Citation: Director of Public Prosecutions v Wong [2019] NSWLC 14
Court: NSW Local Court
Date: 16 August 2019
Judge: Farnan LCM
Background
In March 2018, police detained Adam Farmer on a Fairfield street on suspicion of trespass and possible involvement in a break-and-enter. Senior Constable Daniel Wong attended the scene and was the driver of the police truck used to transport Farmer to Fairfield Police Station.
As Farmer was being walked toward the rear of the truck, he was swearing repeatedly at Senior Constable Wong. It was not disputed that Farmer's head came into contact with the vehicle at least twice before he was fully placed inside it.
The prosecution alleged that Wong deliberately pushed Farmer's head into the truck as a reaction to the continued swearing. Wong maintained that he had pushed Farmer's body away, with his hand below the neck, to avoid saliva coming from Farmer's mouth while he swore.
Legal Issues
- Whether the force applied by Senior Constable Wong constituted an assault, or was instead reasonable force lawfully used in the course of an arrest under ss 230 and 231 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA)
- Whether, if the force was not reasonable for the purpose of the arrest, Wong was nevertheless acting in lawful self-defence under s 418 of the Crimes Act 1900
- What force was actually applied, and what the circumstances were at the moment of contact
Decision
The magistrate first made detailed factual findings about the incident. The court rejected Wong's account that he pushed Farmer's body away because of incoming spittle. Several factors informed this conclusion: other officers present described Wong placing his hand on Farmer's head or neck, Farmer's forehead struck the vehicle twice (consistent with a deliberate act rather than an incidental reaction), Wong had said words to the effect of warning Farmer about what would happen if he continued swearing, and the defendant's claimed aversion to germs was undermined by his own concession that there had been no urgency preventing him from wearing gloves during the arrest.
The magistrate accepted beyond reasonable doubt that Wong deliberately pushed Farmer's head into the truck in retaliation for continued swearing after a warning to stop. The court gave particular weight to the evidence of Probationary Constable Rovella, who was closest to the incident and recalled both the warning and the physical action, despite some general uncertainty in his evidence on other points.
On the question of reasonable force, the court found no room for the conduct to be characterised as force lawfully used in carrying out the arrest. Farmer had been compliant, there was no relevant urgency, and no force was required at all to handcuff him prior to placing him in the truck. The conduct was retaliatory, not functional.
Self-defence was also rejected. Having found that the push was a deliberate retaliatory act rather than a response to a perceived threat, the court held that self-defence did not arise on the facts. The court expressly left open the separate question of whether a police officer could, in an appropriate case, rely on a wider self-defence right than the reasonable force permitted under LEPRA.
Orders Made
• The defendant is found guilty of assault.
Key Takeaways
- The Local Court found that force applied by a police officer during an otherwise lawful arrest is not rendered reasonable simply because the detainee was behaving in an uncooperative or offensive manner.
- A retaliatory use of force, distinct from force required to effect the arrest or ensure officer safety, falls outside the scope of lawful force permitted under ss 230 and 231 of LEPRA.
- Where a defendant officer's account of the circumstances justifying force is rejected on the facts, a self-defence claim under s 418 of the Crimes Act 1900 cannot be sustained on the same factual basis.
- The court left unresolved whether police officers may, in appropriate circumstances, rely on a broader right of self-defence than the reasonable force standard set by LEPRA.
- Credibility findings turned substantially on corroboration from other attending officers and the internal consistency of each account, including conduct (such as not wearing gloves) that contradicted the defendant's claimed reasons for acting.
Legislation and Cases Referenced
Legislation
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 230, 231
- Crimes Act 1900 (NSW), s 418
Cases
- Woodley v Boyd [2001] NSWCA 35
- Lindley v Rutter [1981] QB 128