SUPREME COURT OF QUEENSLAND

[1]  MARGARET McMURDO P: On 12 November 2008, the respondent, Michael O'Sullivan, a police officer, was found guilty after a trial in the Brisbane Magistrates Court of common assault.  He was fined $700 with no conviction recorded.  He appealed against his finding of guilt under s 222 Justices Act 1886 (Qld) to the District Court.  His appeal was heard on 23 October 2009.  On 23 February 2010, the judge allowed the appeal, set aside the verdict of guilty and instead entered a verdict of acquittal.  The applicant, Stephen Allan Whitelaw, the investigating officer attached to the Crime and Misconduct Commission who prosecuted Mr O'Sullivan, applies for leave to appeal to this Court under s 118(3) District Court of Queensland Act 1967 (Qld).

[2] The applicant contends that leave to appeal should be given as the matter involves an important question of construction of provisions in the Police Powers and Responsibilities Act 2000 (Qld) (the Act); concerns the appropriate objective standards to be considered in holding police to account for their use of force; and that the decision of the District Court judge was manifestly wrong.

[3] The applicant's proposed grounds of appeal are:

"A.  The learned District Court judge erred in his interpretation of section 50 of the Police Powers and Responsibilities Act 2000.

B.  The learned District Court judge misdirected himself as to the manner in which sections 24, 271 and 273 of the Criminal Code apply.

Particulars of ground B:

(i)The learned District Court Judge erred in concluding that from a failure to negative mistake of fact it followed that the assault by the defendant was not unlawful.

(ii)The learned District Court Judge erred in failing to determine the issues relevant to the operation of sections 271 and 273, namely, whether the assault by the complainant (real or imagined) was unlawful, whether the assault by the defendant was intended or likely to cause grievous bodily harm, or whether the assault by the defendant was reasonably necessary to make effectual defence against the complainant's assault;

(iii)The learned District Court Judge erred in failing to reveal the process of reasoning which led him to conclude that the prosecution had not excluded self-defence."

[4] It was common ground that this Court should consider the merits of the proposed grounds of appeal in determining whether to give leave to appeal and that, if leave is given, determine the appeal on those grounds. 

The Magistrates Court trial

[5] The evidence before the magistrate included the following.  On 21 July 2007, Mr O'Sullivan was working as a police officer in Brisbane city.  At about 2.55 am, police were called to a disturbance at Caesar's nightclub in Adelaide Street.  The complainant, Christopher Ahovelo, and his brother, Teniso Keni Ahovelo (known as Keni), were identified to police as being involved. 

[6] Shortly afterwards, the complainant, Keni and Suzanne Williams were walking away from the nightclub in Adelaide Street towards Albert Street.  Constable Sandra Higgins and Constable Benjamin Arndt ran towards them.  The Ahovelos and Ms Williams were uncooperative with police and stated their intention to go home.  The police officers detained them "for a breach of the peace" under s 50 of the Act.  Mr O'Sullivan joined police officers Higgins and Arndt.  Mr O'Sullivan sprayed the complainant twice with capsicum spray.  Constable Arndt also sprayed the complainant with capsicum spray at the same time as Mr O'Sullivan sprayed the complainant the second time.  After these three capsicum sprays, the complainant was on one knee on the ground.  As he was getting up, Mr O'Sullivan hit him three times with his baton.  Those three strikes were particularised as constituting the assault.  The prosecution alleged that they were "excessive in the circumstances". 

[7] A number of civilian and police witnesses gave competing evidence.  It is unnecessary to extensively review this evidence for the purposes of this application and appeal, but it is necessary to refer to aspects of it.

[8] Mr O'Sullivan gave evidence that the complainant's group was noisy and aggressive.  He saw the complainant's left arm move towards Constable Higgins in a threatening way.  The complainant was a large man, about 190 cm tall and about 30 or 40 kilos heavier than Mr O'Sullivan.  Keni was about the same size as the complainant.  Mr O'Sullivan directed the complainant to sit down, thinking this would diffuse the situation.  The complainant refused.  He smirked and leered at Mr O'Sullivan, grinding his teeth and opening and closing his fists.  Mr O'Sullivan gave him a further direction, this time to lie down on the ground.  This was to ensure that the complainant was not a threat to police.  The complainant continued to leer at Mr O'Sullivan who considered that he was a present threat.  Mr O'Sullivan took his capsicum spray from his utility belt and stated, "Lie down on the ground now or I will spray you."  The complainant did not comply and began to lean in towards Mr O'Sullivan who directed, "Lay down."  The complainant continued to lean and move towards Mr O'Sullivan who then sprayed the complainant in the face with the capsicum spray.  The complainant moved back a little. 

