R v Kershaw

Directions

1. In compliance with the decision of the High Court in Fleming v R (1998) 197 CLR 250 I remind myself of the following principles of law and set out the findings of fact on which I have relied.
2. I direct myself that the onus of proof is "beyond reasonable doubt" and that the Crown bears the burden of proof.
3. The Court has heard the submissions of both the Crown Prosecutor and of Counsel for the accused. The Court will consider those submissions and give to them such weight as it thinks they deserve. The Court notes that in no sense are those submissions evidence in the case.
4. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs, and my common sense.
5. I acknowledge that I have very important matters to decide in this case - important not only to the parties but also to the whole community. I must, as a jury, act 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 trial.
6. It is for me to assess the various witnesses and decide whether they are reliable. I note that the reliability of any witness' evidence depends upon two quite different, but sometimes overlapping, considerations: one is the witness's honesty; the other is the witness's accuracy. The honesty of a witness involves considering not only what the witness said (or perhaps did not say) but also the impression that the witness made upon me.
7. I note 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 that witness's evidence.
8. I remind myself that the fact that a proposition is put by counsel to a witness does not mean that the proposition is evidence of the fact contained in the question (proposition). I note that it only becomes evidence of the fact if the witness accepts that the proposition is true or if there is other evidence that proves the proposition.
9. I remind myself that I may, in my role as judge of the facts, draw inferences from the direct evidence. 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. 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.
10. A circumstantial case is another form of inferential reasoning. Ordinarily, in relying upon circumstantial evidence, as opposed to direct evidence, the Crown asks me to find certain basic facts and then from those facts to draw a conclusion as to the existence of a further fact. In a circumstantial case no individual fact can prove the guilt of the accused. Where the Crown's case depends either wholly or in part on circumstantial evidence, then the finder of fact is asked to reason in a staged approach. The Crown first asks the finder of fact to find certain basic facts established by the evidence. Those facts do not have to be proved beyond reasonable doubt. Taken by themselves they cannot prove the guilt of the accused. The fact finder is then asked to infer or conclude from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asks to be found based upon the basic facts is that an accused person is guilty of the offence charged.
11. If I find that a conclusion of guilt is a reasonable one to draw based upon a combination of established facts then, before I can convict the accused, I must determine whether there is any other reasonable conclusion arising from those facts that is inconsistent with the conclusion the Crown says is established. If there is any other reasonable conclusion arising from those facts that is inconsistent with the guilt of the accused, the circumstantial case fails because I am not satisfied beyond reasonable doubt of the accused's guilt.
12. Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. I must not base my conclusion upon mere speculation, conjecture or supposition.
13. I am obliged to act only upon the evidence that is before me in the trial and nothing else. That means that if, for example, I took the view that evidence was absent on a topic I must not fill in the gaps by speculating about the evidence. I must not engage in speculation as to what that absent evidence might have established, if anything.
14. I note that the accused has a right to remain silent when spoken to by police. The accused in this case declined to be interviewed by police. I note that all people in this country have a right to silence - that is, to choose not to answer questions put to them by the police. In this case, it would be quite wrong if the accused having listened to what the police said as to not being obliged to answer questions, and having decided to exercise his right to silence, later found that a jury, or in this case the judge in a judge alone trial, was using that fact against him, and of course I must not do that. It is important, therefore, that I bear in mind the accused's silence cannot be used against him in any way at all.
15. This is a hearing involving criminal charges of a most serious nature and as I have already noted the burden of proof of guilt of the accused is placed on the Crown. That onus rests upon the Crown in respect of every element of the charges and there is no onus of proof on the accused at all. 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 warn myself that suspicion is not a substitute for proof beyond reasonable doubt.
16. It is, and always has been, a critical part of our system of justice that persons tried in this court are presumed to be innocent, unless and until they are proved guilty beyond reasonable doubt.
17. The words "beyond reasonable doubt" are ordinary everyday words and that is how I understand them. If at the end of my deliberations, having taken into consideration the evidence both for the Crown and for the accused in respect of any matter which the Crown must establish to make out its case, and after also taking into consideration the submissions made to me by each of the counsel in their address, I am not satisfied that the Crown has established any one of these essential matters beyond reasonable doubt then it is my duty, as I have said, to bring in a verdict of "not guilty", because the Crown will have failed to do what the law requires it to do.
18. 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 charges.

