Police v Ruddick

Section 11C Summary Offences Act 1988 (NSW)

1. The relevant legislative provision states: 11C Custody of knife in public place or school (1) A person must not, without reasonable excuse (proof of which lies on the person), have in his or her custody a knife in a public place or a school. Maximum penalty: 20 penalty units or imprisonment for 2 years, or both. (2) Without limitation, it is a reasonable excuse for the purposes of this section for a person to have custody of a knife, if: (a) the custody is reasonably necessary in all the circumstances for any of the following: (i) the lawful pursuit of the person's occupation, education or training, (ii) the preparation or consumption of food or drink, (iii) participation in a lawful entertainment, recreation or sport, (iv) the exhibition of knives for retail or other trade purposes, (v) an organised exhibition by knife collectors, (vi) the wearing of an official uniform, (vii) genuine religious purposes, or (b) the custody is reasonably necessary in all the circumstances during travel to or from or incidental to an activity referred to in paragraph (a), or (c) the custody is of a kind prescribed by the regulations. (3) However, it is not a reasonable excuse for the purposes of this section for a person to have custody of a knife solely for the purpose of self defence or the defence of another person. (4), (5) (Repealed)
2. Subsection 2 gives examples of what might be a reasonable excuse and subsection 3 makes it clear that having a knife for the purpose of self defence is not a reasonable excuse.
3. Photos taken of the seized items are Exhibit 2. They depict a red handled flat head screwdriver, two meat cleavers wrapped in a magazine, one handheld axe/hammer and a machete in a sleeve. They all fit the definition of a knife for the purpose of the Summary Offences Act 1988.
4. As Mr Ruddick refused to speak to the Police in other than brief interactions designed to get them to leave him alone, and as he has not given evidence (as is his right), no reasonable excuse has been proffered.

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

1. The relevant sections are s 20 and s 23.
2. Section 20: 20 Relevant offences The following offences are relevant offences for the purposes of this Division - (a) indictable offences, (b) an offence against section 93FB of the Crimes Act 1900, (c) an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts, (d) an offence against a provision of Part 2 of the Explosives Act 2003.
3. Section 23: 23 Power to search persons for dangerous implements without warrant in public places and schools (1) A police officer may, without a warrant, stop, search and detain a person who is in a public place or a school, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that the person has a dangerous implement unlawfully in the person's possession or under the person's control. (2) To avoid doubt, if the person is in a school and is a student at the school, the police officer may also search the person's locker at the school and examine any bag or other personal effect that is inside the locker. (3) For the purposes of this section, the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds to suspect that the person has a dangerous implement in the person's possession or under the person's control. (4) In conducting a search of a student in a school under this section, a police officer must, if reasonably possible to do so, allow the student to nominate an adult who is on the school premises to be present during the search. (5) A police officer may seize and detain anything found as a result of a search under this section that the police officer has reasonable grounds to suspect is a dangerous implement that is unlawfully in the person's possession or under the person's control. (6) For the purposes of this section - (a) locker includes any facility for the storage of a student's personal effects, and (b) anything inside a person's locker is taken to be under the control of the person.;
4. A dangerous implement is defined in the Act as: 3 Interpretation dangerous implement means - (a) a dangerous article, or (b) a knife (including a knife blade, razor blade or any other blade), or (c) any other implement made or adapted for use for causing injury to a person, or (d) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property, or (e) a laser pointer, but does not include anything that is of a class or description declared by the regulations to be excluded from this definition.
5. Section 23 was amended pursuant to the Justice Legislation Amendment Bill (No.2) 2018. The then Attorney General Mark Speakman, said this on 19 June 2018 during discussions on the proposed amendment: "The amendments will improve the search power so that police are clearly able to search a person if they suspect, on reasonable grounds, that the person has a dangerous implement in his or her custody unlawfully. The amendments do not create new concepts. They use language which mirrors the current section 21 of the Act, which relates to the power for Police to search persons without a warrant where they suspect, for example, that the person has a dangerous article that has been used in the commission of an offence, or anything that is stolen or unlawfully obtained. Under that provision police can use reasonable force to search persons in those circumstances." The amendment addresses a disparity and remove the need for a police officer to arrest a person in order to seize a dangerous implement. Arrest powers are a last resort and police officers should not have to rely upon them to trigger search powers. I note a safeguard in the amendments - namely that a police officer must suspect that the person has a dangerous implement in his or her custody in order to search him or her. … These amendments will make schools and public places safer, while limiting the need for police officers to use the power to arrest."
6. Unlike section 21, section 23 does NOT require a suspicion that an offence has occurred or that the items might be stolen or unlawfully obtained. The section grants a power to search where Police suspect on reasonable grounds that a person is in possession of dangerous implements. Mr Ruddick was in possession of dangerous implements which includes knives. Section 11C of the Summary Offences Act 1988 then imposed a duty on him to give police a reasonable excuse as to possession, otherwise that possession is unlawful.

