Local Court of New South Wales CITATION: R v Ali Alkan [2010] NSWLC 1 JURISDICTION: Criminal PARTIES: R v Ali Alkan FILE NUMBER: H38832480 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 01/12/2010 MAGISTRATE: Magistrate Heilpern CATCHWORDS: Arrest, Evidence S138 Evidence Act 1995 LEGISLATION CITED: S6 Police Act 1990 s99, s230, s2301 Law Enforcement (Powers and Responsibilities) Act 2002 Director of Public Prosecutions V Carr (2002) 127 A Crim R 151 Greer v R [2004] NZCA 75 R v Coulstock (1988) A Crim R 143 DPP v Gribble [2004] NSWSC 926 CASES CITED: Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 Fleet v District Court of NSW & Ors [1999] NSWCA 363 Williams v R [1987] HCA 36 Coleman v Power and Ors [2004] HCA 39 R v McClean [2008] NSWLC 11. R v Ridgeway (1995) 184 CLR 19 TEXTS CITED: REPRESENTATION: Sergeant Green, Police Prosecutor Winston Terrancini SC for the Defendant ORDERS: Evidence Excluded.Charge Dismissed Reasons for Decision 1 The defendant was shot with a Taser twice by a police officer, Sergeant McDevitt, as he moved from the roadway to the footpath in the early hours of the morning in Oxford Street, Sydney. Prohibited drugs were then located in a cigarette packet in his pocket. He was charged with possession of these drugs. This case has proceeded by way of a voir dire on the admissibility of the prosecution evidence. The defence claims that as it was illegally or improperly obtained, it ought not be admitted. The prosecution argues that the actions of McDevitt were neither unlawful nor improper. The issue to be determined is whether the evidence ought to be admitted. 2 I foreshadowed on the hearing day that I would reject the tender of that evidence, and give reasons for that rejection below. 3 The submissions have proceeded on the basis that there are two matters that are not in issue. The first is that the defendant was being "arrested" at the time by being Tased. The second is that the evidence was "obtained" as a result of that arrest. 4 In coming to this decision I have taken into account each of the tendered items numbered one to nine and the oral submissions of the representatives of the parties. This judgement has been written without the benefit of transcript. 5 This judgment is divided into the following sections: Factual Scenario Subjective view of McDevitt Statutory Framework – s138 Illegality of Arrest Necessity of Arrest Use of Force Impropriety of Arrest Admissibility Orders Factual Scenario 6 Each item of police evidence was tendered without objection, and without cross-examination. The result is that the evidence of the police is accepted subject to two important qualifications. There is CCTV of the incident, which was captured by City of Sydney surveillance cameras. This is crucial, as the recording devices integrated into the Taser gun were obscured by McDevitt and were unable to be utilized. Mr Terracini described this as "unfortunate", "suspicious" and "extraordinary". Nevertheless, the first qualification is that where the recollected evidence of police is in conflict with the clear uncontested "hard" evidence of the CCTV then the latter is to be preferred. 7 The second qualification is that the evidence of the principal witness, the informant Sergeant McDevitt, is significantly different in some respects in his statement made some two and a half months after the incident, and the notes he made about an hour later. Where there are differences, particularly as to his state of mind, I have commented on those differences and preferred the contemporaneous notes. 8 The key portion of evidence is the eight to ten seconds prior to the defendant being Tased. There is a significant amount of evidence leading up to that point which I will deal with briefly. 9 Exhibit One is a statement by Sergeant Timothy McDevitt. It is made with reference to contemporaneous notes made at the scene, notes made in a police notebook, and the CCTV provided by Sydney City Council. His evidence is of two types – firstly, a statement of what occurred, and secondly his thoughts and impressions included to justify the use of the Taser. 10 At about 2.35am on the 29 March 2009, McDevitt sees the defendant walking north along Riley Street at Surry Hills. He describes the defendant as being about 185cm tall and of Middle Eastern appearance. He was not wearing a shirt. He was walking in the middle of the road waving his arms about. A second person was telling him to get off the road. McDevitt told him twice in a loud voice "Police, get off the road". The defendant did not respond. The defendant then walked onto Oxford Street, causing a car to stop suddenly. The defendant then walked in a westerly direction along Oxford Street straying once (according to the diagram) into lane two. He then walked in a straight line. McDevitt followed him along the road attempting to communicate with other police. Near the intersection of Pelican and Oxford Street contact with other police was made. As the defendant approached a pedestrian crossing 50m west of Pelican Street McDevitt placed himself two metres behind the defendant and yelled loudly at the accused "Hey you, get off the road". The defendant turned and looked in his general direction, contorted his face and grunted. McDevitt then said "Get off the road now" and pointed to the southern curb at the pedestrian crossing. 11 The defendant turned away and began walking toward the curb with his bare back toward McDevitt. According to this statement at paragraph 14 "He then began a running motion" 12 McDevitt then armed the Taser device and pointed it at the defendant's back. He then noticed Inspector Barlow quickly pass behind the defendant "in my line of fire". McDevitt waited for Inspector Barlow to pass, which took two seconds, and then he fired the Taser. The Taser was activated for five seconds, the defendant fell to the ground and his arms and legs were thrashing about. McDevitt said "stay down, stay down. The Taser is live". 