Citation: Kurt Michael Devetak v R [2018] NSWDC 23
Court: District Court of New South Wales
Date: 22 February 2018
Judge: Judge AC Scotting
Background
The appellant was a police officer charged with assault occasioning actual bodily harm (under s 59 of the Crimes Act 1900) and common assault (under s 61) following an incident at Redfern Police Station on 17 June 2016. A man in custody had been banging on his cell door and calling out. The appellant opened the door, and a physical struggle ensued at the cell threshold.
During the scuffle, the detainee grabbed the appellant's clothing at shoulder height. Another officer, Constable Cross, moved in to assist. The appellant pushed the detainee forcefully back into the cell and fell on top of him. He then punched the detainee twice on the left side of the head. Both punches, as well as the broader struggle, were captured on high-quality video footage from inside the cell.
The Local Court magistrate convicted the appellant of both offences. The appellant appealed to the District Court, arguing the magistrate erred in rejecting his claims of self-defence and the lawful use of force under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).
Legal Issues
- Whether the appeal involved an error of law, fact, or discretion sufficient to warrant intervention by the District Court
- Whether the appellant's first punch was justified under the self-defence provisions of s 418 of the Crimes Act 1900
- Whether the appellant's first punch was justified under s 231 of LEPRA, which permits police officers to use reasonably necessary force to prevent escape
- Whether the same justifications extended to the second punch
- Whether the prosecution had negatived self-defence or lawful force beyond reasonable doubt in relation to each punch separately
Decision
Judge Scotting conducted a rehearing on the certified transcripts and video evidence from the Local Court. The appeal was against conviction on both counts and required the District Court to form its own view of the facts while acknowledging the magistrate's advantage in observing witnesses.
On the first punch, His Honour found the prosecution had not negatived self-defence or the lawful force defence under LEPRA. The punch was thrown in the heat of the moment immediately after the detainee had grabbed the appellant. At that point, the appellant did not clearly know that Constable Cross had come to his aid and could reasonably have perceived the detainee as a continuing threat. The force used was a reasonably proportionate response to the circumstances as the appellant perceived them. The conviction for assault occasioning actual bodily harm was set aside.
The second punch attracted a different conclusion. By that point, the detainee had been subdued, Constable Cross was lying across his legs, and the detainee showed no sign of further movement or aggression. The appellant had stood up, straddled the detainee's torso, leant down, and appeared to say something before delivering the blow. His Honour found the second punch was thrown in retribution rather than defence, a conclusion reinforced by the appellant's smiling demeanour as he left the cell, visible on the video. The prosecution had proven beyond reasonable doubt that neither self-defence nor the LEPRA lawful force justification applied.
Accordingly, the conviction for the more serious charge was set aside, but the appellant was found guilty of common assault in relation to the second punch.
Orders Made
- Appeal against conviction allowed in part
- Conviction for assault occasioning actual bodily harm (and the associated penalty) set aside
- Offence of common assault found proven
- Parties to be heard on sentence
Key Takeaways
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The District Court applied the established principle that a conviction appeal under s 18(1) of the Crimes (Appeal and Review) Act 2001 is a rehearing on the transcripts, not a fresh trial, but still requires the appellate judge to form an independent view of the facts.
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Under s 418 of the Crimes Act 1900, the self-defence inquiry divides into two questions: first, whether there was a reasonable possibility the accused genuinely believed their conduct was necessary (assessed subjectively); and second, whether the conduct was a reasonable response to the circumstances as the accused perceived them (assessed objectively). The prosecution must negative both questions beyond reasonable doubt.
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Section 231 of LEPRA provides police officers with a parallel lawful force justification when using force to prevent escape from custody. The same two-limb structure applies: genuine belief and reasonable proportionality.
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A single physical incident may require separate analysis for each distinct act of force. A finding that early force was lawful does not automatically extend to later force delivered once the threat has been neutralised.
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Objective evidence, particularly high-quality video footage, can decisively shape an appellate court's assessment of an accused's state of mind and purpose, even where the events unfolded rapidly.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 59, 61, 418
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 231
Cases
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Dyason v Butterworth [2015] NSWCA 52
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Bandana v Director of Public Prosecutions [2016] NSWCA 140
- Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
- R v Katarzynski [2002] NSWCCA 613
- R v Conlon (1993) 69 A Crim R 92
- Woodley v Boyd [2001] NSWCA 35
- Lindley v Rutter [1981] QB 128
- McIntosh v Webster (1980) 43 FLR 112
- State of New South Wales v Nominal Defendant [2009] NSWCA 225