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District Court 17 October 2008

R v William John Murray

[2008] NSWDC 226

Assault & violencePublic order & justice offences
CRIMINAL LAW TRIAL JUDGE ALONE SELF DEFENCE

Citation: R v William John Murray [2008] NSWDC 226
Court: District Court of New South Wales
Date: 17 October 2008
Judge(s): Hulme SC DCJ

Background

Two plainclothes police officers attempted to arrest the accused in Chippendale on the evening of 26 January 2007. They did so after receiving a police radio notification that a "wanted" notation existed for a breach of bail condition against the accused, dated three days earlier. Although that underlying belief ultimately proved mistaken, the officers acted on information received in the field.

A violent struggle broke out almost immediately after the officers announced the arrest. According to the prosecution, the accused resisted and assaulted both officers and, at one point, attempted to seize the pistol of one of them in order to prevent his own apprehension. He did not gain complete control of the weapon. The accused eventually broke free and ran.

The accused was charged with two counts of resisting a police officer in the execution of duty, two counts of assaulting a police officer in the execution of duty, one count of attempting to use an offensive weapon to prevent lawful apprehension, and one count of escaping from lawful custody. He elected a judge-alone trial and pleaded not guilty to all counts, raising self-defence.

  • Whether the officers held a belief on reasonable grounds, under s 50 of the Bail Act 1978, that the accused had breached his bail conditions, and therefore had lawful power to arrest him.
  • Whether the officers were acting "in the execution of their duty" throughout the incident, notwithstanding that their underlying belief about the bail breach was ultimately mistaken.
  • Whether the accused's conduct was authorised by self-defence under ss 418 and 422 of the Crimes Act 1900, including whether self-defence was available against officers who were lawfully executing their duty.
  • Whether the Crown had disproved self-defence beyond reasonable doubt on the facts as found.

Decision

Lawful power of arrest. Senior Constable Owen knew the accused was on bail subject to geographical restrictions. When Constable Evans radioed for information, the operator confirmed a current "wanted" notation for breach of bail dated 23 January 2007. Defence counsel conceded, and the court agreed, that this was sufficient to establish a genuine belief on reasonable grounds under s 50 of the Bail Act 1978. The fact that the belief was ultimately mistaken did not undermine the lawfulness of the arrest.

Officers acting in the execution of duty. The court applied a broad interpretation of the concept, drawn from DPP Reference No 1 of 1993; R v K (1993) 118 ALR 596. An officer acts in the execution of duty from the moment they embark on a lawful task connected with their functions, and continues to do so until the task is completed, provided they do not step outside the ambit of their duty. Hulme SC DCJ was satisfied the officers did not exceed the force reasonably necessary to effect the arrest and remained within their duty throughout the incident.

Self-defence. The court acknowledged that self-defence is available, under ss 418 and 422 of the Crimes Act 1900, even where the conduct being responded to is lawful, a position confirmed by the Court of Criminal Appeal in Crawford v R [2008] NSWCCA 166. However, the court rejected the accused's evidence about the sequence of events, preferring the accounts given by the two officers on all critical points.

Self-defence rejected on the facts. Hulme SC DCJ was satisfied the accused did not act to defend himself or to prevent an unlawful deprivation of his liberty. The court drew an inference, supported by the accused's own evidence about a prior incident in December 2006, that the accused's conduct was motivated solely by a desire to avoid being arrested and detained, not by any genuine belief that defensive action was necessary.

Orders Made

  • Verdicts of guilty returned on all six counts.

Key Takeaways

  • Under s 50 of the Bail Act 1978, the relevant question for the existence of an arrest power is whether the officer held a genuine belief based on reasonable grounds, not whether the underlying factual premise of that belief was correct.
  • A mistaken but reasonably held belief in a bail breach is sufficient to render an arrest lawful, and officers acting on such a belief remain in the execution of their duty throughout the resulting encounter.
  • Self-defence under ss 418 and 422 of the Crimes Act 1900 is available in principle even where the police conduct responded to is itself lawful, as confirmed by the Court of Criminal Appeal in Crawford v R [2008] NSWCCA 166.
  • The District Court nonetheless rejected self-defence on the evidence, finding that resistance motivated solely by a desire to avoid lawful arrest does not satisfy the requirement that the accused believed defensive action was necessary.
  • In a judge-alone trial, credibility findings are central: the court's acceptance of the officers' accounts on all critical matters was determinative of both the substantive charges and the self-defence issue.

Legislation and Cases Referenced

Legislation
- Bail Act 1978 (NSW), s 50
- Crimes Act 1900 (NSW), ss 418, 422
- Criminal Procedure Act 1986 (NSW), s 132
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Australian Federal Police Force Act 1979 (Cth), s 64

Cases
- Crawford v R [2008] NSWCCA 166
- Director of Public Prosecutions Reference No 1 of 1993; R v K (1993) 118 ALR 596
- Director of Public Prosecutions v Gribble [2004] NSWSC 926