Director of Public Prosecutions v Wong [2019] NSWLC 14

Local Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Wong [2019] NSWLC 14 Hearing dates: 30 July 2019 Date of orders: 16 August 2019 Decision date: 16 August 2019 Jurisdiction: Criminal Before: Farnan LCM Decision: Offence proved Catchwords: CRIME — Violent offences — Common assault – By police officer Legislation Cited: Law Enforcement (Powers and Responsibilities) Act (NSW) 2002 s230, 231; Crimes Act (NSW) 1900 s 418 Cases Cited: Woodley v Boyd [2001] NSWCA 35; Lindley v Rutter [1981] QB 128 Category: Principal judgment Parties: Director of Public Prosecutions Representation: Mr Croner for Direction of Public Prosecutions Mr Haverfield for Defendant File Number(s): 2019/00006593 Publication restriction: No

Judgment 1. On 23 March 2018 Adam Farmer was detained by police on Polding St Fairfield for the offence of entering inclosed lands (trespass). It seems he was also suspected of being involved in breaking and entering premises in that vicinity. The defendant Senior Constable Daniel Wong was one of the police who attended to assist. He has been charged with assaulting Mr Farmer. He was the driver of the caged police vehicle used to transport Mr Farmer to Fairfield Police Station. 2. There is no dispute that Mr Farmer's arrest was lawful. In accordance with section 230 and 231 of the Law Enforcement Powers and Responsibilities Act (LEPRA) police were entitled to use reasonable force in carrying out that arrest, and in placing Mr Farmer in the police vehicle. It is not disputed that his head came into contact at least twice with a part of that vehicle before he had been placed into it, after the use of some force by Senior Constable Wong. The prosecution case is that the defendant pushed Mr Farmer's head into a panel of the truck deliberately, after Mr Farmer continued to swear having been told to stop. The defendant says that he pushed Mr Farmer's body away in order to create space, as spittle was coming from Mr Farmer's mouth when he was swearing. 3. I am required to determine what force was actually applied, what was happening at the time the force was applied, and whether that use of force reasonable in the circumstances, or, if not reasonable force for the purpose of the arrest was Senior Constable Wong nevertheless acting in reasonable self defence in applying that force, in accordance with section 418 Crimes Act. 4. These are criminal proceedings and the onus is on the prosecution to prove each element of the offence to my satisfaction beyond a reasonable doubt. Where self defence arises, the onus is on the prosecution to prove beyond a reasonable doubt that the defendant was not acting in self defence. 5. I have heard evidence from the defendant, from Mr Farmer, and from three other police officers who were present at the time of the incident. They were Probationary Constable Rovella, who was the defendant's partner on the night, Constable Duong and Probationary Constable Nguyen. Two other police had been present, however had left before the incident occurred. 6. The following is clearly established beyond a reasonable doubt from the evidence, and is not in any real dispute. Mr Farmer was intoxicated by alcohol when he was detained. He was "compliant but uncooperative", in that he was doing what he was told but was not assisting police, for example, with inquiries they were making into the location of a bag he had allegedly been seen with earlier in the night. When he was told he was to be taken back to the police station he was unhappy. When he was told he was being arrested for trespass he protested that it was a matter that could be dealt with by a field court attendance notice, (which did not require him to be taken to the police station). He was swearing as he was taken towards the rear of the police truck. That included yelling out the words "fuck you" a number of times to Senior Constable Wong. 7. There is a question about whether he was handcuffed at that point in time. Mr Farmer gave evidence that he was. The defendant and Constables Nguyen and Duong say that he was not, and the third officer, Probationary Constable Rovella who initially gave evidence that he was handcuffed ultimately agreed in cross examination that he could not remember exactly when that occurred. At the very least he was being held by the defendant and possibly Rovella, with the defendant using one hand to hold Mr Farmer's hands behind his back as they walked towards the truck and when they arrived there. 8. I am not satisfied beyond a reasonable doubt that Mr Farmer was handcuffed before his head hit the truck. It is at least more probable that he was placed on the ground and handcuffed to the rear as given in evidence by Constables Nguyen, Duong and the defendant, after the incident where his head hit the truck. While acknowledging Mr Farmer's evidence that the handcuffing happened earlier, I also note that he was intoxicated at the time, that there is no doubt that his hands were in fact being held to his rear and that it is possible he is mistaken about this aspect of the matter. He described the defendant as having hold of the handcuffs with one hand and the "scruff of the neck" with the other. 