R v Barling, Daniel; R v Lim, Chin; R v Edmondson, Scott; R v Ralph, Damian

Legal Background

1. The authorities in relation to the question of what is reasonable force come from a time before general duties police were routinely issued with Tasers and OC spray. However the test to be applied is the same.
2. The common law test was originally set out in R v Turner [1962] VR 30 at 36, and adopted in Woodley v Boyd [2001] NSWCA 35 at 37, as follows: "What is reasonable depends on two factors. He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented…"
3. In Woodley v Boyd (supra) at [37], Justice Heydon said: "...in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight."
4. Justice Heydon went on to quote McIntosh v Webster (1980) 43 FLR 112 at 123, where Connor J said: "[Arrests] are frequently made in circumstances of excitement, turmoil and panic [and it is] altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the court room and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances."
5. In the decision of State of NSW (NSW Police) v Nominal Defendant [2009] NSWCA 225, there was a general discussion as to the question of the assessment of reasonableness in the context of a police officer performing his or her duties. In that case, which concerned the reasonableness of a police pursuit, police decisions were described at [46] as "...almost spontaneously reactive to the circumstances presenting themselves to the police officer."
6. Those comments were made in a different context, but in this case it is argued that they are applicable to the split-second decisions that were required of the individual officers involved in this particular matter. Significant reliance has been placed by counsel for each accused in this matter on the need to avoid "minute retrospective criticisms" in the "leisurely atmosphere of the court room".

Taser Operation

1. I have heard evidence from many witnesses, but the prosecution case relies heavily on the footage which is available from the cameras mounted on the Tasers used by Senior Constables Edmondson and Lim, and Probationary Constable Barling. A Taser starts recording both video and audio from the time the safety is turned off, unless the trigger is pulled immediately, in which case the recording may be delayed. Every time the safety switch is turned back on, the camera stops recording.
2. Each individual Taser has a time stamp that appears on the video footage. However, the times are not the same between different weapons due to inaccuracies that can arise for reasons explained by Mr Nerheim of TASER International in his report of 31 August 2012 (Exhibit 2 Item 17). Mr Nerheim corrected and standardised the times attributable to the operation of each Taser used against Mr Curti, and in table 6 of that report provided a list of the start and end time of each Taser discharge, corrected against each other. These corrected times were referred to in detail by the prosecutor in her submissions as showing in what order each discharge of a Taser is alleged to have occurred. Where I refer to times of Taser use in these reasons, I am using the "corrected" times that appear in Mr Nerheim's report in Table 6 at page 6. However, caution must be exercised in giving undue weight to precise seconds for the reasons Mr Nerheim set out in discussing the values in that Table.

Police Training

1. I have received evidence of the Tactical Options Model in which police are trained. It includes concepts related to the use of force that stress that, "[t]he ultimate goal is control of the situation". The model requires police to evaluate the propensity for control versus injury; that is, the concept of reasonable force. Consideration of all the matters required to be taken into account makes clear the complexity of the assessment required to be made. Officers are required to "make judgments and decisions on their perceptions and observations at the time of each situation". The "wheel model" requires all options to be "considered equally and selected with regards to their appropriateness to the situation at hand".
2. Standard Operating Procedures (referred to as "SOPs") for Taser use as at March 2012, include as relevant "criteria for use": "4.2 Protect yourself or others from persons where violent confrontation or resistance is occurring or imminent. 4.3 Protect officer/s in danger of being overpowered or to protect themselves or another person from injury."
3. In relation to the use of Taser in "drive stun" mode the SOPs note that, "[d]rive stun mode may cause pain and will NOT achieve Neuro Muscular Incapacitation (NMI). Therefore it should only be considered in exigent circumstances": 5.5.3. "5.10 Continued use of the Taser must be justified in all the circumstances following assessment of the subject and in accordance with the Tactical Options Model. 5.11 Multiple use of the Taser should be avoided where practicable and must be justified in all the circumstances following assessment of the subject and in accordance with the Tactical Options Model. Note, multiple cycles or prolonged use of Taser may increase the risk of serious injury or death."
4. The training actually provided includes the following in relation to assessing a situation as "high risk": "The essential judgement that needs to be exercised is whether the real or impending violence or threat to be countered is such that the degree of force that could be applied by the police is fully justified." This guidance is given in the context of the Tactical Options Model and Use of Force concepts that underpin any use of force by operational police.
5. Training in "legal implications" of Taser use includes the following: "Multiple ECD applications cannot be justified solely on the grounds that a subject fails to comply with a command, absent from other indications that the subject is about to flee or poses an immediate threat. This is particularly true when more than one officer is present to assist in controlling a situation." Repeated applications of Taser are identified as a particular risk factor.
6. The training actually provided indicates that, "[h]andcuffed prisoners must not be Tasered unless one or more of the 'Criteria for Use' exists as outlined."
7. The evidence of Senior Sergeant Davis is that in March 2012 there was no SOP in relation to the use of more than one Taser on the same subject. "Multiple" applications referred to one operator using a Taser more than once. In relation to the requirement for "assessment of the subject" Mr Davis said that related to whether the use of the device had achieved what it set out to do. He said, "[a]t some point it [would not] be worth using that device again. The expectation would be that you would try an alternative tactical option to maintain control of the subject."
8. The SOPs I have been provided with do not include any such precise restriction on the use of OC sprays. It is described as "a less than lethal defensive spray, devised for self-defence and arrest or control of violently aggressive or resistive subjects."
9. Under the heading of "[w]hen to use", a possible situation is described as "a less than lethal option for controlling people where violent resistance or confrontation occurs (or is likely to occur)". Officers are trained to shake the canister at the start of each shift.
10. There is nothing in the SOPs for the use of OC sprays to suggest that it could be appropriate to use it on a handcuffed offender who is continuing to resist police but is lying face down on the ground with attempts being made by other offices to restrain him. It is inherent in everything in the SOPs that OC sprays are to be used defensively against a subject who is standing. It is to be sprayed for approximately one second.
11. SOPs go on to require police to assess the effect of the OC on the offender: "If there are no visible effects, you may use another one second spray of OC. If there are still no visible effects and the offender has still not complied with verbal commands, you should consider another tactical option or course of action."
12. Later in the SOPs the following appears: "Remember: while many offenders who have been sprayed with OC will stop resisting and allow you to assist them in the decontamination process, some offenders might continue to violently resist and fight. Consider a further tactical option or course of action, including the application of restraint devices (such as handcuffs, if justified)."
13. Although I have not received any specific evidence of training in relation to use of OC spray, it is reasonable to infer that police are trained to use the spray in accordance with the SOPs.
14. All of the accused had completed relevant training.

