Director of Public Prosecutions (NSW) v Greenhalgh

1. [1]

   HIS HONOUR: By a summons that was amended by a supplementary notice filed on 25 August 2021, the plaintiff seeks to appeal an order made by Magistrate Dakin (“the Magistrate”) on 24 February 2021, sitting at Lismore Local Court, dismissing a charge of common assault contrary to s 61 of the Crimes Act 1900 (NSW) against the first defendant, following a contested hearing of the matter. The Local Court of New South Wales (“the second defendant”) has filed a submitting appearance. I will refer to the first defendant in this judgment as the defendant.

2. [2]

   At the time of the incident that gave rise to the charge, the alleged victim of the assault was aged 16. In accordance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), I made an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that his name not be published. I will refer to him in this judgment as the complainant. On 12 November 2020, the Magistrate made orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that certain videos that captured images of the complainant at the Byron Bay police station whilst he was naked not be published. I am satisfied that it is appropriate for those orders to continue.

The background to the charge

1. [3]

   The defendant was the subject of a Court Attendance Notice dated 2 December 2019 that alleged that “between 2.00am and 3.00am … [o]n 11 January 2018 on Lateen Lane Byron Bay … [the defendant] did assault [the complainant]”. The charge arose from events in the course of an incident that was attended by the defendant in his capacity at that time as a Senior Constable of the New South Wales Police Force.

2. [4]

   In the early hours of Thursday 11 January 2018, the complainant was heard and observed in Lateen Lane by nearby residents and others to be in a state of distress and acting bizarrely. He was naked, pacing up and down and yelling out for help and for water. It was not in dispute that he was under the influence of a drug, that he later claimed he had consumed unwittingly. Police were notified of the disturbance and four officers attended in two police vans. The defendant and Senior Constable Roach (“SC Roach”) arrived in the first van, shortly followed by Senior Constable Mates (“SC Mates”) and Senior Constable Sims (“SC Sims”) in a second van. There was a physical interaction between the complainant and the four officers, during which police attached two sets of handcuffs on his wrists and carried him into one of the police vans.

3. [5]

   It was common ground between the parties that prior to the complainant being placed in the police van, SC Roach applied oleoresin capsicum spray (“OC spray”) to the complainant and the defendant discharged at least two bursts from a Taser into his body and struck him multiple times with a police baton. He was also struck twice with a baton by SC Mates. The complainant was conveyed to Byron Bay Police Station where the Duty Sergeant directed that he be taken by ambulance to Tweed Heads Hospital for examination. He was subsequently released from hospital into his mother’s care.

The issue of law

1. [6]

   Police did not arrest the complainant and he was not charged with any offence. There was no dispute that police acted lawfully in seeking to detain the complainant, in accordance with s 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), which relevantly provides as follows:

2. [7]

   Part 18 of LEPRA, in particular s 230 (“s 230”), was a relevant consideration. Part 18 reads as follows:

3. [8]

   It was accepted by the parties that during the course of the incident, the defendant struck the complainant with his baton at least 18 times. The essence of the prosecution case against the defendant was that six of those baton blows, in the terms of s 230, were not “reasonably necessary” (“the contested baton strikes”) and therefore constituted a common assault contrary to s 61 of the Crimes Act. At the outset of the hearing, counsel for the defendant conceded that the legislative protection of Pt 18 was “the issue”. Referring to the defence case, counsel for the defendant added that “a small part of it will actually fall under the self-defence provisions of the Crimes Act” but at the close of his final submissions to the Magistrate, he stated “I never raised self-defence”. As the Magistrate noted in his judgment, if the legislative protection of s 230 did not apply to the contested baton strikes, the defendant did not contend that an assault had not been established.

The essence of the factual dispute

1. [9]

   The prosecution contended that the police response, from the first administration of physical force, was disproportionate to the threat posed by the complainant. It was obvious that he was distressed and seeking help and that he was unarmed, since he was naked and not holding anything. He did not verbally threaten or pose a threat to the bystanders or to the police. The complainant was secured with two sets of handcuffs and restrained on the ground by three police officers by the time that the contested baton strikes were administered. However, by that time, the defendant’s judgment had been clouded by a loss of self-control borne of frustration and anger, known in policing as “a red mist of rage”. The contested baton strikes were unwarranted and were not “reasonably necessary” in terms of s 230.

2. [10]

   The defence contended that, although the complainant was clearly unarmed and either drug-affected or mentally unwell, he posed an imminent threat of violence. The complainant tried to punch SC Roach, which prompted the application of physical restraints, and when the officers engaged him on the ground, he was able to resist their attempts with extraordinary strength. The contested baton strikes were a proportionate response to one of these outbursts and were intended to bring him back under control with “pain compliance”.

The appeal

1. [11]

   The appeal is brought pursuant to ss 56(1)(c) and 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) (“CARA”). Section 56(1)(c) of CARA provides that a prosecutor may appeal as of right from “an order made by the Local Court dismissing a matter the subject of any summary proceedings”. Section 59 provides as follows:

2. [12]

   The plaintiff contends that, in dismissing the charge, the Magistrate erred in law by:

3. [13]

   Alternatively, the plaintiff seeks leave for an extension of time to commence judicial review proceedings of the Magistrate's decision pursuant to s 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari, on the same basis, in the event that the Court is satisfied that ground 2 is made out but not that it relates to a question of law alone.

The nature of the evidence

1. [14]

   The prosecution tendered a video of part of the incident that was captured on a smartphone by a nearby resident, Patricia Cardona (“the video”). The video is 2 minutes and 49 seconds in length. It was not disputed by the defendant that he could be seen on the video striking the complainant with his baton 18 times, the last six being the contested baton strikes. In her closing submissions to the Magistrate, the prosecutor described the video as “the primary evidence relied upon in the prosecution case”.

2. [15]

   Ms Cardona’s partner, Daniel Thomas, who was with Ms Cardona when she captured the video, later downloaded it onto a computer and forwarded it to the television program A Current Affair, which broadcast a story on the incident shortly thereafter. That story featured at least part of the video. That prompted an investigation by the New South Wales Law Enforcement Conduct Commission (“the LECC”) into the actions of police in the course of the incident, that generated witness statements and the taking of evidence in hearings in 2018.

3. [16]

   The hearing by the Magistrate occurred over six days between 9 November 2020 and 24 February 2021. The prosecution called the complainant and his mother, three civilian eyewitnesses, two of the other three police officers who attended the incident, an ambulance officer who took the complainant from Byron Bay Police Station to Tweed Heads Hospital, the Duty Sergeant at the Byron Bay Police Station who directed that transfer and a senior instructor from the Police Force Operational Safety and Skills Command who gave evidence as to the proper use of batons and the training that the defendant had received in that regard. The prosecution also tendered transcripts of evidence given to the LECC by SC Mates, who was unavailable to give evidence in the Local Court due to ill-health, pursuant to s 65 of the Evidence Act 1995 (NSW). The prosecution tendered a statement by Ms Cardona to the LECC, in which she declined to relate her observations of the incident. She confirmed that she had taken the video, its length, that she had not edited it and that she had given it to Mr Thomas. She was not required for cross-examination in the Local Court proceedings and was not called as a witness.

4. [17]

   The defence called the defendant and five witnesses who attested to his good character, four of whom were more senior police officers who knew him through his police service. The defendant was represented by counsel throughout the hearing.

5. [18]

   For the purposes of the application, it is unnecessary to canvas the evidence as to what occurred at the police station after the complainant was detained, since the issue is what the defendant or a reasonable person deemed reasonably necessary at the time of the contested baton strikes. The character evidence is irrelevant as well, since the issue in dispute is the Magistrate’s determination of the objective test.

6. [19]

   At the outset of the hearing, the Magistrate conducted a voir dire as to medical evidence that the prosecution sought to tender of injuries observed on the complainant’s torso when he was examined at Tweed Heads Hospital, and an expert report by Professor Johan Duflou as to the consistency of the injuries with the alleged assault, as depicted on the video. The Magistrate ruled that the evidence was inadmissible because it was irrelevant and unfairly prejudicial to the defendant. Actual injury was not an element of the charge of assault and it could not be excluded that baton blows delivered by the defendant other than the contested baton strikes, which were not the subject of the charge, accounted for the injuries.

The evidence called by the prosecution

1. [20]

   The complainant’s mother gave brief evidence to the effect that the complainant has “Asperger’s Syndrome”, a condition that was first diagnosed when he was aged about five years old.

