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District Court 29 March 2022

R v Kershaw

[2022] NSWDC 90

Assault & violencePublic order & justice offences
INTIMIDATION ASSAULT ASSAULT OCCASIONING ACTUAL BODILY HARM.

Citation: R v Kershaw [2022] NSWDC 90
Court: District Court of New South Wales
Date: 29 March 2022
Judge: Wilson SC DCJ

Background

The accused faced six counts arising from an incident at Buff Point on 16 June 2020. The charges included intimidating and assaulting a civilian (Glenn Jerome), and assaulting two police officers (Senior Constable Dekort and Senior Constable Kinghorne) while they were executing their duty, occasioning actual bodily harm to each.

The accused pleaded guilty to the intimidation charge, the assault on the civilian, and the alternative charges of assault occasioning actual bodily harm on each officer (which did not require proof that the officers were acting in the execution of their duty). The remaining contest was confined to the two counts alleging assault on police officers while in execution of duty, under s 60(2) of the Crimes Act 1900 (NSW).

The trial proceeded before a judge alone, with the consent of both the accused and the Director of Public Prosecutions under s 133 of the Criminal Procedure Act 1986 (NSW).

  • Whether the arresting officers were acting in the execution of their duty at the time they were assaulted, which turned on whether the arrest was lawful.
  • Whether Senior Constable Kinghorne complied with the requirements under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) to inform the accused of the reason for his arrest before or at the time of arrest.
  • Whether it was "reasonably practicable" for the officers to provide that reason for arrest in the circumstances, including the accused's conduct and intoxication.

Decision

The court's analysis centred on the lawfulness of the arrest, specifically the obligation under LEPRA to inform a person of the reason for their arrest. Under ss 201 and 202 of LEPRA, a police officer must inform a person of the reason for arrest as soon as reasonably practicable. If that obligation is not met, and it was practicable to comply, the arrest is unlawful.

Wilson SC DCJ examined the circumstances in detail: police had been called to the scene knowing the accused had been violent and made further threats, the accused was intoxicated, and he was kneeling on the ground as the officers approached across roughly 15 metres from the road. The accused's mother had told police he "seems ok now, but he's quite violent, he will need to be handcuffed." Senior Constable Kinghorne placed his hand on the accused's back to commence the arrest without first stating the reason for it.

The Crown argued that the accused's subsequent violent and aggressive conduct had deprived the officers of the opportunity to give the required information. The court rejected this reasoning. It found that, having regard to all the circumstances, including the time available as the officers walked the 15 metres to the accused, it was reasonably practicable for Senior Constable Kinghorne to inform the accused of the reason for the arrest before commencing the act of arrest.

Because the arrest was unlawful, the officers were not acting in the execution of their duty when they were assaulted. The Crown therefore failed to prove an essential element of the s 60(2) charges beyond reasonable doubt, and the accused was acquitted on Counts 3 and 5.

Orders Made

  • The accused was acquitted of Count 3 (assault on Senior Constable Dekort, a police officer in the execution of her duty, occasioning actual bodily harm) and Count 5 (assault on Senior Constable Kinghorne, a police officer in the execution of his duty, occasioning actual bodily harm).
  • The matter was listed for sentence on 10 June 2022 in respect of:
  • Count 1: intimidating Glenn Jerome
  • Count 2: assaulting Glenn Jerome
  • Count 4: assaulting Senior Constable Dekort, occasioning actual bodily harm
  • Count 6: assaulting Senior Constable Kinghorne, occasioning actual bodily harm
  • The offender was directed to attend sentencing in person.
  • The parties were directed to comply with Practice Note 20.

Key Takeaways

  • A charge of assaulting a police officer in the execution of duty under s 60(2) of the Crimes Act 1900 (NSW) requires proof that the officer was acting lawfully at the time of the assault; an unlawful arrest defeats that element.
  • Under ss 201 and 202 of LEPRA, police must inform an arrested person of the reason for arrest as soon as reasonably practicable. Where circumstances permit compliance before the act of arrest commences, failure to do so renders the arrest unlawful.
  • The District Court declined to accept that an accused person's subsequent violence could retrospectively excuse a prior failure to provide the reason for arrest, where the evidence showed the opportunity to do so existed beforehand.
  • An acquittal on the s 60(2) charges did not preclude the accused from facing sentence for the alternative charges of assault occasioning actual bodily harm on the same officers, to which guilty pleas had already been entered.
  • In a judge-alone trial under s 133 of the Criminal Procedure Act 1986 (NSW), the judge is required to apply and record the same directions on onus, standard of proof, and inferential reasoning that would ordinarily be given to a jury.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 60(2)
- Criminal Procedure Act 1986 (NSW), s 133
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 4, 201, 202

Cases
- AK v Western Australia [2008] HCA 8
- Fleming v R (1998) 197 CLR 250
- Christie and Leachinski [1947] AC 573
- Adams v Kennedy (2009) 49 NSWLR 78
- State of New South Wales v Delly (2007) 70 NSWLR 125
- State of New South Wales v Smith (2017) 95 NSWLR 662
- Robinson v State of New South Wales (2018) 100 NSWLR 782
- New South Wales v Robinson (2019) 266 CLR 619
- Coleman v Power [2004] HCA 39