The Attempt to Arrest Mr Curti

1. I have received a large amount of evidence concerning what happened before the time of these alleged offences, as well as evidence concerning forensic examination and differing opinions about the cause of Mr Curti's death. The actions that give rise to these charges, however, occurred over a period of up to five minutes, or less than three minutes in relation to the Taser use.
2. Mr Curti had been identified as a suspect in relation to what was broadcast on police radio as an armed robbery. This robbery was believed to have been committed a short time earlier in the Sydney CBD. He had been inside a convenience store in King Street behaving in a very unusual way, including sitting on the floor behind the counter. At one point he climbed over the cage surrounding the person working behind the counter, landing on the counter and causing various items to fall to the ground. He then climbed back over the counter, took two packets of biscuits, and ran out with them. He left his shirt behind in the shop. A description was broadcast of him over police radio after a member of the public in the vicinity had called 000. That person had seen part of what was happening in the shop from outside. That person also (understandably, but incorrectly) thought that two other men might have been involved in what she perceived as a robbery. In fact, it seems they were standing looking into the shop to check that the person working there was all right, because they had also seen Mr Curti acting strangely.
3. Mr Curti had taken a small quantity of LSD earlier the night before. At about 4.30 a.m. he rang his sister, with whom he had always been on good terms, and asked "why do you want to kill me". His friends saw him acting strangely and lent him money to get a taxi home. A taxi driver who picked him up in the city thought he was "maybe crazy or [had taken] too many drugs". He had been assaulted by three young men in George Street in the early hours of that morning, including being hit to the head and kicked to the body when on the ground. He was bleeding when he went into the convenience store, and at some stage he must have removed his clothes before he was observed walking down Pitt Street wearing only jeans.
4. All of this behaviour was extremely out of character for him.
5. Although a great deal of evidence has been tendered or given in this case concerning these matters, the police attempting to arrest Mr Curti did not know any of it. Officers involved in the arrest described him as appearing very fit and strong, sweating significantly, resisting violently, and as appearing drug affected. Civilian witnesses who were in the area at the time made similar observations.
6. It is clear that a police radio (VKG) message had been broadcast sometime before this incident confirming that there were no weapons involved in the alleged robbery on King Street. However, more than an hour later, the message the police involved in the attempted arrest were responding to described it as an "armed robbery".
7. None of the police officers involved in trying to arrest Mr Curti had any personal knowledge of the robbery allegation. All they knew about it was what they had heard on the radio; which described it as an armed robbery.
8. On its face, that is a serious offence. The police were entitled to use whatever force was reasonably necessary in arresting Mr Curti; that is, they did not have to let him go rather than use appropriate force. Unfortunately, by his own actions, Mr Curti did not let police form any view about his involvement in the offence, or the relative seriousness of it.
9. There is nothing in any of the CCTV footage I have seen to suggest that Mr Curti ever deliberately tried to assault police. What he appears to have been trying to do was run away from them and, when caught, to get away from them. The prosecution does not allege that the use of Tasers or OC sprays in that situation was inappropriate to effect the arrest initially.
10. Senior Constable Lim and Constable Collison (in vehicle SH35) were the first to approach Mr Curti in the middle of Bathurst Street at its intersection with Pitt St. Constable Collison has given evidence that, at that stage, he was simply trying to talk to Mr Curti to find out whether he had been involved in the earlier incident. Unfortunately, and for reasons unknown but likely to be associated with his earlier drug use and associated mental state, Mr Curti ran from those police. Senior Constable Lim fell over as he was pushed away. They ran after him. Two other officers, Probationary Constable Barling and Constable Ralph (in vehicle CI15), were already at Pitt St attending an unrelated job a short distance away to the south. Constable Ralph, identifiable in the CCTV footage from the City of Sydney camera located at that street corner, also joined in the chase down the western side of Pitt St.
11. Mr Barling has given evidence that he saw this chase and ran diagonally across Pitt St and tackled Mr Curti to the ground. He did this by wrapping his arms around Mr Curti's waist and he said, "the force of my forward motion brought him to the ground". He described Mr Curti as kicking and thrashing about. The four police present were unable to hold him still. This evidence from police is consistent with evidence from other witnesses, including civilians in the area at the time, in particular Mrs Price. During that struggle Constable Barling drew his Taser, shouted "Taser, Taser, Taser" and deployed it. He believed that the probes hit Mr Curti. The technical evidence I have received from Mr Nerheim of Taser International suggests that 5 seconds of current were delivered (at 6:01:07 am). Mr Curti managed to get up and get away from these four officers. He ran to the eastern side of Pitt St and kept running south.
12. By the time Mr Curti was running down the eastern side of Pitt St, other police had responded to the radio message and they also became involved. Sergeant Cooper drove his police sedan (CI14) up onto the western footpath in an attempt to cut Mr Curti off. Mr Curti ran around it. Sergeant Cooper joined the chase. He also deployed his Taser at about the same time as Probationary Constable Barling. His evidence is that his first deployment was after Mr Curti reached the eastern side, however the physical evidence suggests it was in fact on the western side. He did not believe that both probes struck Mr Curti. Probationary Constable Barling removed his Taser cartridge after the first deployment and reloaded it with another cartridge. He continued to chase Mr Curti down the eastern side. A number of members of the public were standing on the footpath. One tried unsuccessfully to trip Mr Curti as he ran past. From CCTV footage it appears the police behind him were not catching up to Mr Curti.
13. Two other police officers, Senior Constable Edmondson and Constable Ryan (in CI16) had also responded to the radio call. They had seen the police interaction with Mr Curti at Bathurst St from further east, and went around the block to enter Pitt St from the south. When Senior Constable Edmondson got out of that police vehicle Mr Curti was running towards him down the eastern footpath of Pitt St being chased. He ran towards Mr Curti and barged him into the front window of Kings Comics. Constable Barling described Mr Curti as being "knocked off his balance only briefly, he placed his hand on the ground and continued running". That description is consistent with CCTV footage. Constable Barling deployed his Taser again. This was at 6:01:24 a.m. He believed that he missed Mr Curti, and that Senior Constable Edmondson (who had come from the side) became tangled in the Taser wires. Mr Barling tried again to physically detain him a bit further south without success. He himself then fell over.