the issue

1. The 2 outstanding counts to be determined are the same criminal offence under s.60(2) of the Crimes Act 1900 (NSW). That section provides that "[a] person who assaults a police officer while in the execution of the officer's duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years."
2. Count 3 relates to Senior Constable Kaela Dekort and Count 5 relates to Senior Constable Daniel Kinghorne.
3. It is not disputed that they were both police officers. It was accepted that they were assaulted and suffered actual bodily harm. The issue was whether they were acting in the execution of their duty at the time of the offending. More particularly, whether the arrest which they were attempting to effect was lawful.
4. Considerable time was taken in argument about the interaction between common law principles regarding arrest and Law Enforcement (Powers & Responsibility) Act 2002 (NSW) (LEPRA).
5. Senior Constable Kinghorne purported to exercise a power to which Part 16A of LEPRA applied (see s201(1)(a) - power to stop, search or arrest a person). Section 202 mandates that he must, as soon as reasonably practicable, provide the accused with "the reason for the exercise of the power" (ss 202(1)(c) and 202(2)(a)). This is to be contrasted with the requirement attaching to the common law power of arrest for breach of the peace.
6. It was clear form the evidence of Senior Constable Kinghorne that he was exercising a power pursuant to LEPRA. Section 99 permits arrest without a warrant in a number of circumstances. Senior Constable Kinghorne specifically gave evidence as to the relevant reasons (commencing T33). Accordingly, by operation of s201, the mandates of s202 clearly apply.
7. The cases relied upon by the Crown related to the common law power and not the exercise of the power under LEPRA. It is necessary however to refer to those cases.
8. It was nevertheless contended on behalf of the Crown that the common law position as stated by Viscount Simon in Christie and Leachinski [1947] AC 573 applied. It was further submitted that Viscount Simon's decision has been favourably adopted in New South Wales and remains good law.
9. The controversial aspect of the judgment in Christie was the third proposition advanced by Viscount Simon: "(3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained."
10. That proposition was stated, having first recognised the general duty of an arresting officer to, in ordinary circumstances, inform the person arrested of the true ground of the arrest. Lord Viscount stated: "He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized."
11. The Crown further relied upon the judgment of Lord Simonds (at 592-593) and submitted (incorrectly in MFI 4 at [16]) the following passage: "There was no need to explain the reason for the arrest if the arrested person was caught red-handed…I think it is clear that there is no need for the constable to explain the reason of arrest, if the arrested man is caught red handed and the crime is patent to high Heaven."
12. Further, it was submitted that in State of New South Wales v Delly (2007) 70 NSWLR 125 at [9] Ipp JA followed Viscount Simon in Christie as to proposition 3. I do not accept that Ipp JA intended to adopt that proposition. His Honour said: "[11] The exception recognised by Viscount Simon, namely, that arrested persons need be given no information when the circumstances of the arrest are such that they should know why they are being arrested, is consistent with the notion that the particular offence need not be specified (as is implied by Lord Simonds' observations)".
13. The last sentence of that paragraph was not referred to by the Crown. It read: "In practice, moreover, the charge on which the arrested person faces trial is often formulated long after the arrest".
14. It seems to me that Ipp JA was more concerned with the specificity and detail of the information to be conveyed by the police officer prior to the arrest, rather than the need to provide a reason for it.
15. In supplementary submissions (MFI 7) the Crown referred to further cases in which Christie had been adopted or followed in New South Wales following the introduction of LEPRA.
16. The Crown submitted that the comments of Viscount Simon and Lord Simonds in Christie were quoted with approval in Adams v Kennedy (2009) 49 NSWLR 78 at [17] and [21].The Crown also quoted paragraph [26] submitting it in the following terms: "It therefore seems clear that one or more of the exceptions to the general rule recognised by Christie is applicable here. This would of course be subject to any statutory alteration, but the Court's attention was not drawn to any directly relevant legislation, nor was any such alteration relied on."
17. The actual statement in Adams reads: "It therefore seems clear that the common law stated in Christie is applicable in New South Wales. This would of course be subject to any statutory alteration, but the court's attention was not drawn to any directly relevant legislation, nor was any such alteration relied on."
18. The error in the quotation is not of any significance. The relevance is that the Court in that case was not directed to any specific provisions of LEPRA, and that the Court contemplated that the common law position would be subject to legislation of the type introduced by the enactment of LEPRA.
