Ashley & Ors v Balchin [2006] NTSC 41

"Why don't you fucking leave us alone, you cunts. Fuck off cunt, why don't you fuck off."

[5] Ambrose Daniels was not immediately identified amongst those within the vehicle as the person who said those words. Senior Constable Enguell who was standing close to the vehicle heard those words and asked who had said the words. Ambrose Daniels replied "Fuck off cunt, why don't you fuck off?". Constable Enguell took the view that those words amounted to an offence and placed Ambrose Daniels under arrest pursuant to s 123 Police Administration Act (NT).

[6] In deciding to arrest Ambrose Daniels, Constable Enguell declined to exercise his discretion to issue an infringement notice or summons. This decision "may have been in breach of the (Police) guidelines" but did not go "beyond his powers (of arrest) such that he was no longer in the execution of his duties".

[7] Ambrose Daniels "resisted with some force thereafter which included a kick of some level. It is not clear from the evidence how hard but not particularly hard". This "created a struggle ... it involved enough resistance to see two police officers brought to the ground by the struggling (appellant Ambrose)". Constable Enguell used his knee to strike Ambrose Daniels in the abdomen. It was unclear whether such force was needed but the level of force was "in the scope of what was reasonable". Constable Enguell then used capsicum spray on Ambrose Daniels and his father who had intervened.

[8] Ambrose Daniels was thereafter dragged away from the police constables by his father and he was no longer, at least for a short time, either under arrest or involved in the commencement of the melee which followed.

[9] A melee ensued because "certain persons in the crowd, certainly the (appellants) at that point in time, took the view ... that Enguell had done the wrong thing or had been heavy-handed, had done something beyond what he should have in his attempt to arrest Ambrose". The melee amounted to "acts of retaliation for the perceived wrongs of Enguell". "Certainly one or more than one (of the appellants) immediately decided to punch Enguell to show their displeasure or retaliate for his acts. On doing that, others decided to join in and I do find that there was a clear joining in, such that they did - although there was no prior agreement, all who joined in the punching and kicking clearly saw what was going on and in joining the fight ... they joined in the enterprise, such that it became a joint enterprise". The "joint enterprise" occurred in relation to the assaults on Senior Constable Enguell and ACPO Joran. Ambrose Daniels independently assaulted Sergeant Lindfield quite apart from any "joint enterprise".

[10] In the course of the melee the police officers were able to recognise their assailants. All five of the appellants were recognised by the Police, to whom they were known, as having individually assaulted Enguell and Joran.

[11] After the commencement of the melee, Enguell and Joran were acting in self-defence or in defence of one another and they could not be held to be acting outside the execution of their duty at that time.

[12] The learned Magistrate found that the initial arrest of Ambrose was lawful. The learned Magistrate said:

"I do take the view, and I would have taken the view if I had been persuaded that the arrest was unlawful because of the breach or because there may have been a breach of Police Standing Orders, I would have taken the view that even if I found Officer Enguell not acting in the execution of his duty in the arrest and up until the point of using the capsicum spray on Ambrose and Davis Daniels, I would have taken the view that that arrest or attempted arrest ceased at that point.

I believe at that point the whole nature of the incident changed. That the persons that began to get involved at that point when Ambrose Daniels was dragged away by his father and was no longer, for at least a short time, involved in, or there was no longer an attempt to take him under restraint, I was at the view that the circumstances of the case changed at that point, and that the crowd or certain persons in the crowd, certainly the defendants at that point in time took the view as has been suggested that Enguell had done the wrong thing or had been heavy-handed, had done something beyond what he should have in his attempt to arrest Ambrose. And I think the actions that then flowed thereafter were actions in fact not of defending Ambrose or an attempt to prevent the arrest of Ambrose, but they were in fact acts of retaliation for the perceived wrongs of Enguell and that the attacks were primarily aimed at Enguell and the attacks on Robert Joran were part and parcel because he was close by and in the vicinity of Enguell.

And I would have found, even if I found that the arrest was unlawful which I haven't, but if I had, I would have found that from the point the officers had ceased to attempt to arrest Ambrose and were merely acting in self defence or defence of each other, they couldn't be held at that point in time to be acting outside the execution of their duty. And that any assaults that have flowed thereafter would clearly have been assaults on the officers in the execution of their duty no matter what view I took of the initial arrest.

