facts, I would conclude as a matter of fact that the accused was under arrest from the moment he was taken hold of regardless of whether it was said to him or not. He was taken hold of, propelled some distance across the road. At this point neither he nor Constable Heather believed that he was free to leave nor subsequently did Sergeant Shaw. The combination of these matters leave beyond doubt in my view that an arrest had been carried out, and that the accused continued to remain under arrest until told otherwise.
Also, I note Sergeant Shaw said as follows:-
“Q. At this point in time [that is as he was taking the particulars but had not as yet completed the exercise] had you made a decision as to what was going to happen once you had got the details of this man?
(T.26/6/08, p.125.30-32).A. He was going to be let go on his way.”
99. The arrest that I have found occurred was to continue until the identification particulars had been satisfactorily obtained. This state of affairs was therefore extant at the time the events relied upon to establish the s.58 offence occurred. I would also conclude that the intention of the Sergeant for the accused prospectively “to be let go on his way” was to be a discontinuance of the arrest, provided for by s.105 of LEPRA.
100. The issue that now has to be determined is whether there was any basis for the arrest, and if there was, whether the provisions of LEPRA governing the conduct of a police officer in exercising the power of arrest, had been complied with.
101. Section 99 of LEPRA deals with the situation where a police officer may arrest a person without warrant, such as was the situation being dealt with by the Court.
(1) A police officer may, without a warrant, arrest a person if:
(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument.
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been tried.
(3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
(a) to ensure the appearance of the person before a court in respect of the offence,
(b) to prevent a repetition or continuation of the offence or the commission of another offence,…”
102. By s.99(1) and (2), a police officer has a discretion to arrest in the circumstances set out.
Section 99(3) deals with a prohibition on arresting someone for the purposes of taking proceedings, except in circumstances as set out.
103. I have set out earlier the circumstances in which the Senior Constable purportedly arrested Mr McLeay. I have found that in fact Mr McLeay had not failed to comply with a police direction for the reasons I have indicated. Even if Mr McLeay had failed to comply with a direction, a police officer does have a discretionary power of arrest under s.99(1)(a) and (b) but he is still bound by s.99(3). He is also bound by s.201 because the power to arrest is a power under s.201(3)(a).
Section 99(3) does not allow an arrest “ for the purpose of taking proceedings for an offence….unless the police officer suspects o reasonable grounds that it is necessary to arrest the person… [relevantly]; (b) to prevent a repetition or continuation of the offence or the commission of another offence” .
The APEC legislation does not of itself create an offence of going into a Declared Area. It gives power to give reasonable directions in such an area (s.14), but failure to comply would create an offence dealt with by s.199 of LEPRA (as opposed to entering a “Restricted Area”, this being made an offence with a corresponding penalty, dealt with by s.19). So the act of walking into a Declared Area does not appear to be an offence.The relevant repetition in the circumstances before the Court might have been thought to have been the walking into the Declared Area after being given a direction not to do so.
104. The only conceivable offence would be the walking into the area after a reasonable direction had been given not to.
“ Q. Why were you asking him to wait there?Senior Constable Heather, although a little ambiguous and perhaps confused in the language he used, seemed to have been of the same mind. He says as follows:-
A. Well because he had already crossed the road and technically by the way we were holding all the points, he shouldn’t have done that. This is in my mind. But at that point, he had already made it to the other side of the road and I was happy to say to – I was happy in my mind just to let it go at that and say “Mate, if you don’t mind waiting there”, that would be it.
Q. You mentioned discretionary power. Where does that discretionary power arise?Q. Were you at that point giving him a direction to wait there or was it just a friendly -
A. It was more of a friendly – really, at that point, it was more of a friendly, you know, if you don’t mind waiting there. He hadn’t really – in my mind at that point he hadn’t really done anything wrong. Although he had actually crossed the road where he shouldn’t have, my discretionary power would allow me to just say, “Mate, if you don’t mind just wait here”, that’s fine and that’s sort of the context of the conversation at that point.
A. Well, I don’t think it’s a written act. I think it’s more, you know, comes with the office of Constable. You know if we arrested everyone for everything we saw, you’d be doing nothing else but arresting people.”
