R v William John Murray

[2008] NSWDC 226

CITATION:	R v William John Murray [2008] NSWDC 226
HEARING DATE(S):	8-13 October 2008
JUDGMENT DATE:	17 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
DECISION:	Verdicts of guilty on all counts
CATCHWORDS:	CRIMINAL LAW - Trial - Judge Alone - Resist and assault police, attempt to use weapon to avoid apprehension, escape - Self defence
LEGISLATION CITED:	Bail Act, 1978 Crimes Act 1900 Criminal Procedure Act 1986 Australian Federal Police Force Act 1979 (Cth) Law Enforcement (Powers and Responsibilities) Act 2002
CASES CITED:	Crawford v R [2008] NSWCCA 166 Director of Public Prosecutions Reference No 1 of 1993; R v K (1993) 118 ALR 596 at 601 Director of Public Prosecutions v Gribble [2004] NSWSC 926
PARTIES:	Regina v William John Murray
FILE NUMBER(S):	2008/00005121
COUNSEL:	Ms S Dowling (Crown) Mr P Young SC (Accused)

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JUDGMENT AND VERDICTS

1 HIS HONOUR: On 8 October 2008 the Accused, William John MURRAY, was arraigned before me on an indictment alleging that he committed 2 offences of resisting a police officer in the execution of the officer’s duty, 2 offences of assaulting a police officer in the execution of the officer’s duty, 1 offence of attempting to use an offensive weapon with intent to prevent the lawful apprehension of himself and 1 offence of escaping from lawful custody.

2 He entered pleas of not guilty to each count. A trial then proceeded before me with the Accused having elected to be tried without a jury. I am satisfied that before making that election he sought and received legal advice from an Australian legal practitioner: see s.132 Criminal Procedure Act 1986.

3 The task for me is to consider whether the Crown has proved the essential elements of the offences. The Crown bears the onus of proof and the standard of proof is beyond reasonable doubt. The Accused gave evidence in the proceedings but it is important to bear in mind that he did not have to and that he has no onus of proving anything.

Overview of the prosecution and defence cases

4 Stated briefly, the prosecution case is that two police officers, Plainclothes Senior Constable Owen and Plainclothes Constable Evans sought to arrest the Accused in Chippen Street, Chippendale at about 8pm on 26 January 2007 because they genuinely, although mistakenly, believed that he was in breach of bail conditions. They were purporting to exercise the power of arrest provided in s.50 Bail Act 1978.

5 A violent struggle ensued almost immediately the officers informed the Accused that he was under arrest. On the prosecution case it involved the Accused resisting and assaulting both officers. At one point the Accused endeavoured to take the pistol of one of the officers in order to use it to prevent his apprehension. He did not manage to obtain complete control of the pistol, however, and that is why count 5 is charged as an “attempt”. In the end, the Accused managed to break free from the officers and run, hence the charge of escaping from lawful custody.

6 It is the prosecution case that such force as was used by the police officers in endeavouring to effect the arrest of the Accused did not exceed that which was “reasonably necessary”, and thus, at no stage were they acting beyond the limits of their duty. The defence case is that the officers did exceed what was legitimately necessary in the circumstances. It is the defence case that the officers did not inform the Accused that he was under arrest, let alone the reason why, and that they simply proceeded to manhandle him and assault him. The Accused raised an issue of self defence and it has been contended that this is an issue no matter what my finding is as to whether the police were acting in the execution of their duty. Once raised as an issue it is, of course, necessary for the Crown to prove beyond reasonable doubt either that the Accused did not believe that it was necessary to do what he did to defend himself, or to prevent or terminate the unlawful deprivation of his liberty, or that his conduct was not a reasonable response in the circumstances as he perceived them: see s.418 Crimes Act 1900. S.422 provides, relevantly, that self defence is still available in a situation in which the conduct to which the person responds is lawful. I find it difficult to reconcile that provision in s.422 with the provision in s.418 that allows for self defence in a situation where a person is acting in order to prevent the “unlawful deprivation of his or her liberty”. As far as I can see, that would apply only in a situation referred to in s.418(2)(a), where the person is acting “to defend himself or herself or another person”.

7 In addition to the provision in s.422, there is authority from the Court of Criminal Appeal that confirms the availability of self defence to a person who is the subject of action taken by a police officer who is acting in the execution of his or her duty: see Crawford v R [2008] NSWCCA 166.

Significance of the officers’ “mistake”

8 What is the significance, if any, of the officers being mistaken in their belief that the Accused was in breach of his bail conditions and therefore should be arrested?

9 S.50(1) Bail Act is, relevantly, in the following terms:

(1) Where a police officer believes on reasonable grounds that a person who has been released on bail has, while at liberty on bail, failed to comply with, or is, while at liberty on bail, about to fail to comply with, the person’s bail undertaking or an agreement entered into by the person pursuant to a bail condition:

(a) a police officer may arrest the person without warrant and take the person as soon as practicable before a court, …

10 The opening words are important. It is the belief of the officer, and whether it is based on “reasonable grounds” that is determinative of whether there is a power of arrest in the circumstances with which the section is concerned. In this case the evidence is that Senior Constable Owen was aware that the Accused was on bail and that it included a condition that imposed some geographical restriction of his movements. He wanted to speak with the Accused to clarify what that condition was and whether there was any breach of it. Whilst he was speaking with the Accused, Constable Evans made an inquiry on the police radio. Amongst other things about the Accused the radio operator told him that there was “a wanted notation for breach of bail condition that was dated 23 January 2007 so that’s current, he is wanted”. Mr Young SC on behalf of the Accused conceded in his closing submissions that this was sufficient for me to conclude that the officers then held a belief on reasonable grounds that the Accused had failed to comply with his bail conditions and they were thus empowered to arrest him pursuant to s.50. That concession, in my view, was appropriate. I am satisfied that at the time they endeavoured to initiate an arrest of the Accused the officers held a genuine belief that he was in breach of his bail and that, given the source of the information and that they were operating in the field, as it were, this belief was based on reasonable grounds.

11 Before turning to a more detailed review of the evidence I should say something about the concept of a police officer acting in the execution of his or her duty. It is something that has been interpreted rather broadly. After a review of long standing authority, the Full Court of the Federal Court of Australia said in Director of Public Prosecutions Reference No 1 of 1993; R v K (1993) 118 ALR 596 at 601:

“The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein”.

