Curro v R (No. 1) [2021] NSWDC 757

District Court New South Wales

Medium Neutral Citation: Curro v R (No. 1) [2021] NSWDC 757 Hearing dates: 17 September 2021 Date of orders: 17 September 2021 Decision date: 17 September 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: The appeal against the two convictions recorded that are the subject of the all grounds appeal is accordingly dismissed. Catchwords: CRIME – APPEAL – Appellant convicted of two charges: (i) resisting 2 police officers in the execution of their duty; and (ii) assaulting one of them – The police were arresting the appellant – Challenge to the necessity of the arrest and on allegation of the use of excessive force – Use of excessive force does not vitiate an arrest, if it be otherwise justified. Legislation Cited: Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: DPP (NSW) v GW [2018] NSWSC 50 Hyder v The Commonwealth of Australia [2012] NSWCA 366 Woodley v Boyd [2001] NSWCA 35 Texts Cited: Nil Category: Principal judgment Parties: Appellant – Andrew Curro R – Crown Representation: Appellant Bowe Crown Dando File Number(s): 2019/00154191 Publication restriction: Nil

Judgment 1. HIS HONOUR: This is an appeal against two convictions recorded by Magistrate Viney sitting in the Burwood Local Court on 15 March 2021. The two relevant offences were known as sequence 3 and sequence 5. Sequence 3 was an allegation that on 16 May 2019 at Five Dock the appellant did resist Philip Brookes and Natasa Kopanja being a Senior Constable/Constable executing his/her duty. The sequence 5 offence was that on 16 May 2019 at Five Dock the appellant did assault Natasa Kopanja being a constable in the execution of her duty. Also contested was an offence known as sequence 4 which was of an allegation of an assault upon Senior Constable Brookes during the arrest by Senior Constable Brookes and Constable Kopanja of the appellant at the residence at which he was staying at the time at Five Dock. The learned magistrate was not convinced that that offence had been made out and dismissed the allegation of assault of Senior Constable Brookes. 2. The appellant has prepared written submissions. There are a number of different submissions about different aspects of this case. The written submissions in question are headed "Submissions All Grounds Appeal" and comprise four pages and were signed by the appellant's solicitor, Mr Bowe, on 9 September 2021. The challenge made is under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 ("LEPRA") and under s 231 of LEPRA. As far as the first challenge is concerned the submissions of the appellant are these: "12 It is obvious from the evidence that neither police officer was aware as to the 'nature' or 'seriousness' of the offence. They had not appropriately turned their minds that the arrest was reasonably necessary. There does not seem to be any proper assessment that it was reasonably necessary. In a proper assessment of what is reasonable, police officers should have turned their mind to why the appellant should not be sent a court attendance notice in the mail. Arrest should be the last step to inform an accused. There is no evidence that that thought process was effectively processed. 13 The police officer's knowledge for the purposes of the arrest is stated above 'we were, I am assuming we were informed by our superior'. If the police officers were directed by another police officer, then in accordance with s 99 of LEPRA, there is no evidence from that officer that he was of the view that it was 'reasonably necessary to arrest the appellant'. SC Brookes can only assume that they were informed that 'Andrew was wanted for breaching his AVO'. He was uncertain what the breach was but assumed that he was informed that there was a breach by his superior." 1. The oral evidence before the Local Court included evidence given by Senior Constable Raven Whaitiri-Ross from the City Sydney Police I very cautiously assume that the Senior Constable was a lady based on my understanding of her first name and I shall use the feminine pronouns in referring to her. If I use the incorrect pronouns I apologise. On 15 May 2019 Senior Constable Whaitiri-Ross attended upon Jessica Swain, a solicitor employed by a law firm located in the Central Business District of Sydney. The Senior Constable took from Ms Swain a statement which became exhibit 2 in the Local Court. Exhibit 1 in the Local Court was an Apprehended Personal Violence Order made on 10 September 2018 for a period of one year in which the person in need of protection was Jessica Elizabeth Swain. The APVO was made against the appellant. Inter alia the appellant was required not to approach Ms Swain or contact her in any way unless the contact was through a lawyer. The APVO gave as an example to the appellant this: "You must not approach or contact Jessica Elizabeth Swain in person or through electronic communication (for example, by phone, text message, emails, or facebook or other social media)." Ms Swain was a solicitor, an Associate with Uther Webster & Evans of Clarence Street Sydney. She was representing a Victoria Curro, a wife or former wife of the appellant in proceedings before the Family Court between Victoria Curro and the appellant. 