13 The defendant remained on the ground for the balance of the first five-second application. The defendant then rose to his feet, whereupon he was Tased a second time and again fell to the roadway. The defendant bled when the barbs were sought to be removed by police. A small quantity of drugs were located on the defendant. The defendant was handcuffed and taken to St Vincents hospital. 14 Exhibit Two is a handwritten note written by McDevitt at 4.50am. It is largely the same as Exhibit One. However, there are several noteworthy distinctions. Firstly, the note records that after being directed to get off the road on the last occasion the defendant "turned and began to run". Secondly, the statement makes it clear that prior to the use of the Taser, the officer succeeded in making contact with other police via the radio – "finally acknowledge". Thirdly, it is clear that McDevitt was aware that three other police from the Public Order and Riot Squad had arrived prior to firing the Taser. 15 Exhibit Three and Exhibit Four are statements by Constable De Sousa of the Public Order and Riot Squad. The two statements are made several weeks apart. The later version contains the following at paragraph five: I was about five metres behind Sergeant McDevitt when I saw him pull out the yellow Taser and point it at the accused's back. At this point in time Sergeant McDevitt was unaware that we were close behind as I did not see him turn his head to the right or left or look behind . Sergent McDevitt in a loud voice said something and as a result the Taser was fired at the accused back. 16 The sentence in italics was not in the original statement. The only rational explanation for this addition is to try and assist McDevitt. This is in contrast to the statement of McDevitt himself where he states that he was aware of other police. Further, McDevitt does not say that he pointed the Taser and then said anything to the defendant. 17 The earlier version contains the following at paragraph five: The two probes hit the accused back where it made him fall down to the ground near the kerb. Inspector Barlow, Senior Constable McIntosh and I moved in and attempted to restrain the accused by ways of handcuffs, but he resisted by kicking out and waving his hands about. Due to the struggle, Sergeant McDevitt activated another charge from the Tazer (sic)… 18 Exhibit Five is a statement by Senior Constable McIntosh. His evidence adds little, except in paragraph seven which is describing the point where McDevitt is following the defendant prior to him being shot. At this time I heard Inspector Barlow say "Tim, do you want us to give you a hand". As inspector Barlow said this I walked from behind Sergeant McDevitt and moved to take hold of the arm of Alkan. As I did this, I saw Sergeant McDevitt use his Taser. 19 McIntosh also states at paragraph eight: Alkan has dropped to the roadway and Inspector Barlow, Constable De Sousa and I have taken hold of him. I saw Inspector Barlow and Constable De Sousa take control of his arms while I attempted to control his legs by crossing them and securing them between my body and the roadway. As I attempted to secure his legs, Alkan has repeatedly lifted his body by kicking out with his legs and attempted to pull his arms from the grip of Constable De Sousa and Inspector Barlow. While this was occurring I have repeatedly said words to the effect of "Just settle down" and "Stop resisting". I have heard Sergeant McDevitt say something similar to, "Tasering again". 20 McIntosh also makes it clear that the reason the defendant was taken to hospital was that a probe remained embedded in his back. 21 Exhibit Seven is a statement of Constable Grant, which contains a similar description at paragraph 4 of the struggle between the Taserings. I note McDevitt does not give evidence of a struggle between the Taserings. 22 Exhibit Eight is the CCTV. The CCTV is 23 minutes in length, however all but one minute or so details the events after the use of the Taser, including the arrival of ambulance personnel and the handcuffing and removal of the defendant to hospital. 23 The defendant first comes into view at the 30-second mark (s30). He is walking in a westerly direction, swinging his arms and hands. He is in lane one of Oxford Street heading west. Lane one has parked cars in it, so the defendant is walking in the gap between the parked cars and lane two. The gap is very wide, far wider than a normal lane. From s30 to s45 he continues walking. There are also others walking or standing in that gap area. Traffic is seen going past unimpeded. The officer is in close proximity, about two metres from the defendant. He removes the Taser device from his belt and puts it in his right hand at s35. By s45 the officer is seen with his hand on his radio, and there is a police officer in blue overalls running up from behind. From s47 to s53 the officer is seen to direct the defendant onto the footpath with his left hand in a pointing motion. 24 The defendant turns and faces the officer momentarily, before turning and walking jauntily in the direction the officer had pointed, off the road and toward the footpath. From s53 to s57 the defendant is walking in the direction of the footpath, and by s56 he is halfway across the taxi parked in lane one. 25 There are police officers on either side of the defendant, between him and McDevitt. The officer standing with his back to camera is Inspector Barlow, having passed behind the defendant. The officer facing the camera behind the pole is McIntosh. By s57 he has been Tased, and it is clear that this occurs as he gets to and steps onto the footpath. He spins around and drops heavily from the footpath to the road by s58/9. He can be seen spinning around after the Tasing at s58. 