R v Janel Anne Boekeman [2011] NSWDC 126

District Court New South Wales

Medium Neutral Citation: R v Janel Anne Boekeman [2011] NSWDC 126 Hearing dates: 13 May 2011 Decision date: 29 August 2011 Jurisdiction: Criminal Before: Judge Toner SC Decision: I uphold the appeal; I quash the conviction and penalty and dismiss the charge. Catchwords: Powers of police to search after arrest Legislation Cited: NSW Crimes Act 1900, s.353A, 352, (repealed) Law Enforcement (Power & Responsibility) Act 2002, ss23, 24, 32, 201, 206, 208, 230 and, 237, Police Act 1990 ss.8 and,24 Cases Cited: Blacktown City Council v Hocking [2008] NSWCCA 144 Botton v Winn Supreme Court of Victoria, Phillips J, unreported 18 December 1987 Brazil v The Chief Constable of Surrey [1983] 3 ALLER 537 Clarke v Bailey [1933] 33 SR NSW 303 Leigh v Cole (1953) 6 Cox's CC 329 Lindley v Rutter (1981) 72 CrimLR 1 R v Naylor [1979] CrimLR 532R Woodley v Boyd [2001] NSWCCA 35 Texts Cited: Code of Practice for Crime (Custody, Rights, Investigation, Managements and Evidence) Category: Principal judgment Parties: Janel Anne Boekeman Representation: Ms C Kluss - Accused Director of Public Prosecutions Jarratt Webb & Graham Advocacy Pty Ltd File Number(s): 2009/262917

Judgment 1Janelle Anne Boekeman appealed to this Court from decisions of the Armidale Local Court on 24 January 2011. 2On that date she was convicted of three matters; two of which were an assault of a police officer in the execution of his duty and one an offence of resisting an officer in the execution of his duty. 3Two of the matters, namely one of the assaults and the resist matter were dealt with discretely by me. I dismissed the appeal and confirmed the convictions and, for what it is worth, varied the penalties that had been imposed by the Magistrate. 4I am now concerned with the remaining matter of an assault of a police officer in the execution of his duty. The facts as they relate to the first two offences are relevant contextually to my consideration of the remaining appeal. Her appeals in each instance were against her conviction and should they fail she appeals against the severity of the sentence imposed. 5The offence now under consideration is said to have been committed at the Armidale Police Station. Significantly, the events which gave rise to the charge were captured on CCTV. There are some inadequacies in what was captured by the CCTV, however, it is a significant and important piece of evidence in the case. I should note that there is no sound recording of the events depicted in that footage. 6I am mindful of the caution with which the Courts have approached the use of photographic evidence, particularly as a means of proof of matters of fact. (See Blacktown City Council v Hocking [2008] NSWCCA 144, particularly per Tobias JA [167] ff). 7However, CCTV footage is different in that it is not still photography and is contemporaneous. Still, there are limitations to its use, which I have noted, including the absence of sound. 8Before I come to a review of the facts as they relate to the appeal now under consideration, I think it is important to briefly outline the background circumstances as to how it is that the appellant came to be at the Armidale Police Station in the early hours of 26 September 2009. 9The police previously went to an address in Cookes Road, Armidale in response to an allegation of something in the nature of a home invasion, the particulars of which are of little significance. During the course of police inquiries in relation to that matter they learned that a person by the name of Jace Lancaster ("Lancaster") was or may have been involved in the commission of that offence. They learnt that he was staying at 7 Conningdale Crescent, Armidale. 10As a result of receiving that information Sergeant Kirk ("Kirk"), Senior Constable Tuckwell ("Tuckwell") and Senior Constable Kentish ("Kentish") went to that address and were admitted by Thomas Spinks. Lancaster was identified and arrested. At about that time the appellant intervened and there was a confrontation between her and police which gave rise to the two charges which I have dealt with, namely matters of an assault of a police officer and resisting an officer in the execution of his duty. 11There was a degree of violence between police and the appellant and she was arrested at that scene, put in a police vehicle and taken to the Armidale Police Station. 12It should be noted at this point that the officer who is said to have been assaulted at the house was Kentish. He is also the police officer who is said to have been resisted by the appellant at the house. 13The appellant, on her own admission, had been drinking. At T.66 of the 23 July 2010 she was asked: - Q. On the night did you consume some alcohol? A. Yes. Q. How much alcohol? A. Quite a bit, I am not sure exactly. Yeah I am not sure. Q. What time did you start drinking that evening? A. It would have been around 6.30. Q 6.30. A. Ish, that's just what I can't recall the exact time. Q. And when did you have your last drink? A. I'm not sure, but I know I was in bed around 12. Q 12 o'clock A. Yes. 14From the charge sheets it is not at all clear as to what time it was that the police arrived at the Conningdale Crescent address. According to Kirk (at T.29:32) it was at about 2.30am on 26 September 2009. I accept that as being about right. 