14. Mr Curti ran across to the western footpath. He was still being chased by Senior Constable Lim, Probationary Constable Barling, Constable Ralph, Sergeant Cooper, and Constables Ryan and Collison. Probationary Constable Barling caught up, and has given evidence that he performed a "check drill" on Mr Curti in an attempt to disorient him to gain control, but Mr Curti lost balance for a second and continued on his way. Mr Barling says that he himself then ran into the window of a coffee shop and fell down some stairs.
15. Mr Curti was taken to the ground on the footpath just south of that coffee shop on the western side of Pitt Street by another Taser fired by Senior Constable Lim (at 6:01:48 a.m.).
16. Twenty-six seconds after Mr Curti is taken to the ground (for the third time) the footage from Senior Constable Lim's Taser shows he is handcuffed. There were at least four police officers seeking to restrain him. One set of handcuffs, which were Constable Barling's, were effectively placed on both wrists. Another set of handcuffs, which had come from Constable Ryan, were only placed on one wrist, with the other handcuff apparently unattached and potentially waving around as Mr Curti moved his arms. While the handcuffs were being attached, he was lying on his back breathing heavily but not apparently struggling. This Taser footage is continuous and reasonably clear. The footage from the other two Tasers is much less clear, shorter, and runs from more than a minute after the end of the aforementioned footage.
17. A radio transmission is made "City one five we've got him in custody" at about this time. A foot pursuit had previously been called and other cars were already responding.
18. Officers in CI17 (Constables Chan and Kim) and RX15 (Constables Waugh and Ferguson-Gornalle) arrive at about this time, from the south.
19. The first conduct of any police officer said to be criminal is Mr Lim's action in firing his Taser again 43 seconds after he first deployed it.
20. Mr Lim's Taser footage is exhibit 33 and is continuous from 26 seconds before Mr Curti falls to the ground until 48 seconds after.
21. One minute and 2 seconds after Mr Lim discharged his Taser for the second time, Mr Barling discharged his Taser five times in drive stun mode within a minute and 15 seconds (at corrected times of 6:03:32, 6:03:45, 6:03:52, 6:04:20 and 6:04:47: Report of Magnes Nerheim Table 6). These discharges are alleged to be criminal conduct by Mr Barling.
22. At 6:03:41 and 6:03:54 Mr Edmondson discharged his Taser, for five seconds on each occasion. These discharges are alleged to be criminal conduct by him. I note that there is some doubt about the comparison between the corrected time of the second of these activations and the corrected time of Mr Barling's activation. In particular, Mr Nerheim suggests that rather than overlapping, it is possible that Mr Edmondson's Taser was activated before Mr Barling's for this activation, and not after, as the table appears to show: see report at p 6.
23. At about the same time as these Tasers are being used, and also immediately thereafter, Mr Ralph is alleged to have used OC spray on Mr Curti in a way that is alleged to be criminal conduct by him.
24. Evidence before me includes the VKG log of calls with approximate timings of those police radio transmissions. In the audio of the Taser footage of both Messrs Barling and Edmondson the words "this person was apparently Tasered" can be heard spoken by VKG. An officer using the call sign CI15 says "the male's resisting violently" and after noises are heard over radio VKG says "City 15 you're very broken up, take a breath and repeat. The male is resisting violently or was?" Constable Ryan then comes onto the radio and says "… [h]e's really violent, about ten cops here and he's still going". I am satisfied from the timing that, even allowing for inaccuracies of seconds, these words are spoken at about the same time as, or within seconds of, Messrs Edmondson and Barling using their Tasers on Mr Curti while he is on the ground. Shortly after Constable Ryan says "[y]eah radio can we have ambos [sic] and if there's any other person, further cars that can help us." CI18 (Constables Mayers and Bourke) responds. More than a minute after the last discharge of any Taser Senior Constable Ferguson-Gornalle transmits "… this bloke's still playing up, we'll wait for ambos [sic] to come, he may have to be tranquillised or something of that nature." At about 6:07:40 Senior Constable Ferguson-Gornalle asks "radio can we just check if there's any crews with a set of flexi-cuffs please". The uncontradicted evidence is that flexi-cuffs had been requested by Sergeant Cooper as a possible means of restraining Mr Curti's legs.
25. According to the VKG log it was nearly eight minutes after the last Taser discharge that Mr Curti was found to have no pulse. CPR was immediately commenced by police. Tragically, Mr Curti died at the scene.
26. Apart from the Taser video and audio, the VKG log and other physical evidence from the scene (which is essentially consistent with the summary I have set out above) I have heard evidence from other police officers and a number of civilians who happened to have been in the area at the time. Some of the civilians were quite intoxicated, which would make it difficult to rely on the evidence that they gave, with any confidence. Others were not. However, all of those witnesses were some distance from the location where Mr Curti was eventually brought to the ground, for most of the time. They made various observations which were either consistent with what I have set out above, or at least not inconsistent. A Mr Lee, who was not intoxicated, saw Mr Curti on the ground and described him as "struggling, like he was trying to get out, escape". He also described a lot of grunting noises and officers trying to hold the man down. He described the man on the ground as moving violently, but was not sure whether he was face up or face down. Other civilian witnesses heard the police shouting at the man, "stop", "don't move", "stop running", "stop, police" and "Taser". As is common in a matter that is observed by a number of different people, their individual perceptions of what happened focused on different aspects of the incident. That is not unusual for any witnesses, including police witnesses.
27. Two sets of handcuffs were applied. One, by Probationary Constable Barling, was attached effectively and correctly. The other set, which was Constable Ryan's, was not attached effectively. One cuff was attached and the other was loose, and the ratcheted claw-like end of the loose cuff posed a potential danger to anyone in close proximity to it. It may be that the presence of that loose cuff distracted some who saw it from the other handcuffs attached behind.
28. I do not propose to go through the evidence of each police officer in great detail, largely because it is generally either consistent with other evidence or inconsistent as to matters of detail that are unimportant to the determination I have to make. However, I do need to summarise some of it. Having heard evidence from the three accused, which is evidence that is not contradicted by other police and in which each does not dispute applying force to Mr Curti, I do not consider that there are factual issues in dispute that would justify detailing the evidence that has been given over many hearing days more than is necessary for this decision. To a large extent, the evidence is all one way. There is nothing in the evidence of the other police officers that contradicts anything said by Mr Barling, Mr Lim or Mr Edmondson. I comment though that Constable Chan and Senior Constable Ferguson-Gornalle particularly impressed me as witnesses apparently able to give accurate and honest evidence. Some other witnesses were less impressive.
29. Mr Ralph has not given evidence. Accordingly, I do summarise the evidence that he used OC spray and the way in which he did so, as that is something the prosecution must prove beyond a reasonable doubt, and must prove from the evidence admissible in his case. I must also be satisfied beyond a reasonable doubt that he knew Mr Curti was effectively handcuffed when OC spray was used.