1. Sequence 1 and sequence 2 offences were allegations of a breach by the appellant of the APVO made in favour of Jessica Swain. Those breaches were admitted by pleas of guilty. The appellant had been sending emails to Ms Swain. True it is that they were emails addressed to others but she was copied into them and she in her statement expressed concerns for her safety. Par 10 of her statement is this: "In a number of emails that Andrew sent he addressed the staff [at] Uther Webster & Evans...as animals and savages. The escalation in Andrew's behaviour has made me fearful for my safety. He has mentioned suicide and other ideas of self-harm relating to the court proceedings. I am really concerned, because even though I am one of a number of people in the emails, I am concerned about what he may do." The emails are before me and one of them which was sent to Ms Swain contained this matter: "What if somebody was to turn up drenched in petrol holding a cigarette lighter? Could they speak to a judge?" That was primarily directed to the registry of the Family Court but it was also copied to Ms Swain. 1. The next witness called after Senior Constable Whatieri-Ross was Constable Natasa Kopanja. The thrust of her evidence in-chief was this. On Thursday 16 May 2019 she was working between 2pm and 12am with Senior Constable Philip Brookes. They were in a police car. She was the driver and Senior Constable Brookes was the observer. That Constable Kopanja was the driver is the natural inference to be drawn from the evidence given by Senior Constable Brookes that can be found at T37.19. They drove to Harris Road, Five Dock about an hour before 8.20pm. They carried out some general surveillance of that road and the buildings in it and kept a lookout for the appellant. At 8.20pm they moved closer to 52 Harris Road Five Dock where the appellant was then living. Having parked the car close to the appellant's address, how close is not stated nor whether they parked this car on the same side of the street as the appellant's house was, the two police officers alighted from the vehicle, went to the front door and knocked. They waited for a while but their knock was not answered and they left. They returned to the car and resumed their seats. 2. About five minutes later Constable Kopanja saw the appellant come out from a gate which barred the driveway of the house. There was a photograph of the front of the house which was shown to both Constable Kopanja and Senior Constable Brookes but it was not put into evidence. As I understand it, the residence at 52 Harris Road, Five Dock was either a freestanding house or a semi-detached house. On the left hand side of the house as one faces it was a driveway which was blocked by large gates, I assume towards the front of the house, such that persons could not go down the driveway and into the backyard without opening these gates which, being described as large, I assume were probably about 6 foot high. There is also reference to a small gate about either a half to one metre high which I assume gave access to a path which led to the front door of the house and was probably in a low fence between the public street and the front yard of the house. 3. When she saw the appellant come out from the gate across the driveway she saw him go to the front small gate and close it. She then said to Senior Constable Brookes, "There he is, let's go". Senior Constable Brookes immediately left the vehicle. One infers that he was closer to the appellant than was Constable Kopanja. If that be correct, then the police car was parked on the same side of the street as was the appellant's residence. When she left the vehicle Constable Kopanja had to lock the vehicle. It is clear on the evidence of both the police officers that Senior Constable Brookes went ahead of Constable Kopanja. Constable Kopanja thought that the Senior Constable had run towards the appellant but Senior Constable Brookes said that he walked towards the appellant. He stepped over the small front gate. Constable Kopanja took time to open it, no doubt lengthening the time that she was behind the Senior Constable as the Senior Constable approached the appellant. 