Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Araura [2012] NSWSC 1120 Hearing dates: 28 August 2012 Decision date: 21 September 2012 Jurisdiction: Common Law Before: Davies J Decision: (1) Appeal allowed. (2) Set aside the order of the Local Court (Tsavdaridis M) of 10 October 2011 dismissing the charges against the Defendant. (3) Remit the charges against the Defendant to the Local Court to be determined in accordance with law. (4) The Defendant is to pay the Plaintiff's costs of this appeal. (5) The Defendant is to have a certificate under the Suitors' Fund if otherwise so entitled. Catchwords: APPEAL - from Local Court - offence of assaulting officer in the execution of duty - meaning of "execution of duty" - protection of person from self-injury - reasonableness of police actions Legislation Cited: Australian Federal Police Force Act 1979 (Cth) Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Police Act 1990 Cases Cited: DPP v Gribble [2004] NSWSC 926 Innes v Weate [1984] TasR 14 R v K (1993) 118 ALR 596 Wyong Shire Council v Short (1980) 146 CLR 40 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Zenia Araura (Defendant) Representation: Counsel: R Herps (Plaintiff) A Williams (Defendant) Solicitors: Solicitor for Public Prosecutions (Plaintiff) B Hall, Solicitor File Number(s): 2012/55975 Decision under appeal Date of Decision: 2011-10-10 00:00:00 Before: Magistrate Tsavdaridis File Number(s): 2012/55975 Judgment 1The Director of Public Prosecutions (NSW) appeals pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 against the dismissal of two charges of assault officer in the execution of their duty under s 58 Crimes Act 1900. The appeal may be brought on grounds that only involve questions of law. The facts 2The police attended an apartment complex at Elliott Street, Balmain in response to a domestic dispute. They entered the building, went down a flight of stairs and encountered the Defendant sitting in the stairwell. She was screaming, bleeding profusely from her forearm, and she said she wanted to die. A nearby male, believed to be her partner, told the police to "help her". As far as the police knew at that stage the Defendant had not committed any crime. 3One of the police officers, Constable Beavis, tried to calm the Defendant down. He grabbed both her arms because she was picking at the wound which was bleeding. As he held on to the Defendant she opened her mouth in an attempt to bite him. She kicked Constable Beavis a number of times to his shins and upper thigh. She was eventually controlled by being placed in handcuffs. At about this time she bit Constable Hickey. 4After she was handcuffed the police waited with her until an ambulance arrived. Shortly thereafter she was taken from the building by police and placed inside the ambulance. 5The Defendant was subsequently charged with two counts of assaulting an officer in the execution of his/her duty. The assaults relied upon were the biting and kicking of Constable Hickey and the kicking of Constable Beavis. The Local Court proceedings 6The elements of the offence are: (1) assaulting; (2) an officer; (3) while such officer is in the execution of his or her duty. 7The matter proceeded as a defended hearing before Magistrate Tsavdaridis on 10 October 2011 at the Downing Centre Local Court. 8The issue for determination was whether the officers were acting in the execution of their duty. In that regard s 6 of the Police Act 1990 was relevant. 9Section 6 relevantly provided: 6 Mission and functions of NSW Police Force (1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear. (2) The NSW Police Force has the following functions: (a) to provide police services for New South Wales, (b) to exercise any other function conferred on it by or under this or any other Act, (c) to do anything necessary for, or incidental to, the exercise of its functions. (3) In this section: police services includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and ... The Magistrate's reasons 10The Magistrate first dealt with the elements of s 58 Crimes Act. His Honour then went on to say: Much has been said about the first two elements of that offence but it seems to me that A PRIMA FACIE CASE IS MADE OUT TO THE REQUISITE STANDARD WHEN ASSESSING WHETHER THE OFFICERS WERE ACTING IN THE EXECUTION OF DUTY, based on the decision of Director of Public Prosecutions v Gribble and which is itself based on section 6 of the Police Act, a State piece of legislation. Paragraph 2 of the headnote of that decision provides that section 6 of the Police Act extends the duty of a police officer beyond the prevention and investigation of a 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 arise from any criminal act. It is, in my view, subtly distinguished, however, from these present facts. There is no reference in Gribble to protection of persons from self-injury, although one might, after reading the entirety of the case, reach the conclusion that Mr Gribble, who was running into the middle of the road, was posing a danger to himself as well as to others. 