O'Sullivan v Whitelaw[2010] QDC 549

[2010] QDC 549

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE ANDREWS SC

No 3368 of 2008

BRISBANE

DATE 19/07/2010

JUDGMENT

HIS HONOUR:  This is the matter of Michael O'Sullivan v. Stephen Allan Whitelaw. 

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 section 222 of the Justices Act 1886, 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. 

Stephen Allan Whitelaw, the investigating officer attached to the Crime and Misconduct Commission, who prosecuted Mr O'Sullivan, applied for leave to appeal to the Court of Appeal.  The application for leave was granted, and on the 21st of December 2010, the appeal was allowed, the orders of the District Court were set aside and the matter was remitted to the District Court for rehearing.

That appeal is Whitelaw v. O'Sullivan [2010] QCA 366.

The evidence before the Magistrate included the following; I respectfully recite from the reasons of the President in setting out some of this evidence.  Those reasons appear from paragraph 5 in the appeal. 

On 21 July 2007, Mr O'Sullivan was working as a police officer in Brisbane City.  At about 2.55 a.m. police were called to a disturbance at the Caesar's Nightclub in Adelaide Street.  The complainant, Christopher Ahovelo, A-H-O-V-E-L-O and his brother Teniso Keni Ahovelo, T-E-N-I-S-O K-E-N-I Ahovelo, known as Keni, were identified to police as being involved. 

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, A-R-N-D-T, ran towards them from behind. 

The Ahovelos and Ms Williams were unco-operative with police and stated their intention to go home.  The police officers detained them for breach of the peace under section 50 of the Police Powers and Responsibilities 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.

In the facts recited by the President, "Constable Arndt sprayed Mr O'Sullivan 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.  The President recites, "That as he was getting up, Mr O'Sullivan hit him three times with his baton."

That may have been the evidence of Mr O'Sullivan, namely that the complainant was getting up.  There is some dispute, however, about whether the complainant was getting up or not, and I make no finding at this stage about whether he was getting up.

It is those three strikes with the baton which are particularised as constituting the assault.  The complainant was a large man, about 190 centimetres tall; he was about 30 or 40 kilos heavier than Mr O'Sullivan.  In imperial measurement he was about three inches taller than Mr O'Sullivan.  The complainant's brother, Keni, was about the same size as the complainant. 

Mr O'Sullivan directed the complainant to sit down.  This was after he had been detained.  Mr O'Sullivan thought this direction would diffuse a situation, which to that stage had involved threatening gestures and abusive language by the complainant. 

The complainant refused to sit down.  According to O'Sullivan's evidence, the complainant smirked and leered at him and ground his teeth and opened and closed his fists.  Mr O'Sullivan gave him a further direction; this time to lie on the ground.  Mr O'Sullivan's purpose was to ensure that the complainant was not a threat to the police. 

There is some conflict in the evidence of police witnesses as to what Mr O'Sullivan directed the complainant to do.  Mr O'Sullivan's evidence is that he directed the complainant repeatedly to do something and what he directed him repeatedly to do was to lie down on the ground. 

Other officers, to some extent, corroborate that there were repeated directions, but their evidence is to the effect that the directions were to get down.  This was not explored below to determine whether the other officers' evidence was inconsistent with Mr O'Sullivan's.

After Mr O'Sullivan directed the complainant either to lie down or get on the ground, the complainant continued, according to Mr O'Sullivan, to leer at him and Mr O'Sullivan gave evidence that he considered that the complainant was a present threat.  Mr O'Sullivan took his capsicum spray from his utility belt and directed him again;  according to Mr O'Sullivan, he said, "Lie down now or I will spray you".

The complainant did not comply with the direction and, according to Mr O'Sullivan, began to lean in towards Mr O'Sullivan who again directed him;  according to Mr O'Sullivan, he directed him to lay down.  He was sprayed by Mr O'Sullivan in the face with capsicum spray.

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 said that he was concerned the complainant might assault him, so he sprayed the complainant a second time, coinciding with a spray from Constable Arndt.  The complainant's brother Keni aggressively screamed out something like, "Oi, what are you doing to my brother?".  Keni was then sprayed and it was effective;  he immediately covered his face and dropped to the ground.