The Court further said (at 601):

“Section 64 should not be construed in any narrow or restricted sense, but should be given a broad operation to protect the performance of all police duties, and not just some. The section is general: ‘in the execution of his duty’. That means that the section applies whenever the police officer is doing something which can fairly and reasonably be regarded, given the existing circumstances, as a carrying out of his duty. The generality of the section is further confirmed by the consideration that it attempts to cover a very wide range of possible interferences with the work of the police: assault, resistance, obstruction, or hindrance, or aid incitement or assistance in relation to any of those things. It is not limited to violence of the sort that was in issue in the present case.”

12 The section 64 referred to was of the Australian Federal Police Force Act 1979 (Cth) which provided an offence of assaulting, resisting, obstructing or hindering a Federal Police officer in the execution of his duty. Barr J held in Director of Public Prosecutions v Gribble [2004] NSWSC 926 at [27] that s. 58 Crimes Act 1900 had similarly broad scope.

13 As I have already mentioned, the Crown contends, and the defence concedes, that the officers were exercising a power of arrest pursuant to s.50 Bail Act. Are there limits or constraints to the exercise of this power?

14 The Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”) makes provision in s.201 for safeguards in relation to officers exercising powers under that Act. In particular, it provides that in exercising a power of arrest a police officer must provide the person the subject of the power with evidence that the officer is a police officer, the name of the police officer and his/her place of duty, and the reason for the exercise of the power. However s.201(6) provides that the section does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1 of the Act. The Bail Act is one of the Acts specified in that Schedule. Consequently, it appears to me that the only legislative safeguard that applied to, and limited, the exercise of the power of arrest that the officers were purporting to exercise was that in s.231 of LEPRA. That section provides:

“A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.”

15 That provision, it seems to me, sets the scope and defines the parameters of the “duty” that the officers were performing. If they exceeded the use of “such force as is reasonably necessary to make the arrest” then they were not acting in the execution of their duty and Counts 1 to 4, which include this as an essential element the Crown must prove, would fail. If I was to find in the Accused’s favour on this point (meaning, if I have a reasonable doubt about whether the officers were acting in the execution of their duty), it would mean that I would have a doubt about whether there was a “lawful apprehension” that was sought to be prevented which is an essential element for Count 5 and whether the Accused was in lawful custody, which is an essential element for Count 6.

Significance of prior incidents

16 There was a considerable amount of evidence in the trial concerned other events involving the Accused and local police in December 2006 and early January 2007. I do not propose to review that evidence as its significance is quite limited. It indicated that Redfern police officers had arrested the Accused a number of times and charged him with offences which were not sustained. This included a mistake about the Accused being in breach of bail. It led to the Crown Prosecutor suggesting to the Accused that by Australia Day 2007 he felt he was being harassed or targeted by the police. This evidence is equivocal when it comes to determining what in fact happened on that day. It may mean that the police were more likely to act unfairly in relation to the Accused or it may mean that the Accused was more likely to be uncooperative with the police. It may also mean that it made police more aware of the need for caution in their dealings with the Accused, for example, by indicating that he was a person likely to be aggressive and to attempt to evade arrest. There was quite a deal of dispute between the parties as to the details of these prior incidents. In all of the circumstances I do not find it necessary to make any finding in relation to them.

The evidence

17 The Crown Prosecutor called 5 witnesses in her case. Senior Constable Owen and Constable Evans, Christopher Bourke and Amelia Chauncy who were two passers by who witnessed some parts of the incident, and Leading Senior Constable Wynn who was involved with Constable Evans in a previous encounter with the Accused. The Accused gave evidence in the defence case.

18 Constable Evans gave evidence that he was performing plain clothes duties with Constable Owen when at about 8pm on Friday 26 January 2007 they observed the Accused alighting from a taxi in Chippen Street near Cleveland Street at Chippendale. He said that Constable Owen informed him that the Accused was on bail with a condition that he not be within the Redfern area. Constable Owen said in his evidence that he was aware the Accused was on bail and that there was a geographical boundary condition but in this case he was not quite sure of the limits that had been set. Both officers were familiar with the Accused, having had past dealings with him themselves and being aware of dealings the Accused had had with other police. Constable Evans said that the Accused looked in their direction and then turned and walked away hastily. Constable Owen reversed the unmarked police vehicle until it was near to the Accused and then stopped, alighted and ran over to him. He said that his intention was to speak with the Accused, obtain his details and conduct a bail check over VKG. When he got to the Accused he said, “G’day mate, Redfern police”. The Accused responded, “Yeah, yeah, I don’t want any trouble, just do your thing”. He then held up both hands and placed them against a nearby wall. Constable Owen said, “We’re not going to search you, we just want to check your bail conditions”. The Accused replied, “I don’t want any trouble. Just do your thing. I’m sweet, bro”. He then squatted with his back to the wall. Constable Owen said, “I know you have run away from police before, do you mind sitting with your bum on the ground”. The Accused complied and sat on the ground. Constable Evans then obtained the Accused’s name, address and date of birth and went to the police car to use the radio.

19 The radio transmission was recorded and later transcribed. A transcript is Exhibit D. It includes the radio operator informing Constable Evans:

“Has warnings, level of resistance, unarmed resisted control wrestle … Will run from police when placed under arrest. POI decamped from police when in custody on the 18.12.2006 … May become aggressive and question police powers … Will attempt to escape at first opportunity, … very towy of police and may attempt to run.”

20 There are then references to other matters and events recorded on the police computer and then,

“the last being a wanted notation for breach of bail condition that was dated 23rd January 2007, so that’s current, he is wanted”.

21 Constable Evans asked for a caged truck to attend and he was told one would be there in 2 minutes.

22 Constable Evans said that this information heightened his awareness in relation to the Accused. He intended to arrest him but he said he knew he would have to effect that arrest through communication so that it did not escalate because of the Accused’s previous “adverse contact with police”. He returned to the Accused and Constable Owen, produced his police identification and said, “William, you’re under arrest for breaching your bail, but before I caution you I’m going to handcuff you as I know you’ve run away from police in the past”. He explained that he decided to proceed in that way because of the Accused’s demeanour in that he appeared to be on edge, nervous and agitated and his actions seemed a little illogical. He wanted to ensure the safety of both officers and ensure that the Accused did not run away and could be brought before the courts for breaching his bail. He was wanting to control the Accused and minimise violence by handcuffing him.

23 At this point, however, the officers said that the Accused jumped to his feet. Constable Owen took a step towards him and said, “You’re under arrest, William. Turn around and face the wall”. The Accused’s hands were raised in the air at shoulder height and he said, “I’m turning”. As he said this he proceeded to walk sideways. Constable Evans said, “You’re under arrest. Turn around and face the wall so we can handcuff you”. He described the Accused’s demeanour at this point as “very edgy, fidgety, nervous”. He said the Accused did not say anything apart from, “I’m turning”. In other words, there was nothing said by the Accused in relation to the allegation of him being in breach of his bail conditions.