2. [21]

   The complainant gave evidence in chief that at the time of the incident he was aged 16 and on holiday in Byron Bay with his mother, stepfather and brother. On the evening of 10 January 2018 at about 9pm, after the family had dined in town, his mother gave him permission to go by himself to a grassed area near the beach. There he met a group of boys who he thought were a year or two older than him. He sat and talked with them while they drank beer. They offered him a bottle of beer, which he accepted. He could not recall if he opened it or if it was already open. He had not previously consumed alcohol. He drank about three quarters of the bottle’s contents. He described his experience thereafter:

3. [22]

   The complainant went to a shop, purchased a bottle of water and returned to the boys on the grass. He told them that he was feeling strange, and said that in response “they were just giggling and looking at each other … they were just laughing”. They all walked into town and the boys departed, leaving him alone. He said:

4. [23]

   The complainant realised that he could not walk straight and his vision remained blurred. He recalled hearing people, who he could not see, asking: “Are you alright?” He found himself in a “side street”. He was sweating profusely and took off his singlet and t-shirt; he did not recall taking off his shorts and underwear. He felt dehydrated and was looking for water. He again heard people who he could not see, asking if he was all right:

5. [24]

   The complainant was asked:

6. [25]

   The complainant described his memory generally as “very good”, but initially “very fuzzy” as to what happened during the incident, although he considered that it was now “pretty accurate, very good. I can remember most of the things that happened”. Following the incident, he had “started seeing a psychologist” with whom, “after a lot of sessions”, he discussed the incident. He had seen the video about five times, only in the context of a story on the television program A Current Affair, and only together with his psychologist.

7. [26]

   In cross-examination, the complainant agreed that he had made two statements, the first on 29 March 2019 and the second on 28 October 2020. He agreed that the entirety of his first statement as to what occurred on 10 and 11 January 2018 was as follows:

8. [27]

   The only cross-examination of the complainant’s account of what occurred in his interaction with the police comprised the following:

9. [28]

   Mr Thomas gave evidence that, at the time of the incident, he resided with Ms Cardona in a first-floor apartment that had a balcony off their bedroom that backed onto Lateen Lane, where there was a backpackers hostel (“the hostel”), which I note, according to the video, was diagonally opposite. Mr Thomas said that around 2am, they awoke to someone calling out, stating that:

10. [29]

    Ms Cardona got up to look and said that there was “a kid outside naked - walking up and down the street naked”. Mr Thomas got up and went to the balcony. He saw the complainant, naked, “pacing back and forth”, still calling out for help and for water. He continued:

11. [30]

    Mr Thomas described the lighting as “very good” and agreed that he could see “quite well”. He was asked about the complainant’s demeanour, and stated that it was:

12. [31]

    Mr Thomas said that he and Ms Cardona went back to bed, where they stayed until he saw a reflection in the room of flashing lights coming through a window. They returned to the balcony. He saw two police vehicles parked in the lane, facing in the direction of his balcony. Police were coming from the cars. Mr Thomas stated that the complainant:

13. [32]

    Mr Thomas was asked:

14. [33]

    Mr Thomas said that at that point, which was less than 30 seconds after he first saw the police: “there was like a call of, ‘Spray him, spray him’”. He continued:

15. [34]

    Mr Thomas was asked:

16. [35]

    Mr Thomas gave evidence of what he observed thereafter, while the incident was being videoed by Ms Cardona, as follows:

17. [36]

    Mr Thomas gave evidence of what he observed and heard when the complainant was placed in the police van:

18. [37]

    Mr Thomas described an incident that he said occurred after the complainant was placed in the police van:

19. [38]

    During cross-examination, a number of variations on Mr Thomas’ account were put to him. These variations included first, that the baton strikes to the complainant’s knee occurred before the OC spray was applied; second, that immediately before the complainant was sprayed, an officer said to him, “Mate, if you don’t calm down you’re going to get a gobful of this”, and that the complainant then took “a haymaker type hook punch towards the police officer that didn’t connect”; third, that after he was sprayed he was repeatedly told to “Get on the ground”; and finally, that when the complainant was on the ground, being struck with a baton and saying that he was not resisting, he was on his side, not on his back, and later in cross-examination, that there were “periods” when he was on his side rather than on his back. Mr Thomas did not concede any of those events. Mr Thomas conceded that when police were attempting to handcuff the complainant, one of them could have said “That’s coming off”, although he did not recall hearing that comment.

20. [39]

    There are references in the transcript of the proceedings in the Local Court to the Magistrate and parties having an aide memoire of the video, but there is no reference in the transcript to it being marked for identification. Although the video was tendered on this application and the Court was invited to view it, the aide memoire was not part of the tendered material, nor was there a fresh aide memoire as to the spoken content of the video or a detailed description of its visual contents in evidence. Accordingly, for the purposes of the application, I will describe the contents of the video as they appear to me. I am mindful that, inevitably, there is a degree of interpretation involved in relating the content of a video, in this case particularly because it was made at night-time and some metres from the incident and in relation to precisely what was said and where on the complainant’s body police officers placed their hands or feet or applied baton strikes.

21. [40]

    There was no dispute that the video depicts the defendant, the other three attending police officers and the complainant, although as they appear on the video, they cannot be identified by their appearance alone. Nor can the words apparently spoken by police officers be attributed to particular officers. In describing the video’s contents, I will refer to the persons according to the unopposed evidence as to their identities and, where there is unopposed evidence from the officers as to who said what, the identity of that speaker. I will use time references in minutes and seconds, set out in brackets, to indicate how far into the video certain events are heard and/or seen. What is heard on the video is set out in italics.

22. [41]

    During the course of the video, the defendant and SC Mates are seen to hit the complainant with batons. There was undisputed evidence in the hearing that SC Mates was using what is known as a “long baton”, which is a one-piece aluminium baton. The defendant was using a shorter “extendable baton”, which is kept on an officer’s belt with his other “appointments” (that is, with an officer’s pistol, OC spray, handcuffs, gloves, etc) and flicked out to its full length when it is to be deployed. There was no evidence as to what it was made from.

23. [42]

    Throughout the video, a slatted railing is in the foreground. This is consistent with Mr Thomas’ evidence that the video was made from his apartment balcony, overlooking Lateen Lane. As the video commences, in the mid-ground and above the top of the railing, the four police officers can be seen in the roadway of the lane standing closely together over the complainant, who is outstretched on the ground. For the first six seconds or so, the complainant is slightly on his left side, and thereafter he is completely on his back. He is lying on the roadway alongside and almost parallel to the gutter, his head slightly closer to it, and closer to the opposite footpath than to the side from which the video is taken. His body is also at an angle to the camera, his head being closer to it than his feet.

24. [43]

    Immediately alongside the group is a two-storey building (that is, a building with a ground floor and a first floor) which, on the evidence, is consistent with it being the hostel. There appears to be lighting from a streetlight that is situated on Mr Thomas’ side of the lane and approximately opposite the group. Light is also seen coming from within the ground floor of the hostel and, more particularly, from a driveway immediately alongside the group that passes under the hostel. That driveway was identified in evidence as a driveway to an underground parking area for an Aldi supermarket. Light is also apparent from the headlights of the two police vehicles that are parked further up the lane, facing the group, approximately no more than three car lengths away. There are only three other people that are visible on the video. There is a person standing behind a full-length glass window of the hostel quite close to the complainant and police, who identified himself in evidence as the hostel’s night manager, Justin Millar. In addition, there are two individuals standing on steps at the front of the hostel, alongside the police vehicles.

25. [44]

    The defendant is kneeling alongside the complainant’s right shoulder facing his body and at right angles to it. Moving clockwise from him around the complainant, SC Roach appears to be straddling the complainant’s head in a standing position, leaning forward. He appears to be holding, or attempting to hold, the complainant’s right hand, which is outstretched above and behind his head. SC Mates is crouched alongside the complainant’s left foot and facing the complainant’s body, in a position which is diagonally opposite the defendant. SC Sims is to the immediate right of the defendant and thus also on the complainant’s right side, kneeling with his left knee on either the complainant’s right leg or both legs, with his back to the other officers.

