Citation: [2014] NSWLC 24
Court: NSW Local Court
Date: 16 December 2014
Judge: LCM Farnan
Background
Four police officers were prosecuted following the detention of a man (referred to here as the deceased) in Pitt Street, Sydney, in the early hours of 18 March 2012. The deceased died shortly after the incident, though the proceedings were not concerned with responsibility for his death. The Director of Public Prosecutions made no allegation that any of the four accused caused his death, and the evidence as to cause of death was described as inconclusive.
Two officers, Senior Constable Edmondson and Probationary Constable Barling, faced charges of assault occasioning actual bodily harm (with common assault as an alternative). They were alleged to have used Tasers on the deceased after he was handcuffed and on the ground. The two remaining officers, Senior Constable Lim and Constable Ralph, faced common assault charges: Lim for Taser use and Ralph for use of oleoresin capsicum (OC) spray, again while the deceased was handcuffed and on the ground.
The prosecution's case was that each officer used more force than was reasonably necessary in effecting the arrest. It was not alleged that the arrest itself was unlawful, nor that any use of force was unlawful in principle.
Legal Issues
- Whether each officer used force that was reasonably necessary to effect the arrest, as required by s 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Whether the prosecution proved beyond reasonable doubt either that the officer did not reasonably believe his conduct was necessary, or that his conduct was not in fact reasonably necessary in the circumstances as he perceived them
- Whether each officer knew the deceased was handcuffed at the time force was applied (a factual element necessary, though not conclusive, for proof of the offences)
- What weight should be given to the good character of Officers Lim and Barling
Decision
LCM Farnan applied the common law test drawn from R v Turner [1962] VR 30 and affirmed in Woodley v Boyd [2001] NSWCA 35: an officer may use such force as he or she reasonably believes necessary, provided the means adopted would not be considered disproportionate by a reasonable person in the same position. Crucially, the court emphasised that this assessment must be made from the perspective of the officer in the moment, not with the benefit of hindsight from the comparative calm of a courtroom.
The Magistrate had detailed Taser footage available, along with expert evidence from a TASER International representative who standardised the timestamps across the different weapons. This allowed the court to reconstruct the sequence and timing of each discharge. The court also received evidence about police training, including the Tactical Options Model and Standard Operating Procedures for Taser use, including provisions governing "drive stun" mode and the circumstances in which continued or multiple Taser use required justification.
Considering each case separately, the Magistrate was not satisfied beyond reasonable doubt that the prosecution had disproved either the officers' belief in the necessity of their actions or the objective necessity of those actions in the circumstances as each officer perceived them. The deceased had actively resisted arrest over a sustained period, had previously broken free from multiple officers, and continued to struggle even after being handcuffed. The training materials in place at the time did not clearly prohibit the use of a Taser on a person who was on the ground and handcuffed. In the absence of prosecution evidence as to what an officer should have done differently in those specific circumstances, the court was left with reasonable doubt on the central question for each accused.
All four officers were found not guilty.
Orders Made
• Mr Barling is found not guilty
Key Takeaways
- Under s 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), police use of force is lawful only if reasonably necessary, but the test is applied by reference to the officer's perception at the time, not in retrospect.
- The Local Court confirmed that courts must avoid "minute retrospective criticisms" of officers acting in volatile, fast-moving situations, following the approach articulated in Woodley v Boyd and McIntosh v Webster.
- A finding that a suspect was handcuffed when force was used is a necessary factual element for the prosecution, but it is not by itself conclusive proof that the force was unreasonable or unnecessary.
- Where police training materials in effect at the time left open the possibility that a particular use of force could be justified in the circumstances, that was a relevant factor weighing against proof beyond reasonable doubt of excessive force.
- Good character evidence was treated as relevant both to the credibility of the officers who gave evidence and to the likelihood that they acted in the manner alleged, consistent with established principles.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 231
- Weapons Prohibition Act 1998 (NSW)
Cases
- R v Turner [1962] VR 30
- Woodley v Boyd [2001] NSWCA 35
- McIntosh v Webster (1980) 43 FLR 112
- State of NSW (NSW Police) v Nominal Defendant [2009] NSWCA 225