4. Constable Kopanja's evidence continued in this fashion: "By the time I got out, locked it, I saw Senior Constable Brookes had approached Andrew and I heard him say, 'You're under arrest for breach AVO' and I was trying to open the small gate to..get through. And then as I approached Andrew and Senior Constable Brookes that's when I've seen Senior Constable Brookes grab Andrew by the arm, like up here and Andrew was moving back towards that large gate...towards the premises. So then I've gone up as well...Andrew was screaming, 'I haven't done anything. I haven't done anything'.....So I saw Andrew take steps, like going towards inside that large gate where, like towards the backyard where the driveway was. And he had his - he had his hands clenched to his chest and that's when I tried to grab his upper arm to get a hold of it and somehow he ended up past the large gate, in the driveway where the backyard, where it leads to the backyard. And then we struggled there for a little bit and we kept saying, 'Put your hands back'. Like 'Give me your hands', something like that. I can't remember exactly. And then at one point I had to let go because Senior Constable Brookes had grabbed his arm and put him on the ground.....I was trying to grab his hands behind so I could put handcuffs on them....and then, and then Andrew was on the ground and then he was just thrashing his body around, kicking, and then, let me see, he was on the ground kicking and then he hit my left shin because I was standing in front where his legs were and...he kind of had his back on the ground like arms were still clenched in his chest. He was just moving around kicking, kicking his leg and thrashing his body around." At that stage the prosecutor described what the Constable was demonstrating, that is, that the appellant had his forearms in front of his chest with his fists clenched under his chin and he was moving his body in a way that could be described as "thrashing". Constable Kopanja thought that that activity lasted for about two minutes. 1. Then the appellant's brother intervened and was told by Senior Constable Brookes that he and Constable Kopanja were police officers. He showed him his police badge and told the brother to go back inside the house. Constable Kopanja then heard glass break and that caused her to call for urgent assistance on her police radio. The police were then confronted by the appellant's brother who took up a martial arts position holding his hands out in some martial arts pose. According to Constable Kopanja, Senior Constable Brookes told the brother to get back and to go away but then he used capsicum spray and applied it to the face of the brother and also to the face of the appellant. Both the police officers were still trying to get the appellant's hands behind his back to handcuff him. Once sprayed with capsicum spray the brother decamped. The police were then able because of the capsicum spray applied to the appellant's face able to restrain him with handcuffs. Very shortly thereafter other police arrived. I assume that these were uniformed police. Both the Senior Constable and Constable Kopanja were in plain clothes hence the necessity for Senior Constable Brookes to produce his police badge. 2. Relevant to the first challenge to this conviction is this evidence from Constable Kopanja given in cross-examination: "Q. Whose decision was it to arrest Mr Curro? A. Well we, we, we got the case, the matter. We saw that he was outstanding for, there was an outstanding matter that he needed to be arrested, offered the chance to be interviewed about the alleged offences that were committed. So we, we went there to arrest him and, and investigate the matter further. Q. Whose decision was it to arrest Mr Curro? A. Ours. Q. Did you turn your mind at any time to completing charge paperwork and serving it on Mr Curro at his residence? A. No. Q. You knew who his identify was? A. Yes. Q. You knew where he lived? A. Yes. Q. What was the basis for arresting him and taking him back to a police station? A. The nature and seriousness of the offence. A breach AVO. Q. The seriousness. You would agree that the allegation was that Mr Curro sent two emails cc-ing if I can, carbon copying in a person need of protection, Jessica Swain? A. Yes. Q. And that was the allegation against Mr Curro? A. Yes. Q. And you say he was arrested for the seriousness of the offence? A. Yes, breach AVO." That was the last question of the witness in cross-examination and there was no re-examination. 1. The relevant evidence of Senior Constable Brookes on this issue was also given in cross-examination. It is this: "Q. Isn't it the case that by the time Mr Curro arrived you already had in your mind that you were going to arrest him. That's why you were there? A. Yes. Q. Who made the decision to arrest Mr Curro, was it you or Constable Kopanja? A. It was both of us. Q. What was the basis of that arrest? A. The nature and seriousness of the offence. Q. Were you aware as to what the allegations were against Mr Curro? A. Yeah, it was a breach AVO against Jessica Swain. Q. Do you know what the contravention was? A. Contact. Q. By way of? A. From what I know now to what I know then, I believe it was via email. Q. So you didn't know what the contact was at the time? A. I can't recall. Q. You didn't make any inquiries why you were waiting out in the vehicle or over the hour in which you were waiting there? A. I knew Andrew was wanted for breaching his AVO. Q. How did you know that? A. We were, I'm assuming we were informed by our supervisor." 