Police Act 1990 (NSW)

1. This legislation sets out the Mission and Functions of NSW Police Force at section 6. It defines Police services to include: 6 Mission and functions of NSW Police Force (3) In this section - police services includes - (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations.
2. In these circumstances, the Police were acting on reports of a man attempting self-harm. They had a duty to respond. Despite Mr Ruddick rejecting their attempts to speak to him and check on his welfare, that obligation remained, until they were satisfied, that he was safe, or he no longer posed a risk to himself or others.

Crimes Act 1900 (NSW) - Section 60

1. The legislation states: 60 Assault and other actions against police officers (1AA) A person who hinders or resists, or incites another person to hinder or resist, a police officer in the execution of the officer's duty commits an offence. Maximum penalty - Imprisonment for 12 months or a fine of 20 penalty units or both.
2. The charge is particularised as a resist. That involves some form of physical action by the accused. Mr Ruddick does manage to shake off the Police at the Police Truck when hands are first laid on him. It took two Police officers and a member of the public to restrain him and get him on the ground. There are clearly physical actions by Mr Ruddick amounting to a resist. The question is whether the Police were acting in accordance with their powers and duties.

SUBMISSIONS

1. The Prosecutor commenced his submissions with a consideration of DDP v Gribble (2004) 151 A Crim R 256 (hereafter Gribble). Mr Gribble was on a road and refused to leave. His refusal was irrational. Barr J said this: "In relation to police and their duty, 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." (emphasis added).
2. Sergeant Harris went on to submit that Police cannot disengage simply because the person of interest tells them to go away. They have a statutory duty to act. The Police did not want to arrest Mr Ruddick. They wanted to perform a welfare check and if necessary, detain him for his own safety. They were not certain that they were in fact dealing with Iestyn Ruddick.
3. Each of the officers were cross-examined about Police tactics in this type of scenario. Sergeant Harris submitted: "I think it is uncontroversial to say walking in front of traffic on the Federal Highway is not something that everybody does and generally there is something at play which they are duty bound, s6 of the Police Act requires them to go and do something about a person who is attempting to harm themselves or a person who is acting in a way which may harm themselves or others. They can't walk away. … They were going off the tactical model Your Honour heard a lot about. They attempted presence. That did not work. They attempted voice or communication. That did not work. They went hands on. That did not work. Your Honour has seen three police witnesses and Your Honour has seen the body worn video and, with respect, there is a size difference between Mr Ruddick and the officers. So going hands on was not successful, even having two of them was not wholly successful. They did manage to remove some substantial weaponry from him, but they were not able to control him or detain him as they wished to do."
4. The Prosecutor then made submissions about the use of the OC spray and the drawing of the Taser. In essence they are not relevant to what I have to decide, other than perhaps to indicate that Mr Ruddick required serious intervention before he could be detained. Finally, Sergeant Harris pointed out the fact that people were driving past and stopped on the road, raising an issue for Police to consider about public safety.
5. Mr Herring, on behalf of Mr Ruddick, handed up an aide memoire about the BWV setting out relevant events and times. He invited me to review the footage very carefully. He also handed up a bundle of authorities. Mr Herring made it clear that he was in no way suggesting that the police acted with malice or some improper purpose. He submitted that they believed they were doing what they had to do, but what they believed did not make their actions lawful. The submission was made that the police changed the reasons why they were acting during the interaction: "At various times it was to stop and search him. At other times to detain him. The reason that Your Honour hasn't heard the word "arrest" until the submissions is because they were intending to detain him, none of the Police properly arrested Mr Ruddick until the words were spoken when he is on the ground; but I'll come to that."
6. Mr Herring then distinguished Gribble by pointing out that when police arrived Mr Gribble was still in the middle of the road and when police arrived at Macs Reef Road, Mr Ruddick was on the verge and not the roadway. The only time Mr Ruddick entered the roadway was after Police stopped him and became "hands on".
7. Mr Herring made this submission about the police power to get someone to stop: "A police officer does not have some magic power that says that when they say stop, we have to stop. The citizenry can do what they like, until they are committing an offence or causing risk, …. Because for all that period of time that he is walking down Macs Reef Road, and Constable Wright and Constable Walker are walking behind him, at a distance, he is not doing anything to put himself or the police, or indeed anyone else, in danger". He goes on to criticise the police for not considering that his car had broken down and he was walking home: "They didn't even contemplate it Your Honour. He was not acting erratically". He then went on to say the police power could not be exercised because Mr Ruddick didn't need that help.
8. I put to Mr Herring: "I don't think that's the test though, is it?"
9. Mr Herring responded by looking at when the resist occurred. He again repeated his submission that Mr Ruddick was entitled to reject the attempts to help him, and he was within his rights to ignore the direction to stop.
10. Mr Herring then turned to the issue of s 21 Law Enforcement (Powers and Responsibilities) Act 2002. That section does require police to have certain suspicions about weapons being in possession after being used in an offence. His submission was that there was no evidence of that suspicion. Mr Herring then referred to R v Rondo [2001] NSWCCA 540 and the observations of what amounts to a reasonable suspicion, sufficient to find a reason for a search. He then referred to the unreported decision of Smart J in Street v Bowler NSWSC unreported. In that case Mr Herring said that Smart J found no adverse inference can be drawn against either accused because they were irate at being wrongly stopped or refused to be compliant. Mr Herring continued, "Bold and irritating conduct must be distinguished from conduct that might be characterised as suspicious. Again, there is nothing in what Mr Ruddick did from the time police arrived on Macs Reef Road until the time they applied physical force to him that could possibly amount to a reasonable suspicion of the matters set out in s 21." He goes on to submit that the actions of Constable Walker at that point became unlawful and the resistance of Mr Ruddick was justified.
11. Mr Herring then made submissions on the issue of arrest. He referred to five necessary things that need to occur.
12. First, there needs to be a suspicion or belief that an offence has been committed.
13. Second, the police must believe an arrest is necessary under s 99 Law Enforcement (Powers and Responsibilities) Act 2002. He referred to Jankovic v DPP [2020] NSWCA 31 and Robinson v State of NSW [2018] NSWCA 231.
14. Third, there must be an announcement under s 202 Law Enforcement (Powers and Responsibilities) Act 2002.
15. Four, the arrest must be to place the accused before a justice and to charge him.
16. Fifth, the arrest must be an action of last resort and reference was made to DPP v Carr [2022] NSWSC 194.
17. Finally, as the Police were not acting lawfully, any action by Mr Ruddick was an act of self-defence.
18. In reply, Sergeant Harris referred to s 23 Law Enforcement (Powers and Responsibilities) Act 2002. I invited Mr Herring to make submissions about s 23. He submitted that s 23 "does not expand the power under s 21, and I'll need to find Your Honour the authority for that".