19. The Crown referred next to the decision of State of New South Wales v Smith (2017) 95 NSWLR 662 where the Court of Criminal Appeal was concerned with an arrest which occurred on 20 May 2013. It was submitted: "McColl JA in Smith specifically endorsed (at [143]) the continuing applicability of the propositions advanced by Viscount Simon as reflecting the common law of New South Wales and was reflected in LEPRA section 201." (MFI 7 at [5])
20. I respectfully reject that submission. What McColl JA did ([at 143]) was simply refer to Viscount Simon's judgment in Christie as providing the "elementary proposition" that "a person is, prima-facie, entitled to his or her freedom and is only required to submit to restraints on that freedom if he or she knows in substance the reason why it is claimed that restraint should be imposed. His Lordship's statement reflects the common law in New South Wales and is reflected in the LEPRA s 201".
21. I do not accept the submission that her Honour was intending by that statement to adopt all of the five discrete propositions identity by Viscount Simon which included proposition three that, in some cases, there is no need to inform the person of the reason for arrest if the circumstances are such that the person must know the general nature of the alleged offence. McColl JA is simply acknowledged the general proposition that a reason for an arrest must be given.
22. The Crown referred to Robinson v State of New South Wales (2018) 100 NSWLR 782. I was taken to the second paragraph of the headnote which reads: (2) "Section 99(1)(a) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) requires that, at the time of the arrest, there be an intention to charge the person being arrested. Nothing in the text or context of the Act indicated departure from the common law position."
23. Christie was referenced as being applied in support of that statement. With respect to the Crown, the principle of law stated in the second paragraph of the headnote has nothing at all to do with any fact in issue in respect of this trial. The submission that Christie was referenced in support of some other proposition is irrelevant.
24. The Crown referred to the High Court decision following an appeal in State of New South Wales v Robinson (2019) 266 CLR 619 and submitted: "[T]he plurality accepted that an arresting police officer did not have the power to arrest without a warrant under s 99 LEPRA when, at the time of the arrest, the officer had not formed an intention to charge a person with an offence".
25. The Crown relied on upon that extract that in making that statement the High Court referenced the decision in Christie. Again, the citation of this decision is misleading in that it is irrelevant and does not advance the proposition contended for by the Crown in this trial. The High Court was merely referring to the decision of McColl JA wherein her Honour adopted the uncontentious proposition "that an arresting officer must at the time of arresting a person have formed the intention to charge that person and advise the arrested person of that charge" ([at 25])".
26. The Crown then referred to the Second Reading Speech of the Law Enforcement (Power and Responsibilities) Amendment Bill 2014 where the Minister did no more than refer to s202 of LEPRA and the need for an arresting officer to provide the reason for the exercise of the power.
27. More apposite were the comments made by the Parliamentary Secretary in respect to the Law Enforcement (Powers And Responsibilities) Bill 2002 on 21 November 2002 where amongst other things it was said "arrest is a measure to be exercised only when necessary".
28. Contrary to the Crown's submissions generally, it was stated: "The application of the safeguards contained in Part 15 of the Bill represents a codification of the common law requirement that a person must be told of the real reason for their arrest, and a clarification of the additional requirements that an officer must provide their name, place of duty and a warning."
29. Finally, it was stated in the Second Reading Speech, "with power comes responsibility" and "[i]n return for these powers… police are required to exercise them responsibly, particularly where these powers affect the civil liberties of members of the community whom police serve."
30. The Crown then submitted as follows: "The Crown submits that none of the above cases supports the contention of the accused that s 202 in its current form excludes the operation of the exceptions referred to by Viscount Simon of (sic) Lord Simonds in Christie v Leachinski. Rather, these authorities tend to speak uniformly that the principles which inform the common law power of arrest without warrant also informed sections 99 and 202. That is a pragmatic and common sense approach to understanding the requirement to inform an accused of the reason for his or her arrest. If it were otherwise a rogue would only have to be too intoxicated to understand what he is being told to defeat the intent of the section. A similar submission is made if a rogue put cotton wool in his ears, ran away before he could be told, or starts (as in the present case) to violently assault an officer before the words could be uttered. The LEPRA provisions should not be interpreted in a way [which] endorses its operation as a rogues paradise." (MFI 7 at [11]).
