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.