26 He is on the ground thrashing about and then rises hesitantly to standing from s1.09 to s1.10. He is standing for one second before being Tased a second time. 27 There are at least four other police there when he is Tased the first time, two in front of the defendant on the footpath, and two behind the officer on the road. They are even closer for the second Tasing. 28 It is important to note that at the time he is Tased, there are at least six other people either walking or standing in the gap area of lane one. Indeed, if one watches the balance of the 23 minutes, there are dozens of people utilizing that lane throughout for walking in both directions, waiting for and hailing taxis and eventually for police vehicles attending at the scene. None are seemingly directed from the road, nor are they apprehended. 29 Thus the crucial time is from s47 when the defendant is directed to the footpath until s57 when he is Tased, a period of ten seconds. During that period of time, it is abundantly clear from the CCTV that the defendant was compliant with the visual directions given by McDevitt and was not running away. Further, it is clear that in the seconds prior to the Tasering, McDevitt had at least four other police present. It is clear from McDevitt's own contemporaneous notes that he was aware of the presence of at least three of these officers, one being an Inspector. The defendant was on, or stepping onto the footpath when he was Tased. In other words he was about to be, along with all the other members of the public, safely ensconced on a car free zone. He was flanked by two other police at the time he was Tased. 30 It is also clear that McDevitt is incorrect where he says that the defendant was running away in Exhibit Two. This is inconsistent with the CCTV, and to the extent it is put forward to justify the use of the Taser must be discounted. Even if he was moving quickly he was doing so onto the footpath and out of danger. 31 De Sousas's evidence that McDevitt was unaware of the existence of other police, and that he (McDevitt) said something after raising and aiming the Taser can be discounted as it is not the evidence of McDevitt. 32 Further, the initial statement of De Sousa that the police moved in and tried to handcuff the defendant but he struggled requiring another Tasering is incorrect. In this falsehood, he is supported by McIntosh at paragraph eight, who adds to the story of an extensive struggle between the Taserings, even including attempts to kick and pull away from police grip. In this, he is supported by Constable Grant at paragraph four, again incorrectly. The CCTV shows clearly that there was no struggle with the police and nor did the police bend down at all between the two Taserings. 33 There are only two possibilities. The first is that three police officers have innocently but falsely remembered an extensive struggle that simply did not occur which happens to justify the second use of the Taser. It is simply coincidence that each officer has precisely the same false memory, and it is serendipitous that their statements are thus the same in these false material particulars. The detail of the struggle that they remember, including corroborating the actions of each other is also coincidental. The second possibility is that the police have tweaked their evidence in an effort to justify the second use of the Taser by manufacturing an extensive struggle that simply did not take place. 34 In the ten seconds prior to being shot, the defendant was moving to the footpath in accordance with the directions of McDevitt, was not running away, and could not have been an immediate danger to any persons on the footpath. Well prior to firing the Taser, McDevitt was aware of the existence of other police either by radio communication, because they asked him in person if he needed assistance, or because he saw them. McDevitt even waited two seconds to ensure that Inspector Barlow was out of the line of fire. The defendant had not been spoken to by any police, except for a series of yelled directions to move off the road. The defendant did not struggle with police between the first and second Tasering. Subjective view of McDevitt 35 In each of his statements McDevitt has given unchallenged and detailed evidence of his state of mind at the time the incident unfolded. This may be divided chronologically as follows: Prior to Oxford Street "At this time I formed the belief that the accused was not aware of his surroundings due to the effects of a drug or abnormal mental state. I did not believe him to be intoxicated by alcohol as he was not unsteady on his feet and appeared to be walking quickly and in a straight line. I considered his behaviour to be erratic and unpredictable, as was demonstrated by him walking in the centre of Riley Street, waving his arms about and wearing no shirt. He placed his life immediately at risk of death or serious injury by walking in the centre of the roadway" (Exhibit One - paragraph six) On Oxford Street "At this time I was gravely concerned for the safety of the accused and the pedestrians that were standing on the roadway in his path, along the offside alignment of the parked cars. I was also very concerned for my own safety. Due to the unpredictable behaviour of the accused I feared that he might run onto the roadway if confronted by police or a pedestrian could be killed or seriously injured by being pushed or bumped by the accused into the path of a passing motor vehicle" (Exhibit One – paragraph nine) "Male appeared not to know where he was – possibly intellectually disable (sic) or drug effected" (Exhibit Two) Decision to use the Taser "I formed a belief in my mind at this time, that as I had no support from other police, I would use my Taser device to protect the life of the accused and the pedestrians that he was approaching. I chose the Taser device as my tactical option to gain control of the accused in the present circumstances and to reduce the