31. Without wishing to be disrespectful to the Crown, I do not accept that the cases referred to support the submission that the exceptions, in particular the exception in proposition three identified by Viscount Simon in Christie continues to operate as the law in New South Wales. As for the reference to the rouge accused, none of the circumstances referred to would justify an exception to the duty of a police officer to provide the reason for arrest, save for the arrestee violently acting out and not providing an opportunity to the police officer to provide the reason. It must be borne in mind, however, that s 202 provides for that circumstance in that the duty upon the police officer to provide the reason for the exercise of the power is to be complied with "as soon as it is reasonably practicable to do so" (s202(2)(a) LEPRA).
32. The evidence of Senior Constable Kinghorne was that at no time was the accused informed of the reason for the arrest (T47.45). Accordingly, I reject the Crown's submission that Senior Constable Kinghorne was not under a duty to provide the accused with a reason or reasons for the arrest. Further, I reject the submission that the exception provided by proposition three in Christie remains good law in New South Wales.
33. Section 4 of LEPRA acknowledges the common law and provides, amongst other things, that unless LEPRA otherwise provides expressly or by implication the Act does not limit "the functions, obligations and liabilities that a police officer has as a constable at common law". In my opinion, the mandatory terms of s 202 must necessarily by implication displace proposition three from Christie.
34. In order for the offence to be made out, it is necessary for the Crown to prove beyond reasonable doubt that it was not reasonably practicable for Senior Constable Kinghorne to provide the accused the reason for his arrest.
35. Notwithstanding the violent behaviour by the accused towards the police, there plainly must have been a point in time when it became reasonably practicable to inform him of the reason for arrest. The latest time was when the accused was restrained by handcuffs and pinned down by four police officers. I will consider in the evidence below whether it was in fact reasonably practicable to do so at an earlier point in time.
36. In fairness to the Crown, he abandoned reliance upon the authorities referencing the common law and LEPRA but nevertheless maintained that the Crown's position is that all of the exceptions in Christie apply in this case regardless of s202" (T99.32). For the reasons given, I do not accept that submission.
37. The other legal issue advanced by the Crown related to Senior Constable Dekort. It was submitted on behalf of the Crown that Senior Constable Kinghorne was responsible for arresting the accused and that Senior Constable Dekort became involved in response to the accused assaulting Senior Constable Kinghorne. Further, it was submitted given that the accused was involved in acts of violence when Senior Constable Dekort became involved there was no obligation upon her to provide a reason for the exercise of the power of arrest prior to engaging with the accused. It was submitted that the reason for the exercise of her power of arrest arose because the accused was assaulting a police officer or for resisting arrest.
38. I do not accept that the conduct of the police officers can be separated in that way. Whilst Senior Constable Kinghorne was the leading officer in the arrest, both police officers attended the premises for the purposes of arresting the accused for domestic violence offences. I make that finding having regard to all of the evidence, notwithstanding the curious evidence of Senior Constable Dekort that she did not know why Senior Constable Kinghorne was arresting the accused.
39. On this topic, counsel for the accused referred to a decision of Coleman v Power [2004] HCA 39. Reference was made to that decision in support of the proposition that Senior Constable Dekort may have been acting lawfully notwithstanding there being a reasonable doubt about the legality of the arrest. The High Court accepted the finding of the Court below and stated: "Hedigan J held that, although the second officer acted in good faith, his conduct was also unlawful and he was not acting in the execution of his duty when assisting the first officer to affect an unlawful arrest." ([at 120])
40. The High Court held that the arresting officer's were not acting in the execution or performance of their duty.
41. Returning to the present matter, the only issue at trial was whether the arrest was lawful such that the police officers were acting in the execution of their duty.
42. Section 99 of LEPRA provides police officers with powers to arrest without a warrant if they suspect on reasonable grounds that the person has committed an offence. The evidence established that matter beyond reasonable doubt based on the CAD logs (Exhibit A- tab 3) and the VKG recording (Exhibit K). Further, I find beyond reasonable doubt that the arrest of the accused was reasonably necessary to protect the safety or welfare of any person (s99(1)(b)(viii)), because of the nature and seriousness of the offence (s99(1)(b)(ix)) and to stop the accused from committing or repeating the offence or committing another offence (s99(1)(b)(i)).
43. The sole question for the tribunal of fact is whether the Crown has made out beyond reasonable doubt that it was not reasonably practicable for Senior Constable Kinghorne to provide the accused with the reason for the exercise of the power of arrest.
44. The evidence pertaining to the issue is of narrow compass. Glenn Jerome, the domestic violence victim, was called to give evidence. Oral evidence was also given by both Senior Constables Kinghorne and Dekort. They were both very impressive witnesses. I have no hesitation in accepting their evidence.