The Use of OC Spray

1. Constable Collison recalled seeing someone with OC spray but did not recall who, and did not see it used. He saw it being held close to the male's face when he was on his back. He heard the words, "stop or you will be sprayed". Constable Ryan, after some hesitation, agreed she saw "consistent non-stop spray" aimed at the man's face and thought it was Mr Ralph using it though she was not one-hundred percent sure. That was an account she had given two days after the incident. She also heard someone say "I need another bottle". Constable Bourke must have arrived after the OC spray had been deployed. He saw Constable Barling affected by it. Constable Chan saw Constable Ralph holding an OC spray when he arrived, but did not see him using it. He did not see anyone else holding it. He also later heard Constable Ralph radioing for the ambulance. Senior Constable Kim described Constable Ralph holding an OC spray which was pointing towards the male. Senior Constable Ferguson-Gornalle described seeing OC spray applied from approximately 10 cm from Mr Curti's face while he was lying on his stomach with his head to his side. He did not know who had applied the OC spray and could not recall whether that happened before or after the Taser was used. Constable Waugh only knew the OC spray had been used because the Constable with the beard (Mr Barling) had a secondary spray. None of those officers themselves used spray and they each gave evidence that no-one else used theirs.
2. Mr Barling gave evidence of giving Constable Ralph his OC spray. He said that was after he himself had been tangled in the Taser wire. Constable Ralph asked him for it. He said he helped Constable Ralph get the spray from his belt.
3. He gave evidence of seeing Constable Ralph attempting to spray the male with the can upside down while the male was moving about, and thrashing. He gave evidence of two occasions when OC spray was used, one some time after the other. Both were after he was having the Taser wires removed.
4. He disagreed that by the time the OC spray was given to Constable Ralph that he knew that there were more police officers there. He described seeing Constable Ralph arching his back towards the street and himself becoming affected by OC spray. He described the distance of the can to Mr Curti's face as "probably 20 cm, less maybe" at the time that Constable Ralph was using his can. He described himself to begin coughing and said he could not breathe properly and mucus started coming out of his nose.
5. He believed that his first drive stun happened before he saw Constable Ralph use the OC spray.
6. Mr Edmondson also gave evidence of giving Constable Ralph his can of OC spray. He said he did this after observing that Mr Curti did not appear to have been affected by the OC that had already been used, even though he himself could smell it. His evidence was that Constable Ralph was "trying to use [an] OC [spray], the canister was at about a 130 degree angle … I couldn't see anything coming out of it." (at 1032)
7. He was cross-examined by Mr Hood for Mr Ralph and said "the canister was at about a 130 degree angle … I couldn't see anything coming out of it."
8. He also said he had been involved with many violent offenders and this man was the worst he had ever encountered. Mr Edmondson weighed 120 kg at the time but said he was unable to control Mr Curti by putting his knee onto his back.
9. He said the reason he passed his OC spray to Mr Ralph was "I had used my Taser. I believed it had no effect. My weaponless control had no effect. When I saw Mr Curti I did not believe he had the symptoms that he had actually been sprayed successfully. I couldn't see the mucous, there was no coughing. I couldn't see it on his face. I was going to use it, but I didn't have a good view and good position and hence I handed it to Senior Constable Ralph" at 1043.
10. The evidence that there was OC spray used at the scene is overwhelming. The evidence of scientific officer Kim Wong confirms that the cans issued to Messrs Ralph, Edmondson and Barling were for practical purposes empty. The evidence that it was Mr Ralph who used it is also sufficient to satisfy me beyond a reasonable doubt that he did. There is no evidence from any witness of any other officer using an OC spray. It clearly was not used before Mr Curti was handcuffed, nor during the time when Senior Constable Lim's Taser was recording (that is, up to Senior Constable Lim's second Taser deployment). The only available inference is that it was used after that.
11. I am satisfied beyond a reasonable doubt that it was used at least just before Mr Barling was using his Taser to drive stun Mr Curti, and again after all Taser use had stopped. In addition, I accept that it was directed into Mr Curti's face from a distance of about 15 cm at a time when he was on the ground face down with his face to the side. I take that from Mr Barling's evidence and also that of Constable Ryan and Constable Ferguson-Gornalle. While there have been criticisms made of the accuracy generally of the latter two witnesses, the three witnesses have given evidence of the same occurrence, which was something that one might hope is out of the ordinary for police as it is inconsistent with Standard Operating Procedures. As I have said, Constable Ferguson-Gornalle generally impressed me as a witness doing his best to tell the truth. Whilst Constable Ryan was a less impressive witness and indeed appeared to be trying to avoid giving this particular evidence, she ultimately did so.