26. [45]

    At the outset of the video, the complainant is screaming “Please help, help”. Coinciding with the last cry for help, the defendant strikes the complainant with his baton the first two of four times in quick succession (four times within two seconds) somewhere around the middle area of his body or upper legs (4s). Coinciding with the fourth strike, SC Mates strikes the complainant once with his baton with a sweeping sideways swing in what appears to be the same area of the complainant’s body. Immediately after the last strike, the defendant yells “Get your arms out” and another officer’s voice (the defendant thought it was SC Mates) overlaps, yelling “arms out now” (6s). From that point thereafter, the complainant appears to remain flat on his back. The complainant’s left arm limply falls outstretched onto the road towards the gutter. SC Roach and SC Mates continue to focus on the complainant’s hands while SC Sims repositions himself, crouching in a direction away from the complainant’s head with a hand on each of the complainant’s legs.

27. [46]

    Thereafter, the complainant calls out “Oh God, please God, I need water, I need water, I need water, I need water”. An officer says something indistinguishable and, in the meantime, SC Mates has taken three steps towards the complainant’s outstretched left arm and placed his left foot on it (10s). SC Roach is holding the complainant’s right hand above and behind his head. Whilst that occurs, the defendant appears to place his left foot onto the complainant’s chest or right shoulder, lifts it and does the same again (13s), leaving it there. As he does so, the complainant, apparently responding to something unintelligible said to him by an officer in a normal tone of voice, which ends with the word “mate”, says “I’m all good mate, I’m all …” and then yells “God” (8s). The last word coincides with the defendant, who has his right knee on the lower part of the complainant’s torso or his upper thigh, placing his left foot on the complainant’s upper torso, apparently in his chest area. He lifts it and brings it down again in the same area. An officer says at a normal level of volume, “Leave it” (17s). The officers then talk unintelligibly. The complainant says, “Dear God please … God, God” and then calls out, “Oh God, God, God, God, God” (22s). He then calls out “Toilet” (28s). A police officer says, apparently to other officers, “Right foot … [unintelligible]” (31s). SC Mates says, “Okay mate just settle down, settle down” and appears to take his foot off the complainant’s left arm (33s). SC Roach takes his left hand and holds both of the complainant’s hands together, above his head, consistently with evidence that the officers were handcuffing the complainant. The complainant yells out “Put me on my back”, although he is in fact on his back (36s). While the defendant’s right knee is resting on the complainant’s chest, he moves his left foot to above the complainant’s head (in evidence he said to the complaint’s left armpit), and then brings it back down again on the complainant’s chest or shoulder. As he does so, SC Mates says “Right, stop it, stop it, settle” (38s).

28. [47]

    SC Mates says “Are you right”, the complainant yells “Right” and SC Roach then folds the complainant’s arms in front of his chest and the complainant raises his head. At the same time, SC Sims, who has had his knees on the complainant’s legs, stands (43s). The complainant, with his torso remaining on the roadway, immediately draws up his right leg and then his left leg, placing his right foot flat on the road closer to his body. As he does so, SC Roach says “They’re coming off” and the defendant strikes the complainant’s body five times in quick succession with his baton (five times within two seconds) (44s). SC Sims bends down and stretches the complainant’s legs back out again, flat onto the roadway (46s). Coinciding with the last of those strikes, the defendant says “Stop it”. SC Mates says to SC Roach, “You right, mate?”. An officer says, apparently to the complainant, “Leave the hands there” (49s). The complainant calls out unintelligibly and moans (56s). SC Mates drops his baton on the footpath and kneels down, apparently to give assistance to SC Roach in attaching a second set of handcuffs to the complainant’s wrists. At the same time, the defendant strikes the complainant with his baton three times to the body; each blow is two to three seconds apart (58s). Immediately after the first strike, he pauses and yells, “stop resisting”. After the second strike, the defendant pauses and a police officer yells a phrase, in which the only intelligible word is “fucking”, in an angry tone. After the third strike, the complainant screams, “I’m not resisting”. SC Mates then yells in an angry tone “Cunt, give me your hand [or hands]”. (SC Mates denied using the word “cunt”: see [103] below) (1m 4s). SC Roach and SC Mates continue to manipulate the complainant’s hands. The complainant calls out something unintelligible, followed by “God, please help me, God, God”. An officer asks, “Got it?”, apparently directed to another officer. An officer asks, “You right there?” The complainant responds in a softer voice, “I need water” (1m 21s) and SC Mates stands up. A police officer can be heard saying “[unintelligible] silly prick”. The complainant says: “I am not, I am not a prick” (1m 24s). SC Mates walks in the direction of the police vehicles (1m 25s). A police officer says “You right” and the complainant says “Don’t call me a prick” (1m 27s).

29. [48]

    The defendant raises his baton and holds it in mid-air as if to strike the complainant, as a police officer says “Don’t touch these”, then yells “Don’t touch them”. The complainant yells “All right, all right, all right”, as the defendant lowers the baton (1m 33s). SC Roach places the complainant’s hands, which appear consistently with them being handcuffed, on the road behind the complainant’s head. As he does so, the defendant moves his left foot from the complainant’s body and places it in the area of the complainant’s hands on the roadway (1m 38s). SC Roach stands up and does likewise with his right foot, his left foot on the footpath and both of his hands on his hips (1m 42s). I note SC Roach’s evidence that at one point he placed his foot on the two sets of handcuffs that had been placed on the complainant. SC Sims moves his knee onto the complainant’s leg or legs. SC Mates pulls up in a police van alongside the group, completely blocking the view of the complainant on the ground (1m 48s). Thereafter, SC Roach can be seen completely, the defendant can be seen from the waist up, and only the head of SC Sims can be seen.

30. [49]

    As the van pulls up, the complainant yells “What?” A police officer says a phrase that is unintelligible, except for the word “fuck”, immediately followed by the defendant raising his baton and striking it down to where the complainant was last visible, three times in quick succession, that is, in less than two seconds (1m 53s). These are the first three of the contested baton strikes. As the defendant strikes the complainant for the first time, it can be seen from the movement of SC Sims’ head that he stands up, remains where he is, and after about five seconds, crouches down again, still in the vicinity of where the complainant’s legs were last visible. After the first strike, the complainant says, “I don’t want this feeling.” Immediately after the last strike, the defendant faces the complainant’s face so that their faces are less than a metre apart, and screams at the top of his voice “Stop resisting”. This is immediately followed by SC Sims yelling, as he again crouches over the complainant’s legs, “Put your fucking legs down” (1m 55s). Following a gap of about two seconds, the defendant strikes towards the complainant twice more, in quick succession (both blows within one second), immediately thereafter screaming, again at the top of his voice, “Stop it” (1m 57s). The complainant yells “I don’t want this feeling, God”. This is followed by something that is unintelligible, then the complainant says “Please”. Throughout the first five of the contested baton strikes, SC Roach stood in the same position, hands on hips, his left leg on the footpath and his right apparently not having moved from where it had been in the vicinity of the complainant’s hands on the roadway. SC Sims stands up again (at about 2m 3s), quickly walks onto the footpath, and turns around to face the complainant and other officers, standing within two paces of them. At the same time as SC Sims stands up, SC Roach takes his hands off his hips, stands aside and then bends over the complainant (2m 2s). The complainant says something which is unintelligible, again followed by the word “Please”. The defendant, while still kneeling over the complainant, then strikes towards the complainant with his baton once more (2m 6s). This is the last of the six contested baton strikes. As the blow impacts the complainant’s body, one of the complainant’s legs can be seen briefly lifting up into view and then dropping back down again. At the time of the sixth baton strike, SC Sims was out of the van and standing alongside the defendant and SC Roach.

31. [50]

    For the remainder of the video, the defendant and SC Roach are crouched over the complainant. SC Mates asks him, “Hey buddy, what’s your name, what’s your name?” (2m 10s). The complainant responds, saying “My name is”, and then states his first name. SC Mates calls him by his first name, says something intelligible, followed by “Listen to me. We’re going to pick you up and you’re going to walk to that truck and get into the truck, do you understand? Do you understand? Stop resisting mate” (2m 20s). The complainant says something unintelligible that includes the words “I’m not resist … water” (2m 35s). SC Mates continues, saying “I’m going to ask you to get up, get in the truck and behave yourself” (this ends at 2m 49s).

32. [51]

    It is, of course, possible that the complainant was offering physical resistance at one or more points during the video which was being successfully thwarted by counter-pressure applied by the defendant and/or other officers, so that there was no bodily movement.