Glenn Jerome

1. Mr Jerome was the primary complainant who caused the attendance of the police at his address. He explained how he heard the accused's car approaching as it had a punctured tyre and the wheel was running on the rim. He also noticed the damage to a panel of the vehicle suggesting an impact. The accused parked the vehicle on the incorrect side of the road. Mr Jerome placed a torch on top of the roof and activated its red beacon to warn oncoming cars.
2. Mr Jerome considered the accused to be intoxicated. He observed him meander up the driveway. He did not walk up the driveway in a straight line suggesting to Mr Jerome that the accused was intoxicated. The accused then approached Mr Jerome and sat down on a chair next to him on the veranda. He told Mr Jerome that he had had two bottles of port and a bottle of wine.
3. He gave some evidence about an altercation which took place with the accused. Mr Jerome was pushed back against the bonnet of his car. At that time, his mother poked her head out of the front door and Mr Jerome said to her, "call the police or call the cops". Mr Jerome managed to push the accused off him. He ran to his front door but before he could get inside the accused laid his hands on Mr Jerome's shoulders. Mr Jerome turned around and pushed the accused off the veranda before proceeding inside the house. Before Mr Jerome could even shut the door the accused was already back up on the veranda struggling to get inside the house. Mr Jerome had to use every bit of strength he had to shut the door. The accused continued to smash on the door and made a hole in the fibro wall next to the door.
4. In cross-examination Mr Jerome was asked some questions about distances, he estimated the length of his driveway as 12 to 15 metres.
5. This was then explored in re-examination by reference to a photograph of the front of the house (Exhibit C). He clarified the 12 to 15 metres was the distance from the start of the gutter to the corner of the house and that there were a further 4 metres between the gutter and the road surface.
6. That is the best estimate of the distance traversed by Senior Constables Kinghorne and Dekort upon their approach to the accused.