24 The Accused continued to walk away and at that time Constable Owen took hold of his right upper arm. The Accused then began to flail his arms about and walk towards the roadway. His fists were clenched. Constable Evans said, “You’re under arrest. Stop resisting and get on the ground”. Constable Evans then attempted to take hold of one of the Accused’s arms but had difficulty in doing so because of the way the Accused was swinging his arms about. He eventually took hold of the Accused’s left arm with both hands, dropping his portable radio in the process. The Accused pulled free of both officers. They each formed the opinion that he was trying to prevent the arrest and get away.

25 A struggle between the Accused and both officers ensued. Constable Owen was trying to hold on to the Accused but he continued to swing his arms with clenched fists, striking Constable Owen a number of times. He pulled himself out of his T-shirt which Constable Owen was left holding. Constable Evans took hold of his upper body in an attempt to force him to the ground. Both officers were yelling at the Accused to get on the ground. The Accused was punching Constable Evans’ arms and back. The struggle continued with both officers trying to get the Accused to the ground. Constable Evans said he was struggling to hold on to the Accused and felt he was being overpowered. As he was holding on to the Accused, still roughly face on to him, he said he felt the Accused felling around his appointments belt in the area of his capsicum spray canister, handcuffs and baton which were on the left side of the belt. He said he saw the Accused attempting to take out the spray canister. The Accused managed to unclip the pouches that contained the spray canister, handcuffs and baton. He yelled at the Accused, “Don’t take them out”. The Accused did not desist and Constable Evans yelled to Constable Owen, “He’s trying to take out my spray”. Constable Owen said that from the position he was in, he could not see what was happening in the vicinity of Constable Evans’ capsicum spray pouch.

26 Constable Evans said that at this point he was concerned that he and his partner did not have control and that the Accused was stronger than them. He was concerned about the Accused obtaining the spray canister so he punched him twice to the head which appeared to stun the Accused. Constable Owen also punched the Accused who went down but immediately stood back up and the struggle continued. Constable Evans again took hold of his upper torso. At this point Constable Owen yelled out to some bystanders, “We’re police, call triple 0” and Constable Evans yelled, “We’re New South Wales police, help us”. No-one, to their knowledge, responded. Constable Owen said that he had never before felt the need to call upon civilians to assist in relation to this type of incident but in this case he felt it necessary because, “we were out-muscled, he was quite stronger than I was and quite stronger than … Constable Evans. My force that I was applying to get him on the ground was being resisted I think quite easily”He said the punches that had been delivered to the Accused appeared to have no effect on him.

27 The struggle continued with the three moving around on the roadway. The Accused continued thrashing his body and arms from side to side. Constable Owen again called out to the bystanders, “We’re police, pick up our radios and call for help”.

28 Constable Evans had the Accused in a headlock with his left arm around the back of his head, attempting to pull him to the ground. Constable Owen then obtained his capsicum spray canister and delivered a short burst into the Accused’s face. Some of the spray went on Constable Evans’ arms. The spray had no apparent effect on the Accused who continued punching at the two constables.

29 Constable Owen took hold of the Accused’s torso from behind. At this point Constable Evans said he felt the restraining strap on his firearm holster on his right hip being pushed down and forward. He looked down towards his gun, a Glock pistol loaded with 15 rounds of deadly hollow point ammunition, and saw the Accused’s hand around the handle. I will quote Constable Evans’ evidence at this point:

“And then the next thing when I looked down the firearm was out of my holster. It was - I remember seeing the gap between the nozzle, if I could describe it that way, of my holster - the nozzle of my firearm and my holster, there was a distinct I’d say couple of inches in space, I could see through that. The way my holster sits, and I’d be happy to show you, it sits quite high. The holster is raised and the gun was under my pectoral muscle pointing towards my stomach and my leg. His hand since he’s leaning forward is towards me, his left hand is towards me. It’s over the firearm. His finger was around the trigger guard. I saw his finger around the trigger guard.

The gun’s towards my stomach, in the direction of my stomach or leg and I thought it’s only a matter of time that he’s going to pull that, that’s what I thought. His finger’s on the trigger guard, he’s going to slip onto the trigger or he’s going to figure out where the trigger is. You only need 3 kilograms of force to let that go. That hollow point bullet is going to go straight on the artery in my leg, there I am, I’m dead. Or it’s going to go through my stomach. If I’m lucky to survive I’m going to have life long injuries and serious problems. From that point I had panic. I thought I was dead or pretty much as good as dead. I put my hand on top of the gun and as we’re trained to do, we train for this repeatedly at the academy and we do get this trained in our yearly reviews, so I put my hand on top of his. I remember putting my other arm around his head, I don’t know how I did it but I remember putting both my arms across because that’s all I could think about. And I tried to move it to the side and move my body out to direct the gun so if it did shoot it would shoot into the ground and not on me. The members of the public were still around there. Obviously that was a secondary thought going through my head but I just wanted to get this gun in my holster. I just began to yell out the words, “Gun, gun, gun, gun” , and that’s what we’re trained to do. It notifies the public that there’s a gun, get out of there and notifies your offsider that someone has a gun or they’ve got your gun.

I’ve tried to put it in the holster and he was strong, like, I was struggling to put it there. It did feel like forever. I was trying to put it down in there. I yelled out to Brad, “He’s got my gun.” He said, “If he’s got your gun I’ll shoot you.” And then of course I was panicking and I yelled out, “Well, he has got my fucking gun.” Obviously the wrestle was continuing. Brad’s behind him trying to pull him off. During the struggle I’ve managed to get it into the holster. I haven’t got it the whole way down. He’s still got control of the gun and I could feel the force of him pulling it up. And I was thinking, God, this guy’s strong, you’ve got two men trying to wrestle him to the ground, he’s been sprayed, I’ve punched him, he’s pulling this up and I’m just trying to get it down. I’m also moving back, like, trying to twist it away and get the gun and get him away. It was like a tug of war motion. I could feel the force coming up and I’d think, I’m not going to get this down in there. I managed to and then Brad - I remember Brad pulling him back by around the neck and he pulled him away. And I’ve managed to clip the holster back on.

Then Brad’s pulled him to the ground and then a short wrestle happened where he’s on the ground and I’ve clipped my holster back up. … I’ll go back a bit. … When the gun was in there I was continually moving away. I don’t think I said that. With the struggle with him going up and down while I’m trying to keep my gun in my holster. And I was just yelling out, “Gun” . It’s hard to give the amount of time, it’s hard to say. I’m struggling to articulate it but we’ve both pulled him off and managed to re-holster it. I instantly clipped it to secure it. And then I remember him coming back with two hands towards my gun again. I think if it wasn’t for Brad pulling him off I would have struggled to get that back on. He obviously wants my gun. He’s coming back forward like a zombie with two arms directly in front of him, he’s going to get it again. And then I’ve just thought, well, I’m just going to have to defend myself here and then I’ve just started punching him to the face.” (T16-17).