likelihood of a rapid escalation toward violence. I also believed that the accused was affected by a drug and would be less likely to respond to any pain stimulus that I could lawfully apply and effectively placing myself in danger. I chose not to use my police baton or Oleoresin Capsicum defensive spray for this reason and the increased risk of injury to the accused through lack of response or compliance" (Exhibit One – paragraph 10) Just prior to the final direction to leave the roadway "I strongly believed at this time that the accused was affected by a drug and that I had very little control over his behaviour. I became increasingly concerned that if I confronted him he would knock a pedestrian into the path of a moving vehicle or put himself in front of a moving vehicle as he had done a short time earlier. (Exhibit One – paragraph 12) After the defendant turned and moved toward the footpath "At this time I could not predict what the accused would do next or if the danger to himself or others would escalate further" (Exhibit One – paragraph 13) After becoming aware of the presence of Inspector Barlow "I chose to proceed with this tactical option as control of the accused needed to be gained quickly and safely. Should I have employed another option I believe the risks to the safety of the accused, Police and pedestrians would have been significantly increased". (Exhibit One – paragraph 14) "Criteria for use 1.1 protection or immanent confrontation." (Exhibit Two) After the first five second burst when the defendant rose to his feet "I had fears that the accused would launch himself at me or attempt to run past me back into traffic on Oxford Street. I determined that a second burst from the Taser device would provide a safe option to gain control of the accused" (Exhibit One – paragraph 15) 36 It is important to note that in the two and a half months from when McDevitt made his contemporaneous notes, his position has changed from a view that the defendant was "possibly" drug effected, to the view of "strong belief". Statutory Framework - s138 Evidence Act 1995 37 Section 138 is relevantly as follows: 138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained: (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account: (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law. 38 In this case the offences charged are possession of prohibited drugs. There have been no submissions regarding "obtained". Both sides accept that should the actions of the police be found to be illegal or improper, and the hurdles of s138(3) tend toward exclusion, then the charge ought be dismissed. This would appear to be the correct legal position – see Director of Public Prosecutions v Carr (2002) 127 A Crim R 151. 39 The onus is on the defendant to satisfy the court on the balance of probabilities that the actions of the police were illegal or improper. The onus then shifts to the prosecution to satisfy the court that, notwithstanding the illegality or impropriety, the evidence ought to be admitted - R v Coulstock (1988) A Crim R 143 40 I note that the case of Greer v R [2004] NZCA 75 was handed up by the prosecution on the basis that in that case illegally obtained evidence was admitted on the basis of the doctrine of "inevitable discovery". This doctrine is an exception to evidentiary exclusionary rules where it can be proven that the items located would have been discovered (inevitably) even without the illegality or impropriety. It is suggested by the prosecution that the same approach be undertaken in this court. So that it is perfectly clear, New Zealand is not part of the hierarchy of the courts of New South Wales. There is no authority for the doctrine of "inevitable discovery" in this State, nor to the best of my knowledge anywhere in Australia. I can locate no occasion where the higher courts in Australia have even referred to Greer. In this jurisdiction we have the Evidence Act, and s138. Greer has no place in the courts of this State, and asking a court to rely on it invites the court into inevitable appealable error. I reject the principles set out in Greer as forming any part of the applicable law in this State. Illegality of Arrest 41 In my view, the arrest was unlawful for two separate reasons – firstly because it was not necessary. Secondly, because the amount of force used was excessive. It is trite law that an arrest that is found to be not necessary, or that uses more force than is reasonably necessary is an unlawful arrest. Necessity of Arrest 42 The prosecution submits that McDevitt was exercising a common law right of arrest for a breach of the peace or otherwise, and rely on the case of DPP v Gribble [2004] NSWSC 926. In that case, Gribble was located in the middle of a busy road wearing dark clothing, refused to move when directed, resisted physical efforts to move him to the footpath, and once he was removed started punching the police. 43 The court found that the police were acting in accordance with their duties to protect people from injury pursuant to s6 of the Police Act 1990, and that this was consistent with the common law. 44 I will consider this in detail below, but I note that there is a debate relating to the existence of any common law or general power of arrest since the introduction of the Law Enforcement (Powers and Responsibilities) Act 2002, (LEPRA). It may be argued that the common law and Police Act powers have been overridden. In respect of the Police Act, it has been amended since Gribble, adding a new subsection 6(6) which is as follows; (6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002 . 