Level of Resistance by Mr Curti once Handcuffed

1. Constable Collison recalled Mr Curti rolling around trying not to be held by police, and heard police say "stop resisting". He did not see a Taser or an OC spray used. He didn't go in because "there was enough police".
2. Constable Ryan said she was worried Mr Curti was going to get free, and that she could only see one handcuff secured on his wrist. She described Mr Curti as getting up and running again after he fell to the ground. That evidence is inconsistent with what appears on the Taser video, and I do not accept it. She was trying to help restrain Mr Curti by putting her foot on his leg after he was face down. She felt a zap consistent with Mr Lim's second use of his Taser.
3. Sergeant Cooper was the external supervisor on the night and had 15 years' experience as a police officer. He gave evidence of deploying his Taser on the eastern side of Pitt Street, although the crime scene evidence shows that he also deployed it on the Western side further up the street. He said that his deployment of his Taser had no effect on Mr Curti. He was unable to recall after he chased Mr Curti back to the western side whether both Mr Curti's hands were handcuffed or only one. He described moving around to Mr Curti's side and forcing him onto his stomach, so he had better control. He described Mr Curti kicking, bucking, twisting and fighting. He said he lay over the top of Mr Curti on his knees. He could hear other police say "stop resisting". He repeated that he was unsure whether Mr Curti was handcuffed. He also gave evidence of seeing a Taser come over towards the bottom of his back, and the use of capsicum spray although he could not remember which came first. His evidence generally displayed such lack of recollection about some issues that I do not regard it as generally reliable.
4. Constable Chan's evidence is that when he got there it seemed quite calm, however Mr Curti suddenly got violent, his legs were kicking and he was trying to get up. Constable Chan said he tried to grab his ankles but could not gain control. He said that Mr Curti was turned onto his chest and that he then shifted both hands to Mr Curti's left ankle while another officer (presumably Constable Waugh) grabbed Mr Curti's right ankle. Mr Curti was still kicking and he said that they tried to handcuff Mr Curti's legs but were unable to and gave up on the idea. He said that at some point he saw a Taser activated around Mr Curti's lower back in drive stun mode, but it did not appear that it had any effect on him. He said that he could not be one hundred percent sure that it made contact. He described Mr Curti as shouting and screaming both before and after the drive stun.
5. Constable Chan did not demonstrate any apparent reluctance to give evidence and there was nothing about the evidence that he gave that would lead me to reject it. Certainly one might think that if Mr Curti was on his back when Constable Chan first arrived that it might have been obvious that Mr Curti was handcuffed, however I note that Constable Chan does not say that he even saw the single handcuff that was unattached, and from viewing the video that was something that was very obvious because of the way in which it was attached. Mr Barling in his evidence said that it appeared to have been attached the wrong way round, and the video seems to bear that out.
6. Constable Kim used his baton and described having difficulty in securing Mr Curti with the baton while he was lying face down and while Sergeant Cooper was applying his body weight.
7. Senior Constable Ferguson-Gornalle arrived just after the vehicle containing Constables Chan and Kim. He said he placed one hand on Mr Curti's leg to assist with the arrest but then stepped back because he saw another officer with a baton. He then assisted with radio calls.
8. He described Mr Curti as going from his back to his front, yelling, and fighting and struggling with the officers. He described him as screaming. He described seeing a baton placed across his legs to stop him kicking and Sergeant Cooper kneeling and issuing instructions.
9. Constable Waugh arrived in Pitt Street with Senior Constable Ferguson-Gornalle and believed that the male was trying to get up and run away. He described seeing his legs kicking around and said that he grabbed the male's legs and attempted to handcuff them but could not. He described seeing an officer at the head of the male who had a Taser out. Clearly that was Mr Barling.
10. Constable Bourke had been a police officer for three months. He arrived quite late in the struggle and observed Mr Curti lying face down struggling with police. He said that he placed his hands on the same leg as Constable Chan but that he wasn't sure if the man was handcuffed. He described hearing the man groaning and screaming, and struggling violently. He did not see anyone use any Taser or OC spray. I accept his evidence as consistent with Mr Curti continuing to struggle well after the offences are alleged to have been committed. However, police there were clearly able to have some control at that stage.
11. I have already noted some of Mr Barling's evidence. He says that after he fell down the stairs he realised Mr Lim had deployed his Taser and saw Mr Curti on the ground. He removed some Taser wires from around Mr Curti's neck. At that point he also had wire wrapped around his own shoulders and waist. He said he assisted in handcuffing the male with his own handcuffs, and said there was more than one police officer assisting. He was asked whether Mr Curti resisted that, and he said "not so much at that stage, he was straight arming and not bringing his arm towards me, he wasn't assisting but he wasn't thrashing around at that stage". He gave evidence of observing the second set of handcuffs with one cuff loose. A short time later Mr Curti rolled slightly to his right and then to his left and placed his hand on the ground and attempted to get up. He said he was unable to recall exactly what happened but that on the footage he had seen the loose handcuff opening up in a clawlike fashion.
12. Mr Barling gave evidence of being taught that handcuffing a person does not stop them from kicking, punching, choking or head-butting and that a loose handcuff is very dangerous and could cause serious injury. He says that he believed that Mr Lim then pulled the trigger of his Taser again, zapping him in the process. He says that at that point he turned his mind to the loose handcuff being very dangerous. He then got up to remove the Taser wires from himself.
13. He gave evidence as follows, "[a] short time later he began what I would call flaring up again, kicking, thrashing about, and the officers obviously looked like they were having some trouble restraining this person, so I have gone around to the shop side and taken a position up near his head area… He looked like he was going to get away… I took my Taser out of its holder. Both of my cartridges had already been deployed, I pressed the trigger and pushed the Taser into his upper shoulder area. I can't recall whether he was on his back or his belly at that stage. He was moving, he was just rocking back and forwards kicking about. He was moving quite violently.… I don't [sic] believe we had control of the situation and I believe [sic] that if he did get loose from our grasp or did get away again serious injury would happen not only to ourselves but to him."
14. Mr Barling went on to say that he believed he turned his Taser off after that cycle and that Mr Curti had relaxed but then flared up again, kicking his legs again in what he described as a pedalling motion and thrashing his body backwards and forwards, moving out of the police grasp. He said he deployed his Taser again. He went on to give evidence that he did not believe that his Taser made full contact this time, that the rocking back and forwards meant that he was struggling to maintain contact of the probes.
15. He was asked whether he thought of any other available option and said that he did not consider that there was another course he could have used that would have effectively restrained him. He said he was just focused on his little area and that, however many officers were there, they were not in control of the situation. He said, in effect, that each time Mr Curti tried to get up by rocking his body backwards and forwards he deployed his Taser in the same area. He said "I had used physical force, I had used restraint, I had tried to tackle him, I had put handcuffs on him and still we had no control of the situation" (at 964). He described Mr Curti as shouting and grunting the whole time even when the Taser was not being deployed.
16. Mr Barling did make a notebook entry on the night. It was put to him in cross-examination that the notebook entry is inconsistent with the evidence he has given in court. He denied intending to put misleading information into the notebook.
17. It was put to Mr Barling in cross-examination that the reason that he made notes in the order that he did was because he knew that drive stunning Mr Curti on multiple occasions after the application of handcuffs was unreasonable. He denied that. He said "I believe it was completely justified and I did what was reasonably necessary to effect the arrest." I will return to that issue later in these reasons.
18. Mr Lim also gave evidence. He said he was pushed to the ground by Mr Curti when he first approached him in Bathurst Street. He then chased him down Pitt Street, falling over when another officer tackled Mr Curti. He described getting on top of Mr Curti and trying to bring his right arm behind his back but said somehow he managed to buck them off and start running across Pitt Street. Mr Lim chased him. He saw another police officer try to shoulder barge him into some glass doors. He heard another Taser go off. He said that he managed to deploy his Taser into the man's back. That was on the western side. He said "I believe I said Taser Taser". He said "[a]s my probes hit the male I said 'Stop resisting or you will be Tasered again'", as he fell to the ground. He said the male's behaviour displayed a contact. Police converged around him.
19. He said "[w]hen my Taser finished cycling he started to resist." He said police were trying to handcuff his arms. He was still rolling around bucking up and down. He said "I was basically focused on where my probes [had] hit him in the back[,] where the wires were." He said "[n]ext thing I know[,] I've seen basically one loose cuff before he tried to get up and basically run. I cycled my Taser a second time." Explaining why he cycled his Taser a second time he said, "[b]asically what I was seeing at that time, police were struggling to control him. There was a loose cuff, he was attempting to get up. I knew if he managed to get up, one, he will probably start running again or, two, he would remain and fight with us[,] and that was basically to prevent any of that and prevent police from being injured". He described the man falling back down onto his back. He described conducting a reload, that is putting a new cartridge on. He said it appeared that police had a bit of control over the male. He said he re-holstered his Taser. He did not deal with Mr Curti any further. He thought there were enough police there to deal with it.
20. In cross-examination he agreed that he used his handcuffs to try to handcuff Mr Curti's ankles, however that was not possible and so he assisted in removing the first one that was already on one of his ankles. He said he did not get his handcuffs out earlier because "[i]t is not the Taser operator's job to handcuff the offender". He agreed that after his first use of the Taser other police officers were moving in, in order to handcuff Mr Curti. He agreed that three officers were over the top of him struggling to control him. However he denied that he was able to see Mr Curti handcuffed effectively to the front. He agreed that Mr Curti on the footage was not thrashing his arms about, but said he believed that he was thrashing his legs about. He did not remember an officer having his knee on Mr Curti's abdomen on the night. He did not remember an officer holding the chain between the handcuffs. He agreed he was right there, but said "I didn't see that".
21. It was put to Mr Lim that he knew it was not necessary to deploy his Taser again and he disagreed. He could not remember and still did not accept anyone said, "cut it off, cut it", although it was put to him that those words can be heard on his Taser footage. Mr Lim denied even knowing that an OC spray had been deployed. He said he was around Mr Curti's feet area. He said at that time there were probably already maybe six officers around him, leaning over the top of him, and he said "I couldn't see through them". He also did not see anybody drive stunning Mr Curti.
22. He said that the reason he waited almost 30 seconds before cycling his Taser for the second time was in order to assess and see if police were able to restrain Mr Curti and gain control. He said "all I have seen is a loose handcuff flapping around and at the same time he has attempted to stand up."
23. Mr Edmondson gave evidence. He parked his police vehicle on the eastern side of Pitt Street. He saw Mr Curti running towards him, and shoulder charged him into the window at Kings Comics. That was unsuccessful although Mr Curti went down in a crouched position. At that time he heard someone yell "Taser" and described being hit by a Taser. He said "I could feel wires on me, I've started pulling wires off me." His evidence is that he then decided to go back to the police truck, and back the truck down the street.
24. After he got out of the vehicle near where Mr Curti was on the ground, at a time I infer was after Mr Lim's second use of his Taser, he said that he didn't believe that the police there needed assistance. He said "I was thinking about finishing my shift." He said he was still pulling wires off himself and he heard some yelling and turned around to see Mr Ralph and Sergeant Cooper get thrown back into the air. He said there were other police officers he did not recognise, also getting thrown back. He described going around another officer who was at the top of the male's body. He said he saw Sergeant Cooper putting his weight onto his back and several officers trying to grab his legs and around his buttocks.
25. He described Mr Curti as "moving his buttocks...torso and legs up into the air[,] and he appeared to bring his knees up..getting that running sprinting start." He said he tried to put his knee on Mr Curti's back but it was having no effect. His evidence was that usually in a violent confrontation that would be the end of the fight. He said he had been in more than a hundred violent confrontations.
26. He gave evidence of taking his Taser intending to drive stun Mr Curti but that, "[a]s I have gone in to place the Taser against Mr Curti's right‑hand side, he has bucked up again, and brought his ‑ he was bringing his legs up and brought his right side of his body towards me and the right side of his body hit the front of my Taser just as I pulled the trigger. At that stage I wasn't sure if I actually hit him or what happened with my Taser because as I said the cartridge, I was where the probe shoots out of the cartridge, I wasn't sure if that had gone into him or where they had gone. When he kept on bucking up I started to fall off him. My left knee fell off his body and started going to the ground. … I re‑positioned my knee and as the violent confrontation was still occurring, he was still resisting my attempt to try and restrain him. I was fearful he was about to get up and fearful I might have been injured and other officers might have been injured. I have used my Taser, gone in to try and do another use of the Taser." (at 1031)
27. He said it was after the drive stun that he noticed Mr Curti was handcuffed, with one loose cuff.