(T.26/6/08, p.48.3-23)
105. Where I would possibly disagree with the Senior Constable is that, in my view, by crossing the road, the accused had not committed an offence at all, either in fact or technically. Rather, he had placed himself in a situation where he was liable to be subject to a direction, i.e. under s.14. The only conceivable situation allowing for arrest that could have arisen was potentially a failure to comply with a direction, but for the reasons that I have given earlier, as a matter of fact that the situation did not, and could not arise. I therefore conclude that there is no basis under s.99 for Senior Constable Heather to have arrested Mr McLeay. As a matter of fact, I have found that this is exactly what the Senior Constable did. His action, therefore, is in contravention of s.99, and therefore the purported arrest was unlawful. I have already found that this situation (i.e. of the arrest) continued up until and indeed during the events complained of. These events therefore occurred during the currency of an unlawful arrest, this arrest having been carried out by Senior Constable Heather. Section 58 of the Crimes Act requires, as an essential element, that the events complained of, i.e. both the assault and the resist, be actions taken against a police officer in the execution of his duty. Such an element must be established beyond reasonable doubt.
The High Court considered this in Coleman v Power & Ors [2004] HCA 39, McHugh J says at paras 117 and 118:-
118. An officer who unlawfully arrests a person is not acting in the execution of his or her duty."
The continuance of the arrest by the Senior Constable was an action which was outside of his duty, creating a situation where his continued action was not one that occurred in the execution of his duty and this continued for as long as he maintained the unlawful arrest.
Therefore the Prosecution cannot prove an essential ingredient of the s.58 offences as these offences occurred during the continuance of an unlawful arrest. For these reasons, both the s.58 charges should be dismissed.
FURTHER CONSIDERATIONS
106. For completeness, I wish to note the following:-
(a) This conclusion does not mean that an accused in the situation that I found Mr McLeay was in, i.e. the subject of an unlawful arrest, can do something that is unlawful and not be liable to be charged with an offence. He could, for instance in the circumstances of this case, be charged pursuant to the provisions of s.61 of the Crimes Act, i.e. with common assault, of Senior Constable Heather. Indeed, in Coleman v Power (op cit), McHugh J says at paragraph 121:-
For reasons that I set out below, I would not, in the circumstances of this case, have found the accused guilty of this offence either.”“Although a charge of assaulting a police officer in the execution of his or her duty will fail when the officer has engaged in unlawful conduct such as an unlawful arrest, the accused may be convicted of common assault if his or her response is excessive.
(b) During the course of argument, I was referred to a number of cases:-
All of these cases precede the operation of LEPRA, that, although assented to on 29/11/02, did not commence by proclamation until 1/12/05. Whilst LEPRA allowed for the continuance of the common law in relation to the powers of a police officer and the execution of those powers (s.4) the Act had as its object and purpose that which was referred to by the Attorney General at the time in the second reading speech. Mr Debus said as follows:-· DPP v Carr (2002) 127 A Crim R 151;
· DPP v Coe (2003) NSWSC 363;
· DPP v AM (2006) NSWSC 348.
“ This Bill represents significant law reform. It radically simplifies the law in relation to law enforcement powers, setting out in one document the most commonly used criminal law enforcement powers and their safeguards…matters included in the Bill represent a codification of the common law, a consolidation of the existing statute law, clarification of police powers or a combination of these. While generally the Bill simply re-enacts existing legislation, it does in some circumstances make amendments intended to more accurately reflect all areas of the common law and to address areas in the existing law where gaps have been identified. Unless expressly stated, the Bill is not intended to change the common law…” (Hansard, Legislative Assembly, 17/9/2002).
In my view s.99 codifies the powers of arrest. Use of the words “may” and “must not” delineate areas of discretion and obligation when a police officer exercises the power of arrest. I have found that Senior Constable Heather did not comply with s.99 and therefore the purported arrest was unlawful. S.99 was not in force when the circumstances with which these cases dealt occurred. Those cases of course will still provide guidance in a situation, for instance, with a charge that is being dealt with by the Court does not involve as an essential ingredient, such as the case in s.58, that a police officer be acting in the execution of his duty. For instance, if an accused had been charged pursuant to the provisions of s.61, and the events that took place that constituted the factual basis for the charge of common assault occurred during the continuance of an unlawful arrest, an accused may still be found to be guilty. However, the s.61 alleged assault would have occurred during the continuance of an unlawful arrest, and undoubtedly it would present a situation that would give rise to the Court having to consider the provisions of s.138, and whether or not the discretion allowed for under s.138 would be exercised in favour of the prosecution. The cases that I have referred to would provide guidance.