Senior Constable Kinghorne

1. His evidence in chief was essentially his police statement, supplemented by some limited oral evidence.
2. About 10:15pm on Tuesday 16 June 2020 he and Senior Constable Dekort responded to a priority incident at Buff Point. They had arrived at the premises with the police car's sirens and lights activated. They were turned off upon arrival.
3. The radio broadcast in relation to the incident stated that the partner of the informant's ex, William Kershaw, came to the Buff Point residence and tried to kick and punch the informant, Glenn Jerome. Senior Constable Kinghorne said that whilst on the way to Buff Point there were updates via the police radio stating that the accused was at the front door and bashing it in. Further that the accused said that he wanted to kill Mr Jerome. He tried to break windows with his fists.
4. The police officers arrived outside the location about 10:25pm. There was a small old four-wheel drive parked near the gutter with the drivers' door opened and the headlights on. That was the accused's vehicle. Senior Constable Kinghorne exited the police vehicle and began walking towards the front residence via the driveway. Referring to his statement, the police officer said that he could see the accused about 10 metres away in a seated position on the grass just in front of the small veranda there was a lady (the accused's mother) standing over him with both her hands on his shoulders she referred to the male as Bill. There was also another male standing in the front yard. The police officer said that the accused was on his knees facing away and that Senior Constable Kinghorne could see his back.
5. The accused's mother said "he seems ok now, but he's quite violent. He will need to be handcuffed".
6. Senior Constable Kinghorne gave evidence that, based on the information provided over the radio and updates, and observation of the location and the accused he reasonably believed the seated male had committed domestic violence offences. He intended to handcuff him for their safety and that of others "due to the violence" (T30.40).
7. The accused's hands were already partially above his head and he was holding onto the arms of the female (his mother). Senior Constable Kinghorne stated: "I approached and attempted to take hold of his left arm. I said, "mate, put your hands behind your back." The accused immediately tensed his body and arms and attempted to pull away." (T31.28)
8. Senior Constable Kinghorne confirmed that it was his intention to handcuff the accused as he believed he had committed domestic violence offences and he intended to place him under arrest due to the seriousness of the offences.
9. Senior Constable Kinghorne gave evidence as to those matters which informed his belief on reasonable grounds that the accused had committed domestic violence offences.
10. Senior Constable Kinghorne went on to describe the altercation that took place between him and the accused. He also described in some detail the accused's attack upon Senior Constable Dekort which was violent and alarming. It was necessary for Senior Constable Kinghorne to strike the accused on a number of occasions in order to achieve the release of Senior Constable Dekort from a headlock. Senior Constable Kinghorne described the accused as being "aggressive, violent, intoxicated and strong" (T36.22).
11. The struggle continued between Senior Constable Kinghorne and the accused who was on the ground partially pinned down by the police officer's body weight. He was concerned that he was unable to control the accused and affect the arrest.
12. The accused's behaviour was aggressive and violent. He was abusive towards the police officers and spat at Senior Constable Kinghorne.
13. The behaviour of the accused caused enormous injury and grief to the two police officers both of whom were visibly upset in the course of giving evidence.
14. The police officers called for backup and ultimately Constables Dimond and Duckett arrived. It took the four police officers holding the accused down to handcuff him.
15. Senior Constable Kinghorne accepted that he did not provide a reason for the arrest prior to trying to handcuff the accused (T43.50). He explained as follows: "When I first approached him, I wanted to gain his control for our safety first. I intended to put his hands behind his back, handcuff him and explain what I was doing, and I didn't get the chance to do that" (T44.16).
16. And: "I intended to handcuff the accused and explain I was arresting him for domestic violence offences. I didn't get to that point, and be able to as I believe the reason was it was not reasonably practicable as I put my hand on him and then I ended up in that immediate violent resistance" (T44.27).
17. Senior Constable Kinghorne was cross-examined. He was asked why he did not tell the accused why he was to be arrested as Senior Constable Kinghorne approached him. The answer provided was, "I was looking at his back, in the back of his head" (T44.46).
18. It was put to him that he had plenty of opportunity to inform the accused that he was under arrest for domestic violence offences. Senior Constable Kinghorne responded by saying "[f]rom a distance; I'd like to have that conversation to his face" (T44.50).
19. Senior Constable Kinghorne accepted that he could have said that to the accused on his approach when he was in close proximity to him (T45.1-5).
20. When asked why he didn't provide the reason for arrest at a later time. Senior Constable Kinghorne stated, "I was more concerned about our safety at that point" and that it did not occur to him to do so (T45.23-27).
21. Senior Constable Kinghorne agreed that he did not introduce himself to the accused or tell him that he was a police officer. That failure was explained by the fact that they had pulled up with the lights and the sirens activated and that he was wearing his full uniform (T46).
22. Senior Constable Kinghorne was asked why he did not tell the accused that he was under arrest for domestic violence offences at the point in time when he was handcuffed. His answer was, "I was more concerned about my partner at that point and my own injuries as he was under control of two other police" (T46.46-48).
23. Senior Constable Kinghorne accepted that at no time did he tell the accused that he was under arrest. The following exchange occurred in cross examination: "Q. Why didn't you tell him he was under arrest for resist police, assault police and domestic violence offences? A. Hindsight is a wonderful thing. I didn't do it". (T.47.45-47)
24. Senior Constable Kinghorne confirmed that after approaching the accused he placed his hands upon him in order to initiate the arrest with the intention of pulling his arms back and handcuffing him. (T.48)
25. Finally, Senior Constable Kinghorne agreed that even after the police car arrived with its lights and siren activated, no attempt was made by the accused to flee the scene (T.49).

Senior Constable Dekort

1. The evidence of Senior Constable Dekort was not controversial. She agreed that she was not aware why Senior Constable Kinghorne asked the accused to place his hands behind his back. This was odd as they had both heard the communications on police radio.
2. Senior Constable Dekort's evidence was largely consistent with the recording from the body worn camera and also the evidence of Senior Constable Kinghorne.
3. One topic upon which their evidence differed was when they respectively formed the belief that they were justified in arresting the accused. Senior Constable Dekort said that it was not until the accused elbowed Senior Constable Kinghorne that she formed the belief that they were justified in exercising the power of arrest without warrant.
4. Senior Constable Dekort said that she did not ever tell the accused that he was under arrest (T.57.7).

