Lukss v Dixon [2010] ACTSC 103

3. When Constable Ferns commenced to cross Alinga Street the appellant commenced to walk away, and then to run. The appellant's acts in walking and then running caused Constable Ferns, Constable Adams and Constable Dixon to give chase to him.

4. As it happened, Constable Ferns caught up with the appellant on Mort Street and then tackled him, knocking him off balance, allowing Constable Dixon to tackle him again and, with other police, to restrain him.

5. What happened gave rise to the appellant being charged with:

1. Having engaged in conduct intending to harm Constable Ferns because he was a public official, contrary to s 147.1(1) of the Commonwealth Criminal Code; and

2. Resisting Constable Dixon in the execution of his function as a public official, contrary to s 361(1) of the Australian Capital Territory Criminal Code.

6. On 9 March 2010 a magistrate sitting in the Australian Capital Territory Magistrates Court commenced to hear evidence in the trial of the appellant.

8. The magistrate received the following exhibits:

2. Photographs of the intersection of Alinga Street and East Row

9. The magistrate preferred the police evidence to that of the appellant wherever that evidence varied and he found the offences to be proved. The appellant has taken issue with the magistrate's expression, submitting that it does not amount to proof beyond reasonable doubt.

10. Being dissatisfied by the magistrate's findings, the appellant appealed to this court.

12. Only five people were in a position to see what happened between the appellant and Constable Ferns. They were Constable Ferns, Constable Adams, Constable Dixon, the appellant and Ms Ruddick.

13. Constable Ferns and Constable Dixon each gave similar evidence to that given by the other, but at odds with that given by the appellant and Ms Ruddick. The appellant and Ms Ruddick each gave similar evidence to that given by the other, but at odds to that given by Constable Ferns and Constable Dixon. Curiously, Constable Adams, who had given chase to the appellant with Constable Ferns, did not see what happened between Constable Ferns and the appellant.

14. Constable Ferns said that he ran past the appellant, stopped 5 or 10 metres in front of him, turned around to face him, whereupon the appellant ran in a beeline directly towards him, cocked his left arm and hit him on the right side of his head. Then he tackled the appellant with his right shoulder, causing him to stumble and then to fall. Constable Ferns' evidence must mean that the appellant was on his right-hand side as the appellant passed him.

15. However, Constable Ferns said that the appellant "stepped off his right foot and came directly towards me", and that if the appellant had continued to run "straight he may well have probably passed to my left-hand side".

16. Constable Dixon said that Constable Ferns got ahead of the appellant, turned around and faced him, whereupon the appellant turned to his left and continued running, and then took a step to his left towards Constable Ferns, raised his left arm and struck Constable Ferns to the head. Constable Dixon's evidence must mean that the appellant was on Constable Ferns' right-hand side before he took a step to the left, and that had he not taken a step to the left he would have passed Constable Ferns on his right-hand side.

17. The appellant said that he was tackled by Constable Ferns from the left side and rear, and that he had not hit Constable Ferns. He denied that Constable Ferns had got ahead of him and had turned around to face him. He denied that he knew that the people chasing him were police officers until he was handcuffed. He said that he was having trouble breathing and one of the police obtained his Ventolin inhaler and administered it to him.

18. Ms Ruddick said that Constable Ferns tackled the appellant from behind him on his left side, and then the other police restrained him, and then he was handcuffed. She said that the appellant looked short of breath and that one of the police administered his (the appellant's) asthma puffer to him.

19. Curiously, none of the eight police who were around the appellant when he was handcuffed knew anything about one of them administering the appellant's Ventolin inhaler to him.

20. The magistrate said that the police were consistent in their evidence.

21. Although I am not surprised that the police were consistent in their evidence, I have referred to a significant difference between the evidence of Constable Ferns and that of Constable Dixon, and to two points of considerable curiosity.

22. I think that the same comment made by the magistrate about the police evidence could be made about the evidence of the appellant and Ms Ruddick. Each gave exculpatory evidence at odds with Constable Ferns and Constable Dixon, and neither was caught out or undermined during cross-examination.

23. If it be that I should accept the evidence of Constable Ferns and Constable Dixon because their evidence is consistent one with the other, then, equally, I should accept the evidence of the appellant and Ms Ruddick because their evidence is consistent one with the other.

24. Frankly, I am left unconvinced by the evidence of Constable Ferns and Constable Dixon that the appellant assaulted Constable Ferns in the manner described by him and Constable Dixon in their evidence, because I consider that I cannot reject the evidence of the appellant and Ms Ruddick.

25. In the result, I am not satisfied beyond reasonable doubt that the appellant assaulted Constable Ferns.

26. As I am not satisfied that the appellant assaulted Constable Ferns, the purported arrest of the appellant was unlawful, with the result that the resist arrest charge must fail.

27. Accordingly, I allow the appeals. I set aside the convictions and I quash the orders.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the appellant: ACT Director of Public Prosecutions

Solicitor for the respondent: Wilson Phillips Lawyers