45 Further, the Law Enforcement (Powers and Responsibilities) Act, purports to 'cover the field' in respect of the powers of arrest in s99. LEPRA in its long title is said to be an "Act to consolidate and restate the law relating to police powers and responsibilities". Section 99 of LEPRA is as follows: 99 Power of police officers to arrest without warrant (1) A police officer may, without a warrant, arrest a person if: (a) the person is in the act of committing an offence under any Act or statutory instrument, or (b) the person has just committed any such offence, or (c) the person has committed a serious indictable offence for which the person has not been tried. (2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person has committed an offence under any Act or statutory instrument. (3) A police officer must not arrest a person for the purpose of taking proceedings for an offence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes: (a) to ensure the appearance of the person before a court in respect of the offence, (b) to prevent a repetition or continuation of the offence or the commission of another offence, (c) to prevent the concealment, loss or destruction of evidence relating to the offence, (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence, (e) to prevent the fabrication of evidence in respect of the offence, (f) to preserve the safety or welfare of the person. (4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law. 46 In the second reading speech of LEPRA it was stated that this section represented a codification of the common law of arrest – see Hansard, Legislative Assembly, 17 September 2002 reprinted at 626,001 Criminal Practice and Procedure, Butterworths. This passage of the Criminal Practice was specifically approved by Smart J in Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396. 47 In the second reading speech (Hansard, Legislative Assembly, 17 September 2002), the Attorney General said: "Part 8 of the Bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of Pt 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person's attendance at court. Clause 99, for example, clarifies that a police officer should not make an arrest unless it achieved the specified purposes, such as preventing the continuance of the offence ..." 48 The authors of Criminal Practice and Procedure NSW write at p 626,002: "Before the enactment of s 99, it was said that the power of arrest for an offence should not be exercised unless it is necessary to ensure the accused's attendance before the court and only where a summons would not be appropriate: Fleet v District Court of NSW [1999] NSWCA 363; BC9906539; (1999) 6 Crim LN 82 [1061]; Director of Public Prosecutions v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194; BC200201026; (2002) 9 Crim LN [1401]. See also Wilson v DPP [2002] NSWSC 935; BC200206024. Section 99(3) now confines the use of arrest for the purposes of taking proceedings for an offence to certain defined circumstances." 49 In Mordechi, Smart J stated: "I respectfully agree with the views expressed" 50 However, police may be confronted with situations of danger where an offence has not been committed, yet the arrest of persons is necessary to ensure that the danger is reduced. I struggle to accept the proposition that parliament would have intended to remove any residual power to arrest or detain in such circumstances. The circumstances of Gribble would be an example where the police need that residual power to protect by detention or arrest, although it is likely that Gribble was committing an offence. Another circumstance would be a person seeking to enter a burning building. It must be the case that police have the power to detain to prevent harm in such a case. Perhaps the better view is that where there is an arrest for an offence, s99 applies, and where the police are acting to stop injury or danger, then the common law residual powers apply. 51 However, as interesting as this debate is, in this case it is not necessary to resolve the issue, because on either test, the arrest or detention of the person must be necessary, and the test for that necessity is objective as well as subjective. 52 Returning to Gribble, the court made the following relevant findings beginning at 23 (emphasis added) It was submitted that the legislative history and the current Section 6 of the Police Act extended the duty of a police officer beyond the preservation and investigation of crime so as to include actions reasonably necessary for the protection of persons from injury or death, and property from damage, regardless of whether the need for those services arises from any criminal act. It seems to me that this is the intent of the legislation and that the submissions should be accepted. This approach is consistent with common law… Cosgrove J said this in the Supreme Court of Tasmania in Innes v Weate [1984] Tas R 14 at 21 There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms… The other is that the existence and nature of the duty depends upon a reasonable assessment by the constable of any given situation. That assessment may be examined in the courts and held to be right or wrong…It is important that a constable should have a wide discretion to act swiftly and decisively; It is equally important that the exercise of that discretion should be subject to scrutiny and control. In R v K (1993) 118 ALR the full court of the Federal Court found at 601 that the section which contained the words "execution of duty" applied Whenever the police officer is doing something which can fairly and reasonably be regarded, given the existing circumstances, as carrying out his duty. 53 In s99 of LEPRA, the power of arrest is not totally left to the discretion of the police officer, in the fulfilment of his or her subjective view as to what is necessary. The officer must not arrest unless the police officer suspects on reasonable grounds that it is necessary to arrest. 