11I do not agree with his Honour's statement that there is no reference in Gribble (DPP v Gribble [2004] NSWSC 926) to protection of persons from self-injury. In paras [23] and [24] Barr J said: [23] 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 prevention 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. [24] It seems to me that that is the intent of the legislation and that the submission should be accepted. ... 12 A little later on Barr J said this: [28] It was submitted that Senor Constable Duffey and Senior Constable Suitor were met with an emergency. They were in the middle of a busy road at night confronted by an irrational man dressed all in black who had already made plain his intention to disregard police instructions and to stay where he was in the middle of the road, endangering himself and others. The risk to his safety and to the safety of the officers and other road users was obvious and would have been pressing. I think that the submission should be accepted. [29] In my opinion those circumstances gave rise to a duty on the part of the officers to do what they reasonably could to remove the defendant and others from the danger to which his action was giving rise. They twice required him to get off the road and he twice refused. His refusal was irrational and he was otherwise behaving inappropriately. In my opinion when the officers laid hands on the defendant they were acting in the course of their duty to protect the defendant and others from the danger which he was presenting. The Magistrate erred in her finding to the contrary. 13The learned Magistrate then directed his attention to the question whether a criminal offence or a breach of the peace was involved and to the need for medical attention for the Defendant. He said: So, certainly in my view, there is, from the evidence that I have seen, nothing to suggest that she was committing an offence; in fact that was made clear by a number of the officers who gave evidence and who said that she had not committed an offence when they had arrived, there was no breach of the peace and the overwhelming conclusion reached by the officers was that she was in need of medical attention and that the officers were there for her own welfare, to make sure that she was all right and to ensure that she did not engage in any self-harm over and above any harm that she may ultimately have engaged in which involved the officers. Constable Hickey gave evidence initially that she too thought that the defendant was in need of medical attention. There was some miscommunication in her evidence. Originally I understood her response to a question in cross-examination to mean that there was no need for police to approach her. She clarified that by saying that there was a need and the reason was simply for her own safety and to prevent injury to herself and to Constable Beavis. She did concede biting the officer and I accept that that took place. I accept that she thrashed about and contact was made and that she kicked the officers as well. This, however, is not one of those cases which involves, as I have said, police officers attempting to suppress crime but a very subtle nuance which needs to be noted is that in my opinion there is a discreet (sic) nuance between acting in the course of duty and acting in the execution of duty. Certainly, as I said, the officers may have formed the view that she was in need of medical attention and one of the duties that they have was to assist her in ensuring that she did not harm herself. The only harm that I understood from the evidence she could have possibly engaged in was by picking at scabs, blood or some sort of laceration on her arm, hardly the kind of harm which grounds the conclusions referred to in the decision of DPP v Gribble, that is to say harm of a much less serious nature and certainly one must assess the elements of the offence against the backdrop of her repeated requests that she be left alone, her repeated requests that she wanted to die. It seems to me that there was nothing, without being critical of the officers, which would warrant her being handcuffed as if to be arrested, so much so that the medical attention was to be provided to her outside. One would think that all of this could have been averted by the ambulance officers coming in and providing whatever medical assistance they thought fit, being specially trained medical officers, rather than being dealt with by police officers intervening the way that they did and, of course, those comments are in no way critical of the officers. I accept that they have a difficult duty, I accept that certainly Constable Hickey did not deserve to be bitten. Precautions were taken and it is very fortunate that she did not sustain any injuries or, indeed, contract any diseases. 14His Honour then concluded as follows: HAVING REGARD TO THOSE REASONS, I AM NOT SATISFIED THAT THE EVIDENCE MAKES OUT ELEMENTS OF THE OFFENCES TO THE REQUISITE CRIMINAL STANDARD, BEYOND REASONABLE DOUBT. THAT OBLIGATION RESTS WITH THE PROSECUTION FROM START TO END AND ON THAT BASIS THE OFFENCES, CHARGES, ARE BOTH DISMISSED. 