(d) The Prosecution referred me to the decision of DPP v Gribble [2004] NSWSC 926. In that decision, Barr J says at paragraphs 23-24, after considering s.6 of the Police Act 1990, as follows:-(c) There are no decisions of appellant courts that I have been able to find that deal with s.99 of LEPRA. There are a number of decisions of this Court and, in particular, the decision of Helpern LCM in P v McLean (2008) NSWLC 11, that deal with the effect of LEPRA and, in particular, the codification of the power of arrest provided for by s.99. His Honour’s opinion in this decision is the same as mine. The benefit of this codification allows a Court, subject obviously to the vicissitudes of evidence and the consequential findings of fact, to arrive at a decision as to the lawfulness or otherwise of an arrest, i.e. whether or not it is in conformity with s.99. If the arrest is found to be unlawful after the relevant considerations, and the charge is one pursuant to the provisions of s.58, then the Prosecution will fail to establish an essential ingredient of the offence. However, if the charge laid against the defendant is otherwise, then a finding of unlawfulness of arrest will lead to a consideration of s.138 of the Evidence Act as I have said.
“ 6. Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.”
“ It was submitted that the legislative history in the current s.6 of the Police Act extended the duty of a police officer beyond the prevention and investigation of crime so as to include actions reasonably necessary for the protection of persons from injury or death, and property from damage, regardless of whether the need for those services arises from any criminal act.
It seems to me that that is the intent of the legislation and that the submission should be accepted. This approach is consistent with the common law.”
However, as a consequence of the implementation of LEPRA, and since Gribble was decided, the following sub-section 6 was added to s.6 of the Police Act :-
It would seem to me that given this amendment, s.6 would now be considerably limited, and in any event it could not be relied upon to expand powers not allowed for in LEPRA. In any event, Gribble was dealing with a far more serious situation than the circumstances that have arisen in the case under consideration. Again, in this regard, I note that my view accords with that of Heilpern LCM in Police v Randle (decision of Local Court 21/10/2008 – unreported – at paragraph 70-71).
(e) If I am wrong in my findings of fact that allows me to conclude that the arrest was unlawful, the Prosecution would still potentially have difficulty in any event with compliance with s.201. Arrest is the exercise of a power covered by s.201(3)(a). Therefore, s.201(1) must be complied with unless strict compliance is excused by s.201(2). What a combination of these two sub-sections requires of an officer in the position of the Senior Constable is that he provide his name and place of duty and the reason for the exercise of the power and unless it is not practical to do so, this information must be provided before or at the time of executing the power. These requirements were not complied with. It was a situation where there were very few people in the area (possibly 50, but more likely 8 to 20 people). It was not a scene, for example, of a demonstration or a large jostling crowd. On the evidence, it was all fairly low key with ordinary members of the public going about their perfectly legitimate activities. There was no evidence that Mr McLeay was exhibiting excessively aggressive or anti-social behaviour. He was just a normal member of the public walking in the area. There is nothing in the evidence to excuse compliance with s.201(1). It is accepted that eventually, at some discrete period of time after the purported arrest, when the accused and the Senior Constable were in the colonnaded area, that s.201(1) was complied with. There is no explanation as to why this was not done “before or at the time of exercising of the power”. Given s.201(1) and (2) are put in mandatory terms, this failure in my view may well have led to a conclusion that the arrest was unlawful.
(f) Finally, if I am wrong on both bases upon which I have concluded that the arrest was unlawful, then I would have to consider the evidence of what occurred between the Senior Constable and Mr McLeay and decide whether the evidence would allow one to conclude that the Prosecution has established its case factually beyond reasonable doubt. The Prosecution places weight upon the evidence that Mr McDonald as being corroborative of the version of events attested to by Senior Constable Heather. However, I have some concerns about the reliability of the observations of this witness. These concerns are based upon the following considerations:-
(i) All of the observations that this witness made were from a distance of at least 10 metres, if not a little more, albeit with unobstructed view.
(ii) He says that the accused was windmilling his arms and by this he means more than just gesticulation. But the DVD, in my view, on what is observed, is no more than what I would describe as gesticulation. “Windmilling” means throwing the hands around in a circular fashion. This is just not observed on the DVD.
(iii) This witness was definite on 27 June that he saw a wallet handed over by the accused to the Sergeant, but on 13 November he was either uncertain or did not see this at all.
