Citation: Curro v R (No. 1) [2021] NSWDC 757
Court: District Court of New South Wales
Date: 17 September 2021
Judge: Neilson DCJ
Background
The appellant had pleaded guilty to two counts of breaching an Apprehended Personal Violence Order (APVO) made in favour of a solicitor who was representing his former wife in Family Court proceedings. The APVO breaches arose from emails the appellant sent that were copied to the solicitor, some of which contained threatening or disturbing content, including a reference to attending court "drenched in petrol holding a cigarette lighter."
On 16 May 2019, two officers, Senior Constable Brookes and Constable Kopanja, attended the appellant's address at Five Dock to arrest him for those APVO breaches. After an unanswered knock at the door, they returned to their vehicle and shortly after observed the appellant emerge from the driveway gate. Senior Constable Brookes approached and told the appellant he was under arrest. The appellant resisted, moving back toward the driveway gate, and a physical struggle followed during which the appellant was taken to the ground on the concrete driveway.
The appellant was subsequently convicted in the Burwood Local Court of two offences: resisting both officers in the execution of their duty, and assaulting Constable Kopanja in the execution of her duty. A third charge, of assaulting Senior Constable Brookes, was dismissed by the Magistrate. The appellant appealed both convictions to the District Court.
Legal Issues
- Whether the arrest was lawful under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), specifically whether the officers had properly turned their minds to whether arrest was "reasonably necessary"
- Whether the officers had sufficient knowledge of the offence to justify the arrest, given that they appeared to have been directed to arrest the appellant by a superior officer
- Whether the use of force during the arrest was excessive under s 231 of LEPRA, and if so, whether that excessive force vitiated the lawfulness of the arrest
Decision
On the question of whether the arrest was reasonably necessary under s 99 of LEPRA, Neilson DCJ was not persuaded by the appellant's submission that the officers had failed to properly turn their minds to the necessity of arrest. The evidence established that the officers had been directed to attend and had knowledge that the appellant was wanted for breaching an APVO. The surrounding circumstances, including the content of the emails and the solicitor's expressed fear for her safety, provided a sufficient basis for the arrest.
On the force used during the arrest, the court found that taking the appellant to the ground on the concrete driveway did not amount to excessive force in the circumstances. The soft tissue injury near the appellant's left eye resulted from his own resistance rather than from any disproportionate action by the officers.
Critically, the court held that even if excessive force had been used, that would not have vitiated the arrest. The court drew on Woodley v Boyd [2001] NSWCA 35 and DPP (NSW) v GW [2018] NSWSC 50, noting that no authority supported the proposition that excessive force during an otherwise lawful arrest renders that arrest unlawful. The court observed that a victim of excessive force may have a civil remedy in trespass to the person, but that remedy is distinct from any question of the arrest's validity.
The appeal was dismissed on all grounds.
Orders Made
• The appeal against the two convictions is dismissed.
Key Takeaways
- The District Court confirmed that the use of excessive force during an arrest does not vitiate an otherwise lawful arrest. No authority to the contrary was identified.
- Where excessive force is used in the course of a lawful arrest, the arrested person's remedy lies in a civil action for trespass to the person, not in a challenge to the arrest's validity.
- Under s 99 of LEPRA, officers directed by a superior to arrest a person for an APVO breach are not necessarily required to independently establish each element of reasonable necessity, provided the surrounding circumstances support the arrest.
- In dismissing the appeal, the court applied DPP (NSW) v GW [2018] NSWSC 50, which itself confirmed that police holding a lawful power to arrest do not act illegally merely because they did not first consider an alternative step such as issuing a court attendance notice.
- Injuries sustained by an arrested person during a lawful arrest may be characterised as a consequence of the person's own resistance, particularly where the court finds the level of force used was not excessive.
Legislation and Cases Referenced
Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99 and 231
Cases:
- Woodley v Boyd [2001] NSWCA 35
- DPP (NSW) v GW [2018] NSWSC 50
- Hyder v The Commonwealth of Australia [2012] NSWCA 366