33. [52]

    Mr Marian gave evidence that at the time of the incident, he and his family were on holiday in Byron Bay and residing in an apartment block that backed onto the laneway, opposite the hostel (and thus alongside Mr Thomas’ unit). Mr Marian said that in the early hours of 11 January 2018, while he was lying in bed, he heard someone scream in the laneway. He reported hearing words to the effect of “God help me”, and said that “he was asking a lot of people for water”. Mr Marian went onto his balcony and saw the complainant being spoken to by persons at the front of the hostel. They were asking the complainant to “be quiet and settle down”. Mr Marian perceived that the complainant was “a little bit agitated” and said that:

34. [53]

    Mr Marian was asked further questions on this point:

35. [54]

    Mr Marian said that he went back inside his apartment to get his glasses and some water, as follows:

36. [55]

    Mr Marian said that the complainant was naked and still pacing. He left the balcony briefly. When he returned, he saw two police cars arrive. The complainant was walking away from the hostel, in the direction of Mr Marian’s apartment, but then turned around and walked towards the police. Mr Marian gave the following account of what occurred, stating that the complainant:

37. [56]

    Mr Marian said that the complainant retreated. The second police officer arrived and moved towards the complainant. When that police officer was two to three metres away, Mr Marian said that the following occurred:

38. [57]

    Mr Marian said that the complainant’s response to the OC spray was that:

39. [58]

    Mr Marian was asked:

40. [59]

    He continued:

41. [60]

    Mr Marian said that a police officer grabbed the complainant, he thought on his shoulders, and attempted to pull him to the ground as he tried to get up. The complainant got up, then a Taser was fired, and:

42. [61]

    Mr Marian said that the complainant got back up again, after which Mr Marian went inside for a period of less than 30 seconds to get his phone to record the incident, but his phone had no power, and he returned to the balcony.

43. [62]

    Mr Marian said that he saw the complainant again trying to walk away in the same direction as before. By that point, there were four or five police officers, who encircled the complainant and “were trying to drag him to the ground”. Mr Marian elaborated, as follows:

44. [63]

    He said that the complainant was saying: “I need help”, “I need water” and “I’m not resisting”. An officer was striking him with a baton “sort of around the stomach, rib area”. The complainant was screaming. Mr Marian’s recollection was that the complainant was on his stomach.

45. [64]

    Mr Marian said that he again went inside his apartment. When he returned, the police officers appeared to be carrying the complainant into a police van, although he did not have a line of sight to it.

46. [65]

    Mr Marian said that, after the incident, he saw police approach people who were outside the hostel. One of the police officers said: "I hope none of you fucking recorded any of this”. The officer was “quite angry at the time”. He said that the same police officer then appeared to be looking at the buildings in the laneway for cameras.

47. [66]

    Mr Marian said that he had seen the video on A Current Affair “about 300 times”.

48. [67]

    Mr Marian said that the complainant was struggling and moving around “the entire time”, with one exception:

49. [68]

    In cross-examination, Mr Marian agreed that this brief period was immediately after the complainant was Tasered. He also agreed that, in evidence before the LECC, he had said that “The young kid seemed like he had the strength of about three [or] four people”. He was asked:

50. [69]

    Referring to the last time Mr Marian went back into his apartment, he was asked:

51. [70]

    He said that it was after the eight strikes that he went inside. It was also put to him that:

52. [71]

    Mr Marian was taken to evidence that he gave before the LECC. He agreed that, before the Taser was deployed, a police officer had said “Get down or I’ll Taser you”. He also agreed that when the complainant was on the ground surrounded by the four police officers, he was “at one stage being curled up, at one stage perhaps being on his side, another time being on his back”.

53. [72]

    Mr Millar was the night manager of the hostel. He said that the entrance to the hostel was in the lane. He described watching the complainant pace around the lane, waving his hands around and not responding to Mr Millar and others who spoke to him. The light was “decent. There were street lights, so there was light”. He said the complainant was not aggressive or violent, and thought that he was aged 18 or 19. When he took his clothes off, Mr Millar asked him to put them back on, but he did not respond. Mr Millar did not feel threatened by the complainant, but phoned the police. He said that “I just described a young male, probably 18 or 19, causing noise complaints, not in the right state of mind, out the front of the hostel”.

54. [73]

    He said that “four to five officers” arrived about five minutes later and surrounded the complainant. He continued to stare up and yell at the sky, his arms slightly moving in a swaying motion. Mr Millar was asked:

55. [74]

    Mr Millar said that the police made a semi-circle around the complainant, warned him that that they were going to use “pepper spray” and sprayed him. The complainant’s reaction was “Just more movement. Nothing aggressive, just hands to the eyes, rubbing and screaming”. Mr Millar continued, saying that “a couple of minutes later they warned him about the Taser”. He heard an officer say “Taser”, and then they Tasered the complainant, who stayed upright. Mr Millar went inside at that point, to a desk from which he could observe what was occurring in the lane through a large window. When the complainant was Tasered, “five or more” times, he heard more than one officer yelling “Get on the ground, cunt”. He went back outside after “a minute or two”. The complainant was flat on the ground, but Mr Millar could not recall if he was on his front or back. Mr Millar said that:

56. [75]

    Mr Millar said that the complainant was yelling, at one point saying “I’m not resisting”. There were “a few more hits” after he said that. Mr Millar saw the complainant hit over five times while he was on the ground. Some were in quick succession, and some were spaced. He could not say what part of the complainant’s body was hit. He came back out after the complainant was in the police vehicle and the door was shut. He did not see the police handcuff the complainant.

57. [76]

    Mr Millar said that he did not see the complainant being aggressive to the police, but the police were aggressive towards the complainant. Mr Millar identified himself on the video, standing inside the hostel on the other side of a full-length window.

58. [77]

    In cross-examination, Mr Millar added that he initially heard the police officers say “Just don’t resist”. He agreed that, before the complainant was sprayed, a police officer said “Mate, if you don’t calm down you’re going to get a gobful of this”. When it was put to Mr Millar that the complainant swung a punch towards the officer, who then sprayed him, he replied “I don’t recall a punch being thrown”. He recalled the complainant saying “Please help, help” and an officer yelling out, “Get your arms out”.

59. [78]

    Mr Millar agreed that the complainant was “heavily perspiring” and naked, and that “it was harder to hold him”. He heard police say “stop resisting” multiple times.

60. [79]

    SC Roach gave evidence that he attended the incident with the defendant in the same police vehicle in response to a radio call about “a naked male acting intoxicated, drug-affected, in Lateen Lane outside a backpackers”. He said that while he was still in the police vehicle, he saw a naked male, about 15 metres away, “jump up” from the roadway, apparently startled. SC Roach got out of the vehicle and stood alongside or near the front of the police vehicle, as the complainant walked towards him in a zig-zag fashion, “constantly yelling”, and apparently drug-affected. He was naked, not carrying anything and looking to the sky. SC Roach said that he was the first police officer to speak to the complainant. He said “‘Listen, mate, just calm down a bit, mate. We’re here to help.’ Something along those lines”. He said the complainant did not respond and continued to approach him. SC Roach got out his OC Spray and said, “you need to calm down”. The complainant “was still yelling out” and continued to approach him. SC Roach said to him “Mate, if you don’t calm down you’re going to get a gobful of this”. The complainant continued approaching. When he was about a metre and a half away, SC Roach said that:

61. [80]

    SC Roach sprayed the complainant in the face, and said that:

62. [81]

    SC Roach said that the complainant “kept walking around”. He was asked:

63. [82]

    SC Roach thought the Taser was fired “maybe 20 seconds” after the second OC spray. He had thought that the complainant was Tasered once, but after being shown video that was taken from the Taser, he accepted that in fact the complainant was Tasered probably two or three times.

64. [83]

    SC Roach said that:

65. [84]

    He said that after the complainant went to the ground, “I tried to wrestle him to keep him under control”. However, because he was so sweaty and thus slippery, the complainant escaped his grasp and stood up. He was Tasered again, went to the ground, and SC Roach again unsuccessfully tried to control him. The complainant stood up a third time. By then, the second police vehicle had arrived. As the complainant walked around, SC Mates struck him to the back of his legs with a baton. The complainant yelled out and fell to the ground into a foetal position, at which point all four officers got on top of him. The complainant was on his back and SC Roach was at his head. He got out his handcuffs, but the complainant “was thrashing around … He was quite strong”. SC Roach and SC Mates had an each held one of the complainant’s arms. SC Roach identified the other officers on the video as they were positioned over the complainant who was lying on his back on the ground. He identified SC Mates saying “Cunt, give me your hand”.

66. [85]

    The complainant started to get the handcuffs off, causing SC Roach to call out “They’re coming off”. SC Mates put on a second set, so that the complainant had two sets of handcuffs on. SC Roach then stood with one of his feet on the handcuffs.

