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District Court 15 March 2024

Hood-Carberry v R

[2024] NSWDC 295

Assault & violencePublic order & justice offences

Citation: Hood-Carberry v R [2024] NSWDC 295
Court: District Court of New South Wales
Date: 15 March 2024
Judge: Haesler SC DCJ

Background

Just before midnight on 12 June 2023, police responded to a volatile incident on the NSW South Coast involving multiple people. Constable Standley encountered the appellant in the backyard of premises that were not his own. The appellant admitted he was in breach of his bail curfew conditions, and the constable was aware of this.

The constable directed the appellant to come with him to the front of the premises. The appellant did not comply. The constable then used physical force to move him, including strikes to the head and a leg sweep. The appellant continued to resist, including kicking out at the constable as he was placed in a police van.

The appellant was subsequently charged and convicted in the Local Court of resisting a police officer in the execution of duty and assaulting a police officer in the execution of duty. He appealed both convictions to the District Court.

  • Whether the District Court could identify factual, legal, or discretionary error in the Magistrate's findings sufficient to warrant intervention on appeal.
  • Whether Constable Standley was acting in the lawful execution of his duty at the relevant times, either under the Bail Act 2013 (NSW) or the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA).
  • Whether, absent the officer acting in the execution of duty, the elements of both offences were made out beyond reasonable doubt.

Decision

Haesler SC DCJ conducted the appeal as a rehearing on the record, including police body-worn camera footage and the Local Court transcript. The District Court identified error in the Magistrate's conclusion that the constable was acting in the execution of his duty throughout the relevant events.

The central difficulty was that Constable Standley never told the appellant he was under arrest for breaching his bail conditions. The constable acknowledged in evidence that he did not communicate the reason for arrest until the appellant was back at the police station. The constable's stated objective at the time was simply to gain control of a non-compliant person, not to exercise a specific power of arrest under the Bail Act or to comply with LEPRA requirements.

Haesler SC DCJ found that the appellant's bail breach may have retrospectively justified the officer's actions, but it was not established that the officer believed at the time he was exercising a lawfully conferred power. The officer made no attempt to explain to the appellant why he was being directed, struck, handcuffed, or placed in a van, even as the appellant repeatedly stated he was injured and sought an ambulance. The Court noted that a brief, clear explanation of the reason for arrest could have defused the situation.

Because the prosecution had not established that the constable was acting in the execution of his duty at the relevant times, neither offence was proved beyond reasonable doubt. The District Court set aside both convictions and all orders of the Local Court.

Orders Made

  • Both convictions (resist police in the execution of duty; assault police in the execution of duty) set aside.
  • All orders of the Local Court set aside.

Key Takeaways

  • The District Court held that for offences of resisting or assaulting police "in the execution of duty" to be established, the prosecution must prove that the officer was in fact exercising a lawfully conferred power at the time of the alleged conduct.
  • A known breach of bail conditions does not automatically render all subsequent police conduct lawful; the officer must actually be exercising powers under the Bail Act or LEPRA in accordance with their requirements, not merely presuming a right to detain or use force.
  • Failure to communicate the reason for arrest or detention is a material consideration. Where an officer applies force to secure compliance without identifying the legal basis for that conduct, this may undermine the "execution of duty" element.
  • Retrospective justification for an officer's actions, based on facts that existed at the time but were not acted upon procedurally, was insufficient to satisfy the court that the officer was executing his duty at the moment the relevant conduct occurred.
  • The note appended to the judgment flags that Bugmy v DPP (NSW) [2024] NSWCA 70, decided shortly after this appeal, allowed a related appeal and set aside a conviction on a charge arising in similar circumstances, suggesting the Court of Criminal Appeal's approach to these questions is consistent with the reasoning applied here.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)

Cases:
- Bugmy v Director of Public Prosecutions (NSW) [2023] NSWSC 862
- Bugmy v Director of Public Prosecutions (NSW) [2024] NSWCA 70
- Charara v R (2006) 164 A Crim R 39
- Dearman v Dearman (1908) 7 CLR 549
- Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50
- Director Public Prosecutions v Gribble [2004] NSWSC 926
- Fox v Percy (2003) 214 CLR 118
- McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298