1. Section 99 of LEPRA is this: "(1) A police officer may, without the warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing, or has committed, an offence, and, (b) the police officer is satisfied that the arrest is reasoning necessary for any one or more of the following reasons: ..." There then appear 9 subparagraphs, the ninth being: "because of the nature and seriousness of the offence." There is much caselaw on the meaning of words "is satisfied that the arrest is reasonably necessary". The caselaw is conveniently set out by McColl JA in Hyder v The Commonwealth of Australia [2012] NSWCA 366. Commencing at [12] her Honour sets out a number of legal propositions. In [15] there are ten sub paragraphs, the eighth of which is this: "The information acted on by the arresting officer need not be based on his own observations; he or she is entitled to form a belief based on what they have been told. The reasonable belief may be based on information which has been given anonymously or on information which turns out to be wrong. The question whether information considered by the arresting officer provided reasonable grounds for the belief depends on the source of the information and its context, seen in the light of the whole of the surrounding circumstances and, having regard to the source of that information, drawing inferences as to what a reasonable person in the position of the independent observer would make of it: O'Hara v Chief Constable of Royal Ulster Constabulary (at 298, 301, 303) per Lord Hope. (O'Hara concerned the formation of a suspicion, but the proposition Lord Hope stated is equally applicable to the formation of a belief); it is "[t]he character of the circumstances [which have] to be decided: were they such as to lead to the specified inference?": Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 (at 303) per Kitto J;" Later at [18] her Honour said this: "The point made in [15](8) above deserves some elucidation in the context of the appellant's complaints. As Lord Hope pointed out in O'Hara v Chief Constable of Royal Ulster Constabulary (at 301 - 302), it is frequently the case that: '[an arresting officer's] action is the culmination of various steps taken by other police officers, perhaps over a long period and perhaps also involving officers from other police forces. For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.'" 1. Here I know from what was stated by Constable Kopanja that she and her partner on this day, Senior Constable Brookes had been given "the case, the matter". That is an apt way of describing something like a file or a brief. She uses the verb "saw" which means she was reading something, not listening to someone. She saw that there was an outstanding matter for which an arrest was required. The inference to be drawn is that the statement taken by Constable Whaitiri-Ross had been forwarded to her and to her partner and that was what that which upon they were acting. 2. I should have pointed out earlier that Constable Kopanja and Senior Constable Brookes were attached to the "South West Metropolitan Region, Domestic Violence High Risk Offender Team". In other words they were members of a specialist squad dealing with domestic violence matters and the present matter concerned an unlawful approach by the appellant to the solicitor acting for his wife in what appeared to have been acrimonious matrimonial proceedings in the Family Court. 3. Both she and her partner formed the view that what they read, or what they were told by a superior, the latter being the formulation of Senior Constable Brookes, warranted the arrest of the offender. This of course is challenged by the current appellant but it is understandable in circumstances of apprehended violence in a domestic situation that great caution is taken. It may be thought to be desirable to issue a court attendance notice and send it in the mail to an offender. But how long does that process take? It must take at least a week. How many approaches might be made by a person bound by an ADVO to another where that person is already breaching them over a period of time and when there is a threat of self-harm and even an approach to a Court. 4. In my judgment the activity of the appellant which was found threatening by the appellant's wife's solicitor and probably by people in a court registry, warranted his being apprehended so as to stop this form of approach occurring. The fact that the two arresting officers merely relied on what other police had done is completely irrelevant. It is what they are permitted to do. They only have to "suspect" on reasonable grounds that the appellant was committing or had committed an offence. He certainly had committed an offence and they may have well thought it was likely that he would continue to do so unless he was apprehended. In my view both the arresting officers Constable Kopania and Senior Constable Brookes had reasonable cause to believe that they were entitled to arrest the appellant without warrant. Therefore the first challenge to the conviction is unsuccessful. 