Consideration

1. As I have already indicated in my earlier decision, there is no evidence in this case of any particular malicious intent or other hostile action specifically towards Mr Curti by any of the police involved. Certainly the mere act of using a Taser or administering capsicum spray can be seen as hostile in itself. However, those are tactical options that have been determined appropriate to be available to NSW Police. They are non-lethal force options that are among the options available to police officers in seeking to deal with a suspect who is resisting or seeking to escape arrest. There are guidelines in relation to their use. Those guidelines require that there be a balancing act undertaken between the use of the particular option, and the risk of harm that may come if that option is used.
2. The use of Taser in particular is relatively recent in the range of force options available to NSW Police. At the time of this incident in 2012, Tasers had only been issued to general duties police for about three years. Mr Lim, who had been in the police force for six years and had regular training in the use of Taser, had never used a Taser in operational policing, nor been involved in an incident in which one was used.
3. I have not received any evidence by way of expert opinion as to what use of force was appropriate in the circumstances faced by these officers this morning. The defendants who gave evidence each gave evidence that they considered it was reasonably necessary to do what they did in the circumstances at the time. I cannot reject that evidence. However, there is also an objective standard to be applied. It is not enough that a police officer says that he thought it was reasonably necessary for the test that I have set out earlier in these reasons to be satisfied.
4. The use of a Taser and the use of capsicum spray is not the sort of matter that is within the common knowledge of a member of the community. Both items are prohibited to the general community under the Weapons Prohibition Act 1998 (NSW). In that situation, I consider that the police Standard Operating Procedures and guidelines do have relevance to the determination of reasonableness.
5. There has been evidence given concerning a condition known as Excited Delirium Syndrome, and expert opinion evidence from Dr Vinen to the effect that it is probable Mr Curti was suffering from it at the time of the incident. Features of Excited Delirium Syndrome that Mr Curti was exhibiting included extremely aggressive and violent behaviour, constant physical activity, not responding to police presence, being inadequately clothed, breathing rapidly, sweating profusely, making unintelligible animal-like noises, being insensitive to or extremely tolerant of pain, appearing to have excessive strength, and failing to tire despite heavy exertion (Expert Certificate Dr Brouwer, 3 June 2014, at p 14 and evidence of Dr Vinen). Those witnesses agreed that in a medical context it is very hard to get control of a person suffering from that syndrome without aggressive sedation. Dr Vinen described sedation as "standard practice". Of course, that is not available to police officers in the field.
6. I have heard uncontradicted evidence from Professor Mark Kroll, an expert in biomedical engineering and, specifically, bioelectricity supporting his concerns that the general community does not understand the use of electronic control devices (ECDs), of which a Taser is one. In particular, he refers to what he calls a "false lay-intuition" that electricity builds up in the body in the way that other applications of force do. He says that it is not possible for an electric shock to kill a person unless it does so within a few seconds of application and that the public generally misunderstands the nature of ECDs in law enforcement. He also gave evidence that drive stun applications are very superficial and "[i]n the case of Mr Curti it is doubtful that there were even any psychological effects in that he was exhibiting an excited delirium state, which typically features a very high pain threshold" (Statement Mark Kroll, 22 September 2014, para 8).
7. I have also heard uncontradicted evidence that in some medical contexts the use of an ECD is preferred to the use of physical restraint to quickly gain control of a patient who is out of control.
8. In relation to the use of OC spray I have received evidence that police training is that OC should not be sprayed less than 60 cm from the subject's face "where practicable". Senior Sergeant Davis' evidence is that if it is not practicable for OC to be used at 60 cm from the person's face, it should not be used. Senior Sergeant Davis is a trainer with NSW Police. He did, in cross-examination, concede that in some circumstances it may be appropriate to move from one use of force to another even where a person is already handcuffed, and that there may be circumstances in which spray could be used at less than 60 cm.
9. The Crown submits that it was not objectively reasonably necessary for any of the accused to use the appointments they used in the way they did. That is not only because Mr Curti was handcuffed, but also because there were by that time at least eight police in the area, and as I understand the submission it is that alternative means could have been used to control Mr Curti and stop him getting away or injuring anyone. It is inherent in that submission that those alternative means would not have involved the infliction of as much pain, or incapacitation, on Mr Curti. Otherwise, it is difficult to see how the use of these devices can amount to an assault, if the use of force (even if only by restraint) generally is justified.
10. I have not received any evidence of what those alternative means might have been. It is always possible to think of other ways in which a particular outcome might be achieved. In this case the goal of each accused before the Court, in accordance with their respective training, was to achieve control of Mr Curti. With the wisdom of hindsight, it is clear that police action on this particular morning was uncoordinated, that the use of Tasers and OC spray in the way that they were used may not have been reasonably necessary, and that Mr Curti was not actually likely to have posed a significant threat. However, that is not sufficient to prove the case beyond a reasonable doubt. I am required to consider the situation as perceived by each officer at the time, in what has been referred to as the "agony of the moment", and determine whether, taking that into account, I am satisfied beyond a reasonable doubt that each individual action was not reasonably necessary.
11. Police training tells officers that the purpose of the use of a Taser in drive stun mode is to inflict pain on the subject. The purpose of the use of OC spray is to inflict pain on the subject. In each case, the infliction of pain is to overcome resistance, other than passive resistance. While initially Mr Curti may have been passive after being Tasered by Mr Lim, that situation did not continue even though he had been handcuffed.
12. It is in the context of everything I have just said that I turn to consider the case against each accused.

The Case against Mr Ralph

1. I have already indicated that the evidence is overwhelming that Mr Ralph used OC spray, spraying it at one stage directly into the face of Mr Curti while he was on the ground, at about the same time as other officers were both physically restraining Mr Curti and using Tasers to attempt to drive stun him. I also accept that the evidence establishes that Mr Ralph used at least two cans of spray on Mr Curti, although of course the evidence cannot establish exactly how much spray each of them contained before they were used. Although there was some suggestion in submissions that I could not be satisfied that there was in fact anything in Mr Ralph's OC canister that day, I do not consider that even reasonably possible.
2. The evidence also cannot establish how much of the spray actually affected Mr Curti. The only evidence from the scene is that of Mr Edmondson, before he handed over his spray to Mr Ralph, that Mr Curti did not show physical signs of being affected. The forensic evidence is quite inconclusive - the autopsy included some findings that could have been caused by an OC spray, but could also have had other causes. Clearly Mr Barling was affected by the spray directed towards Mr Curti at a time when he was located near his head. However, whether it had measurable effects or not, to spray OC towards someone's face from 15 cm away satisfies the requirement for an assault (in the absence of lawful excuse).
3. Constable Chan gave evidence of hearing Mr Ralph radioing for the ambulance. The prosecution relies on that evidence as showing that it was Mr Ralph who was speaking to VKG at times after Mr Curti no longer had a pulse under the call sign CI15. I accept that it must have been. The other officer in CI15 was Mr Barling. The evidence is clear that by the time these calls were being made, Mr Barling was up near Bathurst St and not making radio calls. The prosecution relies on a transmission in the following terms, "City 15 I believe he's been Tasered six times, two and a half maybe three cans of OC spray". The prosecutor argues that the reason Mr Ralph is able to relay that information is because he was responsible for discharging that OC spray into Mr Curti's face. I accept the inference that he was is overwhelming. Three effectively empty bottles of OC spray were located at the scene. Two of those had been issued to Messrs Edmondson and Barling.
4. Ms Dodds submits that I should find that Mr Ralph was actually involved in handcuffing Mr Curti, and that he therefore knew that he was handcuffed. CCTV footage shows an officer in a cap but no load-bearing vest chasing Mr Curti down Pitt St. That officer was also wearing a black watch. I accept that the same officer is the one pulling Mr Curti's wrist towards Mr Barling when he is handcuffing Mr Curti on the Taser footage. I also accept that the evidence establishes beyond a reasonable doubt that it is Mr Ralph. There is no-one else it could have been when regard is had to his appearance for the first time on the CCTV footage at the corner of Bathurst and Pitt Street, and to all of the other evidence in the case as to where other officers were at the time.
5. I accept Ms Dodds' submission that the evidence establishes beyond a reasonable doubt that Mr Ralph was involved in handcuffing Mr Curti, and therefore that he knew he was effectively handcuffed. He also must have known that there was a loose handcuff attached to his wrist as well as the handcuffs that were correctly attached.
6. Police SOPs and training concerning the use of OC spray do not anticipate its use in the way that it was used on this occasion at all. It is difficult in those circumstances not to find that its use was not objectively reasonably necessary. The onus remains on the prosecution to prove that. Mr Hood has submitted that the circumstances in which Mr Ralph found himself required that he do whatever was reasonably necessary to get Mr Curti under control. He submits that the SOPs are guidelines only, not rules that when breached will result in criminal liability. He submits that I should look at all of the evidence in this case and, in particular, the uncontradicted evidence that at about the time that the OC spray was being used Mr Curti was struggling violently and police were not succeeding in trying to use physical restraint to contain him. He points to Mr Edmondson's evidence that his attempts to control Mr Curti using his knee in his back was unsuccessful. Apart from during the handcuffing process when Mr Ralph appears to have had his knee on Mr Curti's stomach, there is no reference in any of the evidence to him trying to use techniques of weaponless control on Mr Curti at all after Mr Curti was handcuffed.
7. With the wisdom of hindsight, clearly it was not reasonably necessary to apply OC spray in those circumstances. It was reasonably necessary to restrain Mr Curti in some way. Mr Ralph had been involved in the chase of Mr Curti from Bathurst St. All of the other evidence in this case is that after initially being calm when handcuffed, Mr Curti continued to struggle and showed extreme strength in doing so. He was struggling sufficiently for police to try to use handcuffs to control his legs; something that is also not apparently suggested in police training and which was unsuccessful. Three police officers then struggled to hold his legs down. Two police officers have given evidence of giving Mr Ralph their cans of OC spray for him to use at a time when clearly, in the circumstances of this matter, the spray was about to be used in a way inconsistent with the SOPs. I have Mr Edmondson's direct evidence that he would have used it himself if he had been in a better position.
8. As I said earlier in this matter, the only inference available in the absence of any evidence of malice, desire for revenge, or specifically targetted hostility is that Mr Ralph believed that it was reasonable to use whatever force was necessary until Mr Curti submitted to police authority and stopped struggling and trying to get away. That included using OC spray.
9. The evidence the Crown can rely on as proving that the use of OC spray in these circumstances was not objectively reasonably necessary is that it is not consistent with the training police are given and not consistent with the SOPs. On one hand, that does seem powerful evidence that such use was not reasonably necessary. On the other hand, to find a person criminally liable for what is in effect an error of judgment in a situation that was volatile, violent and uncontrolled is also something that has been cautioned against in the cases I have earlier discussed. However, that is what the imposition of an objective standard in the test requires. It is a test that requires an independent assessment based on evidence.
10. When I look at the evidence of the use of OC spray from a distance of 10 to 15 cm (rather than 60 cm) in a constant spray (rather than in one second bursts) while Mr Curti was lying face down and handcuffed with other police officers attempting to restrain him, and when I consider that the use by Mr Ralph of Mr Edmondson's OC spray was after the use of two Tasers on Mr Curti in Mr Ralph's immediate vicinity had stopped, it is impossible to avoid the conclusion that such use was objectively not reasonably necessary. It was not only inconsistent with police training, but was contrary to it. On all of the objective evidence the spray was not achieving the purpose of its use. There is no suggestion on the evidence that any real assessment of the situation was made, and a decision made to stop using Tasers and continue to use the OC spray because it was having any desired effect. The evidence is to the contrary.
11. While I accept that in the heat of the moment Mr Ralph may have thought it appropriate to continue to use the third bottle of OC spray, at least by the time Mr Edmondson handed over his spray (by which time there were ten police officers at the scene) it is obvious that it was not. I say that keeping in mind the necessity to avoid engaging in "minute retrospective criticisms" of what a police officer might have done. I am satisfied beyond reasonable doubt that in the circumstances, even as I would infer Mr Ralph perceived them, the prosecution has proved that the use of OC spray was not reasonably necessary to effect the arrest or prevent Mr Curti's escape.
12. I find Mr Ralph guilty of common assault.