15The DPP took over the proceedings and filed an appeal to this Court against the Magistrate's decision. The grounds of appeal are these: (1) Erroneously holding that the actions taken by police to handcuff the Defendant from causing further injury to herself and for assaulting police officers who were attempting to restrain her fell outside the scope of the duty they were required to perform under s 6 of the Police Act 1990. (2) Erroneously holding that there is a discrete nuance between acting in the "course of duty" and acting in the "execution of duty". (3) Dismissing the charges. Were the officers acting in the execution of duty? 16It is convenient to deal with all grounds of appeal together as they are concerned with a similar issue, namely, what is involved in acting in the execution of the officers' duty. 17Although from a semantic point of view one can see that there might be a difference or "nuance" (as the Magistrate called it) between acting in the "course of duty" and acting in the "execution of duty" I do not consider that any distinction in that regard should be drawn. In Gribble, a decision on closely analogous facts, Barr J used the terms interchangeably (see at [4], [29]), [30], [31] and [32]) and in particular said at [29]: In my opinion when the officers laid hands on the defendant they were acting in the course of their duty to protect the defendant and others from the danger which he was presenting. 18Ultimately counsel for the Defendant did not seek to support the distinction made in that regard by the Magistrate. The issue, he said, was whether what the police officers did was necessary and reasonable in all of the circumstances. Although counsel for the DPP initially said that the case ultimately turned on whether the officers were acting in the execution of their duty he also accepted that the issue of reasonableness was the key to the result. There is support for that approach in the authorities. In Gribble Barr J said: [23] 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 prevention 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. 19A little further on in his judgment Barr J said this: [29] In my opinion those circumstances gave rise to a duty on the part of the officers to do what they reasonably could to remove the defendant and others from the danger to which his action was giving rise. They twice required him to get off the road and he twice refused. His refusal was irrational and he was otherwise behaving inappropriately. 20In Innes v Weate [1984] TasR 14 at 21 Cosgrove J said: There are two difficulties in this concept of duty. One is that it cannot be stated in other than general terms - the range of circumstances in which the duty to act may arise is too wide, too various, and too difficult to anticipate for the compilation of an exhaustive list. 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... 21Similarly, in R v K (1993) 118 ALR 596 the Full Court of the Federal Court was dealing with an offence against a section in the Australian Federal Police Force Act relevantly identical to s 58 Crimes Act in that it referred to assaulting a member of the AFP "in the execution of his duty". The Full Court of the Federal Court said (at 601): Section 64 should not be construed in any narrow or restricted sense, but should be given a broad operation to protect the performance of all police duties, and not just some. The section is general: "in the execution of his duty". That means that the section applies whenever the police officer is doing something which can fairly and reasonably be regarded, giving the existing circumstances, as carrying out his duty. The generality of the section is further confirmed by the consideration that it attempts to cover a very wide range of possible interferences with the work of the police: assault, resistance, obstruction, or hindrance, or aid indictment or assistance in relation to any of those things. It is not limited to violence of the sort that was in issue in the present case. 22Although the learned Magistrate found on a prima facie basis that the officers were acting in the execution of their duty, basing his view on Gribble, his Honour does not explain what was lacking in the evidence that led to his final conclusion that the elements of the offences were not made out beyond reasonable doubt. His Honour does not appear to have addressed the reasonableness of the behaviour of the police officers in acting as they did despite making reference to s 6(2) of the Police Act and observing that the duty of a police officer included actions "reasonably necessary for the protection of persons from injury or death". 23It was faintly suggested by counsel for the Defendant that the issue of what was reasonable was a question of fact for the Magistrate. I do not agree. The question of what is reasonable is a question of law in that it involves the application of a legal standard to the facts which have been found: Wyong Shire Council v Short (1980) 146 CLR 40 at 47-48. 24The evidence of all of the police officers was that the Defendant was in a highly distressed state when they arrived. They were trying to calm her. Constable Rahme said the police were there "for her own welfare to make sure she was all right". Constable Hickey said they first approached her "for her own safety so that she could get medical treatment and to prevent injury to Constable Beavis" who had first tried to deal with the Defendant. Constable Creus said that he believed there was a justification to arrest her "for her own safety, as I heard her screaming, 'I want to die'". 