Regan v Masters
[2024] ACTSC 135
•6 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Regan v Masters |
Citation: | [2024] ACTSC 135 |
Hearing Date: | 6 May 2024 |
Decision Date: | 6 May 2024 |
Before: | Berman AJ |
Decision: | (1) The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from Magistrates Court – appeal from finding of guilt of assaulting a frontline community service provider – whether finding of guilt was unsustainable in the circumstances – where CCTV evidence alone is inconclusive – whether appellant was lawfully arrested – whether self-defence was raised if appellant was not lawfully arrested – whether all officers with custody of a detainee must ascertain validity of their arrest – whether conduct comprising assault was undertaken to prevent or end unlawful imprisonment – grounds of appeal not made out – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26A, 222 |
Cases Cited: | Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 |
Parties: | Erin Elizabeth Regan ( Appellant) Oliver Masters ( Respondent) |
Representation: | Counsel J Purnell SC ( Appellant) M Howe ( Respondent) |
| Solicitors Aulich Criminal Law ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 73 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 11 December 2023 Case Title: The Police v Regan Court File Numbers: CAN2384/2023 CAN8949/2023 |
BERAMN AJ:
Introduction
1․On the afternoon of 8 September 2022, Ms Erin Regan, the appellant in this matter, and Mr Christopher Weeks were following a car in which the appellant’s daughter was travelling with two other people. The appellant was concerned that her daughter had taken drugs and so contacted police.
2․Shortly afterwards, police intercepted the vehicle in which the appellant’s daughter was travelling. The appellant stopped her vehicle nearby.
3․What followed were some dramatic, emotional, and in some ways confusing events.
4․Police were told:
(a)that the appellant’s daughter had consumed acid (otherwise known as lysergic acid diethylamide or LSD);
(b)was currently in a psychosis;
(c)was a danger to herself;
(d)was travelling in a car with a person who may be a sexual predator; and
(e)that Mr Weeks had dissociative identity disorder (DID).
5․Mr Weeks was highly agitated, unpredictable, and aggressive. Police had difficulty controlling him. There was a possibility that Mr Weeks had committed some offences in relation perhaps to the intimidation of the people in the car that the appellant’s daughter was travelling in. Police were concerned that Mr Weeks might wish to cause harm to the driver of that car.
6․At one stage, police tackled Mr Weeks and restrained him. He appeared to calm down before attempting to return to the car in which he had been travelling. When police told him to stay where he was, he did not comply. They attempted to restrain him again. It was at this stage that the appellant became involved.
7․The appellant was taken into custody and told that this was because she had been hindering police.
8․Eventually, the appellant found herself at the ACT Regional Watch House (Watch House) where the drama continued. The appellant tried to flood the cell she had been placed in. It was necessary for her to be moved to a different cell. As a number of officers, including Constables Young and Stanton, were doing that, the appellant began thrashing about, including by kicking out with her legs.
9․As a result of what occurred that afternoon, the appellant was charged with three offences, namely:
(a)hindering a territory official contrary to s 361(1) of the Criminal Code 2002 (ACT) (Criminal Code);
(b)assaulting a frontline community service provider relating to an alleged assault on Constable Young contrary to s 26A of the Crimes Act 1900 (ACT) (Crimes Act); and
(c)assaulting a frontline community service provider relating to an alleged assault on Constable Stanton contrary to s 26A of the Crimes Act.
10․Those charges were heard in the Magistrates Court over three days. The Magistrate found the appellant not guilty on the charge of hindering a territory official but found her guilty of the other two offences.
The appeal
11․The appellant now appeals to this Court from the Magistrate’s findings. Although no convictions were recorded by his Honour for the two offences on which the appellant was found guilty, pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT), such a finding is a “conviction” within the meaning of s 208(1)(b) of the Magistrates Court Act 1930 (ACT) for the purposes of an appeal to this Court: Parkinson v Alexander [2016] ACTSCFC 1; 11 ACTLR 190 at 213.
12․The grounds on which the appeal is pressed are:
(a)the finding of guilt with respect to the charge relating to the alleged assault on Constable Young is unsustainable in the circumstances;
(b)the Magistrate erred in finding that the appellant was lawfully arrested; and
(c)the Magistrate erred by failing to find that self-defence had been raised and not negated beyond reasonable doubt with respect to the charges on which the appellant was found guilty.
The first ground of appeal
13․The appellant was taken from the scene of the police interception to the Watch House. She was placed in a cell. She behaved in such a way that the police officers at the Watch House decided to move her to a different cell. In the course of doing so, she was alleged to have kicked two of the constables who were attempting to move her, Constable Young and Constable Stanton.
14․The only issue before the Magistrate as far as this ground of appeal is concerned was whether the appellant had kicked the two officers. The Magistrate was satisfied beyond reasonable doubt that she had. Accordingly, he found both offences proved.
15․The appellant argues that the Magistrate was wrong to do so because, as far as this ground of appeal is concerned, he could not have been satisfied beyond reasonable doubt that the appellant kicked Constable Young. She relies on the CCTV footage from the Watch House.
16․I have viewed that footage repeatedly. At first, I was under a misapprehension as to which officer shown in the CCTV was Constable Young. That misapprehension was shared by the prosecutor. Fortunately, Mr Purnell, who appeared on the appeal for the appellant, and who had appeared in the Court below when Constable Young gave evidence and thus knew what she looked like, was able to point out our mistake.
17․I watched the footage again after that, sometimes at a slower speed. At first Constable Taylor and another officer are at the appellants feet as she is struggling and thrashing about on the floor. Constable Young is towards the appellant’s head, around her chest area. The appellant kicks out using both her legs, but the view of where her feet went is blocked. The camera is looking up a corridor with the appellant’s feet closer to the camera as she is horizontal on the floor. The appellant’s upper body is lifted up off the ground and she is held in a semi-vertical position as she is dragged further down the corridor. She continues to thrash about.
18․As the appellant is moved further down the corridor, Constable Young’s position relative to her changes until she is further down the appellant’s body, and in a position where she could be kicked by the appellant. The camera angle changes so that the legs of the appellant are no longer visible.
19․The CCTV footage does not show the appellant kicking Constable Young. It does not show that she did not kick the officer. Certainly, it shows the appellant kicking out as Constable Young is in range of the appellant’s feet, but the CCTV does not show whether that kick connected. Looking only at the CCTV footage, the kick may have connected, or it may have not.
20․But of course, the CCTV footage is not the only evidence the prosecution relied on in the Court below. Constable Young gave evidence that she was kicked by the appellant, and that after things calmed down, she noticed pain in her right knee and stomach. Constable Stanton gave evidence that she saw Constable Young being kicked. There were photographs tendered showing bruising to Constable Young’s leg.
21․It was never suggested to Constable Young in cross-examination that she was not kicked. Nor was it ever suggested to Constable Stanton in cross-examination that she did not see Constable Young being kicked.
22․It was however put to Constable Young that “at no stage is there any footage showing you being kicked”. Constable Young’s answer, “I can’t speak to that”, is relied on by the appellant. I interpret that answer as simply saying in a concise way, ‘the CCTV footage speaks for itself, and it is not for me to offer my opinion as to what it shows’.
23․The appellant also relies on the circumstance that Constable Young has made a claim for criminal injuries compensation. I do not find that that circumstance assisted the appellant. If she was kicked, then she was entitled to make a claim. If she was not kicked, then she has made a false claim. The fact that such a claim was made by Constable Young is neutral.
24․Although the appellant gave evidence in the Court below, she did not deny kicking Constable Young. Her evidence in chief on this topic was limited to an acceptance by her that the CCTV footage of what happened in the Watch House was accurate.
25․Given the neutrality of the CCTV footage from the Watch House, I have to recognise that the Magistrate had advantages when assessing the evidence of those police officers in the Watch House who gave evidence that the appellant’s kicks connected with Constable Young, those officers being Constable Young herself, and Constable Stanton.
26․In summary, I take into account the following matters:
(a)the CCTV footage does not assist one way or the other;
(b)Constable Young gave evidence that she was kicked;
(c)there was photographic evidence of bruises to Constable Young;
(d)it was never put to Constable Young in cross-examination that she had not been kicked;
(e)Constable Stanton gave evidence that she saw Constable Young get kicked by the appellant;
(f)it was never put to Constable Stanton in cross-examination that she had not seen Constable Young being kicked; and
(g)the appellant did not deny kicking Constable Young in her evidence.
27․In such circumstances, the Magistrate was correct to find the charge of assaulting a frontline community service provider, namely Constable Young, proved beyond reasonable doubt. Having made my own independent examination and assessment of the evidence, I would have reached the same conclusion.
The second ground of appeal
28․The appellant argues that her arrest was unlawful. She argues that the police officer who detained her did not have the necessary reasonable belief, and that the requirements of s 222 of the Crimes Act were not complied with, in that the appellant was not told the reason for her detention until two minutes and thirty-seven seconds after she was detained.
29․However, I accept the prosecution’s submission on this ground, which is that I do not need to decide it because of my rejection of the third ground of appeal.
30․For the appellant to have her findings of guilt overturned on this appeal, it would have been necessary for her to have succeeded on both the second and third grounds of appeal. My conclusion on the third ground thus makes it unnecessary to deal with the second ground.
The third ground of appeal
31․The third ground of appeal is that the Magistrate erred by failing to find that self-defence had been raised and not negated beyond reasonable doubt with respect to the charges on which the appellant was found guilty.
32․It was submitted that the appellant was entitled to assault Constables Young and Stanton because she had been unlawfully arrested.
33․Interesting questions of law may arise here involving the nature of the office carried out by Constables Young and Stanton, and whether they were required themselves to enquire into the validity of the arrest which brought the appellant into their custody. If a person is placed in their custody pursuant to an arrest later found to be invalid, are they entitled to resist efforts by that person to escape? Such people would be placed in an intolerable position. What would an officer at the Watch House do if they decided that the person had not been validly arrested? What would happen if one officer decided that the custody was lawful, and another officer thought it was not?
34․Presumably, the Watch House officers were obliged by the nature of their office to receive into custody those people apparently lawfully arrested by other police officers. To allow or require them to form their own conclusions about the lawfulness of the arrest would have obvious adverse consequences, particularly when there is the prospect of a judicial officer months, or even years, later declaring that the arrest was invalid (see, in a different context, Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 at 47-8).
35․Most of the authorities concerning issues such as these concern the actions of officers acting pursuant to judicial orders and are very old. In Painter v Liverpool Oil Gas Light Co (1836) 3 Ad & E 433; 111 ER 478 at 482 it was said that it “would be absurd that an officer charged with the execution of a warrant should have to pause and consider whether it was regularly issued or not”. It is equally absurd that an officer receiving someone at a Watch House would have to interrogate the officer bringing that person to the Watch House in order to form the opinion that the person had been validly arrested.
36․In Stradford (a pseudonym) v Judge Vasta [2023] FCA 1020, the first and second respondents, the Commonwealth of Australia and Queensland, were held to be vicariously liable for the actions of private security guards and police in imprisoning Mr Stradford, pursuant to the order of a judge of an inferior court which was later found to be invalid. That decision is the subject of an appeal to the High Court. Of course, here the officers at the Watch House were not acting pursuant to an order made by a judge, but their position here makes their situation no less difficult.
37․However, in the circumstances of this case, the resolution of such interesting questions of law is not necessary, because even if she were being unlawfully imprisoned, the appellant did not overcome the evidentiary burden arising pursuant to s 58 of the Criminal Code of “presenting or pointing to evidence that suggests a reasonable possibility that” her actions were done in order for her to “get out of ... custody” (Head v Evans [2019] ACTSC 255 at [117] quoting McLiney v Minster [1911] VLR 347 at 351) or to end her unlawful imprisonment.
38․Self-defence is defined in s 42 of the Criminal Code. It is made up of two components, both of which must be present for an action by someone to be done in self-defence. One of those components, in regard to wrongful imprisonment, is that “the person believes the conduct is necessary … to prevent or end the unlawful imprisonment of … herself”.
39․Although the appellant gave evidence in the proceedings below, at no stage did she say that she believed her conduct was necessary to prevent, or end, the unlawful imprisonment of herself.
40․The evidential burden of demonstrating the reasonable possibility that a person’s actions were done in self-defence can be discharged as part of the prosecution case (see Criminal Code s 58(5)), but it is far from apparent (indeed it is most unlikely) that an intention to end her unlawful imprisonment was the motivation for her actions. Earlier at the scene of arrest, for example, the appellant expressed her antipathy towards police, and at the Watch House when asked what her occupation was, she said “if my daughter’s dead I will become a cop killer”. She had sued police in the past.
41․If she wished to rely on self-defence under s 42 of the Criminal Code, she was obliged to present or point to evidence which suggests a reasonable possibility that her actions were undertaken by her because she believed that the conduct was necessary to prevent or end the unlawful imprisonment of herself: Criminal Code s 58.
42․Even if her arrest was unlawful, self-defence does not give her licence to take out her frustrations and animosity on police officers by attacking and assaulting them. So, for example, if a person in unlawful custody who is annoyed at that circumstance gives vent to that feeling of annoyance by spitting at one of the people imprisoning her, that is not self-defence. Only actions which the person believes are necessary to cause an unlawful imprisonment to end can be self-defence. Spitting at an officer could not be believed to achieve that goal.
43․Other actions of the appellant in the Watch House that night are consistent with her frustration and annoyance at being held in custody rather than being directed to bringing her detention to an end. She threw food offered to her at the wall of her cell, and the reason she was being moved from one cell to another when she started struggling was because she had tried to flood the cell she was in by pushing towels down the toilet and flushing it.
44․In this case, self-defence could only have arisen if the purpose of the appellant thrashing about, in the course of which she kicked Constables Young and Stanton, was to “end the unlawful imprisonment of …herself”: Criminal Code s 42. Not only did the appellant never give that explanation for her behaviour, but this all happened three hours after she had been arrested, and there was no chance at all that her actions in doing so would have caused any unlawful imprisonment to end. In such circumstances, it is not surprising that the appellant did not suggest that that was the reason she behaved the way she did.
45․This ground asserts that the Magistrate erred by failing to find that self-defence had been raised on the evidence before him. For the reasons I have given, this was not the case and so this ground fails.
Orders
46․For those reasons, the following orders are made:
(1)The appeal is dismissed.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman Associate: Date: |
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