54 It is uncontested, as submitted by the prosecution, that this officer formed the subjective opinion that the arrest of the defendant was necessary. Having viewed the CCTV and analysed the evidence, I have formed the view that there were no reasonable grounds for this opinion in the key period following the visual direction. The defendant was, albeit belatedly, being compliant. Whether he was a risk to the community or himself earlier on, he certainly was not a risk as he complied with the police direction. He was not asked his name, or for identification, nor were any of the LEPRA safeguards applied. There was no attempt to engage the defendant once he was on the footpath. The courts, and indeed the parliament of this state have been saying loud and clear that arrest, the deprivation of liberty, is the last resort. 55 In Fleet v District Court of NSW & Ors [1999] NSWCA 363 (unreported 8 October, 1999) the court found Nevertheless, it remains appropriate that those vested with extraordinary powers of arrest should be reminded of the need to consider whether they should be exercised in a particular case. The arrest in this case seems to have an element of the arbitrary about it, which brings to mind the tyranny Deane J warned against. Such cases are harmful to the free society we all want to preserve. 56 In Director of Public Prosecutions v Carr (2002) 127 A Crim R 151 at 157 at [35], the court made strong comments relating to this issue: "This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences or where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded." 57 The highest court in the land has made similar comments decrying the improper use of arrest. In Williams v R [1987] HCA 36 Wilson and Dawson JJ found A person is not to be imprisoned otherwise than upon the authority of a justice or a court except to the extent reasonably necessary to bring him before the justice to be dealt with according to law. That, as we conceive it, is one of the foundations of the common law. 58 There are further similar comments regarding "in the execution of duty" in Coleman v Power and Ors [2004] HCA 39 per McHugh at 118. 59 The higher courts in this state have spoken loudly and clearly. Parliament has spoken loudly and clearly. The Local Court has spoken clearly – see for example R v McClean [2008] NSWLC 11. The police, like every other citizen are bound by these laws. Whether at common law or by s99 of LEPRA, the arrest must be reasonably necessary. 60 In this case I am satisfied that on either the common law or s99, on an objective view the arrest was unnecessary. The officer's opinions were not reasonably formed, he did not act reasonably in arresting the defendant and there were no reasonable grounds for forming the view that arrest was necessary at the time he shot the defendant with the Taser. Was the force used reasonable? 61 At common law and at statute, an arrest is not lawful if there is excessive force used. The law on the use of force has been codified by s230 and s231 of LEPRA. Use of force generally by police officers 230 Use of force generally by police officers It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function. Use of force in making an arrest 231 Use of force in making an arrest A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest. 62 I note that s230 applies even where a function is being exercised under a different Act or law, which would include common law. I note further that the word "reasonable" imports an objective test, and the opinions of the officer himself are one important factor, but that the assessment of the force is to be determined by other factors also. These other factors include the level of criminal conduct involved, and ought to take into account that there may be little time for calm reflection in emergency situations which often confront police. 63 There are several types of force open to police who seek to arrest, grading from informing the person being arrested, to placing a hand on the shoulder, to the use of unarmed force, to the use of batons, OC Spray and firearms. In my view, the use of Tasers is very high on that scale. 64 Exhibit nine is the Public Order and Riot Squad Standard Operating Procedures (PORSSOP), which were subpoenaed by the defendant and admitted into evidence in the voir dire. Most of the document has been blanked out, as it appears that there is some significant threat should the court or the public know the operating procedures for the Taser. This is unfortunate as the reference to the reason for use in the contemporaneous notes of McDevitt - "Criteria for use 1.1 protection or imminent confrontation." – remains a mystery. This is considered in more detail below. Nevertheless, the PORSSOP are useful to determine the amount of force that is applied by using the Taser. 65 At 6.1 PROSSOP there is the following guidance for officers when considering the "use" or "non-use" of the Taser (my emphasis): 6.1 The use of less lethal tactics must be reasonable and proportionate to the overall situation. When assessing whether it is reasonable to deploy the Taser, the officer may consider factors such as… 66 A total of 12 factors are then listed which are discussed below. One of the considerations is the availability of medical support. The final one is The availability of sufficient personnel to take custody without the need for less-lethal tactics 67 The word 'lethal' means "deadly". Whilst the wording is clumsy, the only reasonable interpretation is that the Procedures consider the Taser to be a lethal tactic, although less lethal than, say, a firearm. In other words the use of the Taser is acknowledged by the police themselves to be a tactic that may cause death. 68 At 7.6.5 PORSSOP states: "Darts Discharged: The Taser is deployed, resulting in the cartridge discharging and firing of the two small probes, which are connected to the Taser device by thin, high voltage insulated wire. Electro-Muscular Disruption (EMD) occurs, resulting in a direct involuntary contraction of the muscles that disrupts neuro-motor control that incapacitates the subject." 