15As an aside to the narrative, I note that the assault that is the subject of this appeal took place between 3.45am and 3.46am, which is verified by the timing on the CCTV footage. In other words, about four hours after the appellant had her last drink. 16I turn to a review of the evidence of what happened after the appellant arrived at the Armidale Police Station. The Custody Management Record, which is part of Exhibit A, states "time of arrival" at 3.25am. The CCTV footage shows her being placed in a cell in the dock area. Initially the door of the cell was left open 17The Custody Management Record does not coincide with the timing on the CCTV footage. It suggests that the appellant arrived at the police station at about 3.20am. 18Between the time she entered the cell and was spoken to by Tuckwell at 3.28am she seems to be sitting quietly with her back to the wall and her feet up on the seat. 19This is what is depicted in the CCTV footage. I shall later review what the various witnesses say was being said at that time. 20According to the CCTV, at about 3.28am,Tuckwell went to the cell in which the appellant was and had a conversation with her for about two minutes. After Tuckwell left she remained sitting and appears to be calm until she stands at 3.37am to attract Senior Constable Heath Aiken's ("Aiken") attention. Aiken was the Custody Manager at the time and for most of the time up until that point he was the only officer in the dock area, although other police came and went. During that time Aiken seems to have been largely engaged with a computer, which was on a desk in the dock area. Nobody seems to have been paying any particular attention to the appellant. 21At 3.37am the appellant attracts Aiken's attention. He goes to her cell, opens the door and she walks to the far left cell, which is apparently where the toilets are. He opens the door, she enters by herself, the door is shut and she is left there for about two minutes. Aiken then opens the door and the appellant walks to the middle cell in the dock area and sits down. This is recorded as being at about 3.40am. Aiken talked to the appellant for about a minute. 22At about 3.42am Aiken left the dock area. At that point there is no police officer in the dock area at all. It remains unattended for about two minutes. 23Whilst the police were away the appellant remains quietly in her cell or apparently so, according to the CCTV. 24Aiken returned to the dock area with Kentish. Kentish puts on some white gloves while walking into the room. Aiken is already wearing gloves. This is recorded as being at 3.43.44am. 25At 3.43.54am Kentish opened the appellant's cell door and stands to the left with Aiken standing to the right of the cell. There is clearly conversation involving at least the appellant and Kentish and there seems to be an argument between the two of them. 26At 3.44.19am Kirk arrives and stands beside the left hand side of the door and becomes involved in the conversation between the appellant and Kentish. 27At 3.45.45am Tuckwell arrives and walks to the counter in the dock area. 28At 3.45.47am the CCTV footage shows Kentish entering the cell and putting his hands on the appellant's neck. She falls to the right corner of the seat against the cell wall. Kentish leans over her. The appellant seems to push Kentish away from her or attempts to push Kentish away with her legs. Aiken is leaning over the appellant inside the cell. Kentish pulls on the appellant's leg. Shortly after that, he throws three punches at the appellant's face while Aiken has hold of her. It is not clear as to whether the punches directed at the appellant by Kentish are with a closed fist or open hand but it is common ground they connected. 29Kentish is leaning over the appellant. Something falls to the ground and Kentish picks it up and gives it to Tuckwell. It seems that what had fallen to the ground were Kentish's glasses. Aiken is still holding the appellant down and Kentish and Aiken again lean over the appellant. It is not clear what they are doing, at least from the CCTV, which seems to be blocked by the cell wall. 30At 3.46.10am Kentish and Aiken walk out of the cell and the appellant resumes her seat on the bench in the cell. The door is shut by police. Kentish removes his gloves and puts them in a bin and is returned his glasses by Kirk, which he puts on. Kentish and Kirk walk out of the dock area and Aiken and Tuckwell remain behind the counter. 