9. There is a dispute about whether he was resisting at that point in time. The only witness who says that he was is the defendant, who says that he was "flexing". He was not charged with the offence of resisting an officer at any time. 10. There is also a question about whether there was spittle coming from his mouth as he was shouting, although it is not suggested that he was deliberately spitting at the defendant. Again, the defendant is the only person who says that that did happen although other witnesses agreed that it may have. 11. The most important factual dispute concerns the circumstances surrounding Mr Farmer's head striking the truck. Senior Constable Wong gave evidence and also participated in an interview with investigating police on 7 September 2018. He agreed in that interview that he pushed Mr Farmer's body into the back of the police truck and that his head could have come into contact with the police truck. He said "I pushed his body into the caged truck each time he swore and as he was swearing because he was spitting". He was asked if Mr Farmer resisted whilst he was being arrested and he said "The arm behind his back was flexed and there was resistance at that time and each time he would talk he would lean back to swear". In evidence before me he said "well as he was swearing he was spitting, I don't know if it was intentional or unintentional but it was spitting either like a fine mist or globs of saliva. … That's when I had my left hand on the – like the neck and just push him away from me because I didn't want that on me." When he gave that evidence he demonstrated touching Mr Farmer in the area below the collar of his shirt, and with an extended arm and open palm. He said "So when we were walking just – he wasn't facing me, he was swearing but he didn't, he wasn't spitting so we moved him, then when we got to the back that's when he turned to face me and that's – he's still swearing more loudly and that's when the spit was coming out his mouth, that's when I push him away from me (transcript extract 4.15) 12. As I have indicated, there is no onus on the defendant to prove anything. The prosecution must prove its case beyond a reasonable doubt. 13. Particularly in relation to the first time his head struck the vehicle Mr Farmer absolutely denied that he had been facing towards the defendant at all. He said he had his back to him. There is no dispute that it was his forehead that hit the vehicle more than once, at a time when the defendant was holding Mr Farmer's arms with his other hand. 14. Probationary Constable Ravella had been a police officer for about 4 months at the time of the incident. He appeared hesitant when giving his evidence and it was replete with phrases such as "I guess", "it would have", "from memory" and "most probably", ordinarily used by witnesses expressing lack of confidence about a particular fact. While the use of the term "I guess" appeared to be more a habit of speech on many occasions rather than a statement of actually guessing, the use of these terms does indicate a measure of uncertainty which I have to take into account in assessing his evidence. 15. His evidence was that Senior Constable Wong said to Mr Farmer "see what happens if you swear again". He said that Senior Constable Wong then "grabbed his head and pushed it against the truck", and that when Mr Farmer continued to swear he did the same thing again. The clear inference from this evidence is that the defendant's conduct was deliberate, in a sense as a punishment for the continued swearing. At that point Constable Rovella was the closest of the police to Mr Farmer and Senior Constable Wong, although he believed that Constable Duong was only about a metre away. Despite his general qualifications of his evidence, Constable Rovella did not express any real doubt about the words he recalled senior Constable Wong saying, and the action he recalled observing. It was put to him that Senior Constable Wong actually said "Stop swearing, I'm warning you, stop swearing", and he did not appear to distinguish that from the words he said he had heard. In re-examination he said that he meant "that if Adam continued with his actions that Senior Constable Wong would have an action". The defendant in cross-examination agreed with the proposition "you gave him in effect a warning to stop swearing". 16. Whether the words were as initially recalled by Cst Rovella or as agreed in evidence by Senior Constable Wong is in my view of little moment. On either version, those words immediately preceded the action taken by the defendant when Mr Farmer continued to swear. 17. Constable Rovella agreed it was possible that there had been spittle coming from Mr Farmer's mouth when he was swearing. When it was put to him that Mr Farmer turned towards Senior Constable Wong he said "that's most probably what happened but I can't remember exactly". 18. Unlike Constable Rovella, Constable Duong expressed no uncertainty. He was an impressive witness who appeared to be doing his best to tell the truth. Some things he was unable to recall and he said so. He said that when Mr Farmer was swearing at Senior Constable Wong he heard Wong say "stop swearing, I warned you, stop swearing". He said "I saw Senior Constable Wong grabbed him – grabbed Mr Farmer by the back of his head and then slam it against the side of the car." He said he heard three loud sounds when he hit the side of the car. He said that he stepped in to grab Senior Constable Wong's arm to try to stop him when he "slammed" Mr Farmer's head against the side of the truck. He said he heard three bangs and that after that Senior Constable Wong took Mr Farmer to the ground and handcuffed him. He said that he and Constable Nguyen discussed it after the incident and that he also discussed it that night with a mobile supervisor out in the field – his evidence was "as a police officer I only inform what I have seen to my senior officer". 