69 Section 8 of PORSSOP details that, post deployment, all persons that are "Tased" will be assessed by qualified medical personnel either at the scene or at hospital. In this case, the defendant had to be taken to hospital to have a probe removed. Further, the risks of injury would appear to be so high, that a consideration for use is the availability of medical support. 70 The reasons given by McDevitt for the use of such high level force are unconvincing. The various reasons given for using the Taser were; the lack of support from other police, to protect the life of the defendant, to protect members of the public from being killed or seriously injured, to protect his own safety and to stop the situation from escalating. 71 Within the ten seconds prior to firing, McDevitt was aware of three police being present in close proximity, from the Public Order and Riot Squad no less. The defendant was being compliant and mounting the footpath. No members of the public were at risk at that time. To suggest that at that point of time, out of concern for the safety of the defendant, it was reasonable to fire two darts into his back and electrocute him is fanciful. There were no attempts at talking to the defendant, or at placing a hand on his shoulder or other means listed above. To describe shooting someone with a Taser in these circumstances, as a non-escalation, is as literally true as it is patently excessive. 72 Clearly the way the defendant fell was prone to a high risk of injury after the first Tasering. He fell from the footpath onto the road, and that he did not suffer a significant head or other injury is most fortunate. 73 On any reasonable view the use of the Taser was excessive force, well beyond what was reasonably necessary in the circumstances. The reasons given for the second Tasering illustrate this further – there were four police from the Public Order and Riot Squad standing right next to the defendant. Each and collectively they had other non-lethal as opposed to less-lethal options. There had been no struggle. Even accepting McDevitt's subjective view, on an objective test it was unreasonable to Taser a second time. After the defendant rose to his feet, having been Tased once already, to suggest he was an immanent threat with four police from the Riot and Public Order Squad within arms length is not a reasonable conclusion. 74 It can be argued in many circumstances, including this one, that there is a greater risk to police in utilising the least force. That does not mean that it is reasonable to use excessive force where there are clearly other options available. 75 For the reasons above, I am satisfied that the arrest was not necessary on either the common law or statutory formulae and that the force used was excessive. Accordingly, I find that the arrest was unlawful. Impropriety 76 The only submissions with respect to impropriety were in relation to the PORSSOP. Policing guidelines can provide the court with assistance in determining the propriety or otherwise of police actions. 77 In this case the guidelines have been heavily edited, so that only a total of three of the 12 pages contain any text at all. That which has survived shows that the Taser is seen as a tool of last resort, and that there is an objective test that applies to the considerations for use. 78 Clause 4, 5 and 6, to the extent that they are relevant, are as follows: 4. Criteria for Use If there are no other appropriate means available, the Taser may be used to: 4.1 Protect human life, 4.2 Control persons where violent resistance or confrontation occurs or is imminent, 4.3 To protect officer/s in danger of being over powered (sic) or to protect themselves or another person from injury, 4.4 For protection from animals. 5. Non-use Considerations : 5.1 Taser may not be used on individuals who are compliant and non-threatening 6. Considerations: 6.1 The use of less lethal tactics must be reasonable and proportionate to the overall situation. When assessing whether it is reasonable to deploy the Taser, the officer may consider factors such as; · The age of the suspect · Their physical condition · The emotional state · The overall tactical situation · The involvement of mental illness, drugs and alcohol · The risk to the public · The risk to the police · The risk to the subject · The availability of appropriate medical support · The public perception in the circumstances · The availability of any appropriate alternatives to the use of the Taser · The availability of sufficient personnel to take custody without the need for less -lethal tactics 79 Applying the tests it is apparent from the CCTV that, on any objective assessment, there were other means available to McDevitt to apprehend the defendant, and there was no reasonable basis for the opinion that violent confrontation was imminent. The defendant's behaviour prior to the ten seconds leading up to the use of the Taser was reprehensible. His conduct in the last ten seconds was not. There was no reasonable basis for the view that there was a risk to human life neither at the time the Taser was used, nor in the approximately ten seconds beforehand. There was no reasonable risk to the officer being overpowered, and there were, to McDevitt's knowledge, three police present when the defendant was Tased. The defendant was, on any objective view, compliant and non-threatening. He was not armed, had not raised his fist, behaved aggressively or even verbally threatened any persons. There was, in the officer's mind, at least the possibility of drugs, and also the possibility of mental illness. The public perception, I should imagine, would be one of shock and horror at a person being Tased, thrashing about, rising to his feet, and being shocked again. 