(v) This witness sees the accused step forward to the Sergeant, and says that the accused appeared “out of the blue” to give a double-handed push to the Senior Constable. The evidence of both the accused and the Senior Constable is that the accused’s hands went up after the Senior Constable had “check-drilled” the accused. This witness obviously did not see this. He specifically says as follows:-(iv) Mr McDonald says that as he observed the interaction between the accused and the Sergeant, the Sergeant was facing him. The DVD shows this not to be the case. Rather, the Sergeant would have been observed side on.
“ Q. Did you see any physical interreaction between anyone immediately prior to the double handed push [by the accused]?
A. Not until that stage, no.”
(T.27/6/08, p.114.41-44)
He did not see the accused reach out with his hand towards the Sergeant (T. 13/11/08, p.27.21-24, and at 45-49 and again at p.32.11-15).
None of this would suggest that Mr McDonald was doing anything other than his best to recall the events. However, his recall of what he observed, particularly at the important time immediately before the arrest for the alleged assault by the Senior Constable, shows elements of inattention. He sees the hands of the accused go up and the accused said they did but rather as a reaction to the push by the Senior Constable, this being a push Mr McDonald did not see. This combined with the matters that I have referred to in (ii), (iii) and (iv) set out above, reinforce my reservations and supports my conclusion that his evidence, at the critical point, does not corroborate either version of the events that occurred immediately before the exchange began between the two.
Sergeant Shaw does not assist the Prosecution either. He was concentrating on recording the accused’s details. Further, he cannot corroborate any impending assault by recourse to what he felt. When asked as to his concerns when the accused moved forward he said as follows:-
“ I didn’t really have time to have a concern. I was aware he’d moved towards me but before I could react, Senior Sergeant Heather had stopped the accused from coming any further.” (T.27/6/08, p.42.40-42)
I would therefore be left with the two versions of what occurred, that of Senior Constable Heather and that of the accused. On the evidence of the Senior Constable, he reasonably considered there was an imminent assault about to take place upon the person of the Sergeant. This conclusion, as I have said, was based upon the step forward and the raising of the arm. He performed what has been called a check-drill movement, to prevent the perpetration of the assault. Mr McLeay then responded, deliberately, by turning to the Senior Constable and lifting both his hands and pushing him with some force, sufficient to cause him to go back a step. If this sequence of events is accepted, this would have been an assault upon Senior Constable Heather, and he was entitled to arrest the accused. If, however, one accepts the version given by Mr McLeay, a different conclusion is reached. Mr McLeay says that he did move slightly forward, with one arm up, asking that his license be returned. He in no way intended to assault the Sergeant by threat or action. Senior Constable Heather obviously misinterpreted this and pushed the accused backwards away from the Sergeant. This was done in a fashion that caused the accused to spontaneously raise his arms in order to regain his balance as he moved backwards. His hands, in coming up, may have touched the Senior Constable on his outer vest, but at no time did he push against the Senior Constable. He was then immediately arrested. This version of events does not establish an assault on Mr McLeay’s part at all.I appreciate that the Sergeant does say he saw a push from Mr McLeay, but given that it all happened very quickly, in very close quarters, and he was engaged in any event in writing down material at the time, I do not give enormous weight to his evidence in this regard.
107. Given these conflicting versions of events, I would not be able to conclude that the Prosecution’s case was one established beyond reasonable doubt. I therefore would have dismissed the charge of assault laid pursuant to the provisions of s.58.
108. In relation to the charge of resist laid pursuant to the provisions of s.58, the evidence in the DVD is quite compelling. It shows the accused being quite vigorously physically moved about, initially by three and then four police officers. Mr McLeay’s evidence is that he did not resist, but merely went with the vigorous actions being perpetrated upon him by the police officers. In other words, he was not independently acting although his body, understandably, may have tensed as he was pushed by the officers. On the other hand, Senior Constable Heather says that the accused was resisting violently. Having carefully looked at the DVD, I see no evidence of anything that could be described as violence on the part of the accused and his actions. In fact, his explanation as to his bodily response to what is observed on the DVD is entirely reasonable and plausible. That a person’s body would tense up as a reaction to this sort of handling is a matter of common sense. Further, his failure to put his hands immediately behind his back when forced to the ground face first is quite reasonably explained by what he said (and this is audible in the DVD sound track) that he was protecting his glasses not resisting. For these reasons the Prosecution would have by no means convinced me beyond reasonable doubt that the accused was resisting the police officers. I therefore would have also dismissed this charge.
GRAEME CURRAN
Magistrate of the Local Court of NSW
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