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District Court 11 September 2017

R v KING, Alex

[2017] NSWDC 374

Assault & violencePublic order & justice offences
CRIMINAL APPEAL 18 YEAR OLD ABORIGINAL MALE DIAGNOSED MENTAL HEALTH CONDITIONS INTOXICATED AT THE TIME OF ARREST IN A PUBLIC PLACE

Citation: R v KING, Alex [2017] NSWDC 374
Court: District Court of New South Wales
Date: 11 September 2017
Judge(s): Judge S Norrish QC

Background

The appellant, an 18-year-old Aboriginal man with diagnosed mental health conditions, appealed findings of guilt made by the Broken Hill Local Court on 19 December 2016. The offences arose from an incident on 27 April 2016, when police detained the appellant in a public place. He was intoxicated at the time and had asked police for a lift to a residential address, not knowing (or not being told) he was instead being taken to Broken Hill Police Station.

Once at the police station, the appellant's conduct in the custody area gave rise to three charges: one count of assault occasioning actual bodily harm against a Senior Constable (punching him as the appellant was placed in the dock), and two counts of assaulting police officers in the execution of their duty (kicking one officer in the lower back and spitting at another). The appellant did not dispute the physical acts themselves; his challenges went to the lawfulness of the underlying detention and the conduct of the officers involved.

The appeal proceeded before Judge Norrish on the Local Court transcript and exhibits, including closed-circuit television footage from the custody area. The judge formed his own view of the evidence rather than reviewing the Magistrate's rulings.

  • Whether evidence of the custody incidents should be excluded under s 138 of the Evidence Act 1995 (NSW) on the basis that it was obtained as a consequence of illegal or improper police conduct, particularly non-compliance with Part 16 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
  • Whether the police officers were acting in the execution of their lawful duty at the time of the assaults, given the alleged unlawfulness of the original detention
  • Whether the prosecution had negatived self-defence beyond reasonable doubt

Decision

Evidence exclusion: The appellant argued that his original detention was unlawful because police had failed to comply with s 206 of LEPRA (which governs the detention of intoxicated persons), including failing to make enquiries about a responsible person, giving no information about what was to happen to him, and making no proper record under s 209. The court considered the submission that "but for" the illegal police conduct the assaults would not have occurred. The court ultimately declined to exclude the evidence under s 138 of the Evidence Act 1995.

Execution of duty: The appellant contended that because his detention was unlawful and excessive force had been used, the officers could not have been acting in the execution of their lawful duty. The court considered the circumstances, including that the appellant had not been told he was being taken to the station rather than to his sister's address. The court was not satisfied that this argument displaced the prosecution's case on the execution of duty element.

Self-defence: The court applied the two-limb self-defence test: whether the prosecution had proved beyond reasonable doubt that the appellant did not believe the acts were necessary to defend himself, or that his response was not a reasonable one in the circumstances as he perceived them. Taking the appellant's intoxication into account where relevant, the court was satisfied the prosecution had negatived self-defence beyond reasonable doubt on either or both limbs.

Judicial comment on police conduct: While dismissing the appeals, Judge Norrish made pointed remarks about the treatment of the appellant. The court expressed that the appellant had not been treated particularly well, that the situation could have been avoided with greater respect for his rights as a citizen, and that the better course would have been to take him to hospital rather than the police station.

Orders Made

• The appeals are dismissed

Key Takeaways

  • In dismissing all three appeals, the District Court upheld the Local Court's findings of guilt on each charge, notwithstanding significant criticisms of the police conduct that preceded the assaults.
  • A finding that police acted improperly or failed to comply with statutory detention requirements under LEPRA does not automatically mean evidence obtained in those circumstances will be excluded under s 138 of the Evidence Act 1995, nor that officers were not acting in the execution of their duty.
  • The self-defence provision requires the prosecution to negate either that the accused believed the act was necessary for self-protection, or that the act was a reasonable response in the circumstances as the accused perceived them; proof of either limb suffices.
  • Where an intoxicated person is detained, the court's reasoning reflects that the degree of compliance with LEPRA's procedural requirements remains a live issue, though non-compliance did not here produce acquittal.
  • The court's remarks acknowledged that the appellant had not been informed he was being taken to the police station rather than to the address he had requested, and that taking him to hospital would have been the preferable course.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 60(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), s 138
- Intoxicated Persons Act 1979 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 16, ss 205, 206, 209
- Summary Offences Act 1988 (NSW)

Cases:
- Alla v Gleeson (NSWSC, October 1985, Roden J, unreported)
- R v Kaye (1993) 118 ALR 596