31It should be noted that it does not appear during the course of those activities that police took anything from the appellant at all. 32At 3.47am the appellant attracts Aiken's attention and he comes over to the cell. Aiken opens the cell door and takes something from the appellant and, again, closes the door. Aiken puts the object that he has taken from the appellant on the counter. 33It is said by the appellant that it was an earring that was in her back pocket in a tissue. 34That is consistent with the property docket, which was maintained by police, which shows that the only item of property of the appellant in police custody is one silver earring. That property document is again part of Exhibit A. 35That is also consistent with the proposition that police did not take anything from her during the course of the activities involving Kentish, Aiken, Kirk and others shown on the CCTV footage which I have just related. 36I now turn to what was said by the various participants in their evidence of these events. 37I propose to review the police evidence first. 38Kentish, who is said to have been the victim of this assault, said at T.10 that police took the appellant back to the police station. When they got there she was yelling, was abusive and being very aggressive towards the police. He said that they placed her in the dock, which is shown on the CCTV. She refused to give her name. He conceded that she gave her name to another officer, probably five or ten minutes later. 39I interpose here that that is consistent with the CCTV which shows a conversation between Tuckwell and the appellant commencing at 3.28am, some seventeen minutes before the alleged assault. 40According to Kentish, and it is a little confusing, he said at T.10: I think she gave her name to another constable at that stage after probably five, ten minutes, and she had items on her that - under our rules and regulations we must remove property from people, not to harm us and not to harm themselves when we place them in custody. I spent about two minutes explaining to her about this. She still refused to comply and she said that she can't do that because there is no female here, and I said 'well we have to protect ourselves and herself' and she still refuses to take the thing, the items off herself. We could see a bulge in her back pocket. We could see a few other things she had on her, I am not sure, I can't remember what they are, but we still said we had to search her and with that she went back into the dock. I followed her in, I actually put my hands on top of her shoulders to try and sit her down. She then pushed out with her right arm, pushed herself back into the dock. I followed her in. There was a bit of a scuffle ensured (sic). She pushed me away, sort of - as she went back into the dock at one stage she sought of had hold of me and dragged me towards her and I pulled my leg up to put on the seat so I wouldn't go forwards, next minute she is kicking, she kicked me in the groin a number of times. As I recovered I hit her with a palm strike to the head to get her to cease kicking. She kept kicking. I hit her again with a palm strike to the head and she ceased her kicking. We removed property from her and removed myself from the dock. Senior Constable Heath Aiken was in there with me at the time, trying to help me because of the small area, it was hard to move around. We couldn't use any other means of restraint due to the restrictions and the closeness of the dock and that is about it. 41At T.11:03 he stated that he thought the appellant was fairly well intoxicated. 42During cross examination the following exchange occurred at T.22 commencing at line 4:- Q. Well there is prior to you entering the cell I suggest, would you agree with this, obviously some animated conversation. A. Correct. Q. And you say that what is animated about is, if this is not fair to your topic you are saying words to the effect, 'We have to search you, I'm required to search you, it is our duty to search you, and you will comply with that request? A. Correct. Q. And if you do not comply you will be forcibly searched? A. Correct. 43At T.23:37 he was asked:- Q. And so what is the purpose of the search? A. To remove the property that could damage us or herself. Q. But you see isn't the problem with that, that she was in custody for a significant period of time between when she is taken into the cell dock area and when the search occurs? A. We're still trying to establish identity for a start, because she still refused to give her identity and was abusing us all the time, we gave her time to settle down, we gave her time to comply with the search which she didn't comply and eventually we had to search her. Q. Would you accept she was in custody for a period of time? A. Yes. 44In terms of what was the product of the search according to Kentish, he said at T.25 after noting that she had objected to being searched by him and wanted to be searched by a female officer: - Q. Well it is not a pat down search is it? A. it is because there is a lump in the back of her pocket, on her back pocket where were tissues we didn't now what it was, there was an earring we got out of it. 45He remembered searching her back pocket because there was a lump in the back pocket. 