Judge overturns man’s Grafton CBD police assault convictions

A Grafton man has successfully appealed against his conviction for assaulting two police officers, with a judge ruling the arrest was unlawful

A judge has overturned a Grafton man’s conviction for assaulting two police officers earlier this year.

A GRAFTON man's convictions and sentences for assaulting two police officers in the execution of their duty have been dismissed after a judge allowed an appeal against the result, ruling the officers had incorrectly exercised their powers of arrest.

In Grafton Local Court earlier this year Mitchell Murray was found guilty of two charges of assaulting police officer in the execution of duty causing actual bodily harm. Mr Murray had also pleaded guilty to four charges of stalk/intimidate causing fear of physical harm and intentionally/recklessly damaging property.

Last month in Grafton District Court, the 30-year-old appealed the sentence, with solicitor Barbara Lu arguing the two charges of assaulting an officer in the execution of duty cannot be made out because at the time of the alleged assault the officers were not executing their duty because they had in the lead up to that alleged event unlawfully arrested Mr Murry.

Judge Jonathon Priestley in his decision stated prior to Mr Murry's arrest he intimidated a number of people outside Grafton Dominos about 6.10pm while attempting to get a lift in their motor vehicle.

"These attempts were unsuccessful and this was followed by him striking a motor vehicle and damaging the left side mirror and blinker of the vehicle. This led to police being called. The accused was located. It is the events between him being located and then escorted to a police truck that is the factual area giving rise to this dispute," the judge said.

Referring to a statement from Senior Constable Hadley, one of the alleged victims of the assault, the evidence of the case was that the officer was patrolling the scene for Mr Murray who was located around two blocks north of where the incident took place.

"Senior Constable Hadley says that he exited the police vehicle and said to the accused 'mate stop right there, we need to have a chat about what happened down at Dominos and the Ambo'," Judge Priestley said.

"It was the ambulance officer who had been the subject of one of the acts of intimidation and whose vehicle (an ambulance) had been damaged.

"After these words were said the accused continued to walk along the footpath and was again requested to stop and he again refused, or more accurately, continued to walk.

"The officer's statement then states that he moved towards the accused and grabbed hold of his left arm and the accused immediately attempted to pull his arm away causing the officer to say 'mate stop'. It is common ground that the act of grabbing the arm of the appellant constitutes arrest."

The officer's statement said that he then pushed Mr Murray in the chest to attempt to stop him walking away and it was then that the officer informed the accused he was under arrest for the damage he caused to the ambulance vehicle saying he was under arrest for "malicious damage".

Judge Priestley found that in convicting Mr Murray magistrate Kathy Crittenden had not correctly applied Section 202 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) which required officers to give reason for the arrest "as it is reasonably practicable to do so".

When examining the provision of a reason for arrest being provided as s202 requires, Judge Priestley said Mr Murray was walking away from the scene.

"In the context of carrying out police duties, the events described by the evidence … show that this is not a stressful event," Judge Priestley said

"It is an occasion of a man walking along the street, not far, in fact in my view, close, to the scene of his crimes, so apparently not making any concerted effort to be far from the scene, although the evidence is clear that the appellant had left the location of the offence.

"There is no evidence showing why it was not practicable to provide the reason for the arrest to the appellant prior to grabbing his arm, and pushing him in the chest. On the evidence, it is plain in my view that it was reasonably practicable to provide that reason before or at the time of the arrest, and certainly before the police conducted themselves in a way that, absent the powers of arrest, could well arguably be assault."

Judge Priestley also said that while Senior Constable Hadley gave evidence in Grafton Local Court that his reason for arresting Mr Murray was to identify him, at no point during the arrest did he say that to Mr Murray.

" (Mr Murray) was never told the reason for his arrest was so that the police could identify him, they in fact never asked his name, though the likely response of (Mr Murray) would be to continue to walk," Judge Priestly said.

"Section 202 imposes a mandatory obligation that the arrestee be provided with the reason for the arrest. The only reason given at any time was 'malicious damage'.

"The case was run by the police to show that the reason was either to stop the appellant leaving the scene or to identify him; neither of these reasons was ever stated. The statement that he is being arrested for malicious damage does not satisfy s202.

"Further, as an observation, absent any other matters of a kind anticipated by the reasons set out in s99(1)(b), malicious damage is the type of offence that, in and of itself would not justify arrest, and could be dealt with by Court Attendance Notice.

"It follows that in my view not only was (Mr Murray) not provided with the reason for his arrest as soon as was reasonably practicable, when the section was purportedly complied with it was not in fact complied with in regards to the need to provide the reason. This is because the reason given, as is made very clear by the police case, was not the reason for the exercise of the power of arrest."

Judge Priestley allowed the appeal, with the two convictions for assaulting police in the executing of their duty causing actual bodily harm set aside and dismissed, with the sentencing orders for those convictions also set aside.

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