The Case against Mr Lim

1. The way the prosecution has run its case I must be satisfied beyond a reasonable doubt that Mr Lim knew Mr Curti was effectively handcuffed before he Tasered him for the second time. I have already summarised the evidence Mr Lim has given concerning what happened before he used his Taser on Mr Curti for the second time.
2. I am satisfied that Mr Curti was initially compliant and still, after being taken to the ground by Mr Lim. After being handcuffed, but with an additional handcuff hanging from his wrist, I am satisfied that he rolled and tried to get up. That can be seen on the Taser video.
3. I have already referred to Mr Lim's evidence and in particular to his evidence that he did not see the handcuffs effectively applied to Mr Curti. I accept that what is seen on the Taser video is not what Mr Lim necessarily saw. I also note that the apparent brightness of the images on the video are a function of the camera workings and not the light that was there at the time. Mr Lim must have known that police officers were trying to handcuff Mr Curti. However, he denies knowing that they did so effectively. The prosecution must prove he actually knew.
4. Having regard to his evidence, and to the evidence of other police officers present at the scene, I am not satisfied beyond a reasonable doubt that Mr Lim knew, at that point, that a set of handcuffs had been effectively applied. He activated his Taser again because he perceived further resistance and attempted flight by Mr Curti. For him to have that perception was reasonable, given that he had been involved in chasing Mr Curti from Bathurst St and seen him taken to the ground twice and on each occasion manage to escape. In those circumstances I cannot be satisfied that, in the position he was in at the time and, in particular, noting his evidence of what had happened in the chase since he had first been pushed to the ground by Mr Curti at Bathurst St, it was not reasonably necessary for him to do what he did.
5. I find Mr Lim not guilty.

The Case against Mr Edmondson

1. In respect of Mr Edmondson, the evidence is clear that he was not at the location on the western side of Pitt St while Mr Curti was face up after he had first been taken to the ground. He has given that evidence himself, and it is consistent with CCTV footage that shows the vehicle Mr Edmondson arrived in being backed down Pitt St.
2. The evidence establishes that when Mr Edmondson used his Taser in drive stun mode, Sergeant Cooper was already positioned partly across the middle of Mr Curti's back, Constable Ryan had one foot on Mr Curti's leg (because there were too many other police officers there for her to be able to get closer), Constable Chan was restraining one foot, Constable Waugh was restraining the other foot, and Constable Kim and the other police officers were also in the immediate vicinity including Messrs Ralph and Barling. The way the prosecution case has been run, it is necessary to satisfy me beyond a reasonable doubt that, at that point, Mr Edmondson knew that Mr Curti was handcuffed. The fact that there were so many police officers in the immediate area may make it difficult for a person coming onto the scene to ascertain whether the person being restrained is already handcuffed. Mr Edmondson first uses his Taser at a corrected time of 6:03:41 a.m. The evidence establishes that Mr Curti was handcuffed at least by 6:02:27 a.m. It is therefore a minute and 14 seconds later that Mr Edmondson can be proved to be at the location using his Taser.
3. Mr Edmondson has given evidence that he did not know that Mr Curti was handcuffed. He has given evidence that when he came to the scene he made observations initially that the arrest had already been effected and that things were effectively under control. He says he did not know that Mr Curti had been brought to the ground by a Taser. He says he did not turn his mind to the question of whether Mr Curti was handcuffed, because he was thinking about other things, including the fact that it would not be his job to do the charge process in respect of Mr Curti. His 12 and a half hour shift was almost over.
4. When things flared up and he went in to help restrain Mr Curti he says that he did not ask whether Mr Curti was handcuffed, and he did not consider assisting in that way because at that point Mr Curti was not under effective control and his focus was on achieving control. He agrees that he knew that Sergeant Cooper was there and was on Mr Curti's back, he agrees that he knew that there were three police officers trying to restrain Mr Curti's legs. He also knew that Mr Ralph was in the general vicinity. He says he did not know that Mr Barling was at Mr Curti's head, notwithstanding that the evidence is that the Taser used by Mr Barling had already been used before the first time that Mr Edmondson used his Taser. He says that his focus was on the area that he was attempting to control given the volatility of the situation. I do note that Mr Barling had been removing Taser wire with the assistance of Constable Kim until a very short time before.
5. Ms Dodds argues that I would not accept this evidence. She has submitted that on all of the evidence Mr Edmondson was standing right beside Mr Barling at the same time the latter was deploying his Taser, and at a time when Mr Curti was moving from his front to his side and back again. In those circumstances, his handcuffed hands and the fact that Mr Barling was deploying his Taser, must have been obvious.
6. Noting that the onus is on the prosecution to prove the issue of actual knowledge of handcuffing beyond a reasonable doubt, I do not consider that the only reasonable inference available to be drawn from the circumstances is that Mr Edmondson, contrary to his evidence, did in fact know that Mr Curti was handcuffed. I accept that had he given consideration to it, he should have known. That is not sufficient to prove actual knowledge in the circumstances of this matter. The handcuffs which were on Mr Curti at that time were effectively hidden from Mr Edmondson's view by Mr Curti's body and by the other police officers in the vicinity. I note Constable Chan's evidence to which I have already referred. Simply looking in his direction from the point on the footpath where Mr Edmondson is shown to be standing when he first approached the location (on the council CCTV footage from the corner of Liverpool and Pitt Street) would not have necessarily shown that Mr Curti was handcuffed. That is sufficient to mean that the case against Mr Edmondson for assault occasioning actual bodily harm must fail.
7. I do, however, note his further evidence that even had he known Mr Curti was handcuffed he still would have regarded it as appropriate to use his Taser in the manner which he did. He said that is because Mr Curti was not under effective control. He himself had already attempted to shoulder charge Mr Curti into a window and Mr Curti had managed to get up from the ground and run away. I accept he did not know that Mr Curti had already been Tasered by Mr Lim on the Western side of Pitt Street. In those circumstances I accept his evidence that he regarded the use of the Taser on two occasions as an appropriate use of force in the circumstances. I do in particular note his evidence that he did not believe the first use of the Taser was effective. The technical evidence, in particular the report of Professor Kroll and the crime scene examination, provides some support for that interpretation. In those circumstances, using the Taser on the second occasion was equivalent to using it only once. I accept that Mr Edmondson did not know that Mr Barling was also using his Taser on Mr Curti's shoulder at the same time. Both officers reacted at about the same time to Mr Curti's increased movement and resistance to being restrained. I note his evidence of hearing a crackling sound during his second deployment of his own Taser. I am unable to reject the evidence he has given, particularly given the uncertainty about the precise timing of these particular Taser deployments as indicated by Mr Nerheim.
8. I am unable to be satisfied beyond a reasonable doubt that Mr Edmondson knew Mr Curti was handcuffed.
9. I find Mr Edmondson not guilty.