67. [86]

    SC Roach said that the only time he recalled seeing SC Mates use his baton was the strike to the complainant’s leg. SC Roach said that he saw the defendant strike the complainant “five or six” times with a baton, but added that he was

68. [87]

    He said that he did not see where the blows landed, saying “I’m assuming it’s probably around the leg area. I’m only guessing”. SC Roach said that the complainant “was thrashing out, still trying to get up.” He was asked:

69. [88]

    And later:

70. [89]

    SC Roach said that both sets of handcuffs were on the complainant when SC Mates left to bring the police van closer. SC Roach was apparently played the part of the video that depicts the contested baton strikes, and was asked questions as follows:

71. [90]

    SC Roach said that the complainant struggled when he was carried into the police van. There were doors on both sides. SC Mates went around to the other side and dragged the complainant through by the handcuffs. He said that the defendant “used the baton probably maybe another one or two times to get his feet in”.

72. [91]

    SC Roach said that at no stage did he hear the young person verbally threaten any police officer. He said that the complainant was not aggressive when he was at the police station.

73. [92]

    In cross examination, SC Roach was asked:

74. [93]

    SC Roach explained that “[the complainant] just kind of looked like he didn’t understand, didn’t take in what I was saying, who we were”. He accepted a proposition that if the complainant had released one of his hands from the handcuffs, he would have a weapon:

75. [94]

    Contrary to the use of the word “again” in the cross-examiner’s question, no witness said that the complainant had a weapon at any stage of the incident, or that he had released one of his hands from one or both sets of handcuffs.

76. [95]

    The cross-examination of SC Roach continued:

77. [96]

    As to what occurred after SC Mates left to bring the police van up, it was put to him:

78. [97]

    And later, SC Roach was asked:

79. [98]

    The prosecutor was granted leave pursuant to s 38 of the Evidence Act 1995 (NSW) to cross-examine SC Roach as to his evidence in cross-examination to the effect that the complainant was only partly under control, after he was double-handcuffed:

80. [99]

    The prosecutor informed the Court that SC Mates had suffered a permanent injury which rendered him unable to give evidence. As noted, a copy of parts of his evidence to the LECC was tendered into evidence unopposed, pursuant to s 65 of the Evidence Act 1995 (NSW). The relevant aspects of his evidence were to the following effect:

81. [100]

    SC Mates gave evidence on 27 March 2018. He said that he arrived at Lateen Lane with SC Sims, and exited the police vehicle shortly after him. Before SC Mates left the vehicle he saw, through the police car windows, OC spray being deployed. He heard yelling, so he grabbed a long baton as he exited the vehicle. He heard the words “Get on the ground” and the complainant “yelling and screaming”. As he was getting out of the vehicle, and about 20 to 25 seconds after he saw the OC spray being applied, he heard a Taser being deployed. The complainant was still standing and yelling, but was not physically aggressive. In evidence the following day, SC Mates said that, on reflection, he did not take the long baton with him when he first left the police van. He went back to the police vehicle and retrieved it after the Taser was deployed.

82. [101]

    SC Mates said that he approached the complainant. When he was about a metre from him, the complainant “was looking in my direction, but he was not responsive”. SC Mates told him to “Get on the ground”, but he did not comply. He said that the complainant advanced towards him. The complainant’s unresponsiveness caused him to conclude that he was “seriously affected by an illicit drug” and to fear for his safety, so he struck a baton blow to his upper left arm and took a step back. The complainant did not react to the blow, so four or five seconds later, SC Maters delivered a baton blow to the complainant’s left knee. After about five seconds, the complainant dropped onto his left knee. Thereafter, SC Mates had a gap in his memory that he could not explain. His next recollection was of the complainant lying on his back, attempting to remove a handcuff. At that point, he struck the complainant on his thigh with his baton. The complainant “immediately released his hand” from trying to remove the handcuffs. SC Mates then dropped his baton, took out a second set of handcuffs and assisted SC Roach to put them onto the complainant.

83. [102]

    SC Mates agreed that he had previously said that while placing a second set of handcuffs on the complainant, he was moving the torso of his body violently. He said that “The strength was incredible to try to hang on to him and he was lashing about”. SC Mates was asked:

84. [103]

    SC Mates identified himself as the officer who told the complainant to “settle down” and to give him his hands, by saying: “Come on, give me your hands”. He denied that he said “Cunt, give me your hands”:

85. [104]

    SC Mates said that when the complainant was stood up to be placed in the van, “he started thrashing around with his legs” so SC Mates went around the other side of the van to drag the complainant through. He did not hear or see any baton strikes while the complainant was placed in the van.

86. [105]

    SC Mates said that, after the complainant was placed in the van, either the defendant or SC Roach approached bystanders outside the hostel and asked if anyone had videoed the incident. He denied that the terms of the officer’s request were “You better not have filmed this or videoed this”. Instead, he said that the request was “Have youse got some footage of this?” or “Has anyone got footage?”

87. [106]

    SC Sims said that he attended the incident, together with SC Mates, in response to a message from the defendant that “there was a naked male who was on an unknown substance … standing in the middle of the roadway there.” When he arrived, he saw the complainant, naked, “flailing his arms around … in an erratic manner” and moving towards the defendant, who was facing him from about 2.5 metres away. SC Roach was about 3 to 3.5 metres off to the side. As SC Sims exited the police vehicle, when he was about 7 to 8 metres away, he heard a Taser being deployed and saw the complainant “hitting the ground”. He fell flat onto his stomach.

88. [107]

    The defendant said “Someone handcuff him”. SC Sims asked him “Is that thing turned off?” (referring to the Taser). The defendant confirmed that it was, and he grabbed an arm of the complainant, which was very slippery with sweat. The complainant was of a very slight build. SC Sims got his arm up and, with SC Roach who was around the other side, attempted to handcuff the complainant. SC Roach attached a handcuff to his right wrist. The complainant was moving around a lot and after he had been on the ground for less than 10 seconds, “he lifted myself and … pushed Senior Constable Roach out of the way and he got back up”. The complainant stood up and was “waving his arms around a lot in a very aggressive manner”. SC Sims said that “the next thing I remember is seeing him on the ground and I grabbed hold of his legs”.

89. [108]

    At that point, SC Mates was standing in front of SC Sims holding a long baton, which he dropped to the ground. SC Sims said that he did not see SC Mates hit the complainant with it. He maintained that evidence when reminded that he had given evidence in the LECC that he saw SC Mates administer a baton blow to the back of one of the complainant’s knees, causing him to fall to the ground immediately, and described the noise that it had made.

90. [109]

    SC Sims said that he grabbed the complainant’s legs. The complainant was lying flat on his stomach and “kicking out a lot”. SC Sims relayed that “well after” SC Roach had applied one handcuff to him, the complainant kicked SC Sims on the right side of his jaw. SC Sims stood up, rubbed his jaw and again grabbed the complainant’s legs. The video was played to SC Sims and he identified the point at which he was kicked in the jaw as being at the 45 second mark.

91. [110]

    SC Sims said that he did not recall the complainant saying anything during the incident. The only words he heard spoken by a police officer were the defendant saying, “Stop resisting”.

92. [111]

    SC Sims said that he recalled the defendant administering his baton against the complainant four or five times, in the area of his ribs, in order to get him to remove his arm from under his body. The baton strikes were administered one at a time, not in rapid succession.

93. [112]

    SC Sims and the defendant placed the complainant in the van. The complainant resisted. SC Sims was on the other side of the van from the defendant, attempting to pull the complainant through the open door. The defendant attempted to strike the complainant with his baton but hit SC Sims instead, on his forearm.

94. [113]

    The last witness for the prosecution was Sergeant William Watt (“Sgt Watt”), who was a senior instructor attached to Weapons and Tactics, Policy and Review, which is part of the Operational Safety and Skills Command of the NSW Police Force.

95. [114]

    Sgt Watt explained that every officer who is required to carry appointments must undertake mandatory annual training in relation to the use of those appointments, which includes weapon-less control techniques and scenario-based training, which:

96. [115]

    Sgt Watt produced a manual for the use of batons (“the Baton Manual”) which, he said, reflected the training that police officers receive as to the use of batons. It was tendered into evidence without objection. He noted that, according to the Baton Manual, a baton may be deployed if the user is in danger of being overpowered, or to protect themselves or others from injury, but the force used must be “reasonable”. He was taken to a part of the Baton Manual titled “Advised Strike Areas”, which states:

97. [116]

    The primary strike area is identified as the leg, from below the hip to the toes. The secondary strike area is the arm, from the point of the shoulder to the fingertips. A further section of the Baton Manual is titled “Non-Advised Strike Areas”, which are described as areas of the human body that should be avoided when striking with a baton. These include the lower spinal and kidney region, the thoracic (chest) and abdominal (stomach) areas and the groin. The Baton Manual states: “Blows to these areas of the body delivered with force, even moderate force, can inflict serious, if not fatal, injuries”.