19. The only issue on which his evidence differed in any material respect from other witnesses was in where he said the incident happened - he said at the side of the truck and the others at the back of the truck. There are two reasons that I do not consider his evidence to be weakened by this apparent inconsistency. One is that there appeared to be some confusion among the witnesses about the terminology "side" and "back" of the truck, the latter term being used to indicate generally the rear of the truck rather than the actual back of it where the number plate was, and the former to indicate a part of the truck vertical to the ground. That was particularly the case with Constable Duong. The other is that clearly at different points in time Mr Farmer was at both locations. Mr Farmer himself gave evidence in relation to when his head made contact with the van saying "I was directly in line with the back door of the paddy wagon but back far enough for it to swing open, and I was still being held by the officer. I was facing towards the back of the truck, to the door.". It is common ground that the door is in fact on the side of the truck. During cross-examination of Mr Farmer I did not understand there to be any issue at all about the location where the incident took place, and to the extent that Mr Farmer gave evidence about it his evidence was consistent with the evidence of Constable Duong. I do not consider this aspect of the matter to be of any particular significance in assessing Constable Duong's evidence. 20. Constable Duong was an impressive witness and there was nothing about his evidence that would lead me to have any concerns about its accuracy and reliability. 21. Probationary Constable Nguyen had been a police officer for about 11 months. He gave a number of different forms of words with which Senior Constable Wong told Mr Farmer to stop swearing, and his initial description of Senior Constable Wong's action was "used one of his hands and placed it on the back of Mr Farmer's head and press against the rear of the truck". He went on to describe the head as "colliding" with the truck, and described Mr Farmer as facing towards the truck. He said that Constable Wong "push and pull" Mr Farmer's head about three times. He said he didn't observe anything physical coming from Mr Farmer, and that his face was facing the truck. 22. Constable Nguyen said that he had spoken to Constable Duong after the incident about the use of force. He said "well when we got to the car I expressed my concerns to him about the use of force that Constable Wong has used". In re-examination, he said "I told Constable Duong that often when we go to a job we either assist the officers in dealing with the POI – the defendant – or we dealt with an defendant in excessive force or reasonable force, but when Constable Wong was dealing with Mr Farmer, I told him that I didn't know if I should assist Constable Wong or Mr Farmer because of what had happened". Having seen Constable Nguyen give that evidence he appeared to me to be genuinely recalling his concern about the situation as he had expressed it on the night. 23. It was submitted that there had been contamination of the evidence of Constables Duong and Nguyen because they had discussed the incident after it happened. At that stage there was no investigation, and in any case there was nothing about their evidence to suggest that it was so consistent as to raise such a possibility. I do not accept that the conversation which took place between the officers in the car, and later with a supervisor in the field during a coffee break at McDonald's, raises any concern about contamination at all. It does suggest there was no delay in Constable Nguyen expressing his concern about the matter, and on Constable Duong's account he also clearly had concerns. 24. None of the three police agreed in cross examination that before the first time his head hit the truck Mr Farmer was facing towards senior Constable Wong, although Constable Ravella said he "probably" was when he was swearing at him. None of them agreed that Senior Constable Wong's hand was placed between Mr Farmer's shoulder blades. Although they agreed that there may have been spittle coming from Mr Farmer's mouth when he was swearing, none of them saw it. All of them heard Senior Constable Wong warning Mr Farmer to stop swearing just before his action in pushing Mr Farmer's head into the truck more than once. None of them saw any resistance by Mr Farmer. 25. On the account given by these three officers the pushing of Mr Farmer's head into the truck by the defendant could not possibly have been a reasonable use of force in the course of arrest. On their account it was clearly perceived to be an act of retaliation by the Senior Constable Wong against Mr Farmer after he failed to obey the direction to stop swearing. 