[9] Mr O'Sullivan considered the capsicum spray had not been effective.  The complainant was wiping it from his eyes and turning his head.  Mr O'Sullivan was concerned the complainant might assault him.  He sprayed the complainant a second time, coinciding with a spray from Constable Arndt.  Keni aggressively screamed out something like, "Oi, what're you doing to my brother?"  Keni was sprayed effectively: he immediately covered his face and dropped to the ground.  The complainant, however, remained upright although bent over; he briefly went down on one knee and then got up.  Mr O'Sullivan was concerned that the complainant might assault him or another police officer.  He reached for his baton which was about 50 cm long.  Consistent with his training, he aimed for the complainant's upper thigh area; a strike with the baton in this area is disabling but unlikely to cause serious injury.  One of his strikes with the baton might have made contact below the thigh area around the calf and left knee, consistent with the medical evidence of the complainant's injuries.  In using the baton, Mr O'Sullivan was attempting to subdue the complainant to prevent him from getting up and assaulting police.  He struck twice with the baton.  When these two strikes did not subdue the complainant, he delivered a third strike.  He tried to hit the complainant as hard as he could.  Whilst using the baton, Mr O'Sullivan continued to direct the complainant to "Lay down on the ground".  Only after the third baton strike did the complainant completely drop to the ground.  Prior to using the baton, Mr O'Sullivan considered the complainant posed a very significant threat to his safety and that of other police officers as he still had the ability to carry out his threat of assaulting them. 

[10]  The incident was captured by several City Safe security cameras.  The relevant video recordings were tendered at trial. 

[11]  The magistrate viewed the video footage (which the District Court judge and the members of this Court have also viewed) and found it established the following.  The complainant was not acting aggressively and nor did he look "fired up".  The video footage did not show that the complainant swung his left arm towards Constable Arndt as she stated in her evidence.  Nor did it depict, as Constable Arndt stated in evidence, that the complainant was "balling his hands" or fists, although this may have happened and not been recorded.  After Mr O'Sullivan first sprayed the complainant, the complainant turned away from him, bent over, moved away and immediately put his hands to his face.  The complainant then took two steps away and turned whilst still bent over at the waist.  His hands were by his side.  Mr O'Sullivan and Constable Arndt headed towards him.  Mr O'Sullivan claimed that, at this point, the complainant moved towards him in a violent manner.  But the magistrate noted:

"The video quite clearly shows that [the complainant] did not move towards [the respondent] in a violent manner, prior to being sprayed for the first time…after being sprayed on the second occasion by [the respondent]….[the complainant] was bent right over, he crouched down."

[12]  The magistrate rejected Mr O'Sullivan's evidence that, after the first capsicum spray, the complainant continued to move towards police in a threatening manner.  After the second spray, the complainant went further down onto his right knee and his right hand was near his face.  He was bent over with his right hand still near his face.  He was then either sprayed, or threatened with spraying, by Constable Arndt.  He went back down to kneel on his right knee, with his left foot on the ground, and motioning with his left hand as if to wipe the air directly in front of his face.  The magistrate rejected Constable Arndt's evidence that the complainant appeared to strike towards him with his left hand, noting:

"It is plain for all to see what he was doing and it wasn't striking towards a police officer. Furthermore, Arndt didn't step back, he remained where he was, which was precisely in front of [the complainant]."