98. [117]

    In cross-examination, Sgt Watt agreed that a baton could be used to “take a person down” by striking a person’s knee, since that is in the “primary zone”. It could also be used to secure a person’s compliance through experiencing pain (“pain compliance”) if applied to the primary or secondary strike zones.

99. [118]

    Sgt Watt was asked:

100. [119]

     Sgt Watt did not suggest that it was ever appropriate for a police officer to deliberately strike a person in a Non-Advised Strike area.

The evidence called by the defence

1. [120]

   As noted, the defence called five witnesses who attested to the defendant’s good character, as a police officer and a citizen. Following their evidence, the defence called the defendant.

2. [121]

   The defendant said that when he and SC Roach arrived, the complainant was naked, standing on the road in the area of the entrance to the underground car park. As he and SC Roach alighted from the police van, the complainant was making his way towards them. He said:

3. [122]

   SC Roach sprayed the complainant, who moved away from him. The complainant turned and walked away from SC Roach and the defendant. The defendant walked after him. The complainant then turned and walked towards the defendant. The defendant reached for his Taser, drew it, yelled “Taser” and fired it. He said that he did this because “There was a violent confrontation about to occur; it was imminent”. It was necessary to contain the complainant, “for his safety, for ours, for the safety of the community - a number of things”. The defendant said:

4. [123]

   The defendant said that the complainant “collapsed to the ground”. SC Roach attempted to handcuff him, but after a few seconds he was back on his feet. The defendant applied a second burst from the Taser, but the result was “Not a great deal. The barbs ended up breaking off in relation to his throwing his arms and stuff around”. The defendant loaded a second cartridge onto the Taser but accidentally zapped himself with it. In the meantime, SC Mates applied a baton strike to one of the complainant’s knees which brought him to the ground on his back. The defendant said that “I had positioned myself around his torso. … Tried to hold some weight down on him, … Through his torso, with my bodyweight, knees, feet, hands”. He recalled that SC Mates hit the complainant again with his long baton. SC Sims held his legs down and SC Roach and SC Mates attempted to handcuff the complainant. The defendant said that:

5. [124]

   The defendant’s objective in using his baton was “To get [the complainant’s] arm out, to mobilise that limb, so we could gain control”. The complainant’s arm came out and the police officers were then able to handcuff him. The defendant said that the complaint at that stage was struggling and violently resisting, and “Swearing, yelling profanities”. He continued:

6. [125]

   The defendant said that when he saw the complainant trying to slide off the handcuffs, he said “Stop it” and that he “would have struck [the complainant] with the baton a number of times”. He said that while the second set of handcuffs were being placed on the complainant “I may have struck him with the baton at that time”.

7. [126]

   The defendant was questioned in examination in chief in relation to the contested baton strikes. He said that he directed SC Mates to get the police van because “I was of the opinion that the four of us had gained control of this person”. After SC Mates left to bring the police van up, the complainant “Wriggled his whole body and he was kicking out”. The defendant relayed that, at that time, he was “doing my best to keep bodyweight down on his torso and I may have had my foot still on his armpit”. He struck the complainant “a number of times” with his baton. SC Sims did not remain at the complainant’s feet, because “He was kicked a number of times”. The complainant continued thrashing around, “Lifting his torso, kicking his legs out”. The defendant said that he yelled out “Stop it” at the top of his lungs. He said that “I was being overpowered - we were being overpowered. … I didn’t think we had control of him until he was in the truck”.

8. [127]

   In cross-examination by the prosecutor, the defendant agreed that he had 13 years of service in the New South Wales Police Force. He was questioned as to his training in the use of appointments, his training in techniques of control and his experience in restraining individuals. He agreed that he had received training in the use of reasonable force, the use of approved techniques and weapon-less control, including how to use appointments. He also agreed that he had undertaken mandatory training every 12 months. He agreed that he had “considerable experience in apprehending violent offenders”. He was asked:

9. [128]

   He said that at the time of the incident he did not think that the complainant was “underage but he could have been”. Certain propositions were put to the defendant, as follows:

10. [129]

    The first 14 seconds of the video were played to the defendant, in which he is administering his first four recorded baton strikes. He agreed that he had his knee on the complainant’s torso and that the complainant was yelling “Please help”. It was suggested to him that it was apparent from the video that the complainant was not struggling at that stage. He responded, saying that “He was definitely struggling”. The video was then played up to the 40 second mark. The defendant explained that he can be seen with his right knee resting on the complainant’s chest and his left foot in the complainant’s armpit.

11. [130]

    The defendant was questioned as to whether the contested baton strikes conformed with police instructions on how a baton was to be used, by reference to the Baton Manual:

12. [131]

    The defendant was questioned as to the degree to which the complainant was secured when he directed SC Mates to bring up the police van, at the 1 minute 42 second mark on the video, as follows:

13. [132]

    The last 10 seconds of the video, up to that point, were replayed to the defendant. He was asked:

14. [133]

    The defendant was later asked:

15. [134]

    Ultimately, it was put to the defendant in cross-examination that it was “completely unnecessary” to keep striking the complainant after the defendant had directed SC Mates to bring up the police van, because, as the defendant had conceded, at that point the complainant was under control. The defendant disagreed, contending that police subsequently lost control of him. He was asked if he applied baton strikes to the complainant when he was in the van and responded “I don’t recall that”.

16. [135]

    The defendant agreed that it was he who approached those standing outside the hostel after the incident. His account was as follows:

The parties’ submissions to the Magistrate

1. [136]

   As noted earlier, the prosecutor submitted to the Magistrate that the primary evidence in the prosecution case as to what physically occurred at the relevant time, and immediately preceding it, was the video. The prosecutor submitted that “the high point” of the evidence as to any aggression being threatened by the complainant was the “haymaker” punch that SC Roach and the defendant alleged was thrown towards SC Roach at the outset of the incident. SC Sims’ evidence as to the kick to his head was that it occurred at the video’s 45 second mark. This was more than a minute before the contested baton strikes and, in any event, was contradicted by the video.

2. [137]

   The prosecutor submitted that the “ultimate issue” for determination was whether, for the purposes of s 230, the contested baton strikes were “reasonably necessary” for the detention of the complainant. She submitted that “some guidance” on how that term is to be understood is provided by Woodley v Boyd [2001] NSWCA 35, in which Heydon JA, Davies and Foster AJJA agreeing, said, at [37]:

3. [138]

   The prosecutor summarised the relevant consideration for the Court, in terms taken from R v Turner, as follows: [531.40]

4. [139]

   The prosecutor summarised her case on the evidence thus:

5. [140]

   The defence agreed that the term “reasonably necessary”, as it appears in s 230, was the relevant test with which to assess the contested baton strikes and also relied upon Woodley v Boyd, at [37], as to how that term should be understood, reciting the paragraph in full to the Magistrate. Defence counsel also read out to the Magistrate a passage that reiterated the two-stage test from Devetak v R [2018] NSWDC 23 at [20], in relation to the term “reasonably necessary” as it appears in s 231 of LEPRA, which he submitted is the same test as the test for s 230.

6. [141]

   The defence submitted that there had been “gross contamination” of the witnesses’ evidence by them viewing the video multiple times, either on A Current Affair or when it was played to them during the course of their evidence at the LECC hearing:

7. [142]

   As to the video, defence counsel submitted that, since the police van obstructed a complete view of the complainant at the time of the contested baton strikes, it was of little assistance. Similarly, Mr Thomas’ view of the contested baton strikes was partially blocked and the other two civilian witnesses were not watching at all at that point. Defence counsel submitted that the evidence of the defendant, SC Roach and SC Mates established that, having gained control of the complainant, they again lost control and that the contested baton strikes were both subjectively and objectively reasonable in order for the defendant to regain control.

8. [143]

   He concluded his submissions by bringing together the legal test and the defence case as to the import of the defendant’s evidence, saying:

9. [144]

   Following defence counsel’s address and a short adjournment, the Magistrate informed the parties that he had obtained a copy of Woodley v Boyd.

