Now, the charge of obstruct. Obstructing a public officer in the performance of the officer's functions. I find that two officers arrived when the accused was on top of Shortland, perhaps having fallen over the barricades, but the officers said they yelled, 'Police, stop' as did, that few seconds later, officer Martin when he arrived on the scene when they were struggling to get the accused onto the ground.
Dwyer arrested Shortland, who he said was compliant - and that seems apparent from the video. Robinson grabbed the accused around the neck and pulled him up onto his feet backwards, and he said that the accused was not compliant and was struggling with him and Tomczak - and then others, including Martin, arrived to assist in their arrest of him - and again when Martin arrives he said, 'Police, stop. Get on the floor'.
At the very end of the incident when Martin had him on the ground - when they all had him on the ground with Martin's help, the taser was deployed by Dwyer - and Martin's evidence, which I accept, is consistent with the video at that part of - in that point of time. By that time the struggle had gone on for several seconds - four or five seconds.
I accept the police evidence that from the time Robinson arrived on the scene the officers yelled out, 'Police, stop' - as did Martin a bit later. Besides it was a reasonably well lit area by street light and the police were generally highly visible in their uniforms and fluoro vests, and there were quite a few of them. One arresting Shortland who was underneath - if you like, in front of the accused in terms of vision, at the same time as the arrest of the accused by Robinson - and I do accept that the New Year's crowd, which one of the witnesses said, had thinned out a bit by that time - evidenced by the video footage at around that time, being 4.40 am.
The accused says that from the outset the officer used excessive force in arresting him by putting him in a choker hold which he resisted. He also says that when he was down on the ground he was punched - although that part is denied by Martin and not clear from the video footage. By the time of the tasering the incident out of which the obstruct charge has arisen was practically over.
The footage indicates that the accused ought to have seen the police, but he says everything was a blur and he thought he was being attacked from behind by one of these three who had attacked him just before - people who weren't the police. Robinson used a neck restraint. Then when he was - when the accused was on his feet Tomczak tried to kick out his feet with her knee and get him on the ground, and he wouldn't readily go to ground. He was still trying to free himself from the officer's grip for this whole time.
The whole incident of arrest lasted four to five seconds. Robinson says it was appropriate to grab the accused in a headlock first, only for a short time. The struggle continued when the accused was up on his feet and facing the officer. He tried, as he described it in terms of the use of force options, presence and words first. Then he could see Dwyer arresting Shortland, and then Robinson chose to pull the accused back up by the use of his neck hold from behind.
The police officers were confronted with a violent situation, and the issue has arisen of whether Robinson used reasonable or excessive force in all of the circumstances of his arrest of the accused. One can argue that Robinson could've rolled the accused over onto his back, or used some other technique to subdue the accused, given that Shortland was being arrested by Dwyer, rather than chose to get him back up on his feet with a neck hold from behind - which had the effect of the accused feeling as if he was being chocked.
Now, Robinson says he chose what he believed was his best option in the heat of the moment. A violent situation, which the officers all run up to, to deal with - and in all of the circumstances I accept that, from his evidence and from viewing the footage - that he acted reasonably in all those circumstances in using appropriate force on the accused. However, the accused was panicking and didn't realise initially that the person that he said was choking him was a police officer, even though he'd heard someone yell out the, 'Police, stop'.
Now, my finding is that one is entitled to resist being choked from - from behind held from behind, but that can only - that can only be until, in this case, the two were upright and facing each other and it was clear that the person he considered to be an assailant coming from behind was a police officer and not one of the three men who had earlier attacked him, and yet he still resisted or struggled for a couple of seconds.
He clearly knew the two police officers - that two police officers had him but he continued to resist until Martin came in, with the help of others, and took him to the ground - and at that stage he's tasered in the back - which occurred, as I said, at the end of the whole process of arrest and something which I don't really need to comment on because it happened after the facts (indistinct) incident - which constitutes the resist or obstruct charge had already occurred.
The accused continued to struggle all the way through to the end - and from the time he was upright and the neck hold off, and he could see who he was dealing with, I find that he was resisting or obstructing the police officers in the performance of their functions - who are acting, I find, within that framework - and therefore I find that that charge is proven to the required standard of beyond a reasonable doubt (ts 62 64).