25They all referred to the amount of blood that was everywhere, seemingly emanating from one of her arms. Indeed, each of the police officers was cross-examined by counsel for the Defendant in an effort to show that there was a great deal of blood. In the first place there was evidence from Constable Beavis that he tried to calm the Defendant down and tried to stop her picking at the wound from where the blood was flowing. There was evidence that she was thrashing around and saying that she wanted to die. There was evidence that a male person standing nearby was telling the police to help her. 26Counsel for the Defendant cross-examined the police officers to show that the Defendant had neither committed a criminal offence nor a breach of the peace and that it was her medical condition that they were dealing with. The police officers agreed with that proposition. 27It is difficult to discern the reasons for his Honour's final conclusion. The paragraph preceding that final conclusion in his reasons suggests that in his Honour's view all that happened in the stairwell could have been averted by the ambulance officers treating the Defendant rather than the police officers dealing with her. However, the evidence from the police officers was that they arrived at the scene perhaps some 10 or 15 minutes before the ambulance on Constable Hickey's evidence, and that there was the need to deal with her in some way as summarised above. 28The learned Magistrate also seemed to place some significance on the fact that the Defendant said that she wanted to be left alone, with the inference being that his Honour thought the police should not have interfered in the circumstances. At least one of the police officers (Constable Rahme) thought that she was under the influence of alcohol and probably some sort of drug. In any event, they all observed a lot of blood which concerned them, she was suggesting that she wanted to die and appeared to be picking at a wound that caused more blood, and someone was calling to the police to help her. 29The Magistrate also said that there was nothing to warrant the Defendant's being handcuffed. In that regard his Honour made no reference to the evidence from Constable Hickey who said, when asked why she did that, To protect herself, because she was continually, as she was continually punching out an increasing amount of blood was coming, but also for the obvious, to protect ourselves from her. Nor did his Honour take account of the fact that by that time the assault on Constable Beavis had already occurred, the Defendant had additionally tried to bite Constable Beavis, Constable Creus and Constable Hickey and had tried to punch Constable Creus who managed to move out of the way in time. On the basis of Constable Beavis's evidence the Defendant had already bitten Constable Hickey before she was handcuffed. 30It is necessary for the DPP to demonstrate that there has been an error of law on the part of the Magistrate. The matters referred to in the immediately preceding paragraphs are factual matters but they are relevant because his Honour was not directing his consideration to the issue that was required to be determined, namely whether the acts of the officers were reasonably necessary for the protection of the Defendant from self-injury (Gribble at [23]) and, if that was satisfied in the first instance, whether their subsequent acts were reasonably necessary for the protection of both the Defendant and themselves from injury given the way the Defendant responded to their initial approach. 31When the other elements of the offence, namely the (1) assault (2) of the officers, were not in issue the only inference available from the Magistrate's decision is that he did not consider that the police were acting in the execution of their duty at the time they were assaulted. That conclusion could only have been reached if the actions of the police officers were not reasonably necessary for the Defendant's protection and subsequently their own protection. The Magistrate found, prima facie, that they were acting to protect her from injury and in that sense were acting in the execution of their duty (see [10] above). 32By drawing an illegitimate distinction between the "course of duty" and "in the execution of duty" and in failing to have regard to the reasonableness of the actions of the police officers up to the time each was assaulted, partly at least by a mis-reading of Gribble (see [11] above), the Magistrate has fallen into error in considering the third element of the charges. 33In those circumstances, the appeal must be upheld. Conclusion 34I make the following orders: (1)Appeal allowed. (2)Set aside the order of the Local Court (Tsavdaridis M) of 10 October 2011 dismissing the charges against the Defendant. (3)Remit the charges against the Defendant to the Local Court to be determined in accordance with law. (4)The Defendant is to pay the Plaintiff's costs of this appeal. (5)The Defendant is to have a certificate under the Suitors' Fund if otherwise so entitled. ********** 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: 21 September 2012