5. The second challenge is based upon an allegation that excessive force was used by Senior Constable Brookes and Constable Kopanja. It is necessary to refer to a little more of the evidence of Senior Constable Brookes. In chief he said this; "...I saw a person close the front gate to the ... premises. So I got out of the car and walked towards it. At that point I identified Andrew and he was walking across the driveway to the ...large gate to the left side of the house which was slightly open. So he was walking in that direction. It was only when I got closer that's when I saw it was Andrew...[He was close] I'd say four to five metres [away]. ...He looked in my direction. I pulled out my New South Wales Police Force badge and showed it in the direction of Andrew. I said, "I'm Senior Constable Brookes from the South West Domestic Violence Team. You're under arrest for breach AVO.' At that point I stepped over the ...gate that crossed over the driveway and I moved towards Andrew." He went on to say, that the appellant said to him, "I didn't do anything, I've done nothing wrong." By that stage he was two or three metres distant from him. The Senior Constable then started walking towards the appellant who walked in the opposite direction towards the side gate. He pushed the side gate open and then he turned again in the direction of the Senior Constable. He then moved backwards and the Senior Constable believed that he may possibly run. He was then in close enough proximity to be able to restrain the appellant and he grabbed hold of one of his upper arms. Rather than submitting to the arrest of which he had been told, the appellant resisted and would not bring his hands from his chest in order that handcuffs could be applied. He held his fists clenched underneath his chin, he continued to protest that he had done nothing wrong and protested that he was suicidal. Again the Senior Constable told the appellant that he is under arrest and told him to stop resisting but he continued to resist. 1. I am not persuaded that the force applied was unreasonable. The appellant once told he was under arrest, moved away, moved away from the arresting officer, when he had been told that he was under arrest. To arrest something means to stop it. He was required to stop and obey what the Constable did tell him to do. He did not do so but sought to move away. The Senior Constable sought to restrain him from doing so and the appellant resisted. When he continued to resist, he was taken to the ground using a standard police procedure, the background happened to be the concrete driveway where the appellant was standing but the police were not in any position to lay down a carpet or a mat or drag him elsewhere and throw him onto a lawn. The appellant protested that he was injured, obtaining a soft tissue injury near his left eye as a result of being thrown to the ground but that was because he had resisted the arrest. It was the consequence of his own action. 2. I am not persuaded that too great a force was used to effect the arrest. But in any event, there is no authority that the appellant can point to, to say that the use of excessive force vitiated the arrest. The use of excessive force might give the appellant a cause of action at common law for trespass to the person, such that he could recover damages for any pain, suffering, hurt or injury that he sustained if excessive force were used. However, that does not vitiate the arrest. There is not any authority for that proposition. In trying to find some, what I was referred to Woodley v Boyd [2001] NSWCA 35 and also to the decision Rothman J in DPP (NSW) v GW [2018] NSWSC 50. GW was a 14-year-old Aboriginal girl who was on parole for a serious offence. She was found by patrolling police to be on a street at Dubbo at 1.50 am on New Year's Day 2016. She was in breach of a curfew condition at that time. The police left the police vehicle and called upon GW to stop. She did not do so but in fact threw a rock at a police officer which struck him in the face, a fact which was not contested. A Magistrate sitting in the Children's Court dismissed the allegation of assaulting a police officer in the execution of his duty and resisting a police officer in the execution of his duty and the use of an offensive weapon because the police did not consider some procedure other than proceeding to arrest the appellant when she was arrested. At [28] Rothman J pointed out that the police had the power to arrest and it was not illegal or in contravention of the law. It appears the Magistrate relied upon a judgment of one of my colleagues which was not applicable to facts of that case. Again, there is no authority of which I am aware that says, that if excessive force be used in an arrest that the arrest is thereby vitiated. I find no substance in the appeal. The appeal against the two convictions recorded that are the subject of the all grounds appeal is accordingly dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2022