30 Constable Owen said when Constable Evans called out “Gun” he instinctively looked towards his firearm. He saw that it was up out of the holster with only the hand of the Accused on it. He said it was at least two inches clear of the holster. He said Constable Evans immediately placed at least one of his hands over the top of the Accused’s and at that point he lost sight of the firearm because of the way that Constable Evans twisted his body clockwise so that his right hip moved away from the Accused.

31 Constable Evans said that, thinking that he could be killed or seriously injured, it was necessary to increase the level of coercive force to defend himself and to try and make the Accused submit. He punched the Accused to the face. The struggle continued. Constable Owen managed to pull the Accused to the ground but the Accused continued punching. Constable Evans decided at this point to use his extendable baton and he struck the Accused a number of times, aiming for his legs. The Accused continued punching Constable Owen. Constable Evans dropped his baton, realising that it was useless. He then grabbed the Accused and dragged him over to the bonnet of a parked car. He was hoping to hold him there against the bonnet with the hope that the other police who were on the way would arrive soon. However the Accused continued to struggle and resist. Constable Owen picked up his capsicum spray from where he had dropped it on the roadway. He announced that he was going to spray the Accused again. Constable Evans told him to proceed, even though his head was right next to the Accused. Constable Owen delivered another two bursts of spray into the Accused’s face. Constable Evans felt immediate and excruciating pain but it again appeared to have no effect on the Accused. The Accused continued throwing his arms about, striking Constable Evans and managed to extricate himself from his grip. Constable Own said, “Forget it, just let him go”. Constable Evans made one last attempt to take hold of the Accused but failed and said, “Good, because I’ve got nothing left”. He said he was exhausted. His arms and face were burning from the effects of the capsicum spray. Help arrived moments later.

32 In relation to the two bursts of capsicum spray having no apparent effect upon the Accused, Constable Evans said, “I’ve seen capsicum spray deployed in the past. I have deployed it on people in the past. It usually has an immediate effect on them, especially when it’s in the face. They usually scream in pain, sometimes they can cry. They get on the ground, they become very submissive and then you can control the situation there and end it and decontaminate them. It had no effect on him. In the past where spray has had no effect on people it’s usually because they’re under an illicit drug like ice where pain compliance is severely minimised.”

33 Amelia Chauncy and Christopher Bourke were two of the bystanders who witnessed at least some parts of the incident. They were returning to the Waldorf Apartments in Chippen Street. As they entered Chippen Street from Meagher Street Ms Chauncy said that she saw what she thought was a couple of men, who she thought were just mates “kind of mucking around together” at the end of the street. She and Mr Bourke continued walking towards the incident and as they came closer she realised it was 3 men, one of them having no shirt on. Obviously that was the Accused so I will refer to him in that way when referring to her evidence. She said they realised that the men were fighting. She said she saw the Accused hitting the other men with his hands. She could not say how many times but it was more than once. The other two men were hitting back. They identified themselves as police officers by saying, “We’re the police, help us”. She was a couple of metres away at this point. They also said, “Call triple 0”, which she later did. She said they also said that “he was trying to grab their gun”. She said “From what I could tell, it did look like he was trying to grab at it”. She thought that at that time the men were on the ground. What made her think that the Accused was trying to grab a gun was seeing him with his hands out all the time towards the hips of the policeman. She was asked if she saw whether his hand made contact with the hip of the police officer and she said, “I couldn’t say if it actually made contact”.

34 Ms Chauncy described the Accused as seeming “quite angry, like, quite strong, quite – like, he was wanting to fight”. She saw the Accused punching the officers as well as the officers punching the Accused but none of the punches seemed to her to have any effect because they all continued fighting. At one stage she saw an officer striking the Accused with a baton but that did not appear to her to have any effect either. Ms Chauncy used her mobile phone to call triple 0. Other police arrived while she was on the phone. She saw the Accused run off. She could not tell if he was injured. After he had left she said the officers were “just kind of sitting on the ground, panting”.

35 The main issue in this trial is whether I should accept the evidence of the police officers. It is significant that whilst she did not see all of the incident, Ms Chauncy did see that the Accused was punching both of the officers and that one of them did make reference to the Accused trying to grab a gun and that she saw the Accused reaching out in the direction of an officer’s gun. The fact that she could not say if he actually made contact is not significant because it is unclear at what stage of the incident she heard what the officers said and it is further unclear whether her position was such that she would have been able to see contact made by the Accused with Constable Evans’ gun. Overall, whilst Ms Chauncy’s evidence does not completely support the evidence of the police, it is consistent with it, and inconsistent with the account given by the Accused. He, for example, said he did not strike the officers at all.

36 Mr Bourke gave evidence that as he and Ms Chauncy turned the corner into Chippen Street from Meagher Street he saw an altercation between 3 males who were all wearing shirts. He said what he first saw was two of the males holding the other male up against a wall on the opposite side of the street from the Waldorf Apartments. He said they were 40 to 50 metres away at this point. As they walked down the street the three men started to move across the street and by the time they were closer, the men were in the middle of the street. Mr Bourke was asked whether he had been watching the fight as it moved from the wall to the middle of the street and he said “not really”. He said he was keeping his eye on it but he was more concerned for his and Ms Chauncy’s safety. What he observed as the men moved from the wall to the middle of the street was the Accused managing to break free and try and move away with the other two men pursuing him. He said that as they got close the two men announced that they were New South Wales police officers and that they needed help. He said they asked for triple 0 to be called. He said he saw the officers punching the Accused. One had the Accused in a headlock and he was being punched to the face. He said that until he drew abreast of the incident he did not see the Accused punching the officers – that, of course, must be considered in the light of his evidence that he was “not really” watching but “keeping his eye on it”. He said that the Accused seemed to be trying to break free of the struggle, doing what he could to get away. It appeared to him that the Accused was reaching for one of the officer’s guns and he saw his hand end up on the pistol. He was asked if he noticed whether the pistol remained in the holster and he said, “Yes, it remained in the holster”. He said that when the Accused had his hand on the holster he was trying to free the weapon by reefing his arm backwards more than once. This was something that Mr Bourke focussed on to the extent that he was unaware of what the other officer was doing at the time. Mr Bourke said that at this time he was 5 to 10 metres away with nothing obscuring his view. The next specific part of the incident he spoke of was seeing the Accused break free and the officers grabbing him and pushing him onto the bonnet of a parked car. Between the gun incident and the Accused being on the bonnet he did not see the police punching the Accused at all. A short time later in his evidence he said he was sure that the Accused made attempts to hit the police between the gun incident and being on the bonnet, but then said it was more like pushing and shoving rather than actual blows. He did not see the police using any batons on the Accused up to that point but he said that “after the incident with the car he ended up being pushed to the ground and the officers removed their batons and proceeded to hit him. He felt there was nothing the Accused could do at that stage. He said, “He just lay there and took a beating”. At that point, he said he and Ms Chauncy proceeded to walk away. Mr Bourke did not see the police using their capsicum spray at any point. When he and Ms Chauncy got to the Waldorf Apartments he saw the Accused running away. He said the Accused was frightened, although he did not explain the basis of that opinion. He also said that he was bloody, mostly to the face.