46It is hard to reconcile this version of events with what is seen on the CCTV footage, particularly in relation to what he says was the product of the search. It is worth noting here that there is no evidence from police as to why she was being held without processing of the offences for which she had been arrested. 47This evidence is also inconsistent with that of Tuckwell who said he had already obtained the offender's particulars and given them to the Custody Manager, Aiken, well before the "search". 48Kirk gave evidence. His evidence on the topic commences at T.31. According to him the accused was escorted into the dock area and was still struggling with and abusing police. He said that he attended to other matters after that and was speaking to a couple of other police. A short time later he returned to the custody area and he said at T.31:22 A short time later I returned to the custody area where I heard Senior Constable Kentish say words to the effect of, "Empty your pockets and pull the property off your person", to the accused. The accused said words to the effect, "I don't have to, I know my rights, you have to get a female officer out here to search me." Senior Constable Kentish said words to the effect, "Well we haven't got a female officer on tonight, so you'll have to empty your pockets, because we have to search you." Again the accused said words to the effect, "I don't have to". At that stage Senior Constable Kentish said to words to the effect, "If you don't empty your pockets then I'll search you". The accused said words to the effect, "I don't have to". At that stage Senior Constable Kentish went to grab the accused, she has thrown herself back on the dock and pulled Senior Constable Kentish in on top of her. Senior Constable Kentish attempted to take property from her pockets and that sort of thing, and the accused has then violently started struggling, saw the accused kick Senior Constable Kentish in the groin, Senior Constable Kentish said words to the effect, "Don't kick me". I then seen the accused kick Senior Constable Kentish around the legs a couple more times. At that stage Senior Constable Kentish has punched the accused in the face, he continued to try to search her, the accused continued kicking and again I saw Senior Constable Kentish punch the accused in the face. At that stage the accused has said words to the effect, started crying and said words to the effect, "You've punched me". Senior Constable Kentish said to her, words to the effect, "Well if you continue kicking me I'll continue punching you until you stop. The accused has then stopped. Senior Constable Kentish and Constable Aiken have searched the accused, removed some property from her and then we've locked the accused in the dock. 49It should be noted that the CCTV footage shows Kentish putting on rubber gloves before he went to speak to the appellant in the cell in which she was housed. The CCTV footage is not consistent with Kirk's assertion that the appellant was searched and something removed from her during the course of that search. 50There was no mention, according to Kirk, that Kentish explained the purpose of the search as related by Kentish. 51He noted at T.32 that at the time he thought that the appellant was:- ...lightly to moderately affected ... by alcohol. 52It should also be noted that the CCTV shows the appellant's arrival at 3.20.55am. She lets herself into the cell. She is not struggling with police. 53A Field Arrest Form is part of Exhibit A. It is incomplete and the author is not nominated. The arrest time is shown at 3.15am. The appellant is noted as being mildly intoxicated. It seems to have been completed by Tuckwell. (See his evidence at T.45. Therefore, it was completed shortly after 3.28am). 54This is consistent with the appellant's evidence that she had not had a drink since some time shortly before midnight, namely about four hours before the event. 55In cross examination at T.34 he said the following:- Q. I want to take you to the police station, did you hear Kentish say that he intended to search the defendant? A. Senior Constable Kentish asked her to remove her property from her person, so we could book it into custody. Q. And did the defendant say words to the effect, "I want to be searched by a lady police officer"? A. She said that she knew her rights, words to the effect, she knew her rights and we'd have to get a female police officer to search her. Q. And did she then say, I suggest to you she then said, "I'm prepared to be searched by anyone but Senior Constable Kentish"? A. She possibly could have said that, I don't recall whether she has or she hasn't. Q. She said, "Because Kentish assaulted me earlier today"? A. She could have said that too. Q. And I suggest that Kentish, Senior Constable Kentish entered the cell voluntarily, stepped in? A. Well from memory I believe Senior Constable