The Case against Mr Barling

1. I have already summarised much of the evidence of Mr Barling. Essentially, he does not dispute that he himself handcuffed Mr Curti, nor that he used his Taser in drive stun mode five times. Nothing he has said is inconsistent with the other evidence in the case, and generally I accept the evidence he has given. He does say that he did not believe that all of the drive stuns successfully made contact with Mr Curti. That appears to be borne out by the technical evidence of Professor Kroll, who says that in total, of all the drive stuns administered, Mr Curti received a total of 12 seconds of drive stun current, far less than the total periods the weapons were activated. Some of both Messrs Edmondson's and Barling's must not have made good contact, consistent with their evidence and other evidence that Mr Curti was moving around significantly.
2. Mr Barling did not accept that the 14 second drive stun recorded in the evidence actually made contact for 14 seconds, because Mr Curti was moving around, and the evidence I have just referred to supports that. He described the Taser as having no effect on him. Mr Barling's evidence was that he turned the Taser off, or put the safety on, after each use of his Taser.
3. He was cross-examined to the effect that the very very short time in between each drive stun indicated that he did not make a proper assessment of the situation before using that force again. His evidence in response to that was "[r]egardless of if there was other police officers around or not, if he is still resisting and attempting to get up and almost doing so, I believe I am justified in doing that a second time" at 986. It was put to him that he Tasered Mr Curti for a second time without any reference to what others were doing and he said "I Tasered him for a second time with reference to his resistance to myself and the people that I could see in my periphery… I don't recall anyone else being there." He gave evidence that Mr Curti was moving from his belly to his back and mostly in between attempting to get up. He gave evidence he believed Sergeant Cooper fell off Mr Curti's back. It was put to Mr Barling that between his second and third drive stuns only two seconds passed. He disagreed that he had not made a proper assessment of the need in that time. He said "while I was trying to deploy the Taser he was moving around that much [sic] I didn't have much contact, so there was a short period of time where I did have contact and he seemed to react to that".
4. In response to further questions about his ability to make a proper assessment he said "[i]f there were that many officers around they obviously weren't doing a very good job of holding him down because he was still resisting, or almost getting away on each occasion and he was still thrashing about and kicking in a dangerous manner. So even if there were officers there, which I didn't see, my reaction was to what I could see and his movements and my assessment of the situation." He made further reference to the situation being volatile and quick.
5. Ms Dodds placed reliance on what she submitted was an inevitable conclusion that Mr Barling knew that there were more police officers at the scene than the three in his immediate vicinity. I accept that he must have known other police officers were there, as he had been helped in removing Taser wires from himself by Constable Kim, who arrived at the same time or about the same time as three other officers. He knew that Sergeant Cooper was at least partly over Mr Curti's back. However, I also take account of the evidence I have already quoted of Mr Barling in cross-examination, to the effect that the presence of those police officers was having no effect on Mr Curti's level of resistance.
6. Mr Barling said he believed that his use of his Taser was reasonably necessary. He did not know that Mr Edmondson was also Tasering Mr Curti at that time. He described the situation as quick and volatile. He described Mr Curti as thrashing about, kicking, screaming, and described potential for danger and injury to everyone involved, including him. I have already noted his other evidence concerning his earlier attempts to detain Mr Curti and Mr Curti's success in getting away despite having been taken to the ground by a tackle and having four police officers trying to hold him.
7. I accept the prosecutor's submission that the notebook entry made by Mr Barling on the morning sets out a sequence of events which is inconsistent with the evidence he has given in court. While he may have been simply writing down notes as they came into his head, the notebook entry notes "a short time later we cuffed the male" after describing the Tasering and the OC spraying. It is clearly setting out the order in which things were said to have happened. It was put to Mr Barling that he wrote that because he knew that the use of the Taser was not reasonably necessary. I accept that that is an available inference. Those notes were written at a time when Mr Barling knew that Mr Curti had died. He himself had been affected by OC spray, and he was described by Sergeant Ansted as wandering around apparently in a daze. He still appeared affected by spray when the notebook was witnessed by Constable Bourke.
8. In order to rely on the note as a lie, demonstrating a consciousness of guilt, I would need to be satisfied that the lie was deliberate, that is, that when Mr Barling wrote those words he knew that they were not true. I must also be satisfied that Mr Barling wrote what he wrote because he feared that writing the truth would implicate him in the matter that I am now dealing with. Where there is an alternative explanation for telling a lie I should be cautious not to use a lie as evidence of guilt unless I can reject that alternative explanation. There was no evidence in relation to this. Mr Barling simply denied that it was a lie. However even accepting as I do that what was written was untrue it does seem to me that having regard to Mr Barling's relative inexperience, and having regard to the training that police officers are provided, that it is only appropriate to use a Taser on a person who is handcuffed in "exigent circumstances", he may well have feared disciplinary action, whether justified or unjustified. It is possible the note was made in a state of panic. I am not satisfied that I should use it as demonstrating consciousness of guilt.
9. Although I can use it as going to his credit, I still need to consider the evidence he has given overall in determining whether I believe what he has said. Generally speaking his evidence appeared to me to be given honestly and I do generally accept it. Ms Dodds submits that I would find that the number of times he used his Taser, and the short period of time between each use, shows that he did not make a proper assessment of the situation before he used the Taser on subsequent occasions. It is submitted that he did not act in accordance with the SOPs.
10. In that respect, I note that when Mr Barling began using his Taser on Mr Curti, Mr Edmondson was not beside him based on the evidence of the times. He came a very short time later. Mr Curti was being described to police radio as "really violent" at the time. Mr Barling turned the safety of the Taser back on after each use, suggesting that he gave consideration of some sort to turning it back on and using it again, even if very quickly.
11. Mr Barling had been a general duties officer at the time for eight months. Considering the situation as he perceived it to be at the time, in particular taking into account that he had personally tackled Mr Curti to the ground further up Pitt St but with the assistance of three other officers had been unable to keep him there, he had observed the lack of success of other police officers in restraining him during the chase, that he had managed to handcuff him but there was still a handcuff loose and potentially dangerous, and that Mr Curti was continuing to resist and struggle after a period of calm even though other officers were trying to physically restrain him, I accept that he believed it was reasonably necessary to use his Taser to drive stun Mr Curti in an attempt for police to maintain control of him. I make that finding keeping in mind the admonition of superior courts not to make minute retrospective criticisms of what officers have done in a volatile situation.
12. The training given to police officers at that time, in my view, left open to Mr Barling the possibility that it could be reasonably necessary to Taser a person who was on the ground and handcuffed.
13. In the absence of evidence from any prosecution witness as to what should have been done by him in this situation, I do not consider the prosecution has proved beyond a reasonable doubt that what he did was not reasonably necessary in the circumstances as he perceived them at the time.
14. I find Mr Barling not guilty. C Farnan Magistrate Downing Centre Local Court 16 December 2014

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