Because I am firmly of the view that the actions thereafter were retaliation, they were what I suppose could be described as instant payback for what the crowd took was the wrongful action or him arresting and were given in that light."

[13] The grounds of appeal were essentially fivefold:

2. The police used excessive force in effecting the improper arrest which took them beyond the execution of their duty. (Grounds 4, 5 and 6).

3. The response of the appellants to the improper arrest and excessive force was defensive and not retaliatory.

4. The learned Magistrate erred in finding that the each appellant assaulted the relevant Police Officers in prosecution of a common purpose with others.

5. The learned Magistrate ought to have excluded evidence led by the prosecution following the initial arrest of Ambrose Daniels in the exercise of his discretion, ie. the learned Magistrate erred in his exercise of a Bunning v Cross discretion.

[14] Section 123 Police Administration Act (NT) provides:

"A member of the Police Force may, without warrant, arrest and take into custody any person where he believes on reasonable grounds that the person has committed, is committing or is about to commit an offence."

[15] Senior Constable Enguell gave evidence that he believed the words uttered by the appellant Ambrose Daniels constituted an offence. The learned Magistrate said:

"It is really an area which has been vexed at law when does a word like 'fuck' become indecent, obscene or offensive; when does the words like 'cunt' become indecent, offensive, or behaviour in using them breach the law. I could not make a finding that the officer involved did not have the requisite belief such that he was justified according to the powers granted under s 123".

According to the evidence of Senior Constable Enguell and Sergeant Lindfield who was in the police vehicle a little distance from where Enguell was standing, the appellant Ambrose was intoxicated and belligerent. The swearing was heard by all three police officers and Sergeant Lindfield, a police officer of some 22 years experience, said he was offended by the swearing. Notwithstanding this evidence the learned Magistrate dismissed a charge of offensive language against the appellant Ambrose Daniels after referring to the High Court decision in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1.

[16] However, as the respondent submitted, the critical factor for present purposes is not whether at some later time a court looking at the conduct finds that an offence has or has not been committed but what the officer believed at the relevant time and whether that belief was a reasonable one.

[17] Senior Constable Enguell was addressing the occupant of the driver's seat in the vehicle. The swearing was directed at him from the appellant Ambrose Daniels who was seated in the back seat. When Enguell inquired who had sworn the swearing continued. Again it was addressed at Enguell - belligerently. Offensive behaviour is behaviour which gives offence or which insults. Disorderly conduct is conduct which is disorderly: Watson v Trenerry [1998] NTCA 22; (1998) 122 NTR 1 at 5. In the case of disorderly behaviour in a public place it is not necessary to prove that the behaviour in fact disturbed the peace or in fact interfered with the comfort of others; it is sufficient if it had a tendency to do so: Watson v Trenerry, supra, at 13.

[18] In my opinion, on the evidence before the learned Magistrate, Senior Constable Enguell believed on reasonable grounds that an offence had been committed. It was for the prosecution to establish that fact and in my opinion did so beyond reasonable doubt.

[19] It was submitted that the arrest was unlawful on account of Senior Constable Enguell's unreasonable exercise of his discretion. It was submitted that the arrest was unnecessary and an unacceptable infringement on the personal liberty of Ambrose Daniels. It was submitted the offending was trivial and there were options other than arrest plainly available to the police. Reliance was placed on Police General Order A7, section 2.2, which provided "The arrest of a person should be an action of last resort," and section 20.1, which provides "Even though authorised by law, members should abstain from making an arrest for a minor offence where proceeding by summons is appropriate. Members should exercise discretion in dealing with minor offences committed inadvertently, in ignorance or without criminal intent. In any event, caution should be observed to prevent the possibility of an innocent person being arrested". In this regard reliance was placed on DPP v Carr [2002] NSWSC 194; (2002) 127 A Crim R 151 and Zaravinos v NSW [2004] NSWCA 320; (2004) 214 ALR 234.

[20] In Carr, supra, at 159, Smart AJ said:

"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 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."

[21] In Zaravinos, at [37], Bryson JA, having referred extensively to Holgate-Mohammed v Duke [1984] AC 437 at 443, Drymalik v Feldman [1966] SASR 227 at 231-5, the Wednesbury Corporation case [1947] EWCA Civ 1; [1948] 1 KB 223 at 228-9, and other authorities, said:

"In the present case the burden of proof that the arrest and detention were lawful fell on the defendants under the defence of justification which was attributed to them. Even if the circumstances mentioned in s 352(2)(a) exist, the lawfulness of the arrests of Mr Zaravinos are examinable, and the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is, the purposes of bringing the person arrested before a justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of information and summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question."

