Osborne-Horton v R [2017] NSWDC 474

District Court New South Wales

Medium Neutral Citation: Osborne-Horton v R [2017] NSWDC 474 Hearing dates: 23 November 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Conviction appeal upheld. The conviction and orders of the Magistrate are set aside. Catchwords: CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction CRIME — Public justice offences — Escape CRIME — Violent offences — Assault police officer in the execution of duty Legislation Cited: Criminal Code (Qld) Category: Principal judgment Parties: Luke Osborne-Horton (Appellant)

Regina (Crown) Representation: Mr Blake (Appellant)

Mr Gunter (Crown) File Number(s): 2017/20922 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 2 June 2017 Before: Magistrate B Schurr File Number(s): 2017/20922

Judgment 1. This is an appeal against conviction recorded by a Magistrate on three counts; two counts of assault police officer in execution of duty and one common law count of escape police custody arising out of an incident which occurred on 20 January 2017 in Haymarket. The appellant had apparently been drinking for some time while awaiting his girlfriend. When his girlfriend arrived after several hours at a tattoo parlour there was an argument which led to an allegation by the girlfriend of assault. The assault charge was dismissed by the Magistrate, but the girlfriend was concerned that the appellant was drunk and would be a danger if he drove so she called police. Police officers arrived; Officer Smith and Officer Kimbrell, who gave evidence in accordance with statements which they read by consent before the Magistrate. 2. As Mr Blake for the appellant says because the relevant incident is displayed on CCTV footage I am in as good a position as the Magistrate to form a view about the facts. The statements of the two police officers that were read out present a markedly truncated version of the sequence of events when one compares them to the several minutes of video which are occupied between the arrival of the police and the altercation which was said to be the arrest. 3. On reading, for example, the evidence of Constable Smith, one would assume that the police officer simply walked up and immediately asked for his licence and told him that he was under arrest, but there were clearly some minutes in which the two police officers and the appellant were interacting on the pavement. Eventually the police officers attempted to grapple with the appellant, and I make no criticism at all of the police officers' conduct or evidence in this, as they were clearly doing the best that they could in difficult circumstances handling an apparently well intoxicated, well-built man. However, having told him that he was under arrest, they attempted to detain him by grabbing him. The footage, in my view, shows no more than an attempt by the appellant to resist or escape from the grasp of the police officers. As Mr Blake submits, he could not have argued against a prosecution for a charge of resisting arrest, but the charge is of assault on both of the police officers. The fact that physical contact was initiated by the police is not in dispute, and as Mr Blake says, the differences between the statements of the police and what is shown in the video demonstrate the unsurprising fallibility of human memory in relation to particular incidents occurring at night over a very short period of time. 4. The evidence of Ms Cheng was not regarded as creditworthy by the Magistrate, and the fact that she says in her statement, which was admitted by consent, that "Luke swung towards the police officers with both of his arms" is not consistent with my viewing of the video. My view is that actions of the appellant were him attempting to free himself from the grasp of the police officer rather than committing an assault by waving his hands or holding them in a threatening manner which would constitute an assault. 5. As to the third count of escape lawful custody, it is surprising at this stage that there is no statutory offence and it is only a common law offence. The only support that could be found by Mr Blake's research, which is not contested by the Crown, is in Queensland legislation in s 142 of the Criminal Code (Qld) which provides that lawful custody occurs when one has been arrested and detained or imprisoned. There cannot have been here, on what I have seen on the video, an arrest and detention. At best an attempted detention. For those reasons I would also not be satisfied beyond reasonable doubt that the third count of escape police custody has been established. 6. For those reasons I will make the following orders: 1. The appeal on conviction is upheld. 2. The conviction and the orders of the Magistrate are set aside. Note - This extempore judgment was revised without access to the court file.