CONSIDERATION

1. The facts are not really in dispute. They are contained in documents and the Body Worn Video of Constable Wright. What is in dispute is whether Police were always acting in the course of their duty during this incident.
2. The Police attended because of a concerning report about a man acting erratically and perhaps trying to harm himself on the Federal Highway near Sutton. They clearly had a duty to attend. They found a car on the side of the road and Constable Wright sought details of ownership. She knew the owner and was aware of intelligence concerning the owner's sons. She did NOT know the accused but knew of his interactions with Queanbeyan Police. She suspected the man they found was Mr Ruddick but given his lack of co-operation did not confirm his identity until after he was arrested.
3. Viewing the BWV carefully, I find that the Police actions were in accordance with the requirements of their duties and as Mr Herring admitted, showed no malice. They could not know whether Mr Ruddick might be about to repeat his actions by walking onto Macs Reef Road in front of vehicles. The Police then observed that Mr Ruddick was in possession of a screwdriver and knives. If a police officer did not become concerned about someone on a public road, holding a screwdriver in his right hand, a hubcap in his other hand and a quantity of dangerous implements in a bag on his chest, I would be amazed.
4. Throughout the interaction shown on the video, the Police implore Mr Ruddick to stop, and to let them check his welfare, but he rebuts them, initially calmly but later vitriolically. His behaviour forces the Police to act. Mr Herring submits that it was at that point the police exceeded their authority and were no longer lawfully exercising their duties. He relies on s 21, s 202 and s 99 of Law Enforcement (Powers and Responsibilities) Act 2002, together with the cases he mentioned, in making those actions from the time Constables Wright and Walker laid hands on Mr Ruddick unlawful. If the Police were acting under s 21, I would agree with that submission.
5. However, the Police were not exercising power under s 21 Law Enforcement (Powers and Responsibilities) Act 2002. Initially it was a welfare check as required by s 6 Police Act 1990. Then when they saw the numerous knives and implements, they wanted to search him, and that power was specifically given to Police by the amendment to Law Enforcement (Powers and Responsibilities) Act 2002 in 2018 which inserted a new s 23 into the legislation. Confusingly the now s 21 had been at another time s 23, when the Law Enforcement (Powers and Responsibilities) Act 2002 legislation originally came into effect (2002).
6. I find that the police had the right to stop and detain Mr Ruddick for the knives and implements in his possession. They did not need to arrest him for that purpose. Ultimately, they did so, but only after his behaviour left them with no alternatives. I note that to finally restrain him, a male member of the public in hi viz gear had to get involved.
7. The sad part of this incident is that Mr Ruddick only had to stop and talk to the Police and this case may never have ended up in this Court. Mr Herring, in his submission, made a suggestion, which was objected to by the Prosecutor, that Mr Ruddick, who is a chef, may have been returning home from work with his tools of trade. There is of course no evidence of that, and it is not a finding I can make. If Mr Ruddick had told Police that was his explanation for being in a public place with those items, possibly they may have accepted his explanation, even though the machete, axe/hammer and screwdriver would be hard to classify as tools of trade for a chef.
8. Mr Herring submitted that any resistance of Police occurred before Mr Ruddick was arrested. That would be relevant if the Police were acting under s 21 Law Enforcement (Powers and Responsibilities) Act 2002, but they were not. As there was an active pushing off of the Police by Mr Ruddick at the Police Vehicle, that is sufficient for the charge to be established, but his actions in walking away from the Police probably also constitute a resist, particularly as OC spray had to be deployed, and force applied, to get him to the ground.
9. I find both offences proven beyond reasonable doubt. The knives and screwdriver are forfeited to the Police.

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