Constable Dimond

1. Constable Dimond's evidence was largely based on her police statement. She was not crossed examined. She described how Constable Duckett used his body weight to pin down the accused which eventually permitted Constable Duckett and Senior Constable Kinghorne to handcuff the accused. Ambulance officers later arrived and injected something into the accused to calm him. Constable Dimond secured his legs until the medication worked. The accused continued to resist so a second dose of the medication was given to him.
2. Additional police officers arrived. The accused had calmed down at that point, and "sedatives kicked in" (T.67.35). The accused then apologised to the police officers.
3. Constable Dimond gave evidence about what Senior Constable Kinghorne said at the scene including that as he approached the accused his mother said "you're going to have to handcuff him".

determination

1. In the course of addresses the Crown handed up 5 still images (MFI 5) taken from the body-worn camera. The first was at 22:25:21 showing Senior Constable Kinghorne approaching the accused. He appeared to have his left hand on his utility belt. The accused can be seen kneeling and motionless with his mother standing over him.
2. The second image was 14 seconds later at 22:25:35 and shows the accused still kneeling and Senior Constable Kinghorne's right hand on the accused's back. This was said by the Crown to be the first point of contact.
3. The third image was said to be when Senior Constable Dekort handed her torch to the unidentified male at 22:25:38.
4. The fourth image was at 22:25:41 when the accused was told to "stop resisting".
5. The final image was at 22:34:24 when the accused can be heard saying "I accept that I am under arrest". This was about 9 minutes after Senior Constable Kinghorne is shown approaching the accused in the first image.
6. It was submitted that it was not reasonably practicable for Senior Constable Kinghorne to inform the reason for arrest prior to placing his hand on the accused's back. It was said that during the 14 seconds from the commencement of the body-worn camera to contact between the police officer and the accused, his mother said "he seems ok now, but he's quite violent, he will need to be handcuffed". That cannot be heard as there was a delay in the audio-recording of the body-worn camera. It was, however, not disputed.
7. The Crown submitted that "the way the accused reacted and his subsequent misconduct, aggressive and violent conduct, deprived him of being given that information (as to the reason for arrest) (T80.45).
8. It is necessary to have regard to all of the circumstances which, relevantly, include: 1. the police officers were aware that the accused had been violent and made threats of further violence before their arrival; 2. the accused was intoxicated; 3. a reasonable person in the position of the accused would be aware of the arrival of the police given Mr Jerome told his mother to call the police, the police car's sirens and lights were activated on approach and the accused's mother made a comment about handcuffs; 4. he was kneeling on the ground as the police officers walked the 15 or so metres from the road to where he was kneeling; 5. the statement of the mother which included "he seems ok now (emphasis added), but he's quite violent, he will need to be handcuffed"; 6. the fact that, notwithstanding the time occupied by the words uttered by his mother, Senior Constable Kinghorne had sufficient time and opportunity to inform the accused that he was being arrested for domestic violence offences prior to placing his hand on the accused's back.
9. Having regard to those circumstances I am not satisfied that the Crown has proved the elements of the offence beyond reasonable doubt. Specifically, I find that it was reasonably practicable for Senior Constable Kinghorne to provide the reason for arrest before commencing the act of arrest.
10. This renders the arrest unlawful. It follows that the police officers were not acting in the execution of their duties when they were violently assaulted by the accused.
11. Accordingly, the verdict on Counts 3 and 5 of the indictment are not guilty.

orders 1. The accused is acquitted of Counts 3 and 5; 2. I list the matter for sentence on 10 June 2022 at 10am in Sydney in respect of: 1. Count 1: intimidating Glenn Jerome; 2. Count 2: assaulting Glenn Jerome; 3. Count 4: assaulting [Senior Constable] Kaela Dekort, thereby occasioning to her actual bodily harm; 4. Count 6: assaulting [Senior Constable] Daniel Kinghorne, thereby occasioning to him actual bodily harm. 1. The offender is to attend in person on that occasion; 2. I direct the parties to comply with Practice Note 20.

Amendments 30 March 2022 - Typographical correction made. 30 March 2022 - Typographical correction made. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2022