The Magistrate’s reasons

1. [145]

   The Magistrate delivered his judgment on the same day as the parties’ addresses (“the Magistrate’s judgment”). At the outset, he acknowledged that it was necessary to consider Pt 18 of LEPRA, and specifically s 230. His Honour continued:

2. [146]

   The Magistrate then embarked on his assessment of the evidence, relating the evidence of the police officers as to what occurred following their arrival at Lateen Lane, including the application by SC Roach of the OC spray, the defendant’s use of his Taser against the complainant and the striking of the complainant to one of his knees with a long baton by SC Mates. The Magistrate continued, noting that the strike by SC Mates caused the complainant to go down on one knee, and then stating that:

3. [147]

   The Magistrate accepted the complainant’s evidence of the events as recounted by him up to the point that the police officers arrived. He noted the inference from the complainant’s evidence that his drink had been “spiked” so that he was under the influence of a substance that he had not intended to consume:

4. [148]

   The Magistrate said that the complainant described in some detail what happened to him thereafter, and noted that:

5. [149]

   However, as noted at [27] above, in cross-examining the complainant, defence counsel had not challenged any aspect of his evidence. The Magistrate referred to the video that had been broadcast by A Current Affair. He continued:

6. [150]

   Ultimately, the Magistrate accepted defence counsel’s submission that the evidence of the civilian eyewitnesses and of the complainant was tainted by them having viewed the video on multiple occasions. His Honour found that the consistency of their evidence as to what they witnessed and what occurred was indicative, not of its reliability, but of the degree of contamination and thus, by inference, its unreliability. The Magistrate did not explain how multiple viewings of the video had negated the reliability of their evidence, in particular the evidence of Mr Thomas, who watched the incident unfold from alongside the person who made the video.

7. [151]

   As to the evidence of the three police officers who attended the incident with the defendant, the Magistrate accepted a submission made by the prosecutor that the evidence of SC Sims should be rejected as unreliable, stating that:

8. [152]

   The Magistrate found that it was “common ground that [the complainant] swung his right hand towards Senior Constable Roach, in what has been described as a haymaker”. (However, as noted at [38], [70] and [77] above, the alleged attempted punch was not conceded by any of the civilian witnesses and was disputed by the prosecutor in her address). In relation to the defendant’s evidence and the dilemma facing the police officers collectively, the Magistrate stated:

9. [153]

   The Magistrate recited a passage from the account of SC Mates to the LECC that conveyed a sense of urgency in the need of the police officers to restrain the complainant, and added that:

10. [154]

    The Magistrate distilled the competing cases into the following terms:

11. [155]

    The last sentence is a misstatement of the defendant’s evidence as to the control that he exercised over the complainant. It was the defendant’s case that he, together with the other three officers, had gained control of the complainant by the time he directed SC Sims to bring up the police van, but subsequently lost control.

12. [156]

    The Magistrate determined that the evidence established that the defendant had approached a group of onlookers in Lateen Lane afterwards and raised the issue of the incident being recorded but stated he could not “resolve” the two versions as to what was said, other than by accepting that the defendant was using “angry words”.

13. [157]

    The Magistrate then turned to evidence of the complainant’s behaviour at the police station, finding that he needed to be restrained by a number of police officers at that point, which, his Honour found, mitigated against the prosecution’s submission that the complainant was compliant before he was placed in the police van at Lateen Lane.

14. [158]

    Following the assessment of the evidence, the Magistrate returned to “the question of reasonableness”, noting that both parties had directed him to Woodley v Boyd at [37]. The Magistrate recited parts of that paragraph (but not the parts that referred to the objective test) and observed that the defendant’s evidence was to the effect that “he did what was necessary” and did not go beyond that. His Honour referred to the evidence as to the defendant’s good character and then found as follows:

The plaintiff’s submissions

1. [159]

   The plaintiff submitted that at common law, as noted in Woodley v Boyd, the test as to the permissible degree of force to effect an arrest is both subjective and objective. However, contrary to the position taken by the prosecutor at the hearing in the Local Court, the plaintiff submits that the test for determining whether the use of force by police pursuant to s 230 is “reasonably necessary” is exclusively an objective test, in the same terms as the objective test is to be understood at common law, which it formulated as “whether a reasonable person in the position of the police officer would have considered the use of force to be proportionate to the risk or danger sought to be prevented”.

2. [160]

   The plaintiff submitted that the construction of a purely objective test for s 230 is consistent with the “natural and ordinary meaning” of the words as they appear in that section: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304-305.

3. [161]

   Further, that construction accords with the use of a reasonableness standard elsewhere in the statute. The plaintiff referred to State of New South Wales v Bouffler (2017) 95 NSWLR 521; [2017] NSWCA 185 (“Bouffler”), in which the Court of Appeal (Beazley ACJ, Ward and Gleeson JJA) considered the meaning of “reasonable grounds” as that phrase appears in ss 99(2) of LEPRA. The Court held that:

4. [162]

   The plaintiff submits that it is apparent from the Magistrate’s judgment that his Honour applied the subjective test but did not then consider whether a reasonable person in the position of the defendant at the time would have considered the contested baton strikes to be reasonable and proportionate to the risk or danger that was sought to be prevented. The failure of the Magistrate to give any consideration to the objective test constituted an error of law, regardless of whether the common law test is imported into s 230 or it is exclusively the objective test.

5. [163]

   The plaintiff’s second ground is closely related to the first, namely, that if the Magistrate did apply the objective test, his Honour failed to provide reasons as to why he found that the prosecution had not established that the defendant’s use of force with the contested baton strikes failed the objective test.

The defendant’s submissions

1. [164]

   The defendant submitted that s 230 is to be understood as importing the common law test for determining “reasonable necessity”, that is, a subjective and objective test, although the defendant also submitted that the plaintiff had mis-stated it in its submissions to this Court. The defendant submitted that the objective test is correctly expressed in the passage from R v Turner [1962] VR 30 that was excerpted by Heydon JA in Woodley v Boyd, namely, incorporating a double negative: whether a reasonable person in the position of the police officer would not consider the use of force by the police officer to be disproportionate to the risk or danger sought to be prevented. I note this is essentially the same formulation that was put by the prosecutor to the Magistrate, as excerpted at [138] above.

2. [165]

   The defendant complained that there is an inherent unfairness in the plaintiff advancing a different construction to s 230 to that which was advanced in the Local Court.

3. [166]

   Pursuant to ss 34(1) and (2)(f) of the Interpretation Act 1987 (NSW), the defendant relied upon the Second Reading Speech of the Law Enforcement (Powers and Responsibilities) Bill 2002, delivered on 17 September 2002, in which the Attorney General, the Hon Bob Debus, said:

4. [167]

   In his written submissions, the defendant submitted that, contrary to the plaintiff’s submission, the Magistrate found that at the time of the contested baton strikes only SC Roach was with the defendant, since SC Mates had gone to get the police van and SC Sims had “walked away”. However, in oral submissions, the defendant conceded that it is apparent from the video that SC Sims did not stand from where he was crouching at the complainant’s feet until after the fifth contested strike.

5. [168]

   In response to ground 1, the defendant submitted that it is apparent from the Magistrate’s reasoning in the passages extracted in [152] and [153] above that his Honour accepted the evidence of the defendant that he was not angry or “vengeful” at the time of the contested baton strikes and, by necessary implication, that the objective test was satisfied.

The plaintiff’s submissions in reply

1. [169]

   The plaintiff contended that the prosecutor had not submitted to the Magistrate that there was a subjective, as well as objective, test., since she had only referred to Woodley v Boyd as “guidance”. I note, however, that when she did so, she did not distinguish the reference in the passage extracted from R v Turner that referred to the subjective test.

2. [170]

   The plaintiff submitted, that, in any event, no unfairness would be occasioned to the defendant if the Court found in favour of the defendant in that regard, because the plaintiff’s complaint is as to the Magistrate’s failure to apply the objective test, regardless of whether there is also a subjective test. In that sense, the plaintiff has not raised a fresh argument.

3. [171]

   The plaintiff submitted that the common law did not apply to s 230, referring to s 4 of LEPRA, which states:

4. [172]

   The plaintiff submitted that the reference to the common law being overridden “by implication” displaces extraneous material in the form of the Second Reading Speech, which was to the effect that it could only be displaced by express words.