Aiken may have had a word to her, I definitely had a word to her at the dock door and said, "Well just remove your property", prior to Senior Constable Kentish coming in. Q. And Kentish then, Senior Constable Kentish then pushed her back against the bench? A. No she threw herself back. Full back. Q. Was Kentish touching her when she threw herself back? A. I believe he had a hand on her yes. Q. Whereabouts? A. I believe he might have put one on her chest and went to grab her with the left arm on her right arm. Q. Did he put that - did he appear to put that hand onto her chest with considerable force? A. No, no she started going back prior to Senior Constable Kentish grabbing her. Q. And I suggest that she was on the - there's a sort of bunk or bed thing there? A. It's a seat, a steel seat. Q. And Constable Kentish was over the top of her? A. Once they went back in the dock yes. Q. And Constable Aiken was in the cell, was in the dock? A. He was in the corner of the dock yes. Q. They were both pinning her down and searching her? A. Well they were searching her but she had fallen back in and she was kicking and carrying on so he may well have started to pin her down, due to the fact she was struggling violently. Q. I suggest that you (sic) punched her a number of times? A. After he got kicked in the groin yes that's correct. Q. I suggest that he got kicked in the groin that was in circumstances when she was held prone on the ground, or prone on the bench with the police over the top of her, in a very confined space? A. That's correct. Q. And in circumstances where she had said, "I want anyone to search me but Kentish"? A. Well sir she was offered the opportunity to empty her pockets prior to all this going on and she refused to do so, a number of police spoke to her and said, "Empty your pockets and he won't search you" Q. There was ample opportunity for any police officer or a number of police officers other than Kentish to search her, was there not? A. There was, yes that's correct. 56Thus, according to Kentish, the only reason for the search was to take property off the appellant because she had refused to do so voluntarily. There is no obligation on either the police or a person in custody to oblige the surrender of a person's property or for a person to surrender it. 57Aiken was Custody Manager at the Armidale Police Station in the early hours of 26 September 2009. He was on duty when the appellant was brought to the police station and had a conversation with her. He formed the view that she was moderately intoxicated. During his initial brief conversation with her, according to him, he asked her whether she had any property on her and she said that she did but he was not getting it. 58He said that he explained the procedures in relation to people brought into custody to her, namely that they are searched and all property is removed from them. He said that she still declined to hand over the property. (T.37). 59At T.38 he gave the following evidence:- Q. Do you remember what she said? A. She said, "Yes you aren't getting it", "Yes you're not getting it". She indicated that she had property in her pockets, I then left the charge room and sought the assistance from Senior Constable Kentish and Sergeant Kirk, we all entered the charge room again, Senior Constable Kentish had a conversation with the defendant in relation to the property. Q. Do you recall what that conversation was? A. Yes it was still that to remove her property I believe the defendant asked for a female officer, but there wasn't one on shift. That's the conversation I remember. Q. And what was the manner of the accused at that time? A. Very verbally abusive, she wouldn't co-operate with any request in relation to handing her property over, she was informed that you know if she didn't want to hand it over she would be searched. Q. How many times was she asked to submit to the search? A. I know I asked her a few times, at least twice after I explained the procedures of when someone comes into custody and Senior Constable Kentish also explained the procedure to her as well. Q. What occurred then? A. Senior Constable Kentish took hold of the defendant, she's - what I believe, she's fell back into the - or laid down on the dock seat, in like a - she wasn't laying down nor was she sitting up, it was more, she was on an angle up against the back wall. I went into assist Senior Constable Kentish, I was more in front of Senior Constable Kentish trying to control her upper torso area, she started thrashing her arms about and twisting and making it very difficult to try to control her to search her pockets. I couldn't get hold of her, basically because of the amount, how she was twisting and thrashing her arms about. During that time I felt her legs start kicking out, I felt them brushing the left side of my legs, they were doing that quite quickly, I say her legs were kicking out, during that time I was still trying to control her arms, I felt, I heard Senior Constable Kentish cry out and that when he said - pardon - yeah I heard Senior Constable Kentish cry out or wince what I believed was the sound of he was in pain, I then saw Senior Constable Kentish punch the defendant in the face, and said, "Don't kick me", however I could still feel her legs continue to vigorously brush my legs and he punched her again to the face and that's when her legs, I could feel her legs immediately stop kicking out. Q. What happened then? A. I believe Senior Constable Kentish located a ring, like an earring in her pocket, then we left the dock area and I entered that earring up into her property. 