[13]  The magistrate noted that the complainant next bent over even further, with his right hand now on the ground; Constable Arndt was standing directly in front of him.  At that point, Mr O'Sullivan began to move away from Keni towards the complainant and commenced to ready his baton.  Mr O'Sullivan claimed that the way the complainant kept wiping his face and swatting his hands gave the impression that he wanted to fight; he was posing a very real threat.  The magistrate rejected that contention as it was inconsistent with the video footage.  Mr O'Sullivan struck the complainant for the first time.  The video footage did not show that the complainant attempted to stand.  Mr O'Sullivan then delivered the second blow.  He took a step back before jumping towards the complainant and delivering the third blow.  The complainant fell backwards so that at or immediately after the third blow he was lying down completely on his right hand side.

[14]  The magistrate considered s 24 Criminal Code 1899 (Qld) (mistake of fact).  He concluded beyond reasonable doubt that, on the evidence, even if Mr O'Sullivan was acting under an honest belief that he or his colleagues were about to be assaulted, such belief was not reasonable.  The complainant was a much bigger man than the police officers, but from the very first spray he backed away and dropped to one knee.  Whilst still affected by the spray, he got up but he went down again and was in a very vulnerable position when he was struck with the baton.  He was in no position to carry out any threat of violence: "It would not be and was not reasonable to believe that he was going to assault them."

The appeal to the District Court

[15]  The grounds of appeal to the District Court were:

"1. The learned Magistrate erred in:

a. Making insufficient findings in relation to the general demeanour of the persons [the complainant] and [his brother].

b. Failing to make findings that the complainant and his brother demonstrated, by their demeanour, a level of aggression directed towards police.

c. Failing to give appropriate weight to the concessions made by Counsel for [the appellant] that evidence of the 'lay witnesses' was unreliable in the absence of corroboration.

d. Finding that [the complainant] had been rendered incapable of assaulting police immediately prior to [Mr O'Sullivan's] use of the baton.

e. Attaching undue weight to his own interpretation of the video as against a consideration of the oral evidence.

2. The learned Magistrate erred, in that whilst conceding [Mr O'Sullivan] may have had an honest belief that he was about to be assaulted, he failed to give due weight to the circumstances which may had led to such belief. Further, he failed to identify reasons why any such belief was unreasonable, particularly given that the learned Magistrate did not reject evidence that there had been a threat of violence by [the complainant] to [Mr O'Sullivan] just prior to the incident.

3. In the circumstances, the Magistrate ought to have found that [Mr O'Sullivan] had an honest and reasonable if not mistaken belief that [the complainant] was in a position to assault him, or at least have had a reasonable doubt about such.

4. The finding of the Magistrate was unreasonable and not supported by the evidence."

[16]  The District Court judge reasoned as follows.[1]  Under s 50(2) of the Act, the prosecution had to prove beyond reasonable doubt that Mr O'Sullivan did not consider it reasonably necessary to use his baton against the complainant to prevent a breach of the peace happening or continuing; it was irrelevant whether or not it was objectively reasonable to use the baton.  The prosecution had to prove that there were no reasonable grounds for Mr O'Sullivan to suspect that either a breach of the peace was happening or had happened; or there was an imminent likelihood of a breach of the peace; or there was a threatened breach of the peace.[2]

[17]  The judge, like the magistrate, undertook a careful review of the video evidence.  But the judge was unable to see much of the detail in the video footage which the magistrate observed.  Mr O'Sullivan, the judge noted, did not have the advantage of calmly and clinically observing the movements of the complainant and his companions as did a viewer of the video footage.  Mr O'Sullivan had to make quick decisions in what he and his fellow police officers saw as a threatening situation.[3]  The evidence before the magistrate did not enable him to be satisfied beyond reasonable doubt, either that Mr O'Sullivan did not reasonably suspect the existence of at least one of the circumstances referred to in s 50(1)(a)-(c) of the Act, or that Mr O'Sullivan did not consider it reasonably necessary to use his baton as he did to prevent such a breach of the peace.  The judge concluded that the magistrate should have found Mr O'Sullivan not guilty. 

[18]  Without making his own specific findings of fact relevant to the issues, the judge noted in general terms that the evidence was not such as to enable the magistrate to find beyond reasonable doubt that Mr O'Sullivan was not acting in self-defence or aiding in self-defence.[4]

[19]  In any case, Mr O'Sullivan was entitled to be acquitted on the grounds of mistake of fact: s 24 Criminal Code.[5]  The magistrate did not apply the correct test when he found:

"beyond any reasonable doubt that such a belief, if [he] held it, was not a reasonable one.  … It would not be and was not reasonable to believe that [he] was going to assault them." 

[20]  That was because the test is not what a reasonable person would have believed, but whether there were reasonable grounds for the mistaken belief under s 24:  See R v Mrzljak.[6]  The judge determined that the magistrate had applied the wrong test when considering mistake of fact.[7]  His Honour considered that the magistrate ought to have found Mr O'Sullivan not guilty, concluding:

"In my view, there was no evidence which was sufficient to prove beyond reasonable doubt either that [Mr O'Sullivan] did not honestly believe that the [complainant] still posed a threat of violence to himself or other police officers immediately before he used the baton or that his belief was not held on reasonable grounds. In those circumstances, the prosecution had failed to discharge the onus resting upon it of proving that [Mr O'Sullivan] was not acting under a mistake of fact and therefore had failed to prove beyond a reasonable doubt that the assault was unlawful."[8]

Ground of appeal A – breach of the peace

[21]  The applicant contends, and Mr O'Sullivan's counsel concedes, that the judge erred in applying s 50 of the Act.[9]  I consider the applicant's contention is correct and Mr O'Sullivan's concession is rightly made for the following reasons.

[22]The interpretation of an Act which best meets the purpose of the Act is to be preferred: s 14A Acts Interpretation Act 1954 (Qld). The purposes of this Act are clearly and unequivocally stated in it. They are to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;[10] to provide powers necessary for effective modern policing and law enforcement;[11] to provide consistency in the nature and extent of the powers and responsibilities of police officers;[12] to standardise the way the powers and responsibilities of police officers are to be exercised;[13] to ensure fairness to and protect the rights of persons against whom police officers exercise powers under this Act;[14] and to enable the public to better understand the nature and extent of the powers and responsibilities of police officers.[15]

[23]  The scheme of the Act is to confer powers for various purposes upon police officers.  These powers are set out in the various chapters of the Act and include the power to deal with breaches of the peace under s 50 which is contained in Ch 2 of the Act – General enforcement powers, Pt 6 of which deals with Breached of the peace, riots and prevention of offences.  Section 50 relevantly provides:

"50 Dealing with breach of the peace

(1) This section applies if a police officer reasonably suspects—

(a) a breach of the peace is happening or has happened; or

(b) there is an imminent likelihood of a breach of the peace; or

(c) there is a threatened breach of the peace.

(2) It is lawful for a police officer to take the steps the police officer considers reasonably necessary to prevent the breach of the peace happening or continuing, or the conduct that is the breach of the peace again happening, even though the conduct prevented might otherwise be lawful.

Examples for subsection (2)—

1 The police officer may detain a person until the need for the detention no longer exists.

2 A person who pushes in to the front of a queue may be directed to go to the end of the queue.

3 Property that may be used in or for breaching the peace may be seized to prevent the breach.

…"

[24]  Section 615 of the Act is contained in Ch 19 – Other Powers, Pt 6 – Miscellaneous Powers, Div 2 – Miscellaneous Powers and provides:

" 615 Power to use force against individuals

(1) It is lawful for a police officer exercising or attempting to exercise a power under this or any other Act against an individual, and anyone helping the police officer, to use reasonably necessary force to exercise the power.

Example—

A police officer may use reasonable force to prevent a person evading arrest.

(2) Also, it is lawful for a police officer to use reasonably necessary force to prevent a person from escaping from lawful custody.

(3) The force a police officer may use under this section does not include force likely to cause grievous bodily harm to a person or the person’s death."

[25]  The terms of s 50 plainly confer power on a police officer, who reasonably suspects any of the matters set out in s 50(1)(a)-(c), to take steps the police officer considers reasonably necessary to prevent the breach of the peace happening or continuing (s 50(2)).  Examples 1 and 3 listed under s 50 may well involve the use of force. 

[26]  In my opinion, s 615 is intended to regulate the use of force in the exercise of the powers conferred upon police officers elsewhere in the Act, including the power conferred under s 50, by requiring that, in the absence of a clear contrary legislative statement, any use of force be limited to that which is reasonably necessary.  That is, in addition to the requirement under s 50 that the police officer must subjectively reasonably suspect one of the matters listed in s 50(1)(a)(b) or (c) and also consider the steps he takes, including the use of any force, to be reasonably necessary to prevent the breach of the peace happening or continuing under s 50(2).  This construction is much more consistent with the purposes of the Act than the District Court judge's broad construction of the power in s 50 which could result in authorising police to use extraordinary force to deal with a relatively minor breach of the peace.

[27]  The rights of persons against whom police officers exercise powers are not advanced if, in preventing a mere breach of the peace, police officers are authorised to use any degree of force which the police officers subjectively consider reasonable, without reference to an objective standard.[16]  One purpose of the Act is to consolidate and rationalise the powers and responsibilities of police officers.[17]  Others are to provide consistency in the nature and extent of the powers and responsibilities of police officers[18] and to standardise the ways powers and responsibilities of police officers are exercised.[19]  With those purposes of the Act in mind, I note that the construction I prefer of the inter-relationship between s 50 and s 615 is consistent with s 260 Criminal Code.  That section authorises a person preventing a breach of the peace to "use such force as is reasonably necessary for such prevention … reasonably proportionate to the danger to be apprehended from such continuance or renewal [of the breach of the peace]".  Further, authorising police officers to use force which is not objectively reasonable in preventing a breach of the peace does not seem to me to be consistent with the purpose of the Act of providing powers necessary for effective modern policing and law enforcement.[20]  Had parliament intended the extraordinary consequence of authorising police officers to use force which was not objectively reasonable in preventing a breach of the peace, it would surely have stated it in the clearest of terms.  Nothing in any interpretation of the interaction between s 50 and s 615 is inconsistent with the Act's stated purpose of enabling the public to better understand the nature and extent of the powers and responsibilities of police officers.[21]

[28]  It follows that Mr O'Sullivan could not rely upon s 50 of the Act as authorising use of force which was not objectively reasonable.  The District Court judge erred in finding the contrary.

Ground of appeal B – Criminal Code ss 24, 271 and 273

[29]  It does not necessarily follow that the magistrate was correct in finding Mr O'Sullivan guilty or that the District Court judge's orders must be set aside.  The correctness of the magistrate's finding of unreasonable force was in issue in the District Court appeal, together with s 271, s 273 and s 24 which were all raised on the evidence.  Mr O'Sullivan's counsel contends that the judge's orders allowing the appeal were supported by his findings in respect of s 271 and s 273, in conjunction with s 24 Criminal Code.  The applicant contends that the judge erred in his consideration of these provisions and in his fact-finding and reasoning.

[30]  Section 24 relevantly provides:

"24 Mistake of fact

(1) A person who does … an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act … to any greater extent than if the real state of things had been such as the person believed to exist.

… "

[31]  Section 271 relevantly provides:

"271 Self-defence against unprovoked assault

(1) When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for the person to use such force to the assailant as is reasonably necessary to make effectual defence against the assault, if the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm.

…"

[32]  Section 273 relevantly provides:

"273 Aiding in self-defence

In any case in which it is lawful for any person to use force of any degree for the purpose of defending himself or herself against an assault, it is lawful for any other person acting in good faith in the first person's aid to use a like degree of force for the purpose of defending the first person."

[33]  The judge correctly identified that the appeal before him was by way of rehearing on the original evidence and that his task was to make up his own mind on the evidence, after paying due deference to the views expressed in the court below:[22] Fox v Percy;[23] Stevenson v Yasso.[24]  The judge then referred to the evidence before the magistrate.[25]  In setting out something of the magistrate's reasoning,[26] the judge noted that he found it impossible from viewing the video to see exactly what the complainant was doing immediately before Mr O'Sullivan struck him.  In those circumstances, the judge considered it dangerous to rely on what was depicted by a camera where it was contradicted by the evidence of people present.[27]  The judge next dealt with s 50, making the error noted earlier in these reasons.  His Honour concluded (without finding the specific facts supporting that conclusion) that the evidence was not such as to enable the magistrate to find beyond reasonable doubt that Mr O'Sullivan was not acting in self-defence or aiding in self-defence.[28]  The judge further determined that, even if the evidence justified the magistrate's conclusion that there was no real threat of violence to Mr O'Sullivan or other police immediately before Mr O'Sullivan used the baton, he was entitled to be acquitted on the grounds of mistake of fact (s 24).[29]  After pointing out the magistrate's error in applying s 24 (see Mrzljak), the judge found that there was insufficient evidence to prove beyond reasonable doubt that Mr O'Sullivan did not honestly believe on reasonable grounds that the complainant still posed a threat of violence to him or other police officers.  The applicant, therefore, had failed to prove beyond reasonable doubt that his assault was unlawful.[30]

[34]  I consider there are a number of errors in the approach taken by the judge.  Before overturning the magistrate's findings of fact, he should have stated his reasons for rejecting those findings and for making contrary findings: see the grounds of appeal to the District Court (set out at [15] of these reasons); s 223(1) Justices Act; Fox v Percy; and Stevenson v Yasso.  It is true that his Honour stated he was not prepared to rely on the video tape, but he did not state what evidence he did accept, or why.  The judge stated he was satisfied that the prosecution had not established beyond reasonable doubt that Mr O'Sullivan did not honestly believe on reasonable grounds that the complainant still posed a threat of violence to himself or other police officers.  But the judge did not clearly state what he considered the police officer may have honestly believed and why there may have been reasonable grounds for that belief (s 24).

[35]  Even inferring, as Mr O'Sullivan's counsel contends this Court should, that the judge accepted Mr O'Sullivan's evidence, the judge did not make clear that he considered the prosecution had failed to prove beyond reasonable doubt that the force Mr O'Sullivan used in assaulting the complainant was not "reasonably necessary to make effectual defence against the assault" either in self-defence or in aiding in self-defence.  As McPherson JA explained in R v Allwood,[31] those claiming the benefit of s 271 or s 273 may mistakenly believe they have been assaulted by being threatened when in fact they have not.  A person who then commits an assault under that honest and reasonable but mistaken belief can avoid criminal responsibility only to the extent that the real state of things had been such as the person believed to exist.  If the prosecution proved beyond reasonable doubt that the force Mr O'Sullivan used on the complainant was more than reasonably necessary to make effectual defence against the reasonably perceived assault, then he was rightly convicted by the magistrate. 

[36]  In the circumstances of this case, the critical issue was, as the magistrate identified, whether the force used by Mr O'Sullivan in assaulting the complainant was shown by the prosecution beyond reasonable doubt not to be "reasonably necessary to make effectual defence against the assault" in terms of s 271 Criminal Code or "reasonably necessary force" under s 615 of the Act to deal with a breach of the peace or threatened breach of the peace which Mr O'Sullivan reasonably suspected was happening or had happened under s 50 of the Act.

[37]  But it is also true, as counsel for the applicant contends, that, despite any possible honest and reasonable mistake of fact, it remained possible for the prosecution to disprove self-defence as raised on the evidence under s 271(1) and s 273 by establishing beyond reasonable doubt that Mr O'Sullivan assaulted the complainant using force which was either intended or likely to cause death or grievous bodily harm; see also s 615(3) of the Act.  That would then require the consideration of s 271(2) Criminal Code. 

[38]  It follows that the District Court judge erred in his reasons for setting aside the conviction.

Conclusion

[39]  The errors made by the District Court judge raise matters involving the interests of justice between the parties.  They are also of considerable importance to the criminal justice system, and concern the construction of the Police Powers and Responsibilities Act.  It is an entirely appropriate case in which to grant leave to appeal.  The errors made by the District Court judge require that the appeal be allowed, the orders of the District Court set aside and this matter remitted for rehearing on appeal in the District Court according to law.

ORDERS:

1.Application for leave to appeal granted.

2.Appeal allowed with costs.

3.The orders of the District Court are set aside.

4.The matter is remitted to the District Court for rehearing.

[40] HOLMES JA:  I agree with what the President has said as to error in the District Court judge’s approach in dealing with possible defences under ss 24, 271 and 273 of the Criminal Code.  I agree also with her conclusion that s 615 applied to require that any force used be reasonably necessary, but I would do so on the basis of a slightly different analysis; that is, that s 50 in making it lawful for a police officer

“to take the steps the police officer considers reasonably necessary to prevent the breach of peace”

does not authorise the use of force.  That authority comes, instead, from s 615, subject to the requirement that the force be “reasonably necessary”.  In other words, s 615 operates to supplement rather than qualify s 50.  Except in that respect, I agree with all the President has said about the proper construction of the Police Powers and Responsibilities Act. 

[41]  APPLEGARTH J:  I agree with the reasons of the President and the proposed orders.

[42] I agree with the President and with Holmes JA that the use of force by the respondent was subject to the requirement in s 615 that the force be “reasonably necessary”.  Holmes JA concludes that s 50 does not authorise the use of force, and that the authority to use force comes, instead, from s 615.

[43] I accept that s 615 may be a source of authority to use reasonably necessary force in a case in which a police officer is exercising or attempting to exercise a power under the Police Powers and Responsibilities Act or any other Act.  However, I agree with the President that s 50 may authorise the use of force.  Section 50 confers power on a police officer who “reasonably suspects any of the matters set out in s 50(1)(a)-(c), to take steps the police officer considers reasonably necessary to prevent the breach of the peace happening or continuing.”[32]  Depending on the circumstances, the exercise of the power may involve the use of force.  In such a case, s 615 regulates the use of force authorised by s 50, and constrains the lawful use of force to “reasonably necessary force”.

[44] The respondent concedes that the learned District Court judge’s failure to refer to s 615 led him into error in his interpretation of s 50(2).  His Honour was not referred to s 615 during the course of submissions and this explains the error.

[45] As to the second ground of appeal, I agree with the President that the judge did not adequately explain findings of fact made by him which were contrary to those of the magistrate.  The magistrate made comprehensive findings of fact based upon his consideration of the CCTV recording and his assessment of the witnesses who gave evidence before him.  He rejected the evidence of police witnesses in a number of respects.  Importantly, he rejected the respondent’s allegation, as recorded in his QP9 form, that after being sprayed by capsicum spray the complainant “continued to move towards police in a threatening manner”.  The magistrate rejected the respondent’s evidence that the complainant was posing a very real threat.  This rejection was based upon a consideration of the recording which was said to show the complainant bent over, kneeling on one knee, with his right hand on the ground.  The magistrate found that even if the complainant made a verbal threat (a matter not recorded in the QP9), it was quite clear that the complainant was not in any position to physically harm the police who were there.

[46] The judge had to make “his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view”.[33]  The judge found himself “unable to agree with the Magistrate’s observations as to what is depicted on the video”, but did not make findings as to what he saw depicted on the video.  The judge found it “impossible to see exactly what the complainant was doing immediately before he was struck for the first time or immediately prior to either the second or third blows.”  But he does not state in his reasons whether the recording depicted the complainant bent over, on one knee and with his hand on the ground.

[47] If the recording depicted these things, then it is not clear why the judge concluded that the prosecution had failed to prove that the force used in assaulting the complainant was not “reasonably necessary to make effectual defence” against any perceived assault.

[48] There was no dispute that the complainant was kneeling on one knee.  Counsel for the respondent noted as much when the recording was played to the judge.  The respondent acknowledged in his evidence that the complainant was on the ground when he used the baton but was not lying on the ground as the respondent had directed him.  The respondent’s evidence was that he thought the complainant was attempting to get up.  The evidence, apart from the CCTV recording, was that the complainant was bending over in a crouching position, with one knee on the ground after two deployments of OC spray.  One police witness gave evidence that at the time the complainant was struck, he was down on one knee with his left hand up towards his face.  The applicant sought a finding of fact from the judge that at the time the complainant was struck he was “down in a position with one hand and one knee on the ground” and was in that position as a result of being disabled by OC spray.

[49] If the recording depicted the complainant kneeling with one hand on the ground, then the primary judge should have found this, and explained in his reasons the nature of the assault, real or perceived, and why the prosecution had failed to prove that three baton blows were not reasonably necessary to make effectual defence against the assault.  The primary judge’s reasons do not adequately describe what he found the recording depicted about the complainant’s position when each of these baton blows were struck, and do not adequately disclose his reasons for making findings contrary to the magistrate about the application of ss 24, 271 and 273 of the Criminal Code.