5. [173]

   An example of an application of s 4 of LEPRA is Director of Public Prosecutions (NSW) v Tamcelik (2012) 224 A Crim R 350; [2012] NSWSC 1008 (“DPP v Tamcelik”), in which Garling J considered whether the common law is excluded by implication from applying to Pt 6 of LEPRA, which concerns search, entry and seizure powers of police officers relating to domestic violence. In essence, at [79] to [87], his Honour found that the terms of the relevant sections of Pt 6 were quite specific as to when a police officer may enter premisses for the purpose of investigating whether a domestic violence offence has been or is about to be committed, who may invite the police officer in (a person who apparently resides in the dwelling), the circumstances in which a warrant is required for entry and what limits apply to what actions the police officer may take, once inside. His Honour concluded:

6. [174]

   The plaintiff relied upon a reference to s 230 and s 231 of LEPRA by Brereton JA in State of New South Wales v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 (“Ouhammi”) at footnote 28 to [53], in which his Honour said:

7. [175]

   The plaintiff submitted that Brereton JA’s construction is consistent with the interpretation of similar statutory provisions in interstate jurisdictions. Section 615 of the Police Powers and Responsibilities Act 2000 (Qld) (“to use reasonably necessary force”) was held in Commissioner of Police v Flanagan [2019] 1 Qd R 249; [2018] QCA 109 by Philippides JA, at [49], to be a “purely objective test” and by McMurdo P, at [73], to be “an objective view”. In Western Australia, s 16 of the Criminal Investigation Act 2006 (WA) (“reasonably necessary”) was considered in Elwin v Robinson [2014] WASCA 46 by the Court, at [61], to mean “an objective evaluation of all of the surrounding circumstances”.

Consideration

1. [176]

   Section 34(1) of the Interpretation Act 1987 (NSW) sets out the circumstances in which, pursuant to s 34(2)(f), a court may have regard to the Second Reading Speech of a Bill for an Act to interpret a provision of that Act:

2. [177]

   The circumstances in which, pursuant to s 4(1) of the LEPRA, the Act overrides the common law is clear and thus the reference in the Second Reading Speech to the Bill not being intended to change the common law unless “expressly stated” is of no assistance in the construction of s 230. The question for determination is whether, pursuant to s 4(1), the meaning of “reasonably necessary” in s 230 at common law is displaced by implication.

3. [178]

   In Attorney General for New South Wales v XX [2018] NSWCCA 198 the Court succinctly stated the principles of statutory construction:

4. [179]

   In relation to how the competing constructions accord with “the language and purpose of the all the provisions of the statute,” as noted, the plaintiff submitted that the meaning of the reasonableness test elsewhere in LEPRA, such as in s 99(2), is exclusively the objective test as determined in Bouffler at [87]. However, at [90], the Court approved a passage from Hyder v Commonwealth of Australia (2012) 217 A Crim R 571; [2012] NSWCA 336 (“Hyder”), that referred with approval in turn to a passage from the judgment of Lord Hope in O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 (“O’Hara”). These were the two cases cited by the Court as support for its conclusion at [87], in Bouffler. The relevant passage in Hyder is set out in the judgment of McColl JA, at [56], who quotes from O’Hara as follows:

5. [180]

   Clearly then, the Court in Bouffler accepted that the subjective test was also relevant, although it is rarely the sticking point; in most cases, it is more of an evidentiary formality. The real issue in such cases is the objective test, which likely explains why in Bouffler, at [87], the subjective test was not expressly identified as a relevant test.

6. [181]

   The passage in Ouhammi by Brereton JA, extracted at [174] above, does not, in terms, exclude the subjective test. It went no further than stating that the objective test in ss 230 and 231 of LEPRA was not satisfied in the circumstances of that case.

7. [182]

   The test of reasonable necessity occurs throughout LEPRA in multiple contexts for a range of purposes. In all but one of those contexts, it is expressed in terms of what is “reasonably necessary”. An exception is s 33(5) and (6) of LEPRA, which read as follows:

8. [183]

   In those sections, the term is qualified so as to confine its meaning in the context of strip searches regulated by ss 33(5) and (6) to an objective rather than subjective test, which is consistent with it being construed in s 230 to incorporate its meaning at common law.

9. [184]

   In my view, little assistance is derived from a consideration of the term “reasonably necessary” in isolation or in the context of Pt 18; it is inherently ambiguous as to whether reasonableness is to be understood as a subjective or objective consideration, or both.

10. [185]

    In DPP v Tamcelik, in concluding that certain sections of Pt 6 of LEPRA excluded the operation of the common law by implication, Garling J found that the detailed provisions in Pt 6 that governed when a police officer could exercise certain functions were inconsistent with the common law as to the powers of a police officer. The legislative protection afforded to police officers by s 230, however, is simply expressed in terms that directly reflect the terminology that has developed in the common law. The term “reasonably necessary” was one of the formulations of reasonableness expressly identified by Heydon JA in Woodley v Boyd. There is no qualification of that term in s 230, which tends towards a conclusion that the common law has not been excluded by implication.

11. [186]

    For those reasons, I conclude that the term “reasonably necessary” in s 230 is to be understood as incorporating the common law test. I find that the objective test is as stated in R v Turner and quoted with approval by Heydon JA in Woodley v Boyd, which is to this effect when appropriately modified for the purposes of s 230: whether a reasonable person in the position of the police officer would not consider the use of force by the police officer to be disproportionate to the risk or danger sought to be prevented.

12. [187]

    When examining an ex tempore judgment that is delivered in the Local Court, it is appropriate to recall the daily pressures under which magistrates conduct their courts, without the benefit of the resources that are available to judicial officers in higher courts. Analysis and any criticism should be expressed and understood in that context.

13. [188]

    As noted, the Magistrate accepted the evidence of the defendant and the evidence of SC Roach and SC Mates as to the resistance offered by the complainant and the difficulties they said they encountered in subduing him. Although only SC Roach gave evidence of the complainant springing up from the ground when he and the defendant first arrived, the Magistrate accepted it. The Magistrate also accepted the evidence of SC Roach and the defendant that the complainant approached SC Roach and threw a punch at him.

14. [189]

    Although the Magistrate referred to the meaning of the “reasonably necessary” test and Woodley v Boyd, he did not articulate the objective aspect of it. Nor did his Honour expressly turn his mind to a consideration of the evidence advanced by each of the parties as to whether, objectively, the contested baton strikes were disproportionate to the level of threat posed by the complainant. No mention was made of what a reasonable person in the defendant’s position would think of the proportionality of the contested baton strikes to the level of threat posed at that point in time by the complainant.

15. [190]

    The defendant’s submission that it can be inferred from the terms in which the Magistrate accepted the evidence of the defendant, SC Roach and SC Mates as to their perceptions at that time, that his Honour’s consideration and findings related to the objective test, is unpersuasive.

16. [191]

    The passages from the Magistrate’s judgment relied upon by the defendant that are excerpted at [152] and [153] above refer generally to the entire incident rather than discretely to the level of threat posed by the complainant and the security options available to police at the time of the six contested baton strikes. The Magistrate did not assess the extent to which the level of any threat had been mitigated by the time the contested baton strikes occurred and the proportionality of those strikes to that threat. Accepting the Magistrate’s findings as to the difficulties faced by the police officers, a live issue remained as to the objective reasonableness of the contested baton strikes.

17. [192]

    Had the Magistrate performed such an assessment, there were particular aspects of the evidence that warranted consideration from that perspective. Accepting that the Magistrate found the evidence of the eyewitnesses to be unreliable and putting their evidence to one side, there remained the video. Relevant aspects of the video evidence as to the issues of whether the defendant’s six baton strikes were reasonably necessary include the following:

18. [193]

    There were other uncontested aspects of the evidence that were not apparent from the video that were also relevant to the objective test:

Determination

1. [194]

   I conclude that ground 1 is made out and, in the absence of any consideration of the objective test, that it constitutes an error of law. It is unnecessary to consider ground 2, since it assumes that the first ground is unsuccessful. It follows that it is also unnecessary to consider the alternative basis of judicial review of the proceedings in light of it being advanced on a limited basis as an alternative form of relief for ground 2. It is also unnecessary to determine whether the defendant was disadvantaged by the plaintiff advancing a different construction of s 230 than the one that it advanced in the Local Court, since I have rejected the plaintiff’s submission to that effect.

Costs

1. [195]

   The plaintiff seeks an order for costs if it is successful on the appeal. In my view, it would be inappropriate to do so. It is no fault of the defendant that the Magistrate fell into error.

Orders

1. [196]

   I make the following orders: