R v Briar (No 2)

Legislation Cited: Crimes Act 1900 (NSW) ss 37, 52, 60, 112
Criminal Procedure Act 1986 (NSW) s 133
Evidence Act 1995 (NSW) s 20
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 230, 231
Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 28, 40, 42, 53, 56, 59, 61, 62, 63
Police Act 1990 (NSW)

Cases Cited: AD v State of New South Wales (2023) 308 A Crim R 367; [2023] NSWCA 115
Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25
BA v R (2023) 275 CLR 128; [2023] HCA 14
Director of Public Prosecutions (DPP) (NSW) v Araura [2012] NSWSC 1120
Director of Public Prosecutions v Gribble (2005) 151 A Crim R 256; [2004] NSWSC 926
DPP (NSW) v Trudgett [2013] NSWSC 1607
DPP v JWH (NSWSC, 17 Oct 1997, unrep)
Emde v State of NSW [2025] NSWCA 41
Fleming v R (2009) 197 A Crim R 282
GS v R [2022] NSWCCA 65
Jankovic v Director of Public Prosecutions [2020] NSWCA 31
Lindley v Rutter [1981] QB 128
McIntosh v Webster (1980) 43 FLR 112
R v Briar [2024] NSWDC 590
R v Donovan [1934] 2 KB 498
R v K (1993) 118 ALR 596
R v Lumsden [1951] 2 KB 513
R v MC (No 2) [2021] NSWSC 1542
R v Burstow; R v Ireland [1998] 1 AC 147
Reeves v State of New South Wales [2024] NSWCA 125
Rice v Connolly (1966) 2 QB 414
Stanford v R (2007) 70 NSWLR 474; [2007] NSWCCA 370
State of New South Wales v Dennis [2025] NSWCA 118
State of New South Wales v Randall [2017] NSWCA 88
Thomson v C (1989) 67 NTR 11
Woodley v Boyd [2001] NSWCA 35

Category: Principal judgment

Parties: Rex (Crown)
Kevin Douglas Briar (Accused)

Representation: Counsel:
S Drumgold SC (Crown)
L Melhuish (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service NSW/ACT (Accused)

File Number(s): 2023/00063803

Publication restriction: N/A

JUDGMENT

1. The accused Kevin Douglas Briar is charged with four offences. Count 1 is an allegation of breaking and entering a dwelling house and committing a serious indictable offence therein, namely assault occasioning actual bodily harm. Count 2 is an alternative to Count 1 alleging an assault occasioning actual bodily harm without the aggravating feature of breaking and entering. Count 3 is an allegation of choking. Count 4 is an allegation of assaulting a police officer in the execution of his duty. All offences are alleged to have occurred on the evening of 24 February 2023 or the early hours of the following morning.

2. On arraignment on these charges before Haesler SC DCJ on 15 October 2024, an issue as to the accused’s fitness to enter pleas was raised in accordance with s 42(3) of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (“the Act”). His Honour Judge Haesler SC was then asked to determine whether the accused was fit to stand trial pursuant to s 40 of the Act. After a fitness hearing, his Honour held that the accused was unfit to be tried on the indictment and would not become fit within 12 months: R v Briar [2024] NSWDC 590.

3. Pursuant to s 53, his Honour ordered an advice from the Office of the Director of Public Prosecutions as to whether or not further proceedings would be taken against the accused in respect of the charges. In due course, the Office of the Director indicated that prosecution of the charges would be continued. As a result and in accordance with Division 3 of the Act, this matter was subsequently listed for a special hearing before me to determine a verdict pursuant to s 59.

SPECIAL HEARING PROCEDURE

4. The procedure for special hearings is set out at s 56 of the Act. It states that the special hearing is to be conducted as if it were a trial of criminal proceedings, although the Court may modify court process to facilitate the accused’s participation. In that regard, I note that for the duration of the hearing the accused was allowed to sit with a support person, was aided by hearing loops, and was given comfort breaks as and when requested or perceived by the Court to be required.

5. The accused was not arraigned upon his special hearing, however in accordance with s 56(5) a plea of not guilty was taken to have been entered in respect of the four charges on the indictment. Those charges were as follows:

Count 1: That Kevin Douglas Briar, on 24 February 2023, at Wilcannia in the State of New South Wales, did enter the dwelling house of Shaun (sic) Mills at Barkindji Drive Wilcannia, an**d did commit a serious indictable offence therein, namely, assault occasioning actual bodily harm, knowing that there was a person present within the said dwelling house, contrary to s 112(2) of the Crimes Act 1900.

Count 2: In the alternativ**e to Count 1, that Kevin Douglas Briar, on 24 February 2023, at Wilcannia in the State of New South Wales, assaulted Sean (sic) Mills, thereby occasioning actual bodily harm to him, contrary to s 59(1) of the Crimes Act 1900.

Count 3: That Kevin Douglas Briar, on 24 February 2023, at Wilcannia in the State of New South Wales, intentionally choked Shaun (sic) Mills without his consent, contrary to s 37(1A) of the Crimes Act 1900.

Count 4: That Kevin Douglas Briar, on 25 February 2023, at Wilcannia in the State of New South Wales, did assault Constable Gyzen, a police officer acting in the execution of his duty, contrary to s 60(1) Crimes Act 1900.

6. The purpose of a special hearing was described by Dhanji J in R v MC (No 2) [2021] NSWSC 1542 at [14]:

“The purpose of a special hearing is to ensure that, despite the unfitness of the accused to be tried in accordance with the normal procedures, the accused is acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged.”

7. Pursuant to s 56(9) special hearings are to proceed by judge-alone unless an election to have the matter heard by a jury is made. In this case no such election was made and consequently the special hearing has been conducted by me sitting without a jury. Accordingly, I am bound by the obligations in s 133 of the Criminal Procedure Act 1986 (NSW) in reaching a verdict, namely, I must make a finding that could have been made by a jury on the question of guilt. In my judgment I must include the principles of law which I have applied and the findings of fact I rely upon, and I must take into account any warning I would give to a jury hearing the matter.

8. In compliance with the provisions of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) and the decision of the High Court in Fleming v R (2009) 197 A Crim R 282, I remind myself of the following principles of law and set out the findings of fact on which I have relied.

9. As the accused is not fit to plead, he was arraigned and the charges read to him but he was not asked to plead. The Court assumes, for the purposes of a special hearing, that a plea of not guilty in those circumstances has been entered. As this is a judge-alone special hearing, it falls to me to exercise my duty and responsibility in determining, on the limited evidence available, whether the Crown has established beyond reasonable doubt that the accused committed the offences charged in the indictment.

10. I direct myself that a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. I direct myself that the onus of proof is beyond reasonable doubt and that the Crown bears that burden.

11. Pursuant to the relevant provisions of the Act, I remind myself that a tribunal, set up under an Act of Parliament, has found that the accused is unfit to be tried on the present charges in the normal way because, in one or more respects, he does not have the mental capacity to meet all of the basic requirements of a fair and just trial in this State. Consequently, the law of New South Wales requires that he be tried pursuant to the special procedures set out in the Act.

12. The Court notes that the accused’s unfitness for a normal trial may or may not be apparent as a special hearing proceeds. That is because unfitness for trial, which is an inability on the part of an accused person to meet a minimum standard of mental capacity to be tried fairly, may arise for any one or more of several reasons. The accused may not understand the nature of the charges against him or he may be unable to decide whether he has a defence to it. He may not be able to make a rational decision as to whether he is guilty or not guilty or how to plead to the charge. He may not be able to understand generally the nature of the criminal proceedings and what their course and outcome may mean to him.

13. Unfitness may be an unfitness to give his lawyers instructions, that is to adequately tell them what his defence is or in what respects the prosecution evidence is erroneous or in which way it should be questioned and tested or an inability to apply himself to the proceedings in an informed or constructive way.

14. It may be that none of these matters will actually be apparent to the Court during the hearing. However, whether they are or not, of course, the Court must accept that in one or more ways, of which these are only examples, the accused is unfit mentally to be tried in the normal way because, for that to occur, the law insists that an accused have the mental capacity to do all of these things.

15. The Court acknowledges that a special hearing cannot be conducted precisely in the same way as a criminal trial would be conducted. It may differ in one or more of the ways to which I have referred, that is in the way in which the accused is able or not able to participate or contribute to his defence. In every criminal trial, an accused person may or may not choose to give evidence. That remains so in a special hearing such as this one, but an unfit person may not be capable of making a reasoned decision about whether to give evidence or not or, indeed, to make decisions about other matters which concern the hearing.

16. At a special hearing, the accused person is taken to have pleaded not guilty to the charges against him, unlike a normal criminal trial, in which an accused person may enter a plea of either guilty or not guilty.

17. The Court notes that the Act endeavours to ensure that a special hearing should not prejudice an accused any more than his unfitness may already do so. He may raise or have raised on his behalf whatever defences a fit person could raise in a normal criminal trial. He may or may not give evidence. He must have legal representation and may not, as some mentally fit accused persons do, choose to represent himself.

18. The Court notes the purposes of a special hearing. First, to see that justice is done as best it can be in the circumstances, both to the accused person and to the prosecution. The accused is put on trial so that a determination can be made of the case against him. The prosecution, representing the community, also has an interest in seeing that justice is done. A special hearing gives an accused person an opportunity of being found not guilty, in which event the charge will cease to hang over his head. If he requires further treatment, that may be given to him outside the criminal justice system.

19. The Court also bears in mind that it will have to reach its verdict on what the Act describes as “the limited evidence available”. The Court accepts that there are various ways in which evidence at a hearing of this nature may be limited. An accused, as was the situation in the present matter, may be unable to give evidence or unable, by reason of his mental unfitness, to give adequate instructions to his lawyers, concerning the calling of witnesses who might assist his case or as to matters on which cross-examination could be based.

20. The Court acknowledges that, pursuant to s 59 of the Act, the verdicts that are open in this case are not guilty of the offence or, on the limited evidence available, the accused committed the offence.

21. The Court notes that if the accused is found not guilty then that will be the end of the matter. He will be free in respect of that particular charge and subject to no further criminal process of any kind in respect of the events giving rise to the charge. If the verdict is, on the limited evidence available, that he did commit the offence or offences charged, it will be the Court’s duty to decide whether, had he been fit to be tried in a normal way and he had been convicted, he would have been subjected to a term of imprisonment and, if he would have been, what term would have been appropriate.

22. If, however, I were to take the view that a term of imprisonment would not have been appropriate, I may impose another penalty, just as I am asked in the case of a person fit to be tried, such as a fine, a community service order or a bond.

23. In the event that the Court was to nominate as appropriate a term of imprisonment, it would then be for a special tribunal, that is the Mental Health Review Tribunal, to decide whether the accused is still suffering from a mental illness and whether he should be detained in hospital for treatment.

24. It is also possible that the accused could be tried in the normal way for the offence, if he should become fit to be tried, before the period equivalent to any term of imprisonment I might nominate might expire. However, this would be a matter for the prosecuting authorities and the Mental Health Review Tribunal.

25. The Court emphasises that although the legal and practical consequences of any verdict that might be reached have been set out in these reasons, so that the Court’s understanding of the nature of the special proceeding in which it is engaged is clear, the duty of the Court at this juncture is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that the accused committed the offence or offences charged. The consequences of the verdict, and what is to happen to the accused thereafter, are matters for the Mental Health Review Tribunal, the prosecuting authorities and the Court in its sentencing role, rather than the tribunal of fact.

26. I note, sitting as a tribunal of fact in a judge-alone trial, that I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and, of course, my commonsense. I acknowledge that I have very important matters to decide in this case. Those are matters that are important, not only to the accused but also to the whole of the community. I must act as a jury: impartially, dispassionately and fearlessly. I must not let sympathy or emotion sway my judgment. I must not act capriciously or irrationally. I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the special hearing.

27. I remind myself that it has long been a basis of our legal system that a person is entitled to a fair trial. One of the factors behind that concept is the proposition that persons should not be tried in their absence and that they should have the opportunity to hear the evidence against them and, if they wish, to respond to the accusations made against them. If, because of some impairment, an accused is not capable of understanding and participating in his trial, then there is a grave risk of unfairness. That is why the special hearing takes place.

28. It falls to me to determine, on the following principles, and on the limited evidence available, whether the Crown has proved beyond reasonable doubt that the accused committed the offence charged.

29. It is for me to assess the various witnesses, noting, of course, that in this matter the evidence has been presented partly orally and partly by way of statements. I must decide whether the evidence and statements by the witnesses are reliable. The honesty and reliability of a witness sometimes overlaps. It requires a consideration not only of what is said or stated but also the impression that a witness makes. That, of course, is of considerably less, if any, weight in circumstances where one simply reads a statement.

30. I note, however, that, in relation to accepting the evidence of a witness, I am not obliged to accept the whole of the evidence of any one witness. I may, if I think fit, accept part and reject part of the witness’s evidence.

31. I remind myself that I may, in my role as the judge of the facts, draw inferences from direct evidence. Inferences may be valid or invalid, justified or unjustified, correct or incorrect. I may only draw an inference from proven facts if such inference is the only reasonable inference that can be properly drawn from the proven facts.

32. In a special hearing, I remind myself that I must be satisfied of the guilt of the accused beyond reasonable doubt. Amongst other things, that means that I should be extremely careful about drawing any inference. I should examine any possible inference to ensure that it is a justifiable inference. I should not draw any inference from the direct evidence, unless it is the only rational inference in the circumstances.

33. The accused in this matter did not give evidence. I will remind myself that he has, as we all have, a right to remain silent. I note that no adverse inference can be drawn against him by reason of the fact that he did not give evidence. There might be many reasons why an accused person elects not to give evidence. In this case, by reason of the mental health issues, I remind myself that that itself may provide such a reason.

34. I remind myself that we all have a right to remain silent when questioned by police or at trial. It would make no sense if, having exercised a right given to a member of the community by the law, to draw an adverse inference for doing the very thing that the law entitles one to do.

35. I direct myself, accordingly, that the accused’s silence in court cannot be used against him. I make no comment to myself along the lines permitted in very limited cases by s 20 and also noted by the High Court in Azzopardi v the Queen (2001) 205 CLR 50; [2001] HCA 25. His silence does not constitute an admission and no such inference may be drawn from that fact. Nor must his silence be used by me to fill gaps in the Crown’s case or to make up what I might regard as deficiencies or defects in the Crown’s case. I do not speculate and I must not about what might have been said in evidence, if the accused had given evidence.

36. I note that, of course, the onus rests upon the Crown in respect of every element of the various charges brought before me. That onus rests upon the Crown and, at no stage, does it shift to the accused. It is not for the accused to prove his innocence but for the Crown to prove his guilt and to prove it beyond reasonable doubt. I, of course, remind myself that suspicion is not a substitute for proof beyond reasonable doubt.

37. It is and has always been a critical part of the system of justice in this State that persons tried in the State’s courts are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt. The words “beyond reasonable doubt” are ordinary everyday words which require no further examination or explanation. That is how I understand them, as ordinary everyday words.

38. If, at the end of my deliberations, having taken into account the evidence both for the Crown and the accused, if any, in respect of any matter for which the Crown must establish to make out its case and taking into account the various submissions made by each counsel, if, in that circumstance, I am not so satisfied that the Crown has established each and every one of the essential matters beyond reasonable doubt in respect of the charges, it is my duty to bring in a verdict of not guilty in respect of any individual charge because the Crown will have failed to do what the law requires it to do. However, I remind myself that the Crown does not have to prove every single fact in the case beyond reasonable doubt. The onus which rests upon the Crown is to prove the elements of the charge.

39. In an ordinary trial of criminal proceedings, there are two verdicts available: Guilty or Not Guilty. If the Crown has proved the guilt of the accused with respect to an individual count beyond reasonable doubt then the appropriate verdict is Guilty, on the limited evidence available, that the offence is found established. If not, then the verdict must be Not Guilty.

40. Pursuant to s 59, in a special hearing there are theoretically four verdicts available. However, in the circumstances of the present case, the two relevant aspects of s 59(1) are:

(a) not guilty of the offence charged, or

(c) that on the limited evidence available, the defendant committed the offence charged,

41. A verdict pursuant to s 59(1)(a) of not guilty is to be dealt with as a finding of not guilty at an ordinary trial of criminal proceedings: s 60.

42. A verdict pursuant to s 59(1)(c) that on the limited evidence available, the defendant committed the offence charged becomes a verdict pursuant to s 62 of the Act.

43. If I come to a verdict that on the limited evidence available the defendant committed the offence charged or an alternative offence, and if at an ordinary trial of criminal proceedings I would have imposed a sentence of imprisonment for the offence, then I must nominate a limiting term that is the best estimate of the sentence I would have imposed in those circumstances: s 63(2).

ELEMENTS OF THE OFFENCES

44. As I have already stated, the onus rests on the Crown to prove each of the elements of each offence beyond a reasonable doubt.

45. The first count on the indictment is an offence of breaking into a dwelling house and committing a serious indictable offence, namely assault occasioning actual bodily harm. The elements of this offence are as follows:

46. That the offender broke into the dwelling house;

47. That the offender entered the dwelling house;

48. That entry into the dwelling house was without lawful authority;

49. That the offender assaulted the complainant;

50. That the offender’s assault occasioned harm to the complainant; and

51. That the harm was actual bodily harm.

52. “Breaking” for the purposes of s 112 of the Crimes Act 1900 occurs when the security of a dwelling is infringed. It does not require any actual breaking of any object, but typically requires some kind of interference with the home’s physical security without authority or permission. By way of example, it is not breaking to further open a partially opened door or window, but it will be breaking to open a shut, but not locked, external door. See Stanford v R (2007) 70 NSWLR 474; [2007] NSWCCA 370 at [25]-[30] and DPP (NSW) v Trudgett [2013] NSWSC 1607 at [15]. As will become clear, this is the central element in dispute in respect of Count 1.

53. “Enters” can be understood by its ordinary meaning as requiring a person to have been in the building or land: R v Lumsden [1951] 2 KB 513. There does not appear to be any dispute that the accused entered the property at Barkindji Drive.

54. The offence also requires a trespass, being entry to the premises of another without lawful authority: BA v R (2023) 275 CLR 128; [2023] HCA 14. There does not appear to be any dispute that Mr Mills had lawful possession of his own dwelling and did not authorise the accused’s entry.

55. The element of assault requires an act that causes a person to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147. It includes battery, which is the actual infliction of unlawful force on another: DPP v JWH (NSWSC, 17 Oct 1997, unrep). There does not appear to be any dispute that if the accused punched Mr Mills twice in the face, that this would constitute an assault.

56. The final elements are that the assault caused harm and that the harm reaches the standard of actual bodily harm. “Actual bodily harm” is hurt or injury that is not necessarily permanent but is more than merely transient and trifling: R v Donovan [1934] 2 KB 498. There did not appear to be any dispute as to whether or not the assault, if it occurred, caused the eye bruise and bloody nose. I will come back to the reference to the eye bruise shortly. However, there was a question as to whether or not the injury to the nose constituted actual bodily harm. I will come to that topic later in this judgment.

57. If I am not satisfied that the elements of breaking, entering, and trespass beyond reasonable doubt, but I am satisfied of the elements of the assault occasioning actual bodily harm, then I am able to find the accused not guilty on Count 1 on the indictment but find that Count 2 is established.

58. The third count on the indictment is an offence of intentionally choking without consent. The element of intentionally choking requires that the accused “intentionally appl*[lied]* pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head”: GS v R [2022] NSWCCA 65. The element of “without consent” has its ordinary meaning.

59. There does not appear to be any dispute that if the accused choked a person with an electrical cord, that this would constitute intentional choking. There is no dispute that if such choking took place, Mr Mills did not consent to it.

60. The fourth and final count on the indictment is an offence of assaulting a police officer acting in the execution of his duty. Assault has the same meaning as I have outlined earlier. The remaining elements are that the victim of the assault was a police officer, and at the time of the assault the victim was acting in the execution of his duty as a police officer.

61. There is no dispute that Constable Gyzen is a police officer. There is an issue for determination as to whether he was acting in the execution of his duty at the time of the alleged assault.

EVIDENCE AT THE SPECIAL HEARING

56. At the commencement of the hearing, Agreed Facts were tendered as Exhibit 1. In summary, the Agreed Facts state that:

57. At approximately 11:10pm on 24 February 2023 the complainant Shawn Mills contacted police. Police attended his home and met Mr Mills at the front door of the property. Mr Mills had blood on his face.

58. Police walked around the back of the property and found the accused lying on the ground outside the back door. The accused had blood on his shirt. Police checked the accused for injuries and found none. The accused was arrested and then placed in handcuffs and sat up.

59. Police walked the accused to the front of the property where the police vehicle was parked. Police conducted a search of the accused. The accused was placed in the rear of the police vehicle, then removed from the vehicle so that his handcuffs could be taken off. As police removed the handcuffs from the accused, he collapsed to the ground and had a fit or seizure. Police placed Mr Briar in the recovery position and contacted NSW Ambulance. The accused was then conveyed by police and ambulance to Wilcannia Hospital.

60. Two witnesses gave evidence with respect to the events at the home of Mr Mills. They were Mr Shawn Mills himself and Ms Angelique Carney.

61. As at February 2023 Mr Mills had known the accused for some years, although it is unclear as to the actual length of time. Around 6pm on 24 February 2023 Mr Mills was working at Wilcannia Golf Club as front door security. Mr Mills denied the accused entry to the golf club because he did not have a club membership card. The accused asked Mr Mills to purchase a cask of Moselle for him and gave him $25 cash. Mr Mills purchased the Moselle and gave it to the accused so he would leave the premises, which he promptly did.

62. A little over four hours later at approximately 10:15pm Mr Mills left the golf club and was driven to his home by a colleague. Mr Mills’ 16-year-old daughter was staying at the house but was at work that evening. A friend of Mr Mills, Angelique Carney, was also staying at his house that night. There was conflicting evidence as to how long she had been staying there, but she was clear that Mr Mills gave her a key and she went in through the front door, and in her words “never went the back way because I didn*’t - I don’*t know where to go through that area so I went to the front door.” As will become clear, this is relevant to the question of whether the back door was left open or simply unlocked.

63. When Mr Mills arrived home Ms Carney was already there. Mr Mills described her being in the spare room at the time that the offender came into the lounge room. Ms Carney, on the other hand, gave evidence that she was on the lounge when the accused came into the room.

64. The front door, which Mr Mills had entered through with his housekey, was locked behind him.

65. Mr Mills’ evidence was that because his daughter was still at work, the back door, which was actually two doors, namely an external screen door and an internal solid door, was left closed but unlocked for her to let herself into the house on her arrival. He gave evidence that he specifically checked that the back door was unlocked for her after he himself had got home. He said that it was closed but unlocked.

66. Conversely, Ms Carney said that Mr Mills “always leaves the screen door closed but the back door open. It was hot as well.” The two backdoors open into a narrow laundry. There is then a further door separating the laundry from the kitchen/lounge room. Mr Mills said that the laundry door was also closed. Ms Carney was unsure if the laundry door was open or closed.

67. About 5-10 minutes after arriving home Mr Mills and Ms Carney heard knocking or banging on the front door for 5-10 minutes. Mr Mills called out “Who is it?” but there was no answer, so he did not open the door. Ms Carney recalled Mr Mills saying to “bugger off, like eff off, like go away*.*” Neither of them knew who the person banging or knocking was but both assumed from the following events that it had to be the accused. Mr Mills later noticed that the lightbulb from above the front door had been removed.

68. About 5 minutes later Mr Mills was either sitting in the lounge room near the laundry door changing out of his work shirt or lying on the mattress in the lounge room when he saw the accused approach from the backdoor/laundry. Mr Mills stood up and said, “What are you doing here?” and asked Briar to leave.

69. The accused did not move. Mr Mills said that he then rang triple-0 but hung up. Mr Mills then said that the accused punched him twice with his left hand, first in his right eye and then immediately on his nose causing the injuries depicted in the photographs included in Exhibit 2. Mr Mills felt blood on his nose and agreed that the blood in the photos came from his nose after these punches. The accused was repeatedly saying “Where*’s my woman? Where’**s my woman?*”.

70. It is noted in passing that Ms Carney had in fact stayed for a period of time at Mr Briar’s home shortly before these incidents.

71. In his evidence Mr Mills said he did not punch or strike the accused back. Conversely, Ms Carney described that they “just started dusting. They just started punching on with each other.” She went on to say that:

*“I didn’t see him [the accused] come through the back, but I know that’s the way that he came, because it’*s a small area. So I was sitting down, and I got up, and he come through the back, and I ran into the bathroom, and him and Kevin started arguing - Kevin and Shawn started arguing. They - he had already come in and hit him once or twice, and I kind of took off into the bathroom.**”

69. She went on to say that the accused “walked in swinging. They both were swinging at each other. I just took off to the toilet, yeah. Locked myself in the toilet, yeah.**” Later in her evidence she said that she could not recall whether Shawn was getting some hits in as well.

70. On Mr Mills’ evidence, the accused then grabbed an extension cord and unsuccessfully attempted to choke or garrotte Mr Mills with it. He then grabbed a powerboard connected to the television and stereo, unplugging both appliances from the board and the board itself from the power outlet. The accused then wrapped the cord of that powerboard 2-3 times around Mr Mills’ throat from behind and choked him. Mr Mills could not breathe for a few minutes and tried to slide his fingers under the cord to get it loose to breathe. Ms Carney then emerged and tried to push the accused away from Mr Mills.

71. Ms Carney did not give evidence about how the choking began, but agreed that the accused was choking Mr Mills with an electrical cord. She also said that the television was still on at this point. In the later body-worn footage the television appears to still be on.

72. Ms Carney described that “a lot more of the hits were coming from” the accused. When questioned on that, she clarified:

“I think they started just hitting each other. I don’t know because I was in the bathroom. It was only when I come out when Shawn started singing out to me that I picked up that he had wrapped the cord around his throat twice and was underneath him holding him like that, so I had to place my hand up underneath the cord around his neck, try and loosen it, and then I had to use the - the area where you put the - yeah, and started hitting him. Yeah, that’s all I remembered. I started hitting him in the head, yeah, with it. I - to let go of the cord that was wrapped around his throat.”

73. Ms Carney described that when she came upon the accused and Mr Mills, the accused was lying flat on his back on the floor holding the two ends of the power cord tight, and that Mr Mills was lying on top of him facing upwards. Mr Mills appeared to be trying to roll himself over to get off the accused.

74. Ms Carney tried to get her hand underneath the cord to loosen it but was not successful. She then said that she:

“started whacking him [the accused] with the end of a cord, which was the - where you plug everything in, you know what I mean. The adapter. The adapter. And that*’s what it was. I started hitting him with that as well, because that was the only thing I could do.”*

75. The cord then loosened and Mr Mills was able to get it off his neck. The cord fell to the floor and the accused left. Mr Mills then rang the police who arrived a short time later.

76. Constable Guy of Wilcannia Police Station received Mr Mills’ call at 11:10pm. He described that:

“it was a lot of raised voices and I couldn*’t really quite understand what they were saying. Eventually, I got out that it was Shawn Mills and he was at his address and that he was saying he’d been assaulted.”*

77. Constable Guy went on to say that he could hear Mr Mills yelling at someone else over the phone, saying “you*’*re not supposed to be here.”

78. Body-worn footage depicted events following the arrival of police (Exhibit 7). That footage accords with the Agreed Facts in respect of where and how the accused was found, his arrest, and his fit or seizure.

79. The accused was subsequently conveyed to the Wilcannia Hospital by ambulance. Body-worn footage subsequently depicted events at Wilcannia Hospital (Exhibit 4). The first video recording included the accused effectively verbally abusing hospital staff and police. He was filmed standing up from the hospital bed. Numerous medical monitoring attachments were able to be observed on his chest. After standing up from the hospital bed, he then deliberately urinated on the floor beside his bed and in front of the medical staff and the police officers. Handcuffs were reapplied and subsequently removed. The accused was naked during these events and resisted attempts by hospital staff to put a hospital gown on him. The accused appeared agitated and continued to be verbally abusive. He said words to the effect that he wanted to leave and go home.

80. The second body-worn footage taken at the hospital was recorded by Constable McDonald (Exhibit 5). It commenced at a time after the accused appeared to have calmed down somewhat, was lying on the hospital bed, and a cannula had been attached by nursing staff. The two Constables, McDonald and Gyzen, in whose custody the accused remained, were seated a short distance away from the base of the bed on which the accused was lying. Whilst not clearly able to be observed in the line of vision of the body worn camera, the accused pulled the cannula from his arm and commenced to sit up. Constable Gyzen stood up and quickly moved towards the accused who was still sitting upright on the bed. As he reached the bed, the Constable pushed the accused in the chest to make him lie down again. The question for determination is whether the physical push or shove was an application of force outside the proper execution of the Constable’s duty.

CROWN SUBMISSIONS

81. In the Crown’s submission, the matters which were required to be decided could be stated quite succinctly. Mr Drumgold of Senior Counsel submitted that the Court needed to be satisfied that at the relevant time the accused was inside Mr Mills’ dwelling house, having broken into the premises; whether the accused assaulted Mr Mills occasioning actual bodily harm; whether the accused choked Mr Mills; and whether or not the accused assaulted Constable Gyzen, and whether he was in execution of his duty at the relevant time.

82. In the Crown’s submission, various of the other matters raised in the course of cross-examination were irrelevant to the primary matters which called for resolution. Whether it was in fact Mr Briar at the front door and whether or not he did or did not remove the light bulb were illustrations of matters which were not required to be established beyond reasonable doubt.

83. In the Crown’s submission there was no valid question of self-defence and the inconsistencies and variation in some of the evidence of Mr Mills were factors which either he may not have noticed or that he was recalling incorrectly. However, with respect to the substance of his evidence, such as being punched to the nose which then bled profusely, the evidence was compelling. In the Crown’s submission, the evidence of the power cord or extension cord being wrapped around Mr Mills’ throat and him being choked was corroborated by Ms Carney. With respect to an anticipated criticism of Ms Carney, namely that she had given favourable evidence in support of Mr Mills because he was providing her with accommodation after she had been homeless for some time, the Crown put succinctly that “she, in colloquial parlance, didn*’**t have a dog in this fight.*” The Crown pointed out that she had previously stayed at the home of the accused when she had been homeless, and on this particular occasion, had been given sanctuary and a place to stay at the home of Mr Mills. In those circumstances she was effectively neutral and was a credible witness endeavouring to do her best.

84. Ultimately, with respect to the “breaking”, the Crown submitted that whether the accused had to open both the screen door and the wooden door, or whether it was just the screen door, made no difference.

85. With respect to the physical assault, the Crown submitted that no issue with respect to self-defence had been raised. In the Crown’s submission, the injuries to both the nose and the eye each amounted to actual bodily harm.

86. With respect to the choking allegation, the Crown submitted that the evidence of Mr Mills would be accepted as would the corroborative evidence of Ms Carney. The ambulance record (Exhibit 3) indicated immediate complaint with respect to the choking allegation and recorded that his neck was flushed, although there were no ligature marks.

87. With respect to the execution of duty by the police officer, the Crown pointed to a number of relevant authorities and submitted that in all of the circumstances the officer was clearly acting within the scope of his duties.

DEFENCE SUBMISSIONS

88. On behalf of the accused, Ms Melhuish identified specific elements of each offence in respect of which she submitted that the Court would entertain a reasonable doubt. With respect to the breaking and entering, she submitted, implicitly, that the Court would reject the evidence of Mr Mills that when he got home a short while before the entry of Mr Briar, that he had checked the back door being unlocked for his daughter to return and that he should not be accepted when he said that both the solid and screen doors were closed.

89. Her submission, again implicitly, accepted the account given by Ms Carney to the effect that the solid door was always left open in order to permit a flow of breeze. Whilst she conceded that the screen door could be seen to have an automatic closing mechanism in the body-worn footage which had been tendered, in her submission the circumstance that the door may have been propped open in some way by either a brick or rock or something else was a circumstantial rational inference which could not be excluded beyond reasonable doubt. Accordingly, in the defence submission, the element of breaking could not be satisfied.

90. With respect to both Counts 1 and 2, with respect to the assault, she submitted that the Court “may have some difficulty finding an element of causation provided beyond a reasonable doubt in circumstances where there seems to be some evidence of a scuffle between Mr Briar and Mr Mills at some point” (TT103). With respect to the element of actual bodily harm, her submission was that the bloody nose would not reach a level of actual bodily harm given that the nose had stopped bleeding by the time police and ambulance arrived. Ms Melhuish did, however, concede that the bruised eye would be actual bodily harm but that the manner of causation could not be attributed to a punch in circumstances where Ms Carney, at one stage, had them rolling on the ground.

91. With respect to Count 3, the choking, Defence submission was that the Court “just would not be satisfied that that conduct occurred at all” (TT103).

92. With respect to those first three counts, the ultimate submission on behalf of the accused was that the Court would reject the evidence of Mr Mills “in almost its entirety” and would then take “great caution” with the evidence of Ms Carney.

93. With respect to the circumstance of an assault, Ms Melhuish conceded that there was an assault by Mr Briar on Mr Mills, but focused her submission on the question of causation, particularly with respect to the bruised eye.

94. The submissions in support of rejecting Mr Mills’ evidence “in almost its entirety” focused principally on inconsistencies in his evidence with respect to predominantly peripheral matters. These included whether he had known the accused for “a couple of years” or, as had been suggested in cross-examination, about 7 years, if not longer; the question of whether the cord allegedly used to be wrapped around his throat in the choking fashion which was described had caused the television and stereo to turn off when the subsequent video taken by police indicated that the television was on at that time; and the period of time that Ms Carney had or had not been residing at Mr Mills’ home. It was submitted that the “peripheral errors in Mr Mills*’* evidence” were “deeply relevant to the Court*’s assessment of Mr Mills’* credibility and reliability.” The submission was further developed:

“If he’s mistaken about aspects of his life or his relationships or his attitudes, things that he would have quite an intimate understanding of, if he’s mistaken about those things that would be effectively ingrained in his mind, ingrained in his memory, the Court would have deep concerns about his capacity to remember something that’s happened in a very short period of time in a dark room in a heightened situation, very stressful, two and a half years ago.” (TT105)

95. With respect to Ms Carney describing having observed the attempted choking and having intervened to help to try to loosen the cord around Mr Mills’ neck, it was not suggested that she had deliberately lied. The submission, in that respect, was that she may have overheard what Mr Mills said to the police and had then “subconsciously adopted what she*’s heard and it’s translated into her recollection of the events.” The submission was further developed that there was a possibility that having heard what had happened “then memory works in amazing, fantastical ways. We know, we’ve read the caselaw about it”* (TT111). In the further development of that submission, the possibility that a “false memory” had been created in the mind of Ms Carney could not be rejected beyond reasonable doubt. In response to some questions from the Bench, that submission ultimately included the possibility that Ms Carney had in fact lied deliberately but Ms Melhuish said that she was not making such a specific suggestion.

96. With respect to Count 4, the focus of the Defence submission was that when Officer Gyzen stood up from where he was observing Mr Briar in the hospital, after observing Briar pull his cannula out, that although it was conceded that he was acting in the execution of his duty with a person in police custody when he stood up and approached the bed, when he effectively pushed or shoved Mr Briar in the chest to make him lie down again, that was an act which was outside the scope of his lawful duty. That submission was buttressed by reference to a number of cases which were handed up.

DETERMINATION

97. With respect to Count 1, the first issue for determination is whether there was in fact a “breaking” in order to enter the house. The evidence as to the state of the back screen door and the back internal door came from the two occupants of the premises, Mr Mills and Ms Carney. Mr Mills’ evidence was that the back door was specifically and intentionally left unlocked because his daughter would come back to the house via a route which would bring her to the rear of the house. As I have set out earlier, Mr Mills’ evidence was that he checked that the back doors were unlocked on his arrival back home. His evidence was that they were both unlocked and both closed.

98. Ms Carney, who had been at the house all that day, and who subsequently stayed there in excess of a week, gave evidence which I have set out earlier that Mr Mills “always leaves the screen door closed but the back door open.” On both accounts the screen door, at least, was closed. At the time the police arrived and took photographs, the screen door could be seen in a closed position. The circumstance that it was fitted with an automatic hydraulic door closer was evidenced in a photograph and in the body-worn footage.

99. The hypothetical circumstance that it may have been propped open, whether by means of the metal apparatus on the door closer or by brick, rock, or otherwise, I reject as nothing more than sheer speculation. No such specific suggestion was put to either of the witnesses.

100. I am satisfied beyond reasonable doubt that one or both of the back doors were in a closed position, and accordingly the element of “breaking” is satisfied.

101. With respect to the injuries sustained in the assault on Mr Mills, I am unpersuaded that the variation in his recollection as to his precise position and situation in the lounge room when Mr Briar entered, clearly a peripheral issue, raises any question or level of reasonable doubt about the proposition that he was punched to the face twice by the accused. I reject the proposition advanced on behalf of the accused that the bloodied nose, which it was accepted was from an administration of force by Mr Briar, resulted in anything less than actual bodily harm. The bleeding nose resulted in injury which was neither transient nor trifling.

102. The bruise to the eye, I am also satisfied, and I accept Mr Mills’ account, was sustained as a result of a punch. The Defence conceded that this would amount to actual bodily harm. Mr Mills’ account was relevantly corroborated by Ms Carney who described Mr Briar having been the primary protagonist in what she observed.

103. I am satisfied, on the limited evidence available, that the offence set out in Count 1 is established beyond reasonable doubt.

104. Count 2, accordingly, is not required to be considered.

105. With respect to Count 3, the evidence with respect to matters which might be considered peripheral to the actual element of whether a choking occurred, has a degree of variability. It is somewhat unclear as to precisely how many power cords or extension cords were present and involved in the interaction. Certainly one was recovered, in due course, from the floor where it bore blood which had come from the bleeding nose of Mr Mills. His evidence that the power cord that was used had been taken from where the television and stereo were plugged in and that they were, accordingly, off, was inconsistent with the circumstance that the television was clearly on when police arrived. Mr Mills had asserted that the television was off the entire time, while Ms Carney had said that she heard him call out over the sound of the television when she was in the bathroom. However, on the critical issue as to whether or not an electrical power cord was wrapped around the neck and throat of Mr Mills, this was the subject of direct testimony from him and direct corroborative evidence from Ms Carney. Whilst Mr Mills was correctly described by the learned Crown prosecutor as “unsophisticated”, I accept the honesty of his recollection and description with respect to being choked by the power cord. I reject entirely the suggestion that Ms Carney may have had a false memory of something which she had never seen and had never intervened in as a consequence of having overheard what Mr Mills told the police had happened. She was, in my view, an honest and credible witness. The Defence appeared to accept a similar description of her testimony, giving rise to the suggestion, on behalf of the Defence, that she had not intentionally lied, but may have had a false memory of the event.

106. I accept and am satisfied beyond reasonable doubt that the accused wrapped an electrical power cord around the neck of Mr Mills and that a struggle ensued, culminating in the cord which had been wrapped around his throat and neck ultimately being removed. The intentional application of pressure by the cord was capable of affecting the breath or the flow of blood to or from the head of Mr Mills. His evidence of having difficulty breathing is accepted.

107. On the basis of the limited evidence available, I am satisfied beyond reasonable doubt that the elements of Count 3 are made out.

108. I turn now to a consideration of Count 4.

109. The relevant provisions in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) are sections 230 and 231. They are as follows:

230 Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

231 Use of force in making an arrest

A police officer or other person who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.

110. In the submission of the Defence, as I have referred to earlier, reliance was placed on the judgment of Barrett AJA in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 (Macfarlan JA agreeing).

111. In the Defence submission, notwithstanding what was effectively submitted to be a reading down of the judgment in Jankovic in the State of New South Wales v Dennis [2025] NSWCA 118, there still remained a calm circumstance with sufficient time that there was a requirement that the Constable give consideration to alternatives other than the application of force. In the submission of Ms Melhuish, Jankovic was to be read down in circumstances where things were happening quickly and were so heightened that immediate intervention is called for. In her “interpretation”, as she put it, of how Dennis sought to correct Jankovic, it should be confined to those circumstances and that the situation in hospital was very calm up until the moment that the cannula was pulled out. It did not require Constable Gyzen to stride across the room towards the accused and be “hands on”. In Ms Melhuish’s submission, he had time to think of alternatives and did not. I should note in passing that no alternative was suggested but logically, he could have simply asked the accused to lie back down.

112. There is no doubt that the decision of Barrett AJA in Jankovic has not simply been read down, but has effectively been held to be incorrect.

113. In Jankovic itself, White JA notably said at [8]:

“There may be many cases in which a police officer could be satisfied that an arrest was reasonably necessary for one of the stated purposes without the officer’s having consciously to weigh all alternatives. A violent assault could be such a case …”

114. The effect of Jankovic, requiring a consideration of other alternatives to the intended action, in that case relating to effecting an arrest, has been the subject of consideration in a number of following cases.

115. In AD v State of New South Wales (2023) 308 A Crim R 367; [2023] NSWCA 115 Basten JA said at [19]:

“To form a different opinion to that of the arresting officer is not, however, sufficient for the applicant to succeed in this case. Her difficulties are three-fold. First, s 99(1)(b) is expressed in terms of the state of satisfaction of the police officer, not of the court reviewing the arrest”

116. The judgment went on to deal with the only basis upon which the state of satisfaction could be visited on appeal, which was on the basis of the so-called “Wednesbury unreasonableness”.

117. The second post-Jankovic case was Reeves v State of New South Wales [2024] NSWCA 125. Bell CJ dealt with the difference in approach in the decision of Barrett AJA in Jankovic and Basten JA in an earlier case of Randall (State of New South Wales v Randall [2017] NSWCA 88) and in AD. The Chief Justice said at [116]:

*“*The Appellant sought to generate a conflict between the decision of Barrett AJA in Jankovic and Basten JA in Randall and AD but I do not think that any conflict arises and, even if it did, the interpretation of s 99(1) given by Basten JA should be preferred.**”

118. The third post Jankovic case was Emde v State of NSW [2025] NSWCA 41. McHugh JA confirmed that to the extent that there was any conflict between the two approaches of Basten JA on the one hand, and Barrett AJA on the other, the approach by the primary judge in the appeal with which they were concerned was required to give preference to the interpretation of Basten JA.

119. State of New South Wales v Dennis ultimately led to the quashing of the verdict entered in favour of a plaintiff who had sued the State, which was legally responsible for the police, for false imprisonment following an alleged unlawful arrest. Kirk JA with whom Mitchelmore JA and Basten AJA agreed, upheld the appeal on the basis of the application of the principles in Jankovic by the trial judge, Newlinds SC DCJ. The proper question was whether or not the state of satisfaction required “was manifestly unreasonable, or arbitrary, capricious, irrational, or not bona fide…”.

120. The requirement that the application of force must be “reasonably necessary to exercise the function” being undertaken by the police officer or that it be “reasonably necessary” to prevent the escape of a person after arrest, requires consideration of the circumstances in which the application of force arose and also a consideration of the degree of force applied.

121. In Woodley v Boyd [2001] NSWCA 35 a detailed analysis of the degree of force administered by police in the course of an arrest had been undertaken at first instance by Judge Dent and on appeal in the extensive judgment of Heydon JA (with whom Davies AJA and Foster AJA agreed). Heydon JA cited (at [37]) with approval the judgment of Donaldson LJ in Lindley v Rutter [1981] QB 128 at 134:

*“*It is the duty of any constable who lawfully has a prisoner in his charge to take all reasonable measures to ensure that the prisoner does not escape or assist others to do so, does not injure himself or others, does not destroy or dispose of evidence and does not commit further crime such as, for example, malicious damage to property. This list is not exhaustive, but it is sufficient for present purposes. What measures are reasonable in the discharge of this duty will depend upon the likelihood that the particular prisoner will do any of these things unless prevented. That in turn will involve the constable in considering the known or apparent disposition and sobriety of the prisoner. What can never be justified is the adoption of any particular measures without regard to all the circumstances of the particular case.”

122. Specifically by reference to how an arrest might be effected, Haydon JA further 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.”

123. Heydon J also cited with approval the remarks of Connor J in McIntosh v Webster (1980) 43 FLR 112 at 123:

“[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 courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances.”

124. I interpolate that reference to the apparent disposition and sobriety of the prisoner, it is manifestly clear that Constable Gyzen had had previous involvements with the accused and he had the opportunity of observing his disposition and apparent level of sobriety and aggression in the course of the evening.

125. Additional cases dealing with the actions of a police officer, either in the course of their duty or in the execution of their duty, included Director of Public Prosecutions v Gribble (2005) 151 A Crim R 256; [2004] NSWSC 926. In Gribble police had directed the defendant to move off the road in circumstances where he was standing in the middle of the road wearing dark clothing at nighttime. Charges of resisting police in the execution of their duty and counts of assaulting police arising from the ensuing resistance of the defendant had been dismissed in the Local Court on the basis that the police were acting outside the proper execution of their duty.

126. A summons seeking prerogative relief was brought in the Supreme Court by the prosecution seeking that the orders of dismissal be set aside and the matter remitted to the Local Court to be dealt with according to the determination of the Supreme Court. In acceding to the orders sought by the DPP, Justice Barr held that the intent of the legislation in the Police Act 1990 (NSW) extended the duty of a police officer beyond the prevention and investigation of crime so as to include actions reasonably necessary for the protection of persons from injury or death, and property from damage, regardless of whether the need for those services arises from any criminal act.

127. A similar outcome ensued in Director of Public Prosecutions (DPP) (NSW) v Araura [2012] NSWSC 1120. Davies J reached a similar conclusion and held that police officers who had encountered the defendant sitting in a stairwell following a domestic dispute, who was screaming and bleeding profusely from her forearm, were acting in the execution of their duty in trying to calm the defendant down and grabbing her arms because she was picking at the wound which was bleeding.

128. The Crown also made reference to R v K (1993) 118 ALR 596. The trial judge at first instance in a trial on indictment for the assault of two police officers acting in the execution of their duty had held that the evidence was not capable of establishing that at the time of the alleged assaults, the officers were acting in the execution of their duty. The accused was, accordingly, acquitted.

129. A question of law was taken on appeal to the full Federal Court pursuant to a reference by the Commonwealth DPP.

130. The factual circumstances had involved police being dispatched to the National Exhibition Centre in Canberra for the purpose of “crowd control”. It appears implicit that there was either a protest or similar gathering at that location. The exhibition at the time related to arms sales. The relevant ACT legislation with respect to the duties and powers of the Australian Federal Police were relevantly similar to the Police Act 1990 in NSW. The Full Court, Gallop, Spender, and Burchett JJ upheld the challenge by the Crown. Their Honours referred to a number of cases including the observations by Lord Parker CJ in Rice v Connolly (1966) 2 QB 414 where his Lordship said, at 419:

“… that it is part of the obligation and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.**”

131. Their Honours also referred to the remarks of Angel J in Thomson v C (1989) 67 NTR 11 at 13 where his Honour said:

“It is important that a constable should have a wide discretion to act swiftly and decisively; it is equally important that the exercise of that discretion should be subject to scrutiny and control so that he should not too easily or officiously clothe himself with the powers of the State and by so doing affect the rights and duties of other citizens.”

132. I have earlier referred to the decision in R v K where the Full Court said:

“The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.”

133. In the present matter the officers had been involved in a difficult arrest and apprehension of Mr Briar at the home of Mr Mills. They had been tasked with effectively guarding Mr Briar at the Wilcannia Hospital whilst he was in custody, had witnessed his irrational and aggressive behaviour a short time earlier which had resulted in the reapplication of handcuffs, and were keeping watch over him following the insertion of a cannula which was presumably attached to some form of drip.

134. The Constable reacted to restrain Mr Briar when he ripped the cannula from his arm and sat up. In the urgency of the moment, there was no time for careful contemplation as to whether the accused intended to physically decamp, consistent with his earlier expressed intention of leaving the hospital and “going home”. The duty of the Constables at that time was to keep the accused in custody, and, if necessary, to restrain him from either harming himself or escaping. He was pushed back down onto the bed and physically restrained by holding his hands in front of him, restraining him from getting up. At all times during this intervention, the accused was not free to leave.

135. Significantly, the accused had punched Constable Gyzen immediately after being pushed back down onto the bed. There is no issue that that assault occurred. The only issue is whether or not the officer was acting in the execution of his duty at the time.

136. In my considered view, the police officer was acting in the execution of his duty in restraining the accused by pushing him back down onto the bed in the circumstances in which their obligation was to guard him at the hospital.

ORDERS

137. Accordingly, the verdicts of the Court will be, in relation to each of Counts 1, 3, and 4, that on the limited evidence available, I am satisfied that the offences are established.

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Amendments

21 October 2025

Coversheet - insertion of "(NSW)" after Office of the Director of Public Prosecutions