37 Mr Bourke’s evidence assists the prosecution in that he claims to have seen the Accused attempting to get one of the officer’s gun. It does not assist in that he said the gun remained in the holster. Further, he was not certain that the Accused’s blows landed on either of the officers, the highest he could put it was that “they probably would have”. However, his evidence is unsatisfactory in a number of respects in that he claims that he saw things happen that obviously did not. He claims that after being on the bonnet of the car the Accused was pushed to the ground and both officers then proceeded to beat him with their batons, whereas it is common ground that only one officer, Constable Evans’, hit the Accused with a baton, and that was before the incident at the car bonnet. When I asked him to clarify the position of the Accused in relation to Constable Evans at the time when the Accused touched the officer’s gun, he said that the constable had him in a headlock with the Accused’s body behind him and head in front of him. This is clearly inconsistent with all of the other evidence which is to the effect that the Accused and the Constable were facing each other at that time. Further, Mr Bourke claims that the Accused had blood over him, including his face, as he ran from the scene. No-one else, including the Accused, has suggested that.

38 A matter of general concern about Mr Bourke’s evidence is that it was obvious a number of times that he was speculating or offering opinions as to what was happening, rather than simply relating what he saw. For example, when he was talking about the Accused “trying to free the weapon” he said he was not using maximum force because if he had done so the weapon would not have stayed where it was. Mr Bourke apparently did not know that the weapon was secured in the holster with a restraining strap. This tendency to speculate or offer opinions makes me guarded about accepting Mr Bourke’s evidence generally. I am only inclined to accept his evidence where it is clearly something that he actually observed and not the result of him making assumptions or the product of his opinions.

39 One matter to consider in relation to the evidence of both Ms Chauncy and Mr Bourke is the stage of the incident they observed when they say they saw the Accused touching Constable Evans’ gun. CCTV material, which I will refer to later, indicates that these two witnesses came close to the incident towards the end of the time that the Accused can be seen with his left hand in the vicinity of Constable Evans right hip. If Constable Evans is right that there was a continued struggle over the gun subsequent to its brief removal from, and replacement in, the holster, then it appears that what Ms Chauncy and Mr Bourke witnessed was that continuation of the struggle and not the early part of it.

40 The Accused gave evidence that on 26 January 2007 he caught a taxi from Chinatown to Chippen Street and had arranged to meet his grandfather at 8.30pm across the road in Cleveland Street. He said he was first aware of the presence of police when he saw the police car reversing towards him. He did not explain how he knew that the plain clothed occupants of the unmarked car were police. The Accused said that the driver alighted and ran up to him and he recognised him as Constable Owen who he had prior dealings with, having charged him with offences that were subsequently dismissed. The Accused said that he thought to himself that Constable Owen would charge him for whatever he can so he decided not to do anything and to put his hands up against the wall and just comply with whatever they say, so as to avoid being arrested and charged for any sort of offence. So, he said that he put his hands up against the wall and said, “I don’t want any trouble, do whatever youse want” and “I’ve done nothing wrong”. Constable Evans joined Constable Owen and the Accused recognised him as well from a past encounter. The Accused said he was told, “You don’t have to do that”, presumably a reference to him having his hands up against the wall. He then kneeled on the ground and was then told to sit on the ground which he did.

41 He said that the officers said they were going to do “a warrant check, a bail check”, and Constable Evans then returned to the police car. While he was away, a conversation ensued with Constable Owen in which they discussed the details of the Accused’s bail and about the last time that he had been in trouble. The Accused also told Constable Owen that he was going to TAFE and was trying to stay out of trouble, did not want to do anything wrong and did not want to go back to gaol. The Accused then asked if it was all right for him to go as he had not done anything wrong but Constable Owen told him to wait there.

42 Constable Evans returned after about 5 minutes. The Accused said that Constable Evans told him to get up off the ground. He said, “They told me to turn around and face the wall. At no stage did they say, ‘You’re under arrest, you have the right to remain silent’”, or anything like that. The Accused said that at this stage he did not say anything. He was turning around to face the wall when he felt a push on his back up against the wall. He turned around to say, “What’s going on?”. He was again pushed and “they” said, “Turn around, turn around, face the wall”.

43 The Accused said that he remembered getting grabbed and pushed, or hit. He stumbled and that’s when he felt the police grabbing him and trying to hold him. He then remembered getting hit, getting placed in a choke hold, getting kneed, kicked and punched.

44 At some stage he tried to get away from the officers. He was asked how and he said, “I just wiggled away from them”. He wiggled his arms but did not thrash them around. He was not attempting to strike the officer or land blows on them.

45 When he was being pushed against the wall and then struck and manhandled in the various ways he described he said he was wondering to himself what was going on because he had not done anything wrong. He reiterated that at no stage had he been told that he was under arrest or had his rights read to him.

46 He described his shirt coming off at a time when he was leaning forward and an officer was grabbing at him. He had been punched before this happened. He was asked if at any stage he punched the police and he said, “I don’t hit police. I don’t hit people in general, especially police”. He was asked specifically whether he punched the police on this occasion and he said, “No”.

47 The Accused recalled being sprayed with capsicum spray by Constable Owen and struck with a baton by Constable Evans. He also said that every time the officers could see that his face was open he was struck repeatedly to the face. He added at that point that “At no time did I try to swing at the police”. He said that all he was trying to do was stay on his feet, thinking that because of the way they were punching him, if he went to the ground he was going to get hurt very badly. However, on a couple of occasions he was flung to the ground. He recalled at one stage being thrown up against the bonnet of a car. The officers were trying to grab him again. He was sprayed again. He said that was about the time when he ran away.