80 It was not reasonable to deploy the Taser when one considers a number of factors in clause six, including the overall tactical situation, the risk to the public, police and the defendant. Further there were many other options available. There were sufficient police personnel to take the defendant into custody or to search him without any need for Tasering. There was a police station only metres away. 81 For these reasons, I am satisfied that the use of the Taser was improper in that it was unnecessary, unreasonable and failed to properly comply with the operating procedures. 82 S138 (3) – Admissibility 83 Having found both illegality and impropriety, the onus shifts onto the prosecution to satisfy me that the evidence should be admitted notwithstanding the illegality or impropriety. The test under s138 involves a balance between the desirability of admitting the evidence on the one hand and the undesirability of admitting the evidence that has been obtained illegally or improperly on the other. 84 As to (a) and (b), the evidence is highly probative and important. In the absence of the evidence obtained the charge must fail. 85 As to (c), the nature of the relevant offence, possession of prohibited drugs, is a summary offence at the low end of the criminal calendar. It is not an offence of violence or a property crime where there is an identifiable victim. 86 As to (d), the breaches of law and the impropriety were grave. This is not a case as in Carr where the police had a power to arrest, but exercised that power improperly. Unlawfulness comes in degrees. Thus for example, it is unlawful to arrest in breach of s99, in the sense that it prohibits ("must not") arrest unless criteria are met. However, a more serious example of unlawful is where a criminal offence has been committed. I have agreed with the submissions of Mr Terracini that McDevitt assaulted the defendant. It was an unnecessary assault with a potentially lethal weapon without warning, in the back, where there was at least three other police within centimetres. It necessarily led to a wounding, then electrocution, then impact with the gutter and road, then muscular contraction (thrashing). It also led to a second episode of electrocution, impact with the road, muscular contraction and hospitalisation for the removal of a barb. 87 As to (e) I reject the contention of the prosecution that the illegality or impropriety was a split second decision. That is not the evidence of McDevitt, nor is that apparent from the CCTV. This was a deliberate, considered action of the police officer. It was wanton, in the true sense of that word. McDevitt did not waiver from his decision even when the defendant was compliant or even when he became aware that he had other police with him. He had ample time for rational decision making after the first Tasering, but elected to Taser a second time some ten seconds later. 88 As to (f) the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights. Article Nine was breached. Article 9 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 89 As to (g) it is important to reiterate that the onus is on the prosecution on this portion of the test. Evidence is more likely to be admitted where the illegality or impropriety is being punished by other means. In this case the prosecution have sought to justify his actions with reference to inapplicable New Zealand law, police statements inconsistent with the CCTV, and the submission that the force used was reasonable. In Ridgeway (1995) 184 CLR 19 at 38 the High Court found that it was also relevant to consider whether the impropriety is "tolerated or encouraged by those in higher authority in the police force" 90 There is no evidence as to whether any other criminal or disciplinary proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention. Sergeant Green for the prosecution submits that there are other avenues, which may be utilized including disciplinary or complaint proceedings against police. That is correct, however there is no evidence that this has occurred or will occur in this case, particularly since the Tasering occurred nine months ago. Mr Terracini has foreshadowed civil proceedings, however it is unclear as to whether that will have any impact on McDevitt personally. 91 As to (h) the evidence would have been very simple and easy to obtain without breaching the law or behaving improperly. Part 4 of LEPRA gives the police specific power to stop and search those suspected of being in possession of prohibited drugs. Further, McDevitt could have issued the defendant with a move-on direction under Part 14 of LEPRA, or taken other steps to properly assess his level of intoxication or mental abnormality other than electrocution. If there were ongoing risks to the defendant or the public he could have been detained as an intoxicated person under Part 16 of LEPRA . 92 Section 138(3) is not exclusionary. A further relevant factor is the seniority of the officer involved. In this case, McDevitt is a Sergeant of Police, not a junior young probationary constable. The breaches referred to above are thus all the more serious. 93 A further relevant factor is that the defendant has already suffered extreme punishment as a result of an allegation of a minor crime. This is not a case where the illegality or impropriety was a technical breach of the law, short-term detention or entry onto property. Here, the breach resulted in significant physical harm to the defendant. Orders 94 Taking into account these factors, I am satisfied it is appropriate to exclude the evidence. It is a minor consequence given the grave degree of unlawfulness and impropriety, particularly given the nature of the charges the defendant is facing. 95 For the reasons expressed above, pursuant to s138 I am exercising my discretion to not admit the evidence, as it was obtained as a result of an impropriety or illegality. Accordingly, in accordance with the indications of Sergeant Green on the hearing day, the prosecution have no evidence to offer, and the charge is 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.