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Local Court 30 October 2023

Police v Ruddick

[2023] NSWLC 16

Firearms & weaponsPublic order & justice offences

Citation: Police v Ruddick [2023] NSWLC 16
Court: Local Court of New South Wales
Date: 30 October 2023
Judge(s): Clisdell LCM

Background

In the early hours of 21 November 2022, NSW Police received multiple calls reporting a man dressed in black walking on the Federal Highway near Sutton, apparently behaving erratically and possibly attempting to be struck by vehicles. Officers attended, located a nearby parked vehicle, and identified the likely occupant through police records as the accused. They then spotted the accused on Macs Reef Road, Bywong, carrying a screwdriver and a hubcap, with a bag on his chest containing multiple knives and other implements.

Over several minutes, the officers repeatedly asked the accused to stop so they could conduct a welfare check. He declined to engage, told officers to leave him alone, and continued walking. When officers ultimately intervened physically, the accused pushed free of them. Officers deployed OC spray and drew a Taser before eventually restraining him with the assistance of a member of the public.

The accused was charged with two offences: possessing knives in a public place without reasonable excuse under section 11C of the Summary Offences Act 1988 (NSW), and resisting police in the execution of their duty under section 60(1AA) of the Crimes Act 1900 (NSW). He pleaded not guilty, and the matter proceeded to hearing on undisputed facts drawn from body-worn video footage, CAD messages, photographs, and officer statements.

Legal Issues

  • Whether the police were acting lawfully in the execution of their duty when they physically intervened to stop and search the accused, specifically whether their authority arose under section 21 or section 23 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
  • Whether the accused's conduct amounted to a physical resistance capable of establishing the resisting police charge.
  • Whether the items seized from the accused satisfied the definition of a "knife" under the Summary Offences Act 1988 (NSW).
  • Whether the accused had offered any reasonable excuse for his possession of the knives and implements.

Decision

Issue 1: Lawful execution of duty and the correct statutory power

The defence argued that the police were acting under section 21 of the Law Enforcement (Powers and Responsibilities) Act 2002, which requires a suspicion that a weapon has been used in an offence, and that no such suspicion existed. The magistrate rejected this framing. The police were initially responding under their statutory welfare obligations in section 6 of the Police Act 1990, which required them to attend and assess a report of potential self-harm (at [26], [51]). Once they observed the accused carrying dangerous implements, they were empowered to stop and search him under section 23 of the Law Enforcement (Powers and Responsibilities) Act 2002, which was inserted by 2018 amendment and expressly authorises a search where officers reasonably suspect a person possesses dangerous implements, without requiring any suspicion of a prior offence (at [24], [51]).

The magistrate found that the police actions were consistent with their duties and were not tainted by malice. They could not know whether the accused might walk back onto a roadway, and observing a person carrying a screwdriver, a hubcap, and a bag full of bladed implements in a public place gave ample grounds for concern (at [49]). The accused's refusal to cooperate did not extinguish the officers' obligation to remain and act (at [26]).

Issue 2: Possession of knives without reasonable excuse

The items seized included two meat cleavers, a machete, a handheld axe/hammer, and a screwdriver, all of which satisfied the statutory definition of a knife under the Summary Offences Act 1988 (at [17]). The accused declined to speak with police during the encounter and gave no evidence at hearing, meaning no reasonable excuse was advanced for his possession of those items in a public place (at [18]).

Issue 3: Physical resistance

The defence submitted that the accused's walking away from officers did not amount to a physical resistance, and that any resistance occurred before any lawful arrest. The magistrate found that, because the relevant power being exercised was section 23 of the Law Enforcement (Powers and Responsibilities) Act 2002 rather than section 21, the question of whether a formal arrest had occurred was not determinative. The accused physically pushed free of officers at the police vehicle, which the magistrate found was sufficient to establish the resist charge. The magistrate also noted that the accused's conduct more broadly, requiring OC spray and force before he was brought to the ground, likely also constituted resistance (at [54]).

Orders Made

  • Both offences of unlawful custody of knives and resisting police proven beyond reasonable doubt.
  • The knives and screwdriver forfeited to police.

Key Takeaways

  • Section 23 of the Law Enforcement (Powers and Responsibilities) Act 2002, inserted by 2018 amendment, grants police authority to stop and search a person where they reasonably suspect possession of dangerous implements. This power does not require any suspicion that an offence has been committed or that items were used in a prior offence, distinguishing it from the section 21 power.

  • A statutory welfare obligation under section 6 of the Police Act 1990 can ground a lawful police presence and initial engagement, even where the person of interest refuses to cooperate or directs officers to leave. The magistrate found that the obligation to check welfare persisted until officers were satisfied the person was safe or no longer a risk.

  • Where a person is found in a public place in possession of items satisfying the statutory definition of "knife" under the Summary Offences Act 1988, and offers no reasonable excuse, the possession offence under section 11C is established. A broad range of implements, including cleavers, a machete, an axe/hammer, and a screwdriver, satisfied that definition on the facts.

  • Physical resistance sufficient for a charge under section 60(1AA) of the Crimes Act 1900 does not require a formal arrest to have been completed, provided the officers were lawfully exercising a recognised power at the time. Here, a single act of pushing free from officers was held sufficient to establish the charge.

  • Contested police powers cases turn closely on identifying the precise statutory source of authority being exercised at the relevant moment. The Local Court here found the outcome under section 23 differed fundamentally from what it would have been had section 21 applied.

Legislation and Cases Referenced

Legislation
- Police Act 1990 (NSW)
- Summary Offences Act 1988 (NSW)
- Crimes Act 1900 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases
- Jankovic v DPP [2020] NSWCA 31
- DPP v Carr [2002] NSWSC 194
- R v Rondo [2001] NSWCCA 540
- DPP v Gribble (2004) 151 A Crim R 256
- Street v Bowler NSWSC unreported
- Robinson v State of NSW [2018] NSWCA 231