As the New South Wales Court of Appeal said in Fleet v District Court of NSW & Ors [1999] NSWCA 363 at [73]:

"Lawfulness of arrest is one thing, appropriateness is another."

"I do find that the officer may have been in breach of the guidelines but I'm not prepared to go as far as to say that his actions were improper in the sense that he had some sort of contumelious disregard for them and may very well have just been a reaction to - without really thinking through the matter as closely as he may have, but given those findings, I do not find that the officer unlawfully arrested Ambrose Daniels, and I do not find in that arrest that he was going beyond his powers such that he was no longer in the execution of his duties."

As the Court of Criminal Appeal said in Heiss v R; Kamm v R (1992) 2 NTLR 150 at 160:

"The General Orders make good sense and ought to be carefully observed, but they do not have the force of law and are for guidance only. They can not effect the lawfulness of an arrest."

[23] In my view whilst the arrest may be have been inappropriate in the sense that it was strictly unnecessary and whilst there may have been a breach of standing orders, the arrest was effected in good faith and for the purposes for which the power of arrest exists, that is, to bring the person arrested before a Justice and conducting a prosecution, and not for some ulterior purpose. The arrest was not high-handed or in contumelious disregard of the Police Regulations or Standing Orders or the rights of the offender. There was a felt need by Constable Enguell to act decisively to stop anticipated further belligerent abuse and swearing in the vicinity of women and children in a public place. Unlike Fleet v District Court & Ors (supra) there was no "element of the arbitrary" about the arrest.

[24] In my view the learned Magistrate's finding that the arrest was lawful was correct and should not be disturbed. It follows that the appellant Ambrose Daniels' appeal against his conviction for resisting a member of the police force should be dismissed.

[25] Whether or not the arrest of Ambrose Daniels was lawful the learned Magistrate made findings of fact that are, in any event, fatal to all the other appeals.

[26] Following the initial arrest the learned Magistrate found that Ambrose Daniels was dragged away by his father and thereafter at least for a short time he was not under arrest. That was a finding plainly open on the evidence. It was at that stage that the appellants attacked the two police constables.

[27] The learned Magistrate found that each appellant was identified as having punched or kicked the police constables. Such was the clear evidence of Sergeant Lindfield to whom each appellant was known. That finding and Lindfield's evidence (which was not challenged in cross examination) render the appellant's argument concerning "common purpose" and reliance on McAuliffe [1995] HCA 37; (1995) 183 CLR 108, Johns [1980] HCA 3; (1980) 143 CLR 108 and Tangye (1997) 92 A Crim R 545 at 556, otiose. A ground of appeal challenging the evidence of identification was abandoned.

[28] The learned Magistrate found that at that time the police constables had ceased to attempt to re-arrest Ambrose and were merely acting in self-defence or defence of each other once attacked. The learned Magistrate said:

" ... they couldn't be held at that point in time to be acting outside the execution of their duty. And that any assaults that have flowed thereafter would clearly have been assaults on the officers in the execution of their duty no matter what view I took of the initial arrest."

[29] The assaults were not "to prevent or terminate the unlawful deprivation of" the appellant Ambrose Daniels' "personal liberty" within the meaning of s 29(2)(a)(ii) Criminal Code (NT) because at the time he was not under arrest, having been dragged free of the initial arrest by his father. Nor were the assaults in defence of the appellants either individually or of each other. The actions of each appellant were not justified defensive conduct within the meaning of that term in s 29 Criminal Code (NT). They were unlawful.

[30] The learned Magistrate's finding that the assaults took place once Ambrose Daniels was free from arrest effectively answers the submission that the learned Magistrate ought to have excluded all the evidence following his arrest pursuant to his discretion under Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 72. The assaults were discrete unlawful events. The public interest in bringing the appellants to justice is separate from the public interest in the arrest being appropriate and lawful.

[31] Each appellant was properly convicted of unlawful assault upon a police officer in the execution of his duty contrary to s 189A Criminal Code (NT).

[32] Each appeal against conviction is dismissed.