48 The Accused said that at no stage did he attempt to grab Constable Evans’ gun. He said at one stage when he was being held in a headlock he had no option but to “be in that area”, that is the area of the constable’s gun, but he did not deliberately go to that area. He gave a description similar to that given by the officers of facing Constable Evans but being bent over and held in a headlock, so he had both his arms around the constable’s waist area. He said, “I could have touched his holster, but I never touched his holster with intent to take his gun, or to take his mace or handcuffs, or anything like that. … I had no intentions of doing that”. He denied the suggestion that his hand had come back and forward in what was described by Mr Bourke as a “reefing motion”. He said he did move his hands, but that was only to try and block punches to his face.

49 The Accused denied having any familiarity with how a police service pistol is secured in its holster. He denied that Constable Evans’ pistol ever came out of its holster. He denied attempting to grab his holster.

50 In relation to the evidence of previous arrests, and an attempted arrest, of the Accused in December 2006 and January 2007, the Accused said at one stage in cross-examination that it made him feel like Redfern police were targeting him (T211). Four pages later in the transcript he directly denied feeling that Redfern police were targeting him (T215).

51 The Accused said twice in his evidence in chief that he was not told that he was under arrest and that it was for breach of bail (T.194.25 and 195.40). He repeated this in cross-examination at T217.2. At T217.9 he said he did not remember. He was then asked, “Are you saying that he didn’t say it, or you just don’t recall it?” and he replied, “I don’t remember him saying those words” (the words being, “you are under arrest for breach of bail, but before I caution you we’re going to handcuff you because I know you’ve run away from police before”). After that, he said on 5 occasions that he was not told that he was being arrested for breach of bail (T220.25, 220.41, 221.43, 225.5, 226.20), on one occasion he did not think he was told (T225.13) and on 4 occasions said he did not remember (T220.22, 220.46, 226.9, 227.7)

52 There was no clear statement by the Accused that he felt it necessary to assault the officers, or to resist their attempt to arrest him, in order to defend himself or to prevent or terminate the unlawful deprivation of his liberty. Indeed, the Accused denied assaulting the officers. There is, in fact, little that the Accused said about his reasons for acting as he did. In evidence in chief:

“Q. At what point in time, from what you told us happened, did you start to attempt to get away?

A. After I was already pushed and hit and pushed up against the wall, and as far as I could see, I was thinking; what's going on here. I haven't done anything wrong. In my mind, I haven't done anything wrong and I was getting pushed around and pushed up against the wall and trying to be manhandled. I was thinking; what's it for? At no time did they read me my rights or tell me I was under arrest. I didn't jump - I didn't spring to my feet and start waving my arms around, a windmill motion, like, (Indicated). I didn't do that.” (T195).

53 In cross examination:

“Q. What did you think would happen if you stopped fighting and went back to the police station?

A. I don't know.
Q. If you had stopped, it's likely, isn't it, that you would have been taken back to Redfern Police Station and read your rights by the custody sergeant like you were on the last occasions?

A. That's right, but in my mind I didn't - I was thinking of - I thought I didn't do anything wrong and I was wondering why they're trying to push me up against the wall and handcuff me and I knew that I didn't breach my bail. That was what I was thinking in my mind. I was thinking why are they trying to do what they're doing to me.” (T218-219)

54 If the Accused was thinking “I knew that I didn’t breach my bail”, that, I am satisfied, must have been in response to some allegation being made concerning his bail. This was taken up with him at the end of his cross-examination. He said that he thought that after he had raised the mistaken belief of the police about him being in breach of his bail when he appeared in court on 3 January 2007 that the error would be corrected. Thereafter he had complied with all of the conditions of his bail. From this I conclude that he had no reason to think there was any question of him being in breach of bail when he was approached by the police on 26 January 2007. I am satisfied that the only explanation for him thinking about not being in breach of his bail was that it was provoked by having been told by the police that this was the purpose for which he was being arrested. He realised that he had not breached his bail and his thoughts were concerned with the mistaken belief of the police that he had. I do not think that because he had earlier been told that “a warrant check, a bail check” was going to be made that subsequently he would think that the police were acting as they did because they thought he was in breach of his bail. He was, as I have mentioned, of the view that prior mistakes in that respect had been rectified.

55 In summary, the Accused’s account is one of two police officers stopping him, making an inquiry about him, and then endeavouring to arrest him, perhaps without telling him that he was under arrest and the reason for it. He was, to use his terms, grabbed, pushed, held, struck, placed in a choke hold (in cross examination he said he was “strangled”), punched, kneed, kicked, thrashed around, thrown around, flung to the ground, sprayed with capsicum spray, beaten with a baton and thrown against the bonnet of a car. At no time did he strike either of the officers in any fashion – “I don’t hit police”. All he claimed to have done was just “wiggle”, or “wriggle” to try and get out of the officers’ hold. He agreed in his evidence that he was physically bigger than both Constable Evans and Senior Constable Owen. At the end of all of this, he ran off. He gave no evidence of being injured in any way.

56 I find it simply too extraordinary to accept that the incident occurred in the way the Accused described. Compared to the officers, he claims that he was relatively passive. Yet he was able to evade them and run off. They came off second best, notwithstanding the violence they meted out to him without him responding with any violence at all. I find his version to be totally incredulous.

57 Rejecting the Accused’s evidence does not mean that I must necessarily be satisfied that the prosecution has proved the offences beyond reasonable doubt. I must still examine the evidence in the Crown case and consider whether I am so satisfied.

Should I accept the evidence of Constable Evans and Senior Constable Owen?

58 The version of events given by the two Constables was, when looked at in isolation, logical and plausible. Their evidence was internally consistent and they were consistent with each other. I did not detect any element of exaggeration. There were some they conceded that might have been thought would not assist the prosecution case. For example, when something happened involving the other officer and the Accused that they might not have seen, they readily conceded that they did not see it. Similarly, Constable Evans gave evidence that he struck the Accused quite a number of times during the incidents on occasions when there are gaps in the CCTV footage. If he was trying to minimise the extent of the violence of the police towards the Accused he would be unlikely to have so readily have made such a concession.