26. However, Senior Constable Wong's evidence is that he took the action because of the spittle coming from Mr Farmer's mouth, and that the contact with the truck was essentially accidental or incidental to pushing him away to create distance. Reminding myself that there is no onus on him to prove anything, nevertheless all of the other evidence is inconsistent with that. I therefore consider whether his evidence causes me to have a doubt about accepting the evidence of the other three officers. 27. I have been reminded of the exhortation of Justice Heydon in Woodley v Boyd [2001] NSWCA 35 that "in evaluating the police conduct the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight", and of the duties of a constable who has a prisoner in his charge "to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, …" Lindley v Rutter [1981] QB 128 extracted in Woodley v Boyd. 28. The defendant's evidence was that he just pushed Mr Farmer away, with his hand between his shoulder blades. I have already noted some of what he told investigating police. His evidence in court was in part unresponsive and self serving. In response to the question "So you accept that Mr Farmer's head collided with the vehicle at least two times?" he said "I pushed his body away when he was spitting at me". It was put to him "You didn't ask him to stop spitting?" he said "I told him to stop swearing, which essentially means he stops talking meaning no spit". In relation to the direction Mr Farmer was facing he said "So when I put him onto the vehicle he wasn't facing me then, or when he started swearing that's when he would face me". He said that his intention was to handcuff Mr Farmer at the back of the vehicle and that he wasn't able to do that because Mr Farmer "turned around to swear and spit". 29. It was put to him "Well at the point at which you pushed his head against the van, you say that you were concerned about him flexing his arm and resisting arrest, but you didn't call upon the other officers to assist you? A: It's kind of implied when you see an officer struggling you'd help, you don't kind of wait for someone to ask you for help. Q: But no one did assist you did they? A: No one did." 30. As I have indicated, no other officer gave any evidence of observing any resistance by Mr Farmer, there was no comment about it by Senior Constable Wong at the time, and I do not accept that any physical resistance occurred. 31. I come to the question of whether Mr Farmer turned to face Senior Constable Wong while swearing. If indeed he had turned to face Senior Constable Wong immediately before his head came into contact with the truck the first time, and the pushing were an immediate reaction to that, it is very unlikely to have been the front of his head that struck the vehicle. Noting the evidence of Constables Nguyen and Duong and the equivocal acceptance of that proposition by Constable Ravella, I do not accept the defendant's evidence on that issue. 32. Senior Constable Wong gave evidence of being particularly concerned about germs in the course of his work. He gave evidence of using sanitiser around the office and also in the field. He gave evidence that he used gloves in the course of an arrest when he had time to, but that on this occasion he didn't have time. I do not accept that evidence. He himself agreed that there was no urgency in arresting Mr Farmer, because he was being compliant when he exited the police car. This fact leads me to reject the defendant's evidence that he is particularly susceptible to germs. If that were indeed true, one would expect him to use gloves in arresting a person on any occasion where that was possible. This was clearly such an occasion. 33. It is possible that when he was swearing there was spittle coming from Mr Farmer's mouth, however I do not accept that when swearing Mr Farmer had initially turned to face Senior Constable Wong. I accept beyond reasonable doubt that when he pushed Mr Farmer's head into the truck Senior Constable Wong had his hand on Mr Farmer's head or neck as described by the other officers, that Mr Farmer was facing the truck and continuing to swear, and that Senior Constable Wong deliberately pushed Mr Farmer's head into the truck in retaliation for Mr Farmer continuing to swear after being warned to stop. In doing so I take into account that Mr Farmer's head struck the truck at least twice, consistent with the action being retaliation rather than reaction. 34. The prosecution has proved beyond a reasonable doubt that the defendant's account of pushing Mr Farmer away, with his hand below his neck, because spittle was coming from his mouth is not true. 35. Noting those factual findings, I do not consider that there is any room for this action to be considered the use of reasonable force in the course of an arrest. This was not a situation where there was any relevant pressure of events that could justify a police officer acting in the way I have found occurred. There was no reason for force to be used at all to handcuff Mr Farmer before putting him into the police truck. 36. The only remaining issue is whether the prosecution has proved beyond a reasonable doubt that the defendant was not acting in self defence when he took the action he did. Having regard to the factual findings I have made I do not consider that self defence arises. Whether a police officer can use more force in self defence than is reasonable under LEPRA is not a question that I need to determine in this case. 37. I find the defendant guilty of assault.