60Cross-examination of the officer did not change the evidence he had given in chief in any way in terms of the events that occurred. 61Again, he seems to say that the earring was found during the search. It does not show that in the CCTV. The evidence is that the earring was given to Aiken afterwards. 62Again, his version does not include Kentish giving the explanation to the appellant as to the purpose of the search as given in evidence by Kentish. 63The next police witness was Tuckwell. His evidence in chief relevantly commences at T.45 as follows: - Q. The accused was then taken back to the police station? A. That's correct. Q. By you? A. Yes. Q. And taken into the police station? A. I'm sorry? Q. And taken into the police station? A. Yes, the truck, I believe would have been driven, was driven into the van dock and she was escorted into the charge room and placed in dock number 3 which is on the right-hand side of the charge room. Q. Did you have a conversation with her at that stage? A. I did. I obtained a field arrest form from the custody pigeonholes and approached the accused who was seated in the dock and spoke to her and obtained her name, date of birth and place of abode. Q. What happened then? A. After I'd obtained her particulars I passed them on to the custody manager which was Senior Constable Aiken and I departed from the charge room for a period of five or ten minutes. Q. What occurred then? A. I returned to the charge room and as I entered the charge room, I walked down the corridor to my left where the three docks are situated. Senior Constable Kentish and Senior Constable Aiken were engaged in a discussion with the accused about subjecting her to a search. Q. Do you recall the conversation? A. I recall words to the effect of "You're not searching me". I recall Senior Constable Kentish saying to the accused words to the effect of "If you don't submit to the search then you'll be searched forcibly". The accused said words to the effect of "Well you're not going to search me". The accused was then forced into the dock and submitted to the search by force. 64I interpose that this is different to the description given by Kirk who said the appellant threw herself back into the cell. Q. Do you recall - can you tell the court what you actually saw? A. Senior Constable Kentish pushed the accused back into the right-hand corner of the dock. Senior Constable Kentish and Senior Constable Aiken entered the dock with the accused and a struggle ensued, in the dock. The officers were attempting to turn out the pockets of the accused. Q. Just give evidence of what you know about, what you saw, what you smelt, not what you think? A. What I saw was the accused managed to struggle and get her leg up between the legs of Senior Constable Kentish who was standing in a position over the top of her, restraining her. At that point I called out to Senior Constable Kentish to watch his nuts because I believed the accused was about to kick him in the groin. Q. What did you actually say to him? A. I said "Watch your nuts, watch your nuts". The accused kicked up towards the groin of Senior Constable Kentish upon which Senior Constable Kentish struck the accused to the head two or three times. Q. What occurred then? A. After Senior Constable Kentish struck the accused a number of times she ceased in her actions of trying to kick him. I believe an earring was removed from her pocket and the search was ceased after that and she was secured in the dock. Q. Did you observe any injuries to the accused? A. No. 65Significantly at T.47 in response to the question whether he formed a view about her level of intoxication, he said: No, I didn't smell any alcohol on her or anything like that. 66That is quite interesting in that Tuckwell clearly had a quite extended conversation with the appellant as shown on the CCTV footage timed at about 3.28am. 67This is broadly consistent with what I assume is his note "mildly intoxicated" on the "Field Arrest Form" within Exhibit A. 68It is unarguably the case, however, that the appellant had had something to drink the evening before but his observations are consistent with a conclusion that at the time he spoke to her she was not particularly affected by alcohol. 69He also answered the question on that form:- Q. Does the person show any sign of mental illness or display any sign of self harm? A. No.