59 The demeanour of the Constables when giving their evidence is something I take into account to a limited extent. They are, of course, experienced in giving evidence and that is why demeanour can be deceiving. One particular feature, however, struck me as a useful indication of credibility. Constable Evans gave a very clear indication in the manner in which he gave his evidence of being traumatised by the memory of feeling he was in grave danger when he said the Accused had removed his pistol and it was pointing in the direction of his lower abdomen and leg. On the second day of his evidence he was being cross-examined on his evidence concerning the Accused’s actions in relation to the gun. It was put to him that the Accused never removed his gun from the holster. He denied the proposition but he became distressed to the extent that senior counsel inquired of him whether he needed to take a break. The Court did at that point take the morning adjournment to permit the officer to regain his composure. That emotion was, in my view, genuine. When the topic was raised in the course of closing addresses, Mr Young did not submit that there was any feigning by the Constable but suggested it may have been the product of the Constable having an honest yet mistaken belief that the Accused was attempting to get the gun out of the holster. He also submitted that being so traumatised by the incident was something that could be regarded as reflecting adversely on the credibility or reliability of the Constable’s evidence. In my view the evidence of Constable Evans’ was quite clear and should not be regarded as being the product of a mistaken belief about the Accused’s intentions. I cannot accept that some movement of the holster, inadvertent as the Accused claims, without the gun being removed, could be the explanation for Constable Evans to fear his life was in danger to the extent that he could either mistakenly, or falsely, claim that the gun was in fact removed from the holster, and that he would become so emotional when giving evidence about it.

60 The evidence of the two eye-witnesses, Ms Chauncy and Mr Bourke, as I have said is limited to their observations of part and not all of the entire incident. Mr Bourke’s evidence is flawed in the ways I have described. Nevertheless, in terms of the limited parts of the incident that they actually observed, and in respect of Mr Bourke, such observations that are reliable, it is more consistent with the description of the incident given by the Constables than it is with the version of the Accused.

The CCTV footage

61 Much of the trial was involved with an examination of the vision derived from 3 security cameras that were trained on different parts of Chippen Street. In the video footage obtained from each of the cameras there are significant gaps. It has not been suggested that there has been any tampering with the material. The explanation for the gaps is set out in the statement of Mr Damien Dunphy which is Exhibit E and there is no need to dwell upon it.

62 The CCTV material is the source of a substantial part of the attack that has been made on the evidence of the two constables. There is thus a question as to whether it conflicts with their evidence and should lead to the conclusion that I should not accept their evidence which otherwise appears credible, or that I should have a reasonable doubt about it.

63 One thing that can be concluded with certainty from the footage is that the incident commenced with the police car stopping adjacent to the Accused at about 7.58.25 pm and concluded with the Accused running off at about 8.07.10 pm. From the estimates of time given for the initial discussion with the Accused, Constable Evans returning to the car to make his radio inquiry and then returning to the Accused, I infer that the physical aspect of the incident commenced at about 8.05 pm. From the one camera that shows the altercation in the middle of the road, the participants do not come within view until 8.05.56. There is a gap in the footage from that camera from 8.02.59 until then. From a more distant camera, the 3 men are seen to move away from the area of the wall at 8.05.23. This means that the physical altercation that occurred at the wall took about 23 seconds, and the only camera that was trained in that direction was too far away for anything to be made out. The altercation then continued away from the wall for some 33 seconds before any of it is picked up and recorded by a security camera. Between 8.05.56 and the Accused running off at 8.07.10, the footage from this camera has 7 gaps totalling 33 seconds. The footage from the more distant camera is very indistinct and it is almost impossible to make out what is happening apart from seeing the police car door open and close and the movement of figures. This means that if the physical altercation started at 8.05 and continued until 8.07.10, there is only footage of some use of 41 seconds out of the 130 seconds.

64 It is not only the evidence of the constables but also that of Ms Chauncy and Mr Bourke that the Accused was striking out at the constables, or, in respect of Mr Bourke, at least appearing to do so. None of these actions of the Accused are clearly and distinctly shown in the CCTV footage that is available. I cannot accept that all 4 of these witnesses are wrong and that the Accused was passive, or, just “wiggling” and “wriggling”. This is a further indication that there are significant parts of the altercation that are just not discernible from the CCTV footage.

65 It is at 8.06.27 that a woman, who I conclude is Ms Chauncy, appears in the vision and she then remains in a position on the footpath adjacent to where the altercation is going on in the middle of the road until sometime between 8.06.50 and 8.06 54 when there is one of the gaps. She is seen to be walking away from the scene with Mr Bourke following. This would tend indicate that the portions of the incident before 8.06.27 that were observed by Ms Chauncy and Mr Bourke, were seen by them before they were at the closest point to which they came. On any view of the evidence, that must include time when the Accused’s hand was in the vicinity of Constable Evans’ holster.

66 The best vision of the Accused running away from the scene is from a camera trained on the foyer of the Waldorf Apartments. It shows the Accused running on the street at 8.07.19. There is no sign of him being injured in any way, nor of him being hampered in his ability to run.

67 There is nothing on any of the footage that is available in which one can clearly see Constable Evans’ gun being removed from his holster. At 8.06.02, and in the few seconds before it, the Accused’s hand can be seen in the vicinity of the holster. There is then a gap of between 1 and 2 seconds. When the vision resumes the time is showing 8.06.04. Constable Evans from this point is clearly seen to be doing something with his right hand in the vicinity of his holster and the Accused’s hand is still in that vicinity. In the following seconds it is apparent that Constable Evans twists his body in a clockwise direction so as to take his right hip, and hence his holster, further away from the Accused. The Accused remains bent over, facing Constable Evans, with his arms on either side of the constable’s waist.

68 Constable Evans was taken through the CCTV footage a number of times. He was of the opinion that the incident when he says the gun was removed from his holster is in the gap between 8.06.02 and 8.06.04. It seemed to me that this was something of a “best guess” and it is primarily based upon the fact that from 8.06.04 he can be seen trying to do something that is consistent with trying to hold his gun down in the holster and twisting his body away from the Accused. He did not impress me as being completely confident about this. When he was asked by the Crown Prosecutor what was happening between 8.06.02 and 8.06.04 he said, “Well, it’s hard to be certain what happened, but I’m assuming that was the incident where I noticed my firearm was out of its holster because you can see by the footage at 8.06.04 I have reacted to it and my right hand has moved back towards my firearm. Mr Murray’s left hand is across my body and in the direction of my firearm, so I believe that is the time” (T27.45). There was much cross examination about this evidence and it remained the case that he was not one hundred percent certain. For example, he was reminded of his evidence that the gun being out of the holster must have been during 8.06.03 and he said, “It’s a guess, but yes” (T59.48). A little later he said, “I assume it happened at that time, but it did happen” (T63.22). Later still he said, “I presume so, yes” (T66.17).

69 Senior Constable Owen gave the impression of labouring under the same difficulty. He seemed to pinpoint the time of 8.06.05 as the time the gun was out of the holster but based this primarily on the fact that at this time his own head is seen to turn to the left. Obviously in the course of the altercation his head would have been turning frequently. I formed the distinct impression from the manner in which Constable Owen gave his evidence that he too was having a “best guess” at a time when the gun was, on his account, out of the holster.

70 The vision around the time of 8.06.02 is not entirely clear. I have viewed the entire footage quite a number of times, both in court and since retiring to consider my verdicts.

71 After the gap from 8.02.59 the vision at 8.05.56 picks up with the Accused bent over, facing Constable Evans and moving his hands around the constable’s waist. There is nothing to indicate that this was necessarily the initiation of his grappling with his hands in the vicinity of the constable’s appointments belt. Indeed, the police evidence is to the effect that he had made an attempt to remove items by opening the pouches on the constable’s left hand side prior to the incident in the vicinity of the gun holster. The evidence is that it was after the grabbing at the handcuffs and spray pouches that the Accused was sprayed with capsicum spray for the first time. It is common ground that this first spraying was before 8.05.56. It seems to me to be a reasonable proposition that the activity in relation to the appointments belt prior to the vision commencing at 8.05.56 included the incident relating to the gun holster.

72 I conclude that it is possible that the gun came out of the holster in the 8.06.02 to 8.06.04 gap. It also seems to me to be possible that it came out at an earlier time not captured on the footage and that what is seen when the footage picks up at 8.05.56 is a continuation of the struggle for the gun. Constable Evans did say that after the gun was returned to the holster the Accused continued trying to get at it. It seems more likely to me that this is what is seen at 8.06.02 and following.

73 My overall view of the CCTV material is that it is insufficiently clear, and insufficiently complete, to present a reliable account of all aspects of the altercation between the Accused and the police. Clearly a lot more went on than can be seen. I agree with Mr Young that the CCTV material does not corroborate the evidence of the police officers that the gun was removed from the holster. At best, it corroborates their evidence of having a concern about the Accused’s actions in relation to that gun, particularly where it shows Constable Evans with his right hand firmly holding down the gun in the holster and twisting the right side of his body away from the Accused’s left hand.

Could the Accused have been able to remove the gun from the holster?

74 Another issue to determine is the likelihood of the Accused being able to remove the gun from the holster.

75 Constable Evans’ appointments belt was tendered and became Exhibit C. He gave a demonstration in the course of his evidence as to how the restraining strap had to be manipulated in order to release it and permit the gun to be released from the holster. From my examination of it I am satisfied that this is something that can be done quite easily and that a person involved in a struggle and grabbing at the holster from the position the Accused was in could manage to remove the restraining strap with relative ease. It would not be at all easy for a person who was in another position relative to the constable but being forward and bent down below him coincides best with the movement of the strap that is required. It would not be necessary for such a person to be looking at the holster. It may be that the Accused was not. It would not require prior knowledge of how the restraining strap worked. From the position he was in, just grabbing at the holster with the natural pressure one would expect from the position he was in would be sufficient.

Were the officers acting in the execution of their duty?

76 It is necessary to make a finding as to whether the officers were acting in the execution of their duty because that is an element of the offences in Counts 1 to 4 and relevant to elements in Counts 5 and 6.

77 I am satisfied that, although it was not strictly necessary, the Accused was informed of the matters in s.201 of LEPRA. I am satisfied that he did not co-operate at the initial phase after being informed he was under arrest. Thereafter there was an escalating level of violence. The actions of the police started with talking and progressed to holding, kneeing, punching, spraying, and then striking with a baton. None of these actions seemed to have any effect at all upon the Accused. I am satisfied that the violence emanating from the police was in response to their inability to restrain and detain the Accused because of the increasing level of resistance he was offering. I am satisfied that this remained within the concept of “reasonable force” in the circumstances that prevailed. Moreover, after having attempted to obtain Constable Evans’ gun, almost any level of force would be regarded as reasonable in order to subdue the Accused and secure his apprehension.

78 I am therefore satisfied that the officers were at all times acting in the execution of their duty. It follows that I am satisfied that the elements of “lawful apprehension” in Count 5 and of “lawful custody” in Count 6 have been established.

Self Defence

79 As to the issue of self defence that has been raised in this trial, I must say I have reservations about whether the evidentiary onus has been met. The Accused specifically denies assaulting the police officers. His resistance to the officers, he says, amounted to “wiggling” or “wriggling” out of their grip. I have previously set out the best of what the Accused said in his evidence as to his reasons for acting as he did.

80 But, then at T224.50, the Accused was asked by the Crown Prosecutor, “Mr Murray, you did not think that what you did in the whole fight, the whole resist arrest, was necessary to defend yourself, did you?” and he replied, “Yes I did”. There was no attempt to amplify on this in the ensuing cross-examination or in re-examination.

81 Mr Young did not explicitly contend that I would find in the Accused’s favour on the self defence issue even if I rejected his evidence and accepted the prosecution evidence. Nevertheless I have considered the issue in that way as well.

82 In the end I am left with the conclusion that the Accused did not do what he did in order to defend himself or to prevent or terminate an unlawful deprivation of his liberty. I am satisfied that what he did was solely designed to avoid a lawful arrest.

83 In cross examination the Accused agreed that on 18 December 2006 he was approached by some police and told that he was being arrested for breach of bail. He thought that he was not in breach of bail so he ran off. He was asked why he ran off on that occasion and he said:

“I didn't do it because I didn't want to be picked up that day. I done it because I didn't want to go back to the police station and sit in there for eight hours and being in a holding cell. It wasn't right. I shouldn't have been there. I shouldn't have been pulled over and shouldn't have been taken back to the police station in the first place.” (T203).

84 This seems to me to be the likely explanation for why the Accused acted in the way he did on 26 January 2007 as well.

Conclusion

85 For the reasons I have given I accept the evidence of Senior Constable Owen and Constable Evans as to all of the critical aspects of the incident in Chippen Street, Chippendale on 26 January 2007.

86 In relation to Counts 1 and 2, I am satisfied beyond reasonable doubt that the two constables were acting in the execution of their duty in seeking to effect a lawful arrest of the Accused and that the Accused resisted them in such endeavours.

87 In relation to Counts 3 and 4, I am satisfied beyond reasonable doubt that whilst they were executing their duty the two constables were each assaulted by the Accused.

88 I am satisfied beyond reasonable doubt that the Accused did attempt to obtain Constable Evans’ gun, which was clearly an offensive weapon, in order to use it in some way to prevent his lawful apprehension.

89 I am satisfied beyond reasonable doubt that the Accused was, albeit temporarily, in the lawful custody of the two constables and that he escaped from that custody.

90 I am satisfied beyond reasonable doubt that the Crown has disproved that in relation to any of these matters the Accused was acting in self defence.

91 I return verdicts of guilty on all counts.

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