The complainant, on the other hand, remained upright though bent over.  He briefly went down on one knee but got up.  Mr O'Sullivan gave evidence that he was concerned the plaintiff might assault him or assault another police officer.  Officer Higgins weighed about 55 kilograms.  Mr O'Sullivan reached for his police baton which was about 50 centimetres long.  He had been trained in the use of the baton and consistent with his training he aimed for the complainant's upper thigh area.  A strike with the baton in this area is likely to be disabling but is unlikely to cause serious injury.

One of his strikes with the baton may have made contact below the thigh area around the calf and left knee, consistent with 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 in rapid succession.  Those two strikes did not cause the complainant to fall to the ground or to lie on the ground.

He very quickly afterwards delivered a third strike.  Mr O'Sullivan tried to hit the complainant with the baton as hard as he could.  While using the baton, Mr O'Sullivan continued to give a direction to the plaintiff;  according to Mr O'Sullivan, the direction was, "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, according to his evidence, that the complainant posed a very significant threat to Mr O'Sullivan's safety and to the safety of other police officers, and that the complainant still had the ability to carry out his threat of assaulting them.

The incident was captured by several City Safe Security cameras and the relevant video recordings were tendered at the trial and before me, and I have had the advantage of watching the relevant recording several times.

Some matters are not in contest and I proceed on the basis that they should be found in favour of the appellant.  It is not in contest that the detention of the complainant was lawful.  It is not in contest that there was an apprehension by the appellant Mr O'Sullivan and the two other police officers with him when they detained the complainant that there would be a breach of the peace by the complainant and his companions.  It is not in contest that the use of capsicum spray was not unlawful.  It is also not in dispute that the evidence justifies a finding that, on Mr O'Sullivan's part, there was an honest belief of the threat of assault by the complainant.

The issues are whether there were reasonable grounds for Mr O'Sullivan to hold a belief that the complainant had an ability to carry out a threat that he had made, and there is a further issue of whether the force used by Mr O'Sullivan in assaulting the complainant was reasonable.

I note that there was evidence of an expert before the Magistrate of the expert's opinion that the force used was reasonable.  I note that there was no objection taken to the expression of that opinion.  Before me, Ms Ryan urged, and Mr Byrnes of Senior Counsel did not argue with the proposition, that one might have objected to the expression of that opinion below on the basis that it usurped the Court's function of determining whether the force used was reasonable.  Whether the opinion was admissible or not was not argued before me.  It was not a matter explored below.

The threat to which I have referred and some other evidence is also relevant. Mr O'Sullivan said that he saw the complainant and his brother and Williams walking along the footpath and observed the complainant and his brother to be raising up a hand in the air; I saw similar gestures in the recorded evidence, that is the video.

Mr O'Sullivan also gave evidence that they seemed to be yelling out something to persons across the road. Mr O'Sullivan's evidence was that he believed they were being confrontational and aggressive. Whether they were being confrontational and aggressive at that stage is not particularly important. I am not satisfied that the complainant and his brother were being confrontational and aggressive when raising their arms and when calling something out across the road. However, I do accept Mr O'Sullivan's evidence that he believed that they were. He had been running to this situation. He was not given the opportunity to calmly reflect upon the video as I have been given.

Mr O'Sullivan then suspected that either the breach of the peace that had occurred at Caesar's was still continuing or was about to re-ignite with the group across the road.

Constable Higgins and Arndt reached the complainant, his brother and Williams before Mr O'Sullivan but Mr O'Sullivan heard Constable Higgins identify herself to the group and say that she wished to speak to them about Caesar's. Mr O'Sullivan heard the complainant's brother say, "No, fuck off, we're going home", and heard the complainant say, "Fuck off, we're going".

The appellant, that is Mr O'Sullivan heard Constable Higgins say, "No, you're not free to go, you're detained for a breach of the peace". The appellant directed the complainant to sit down near the wall of an adjacent building. He did so to separate the complainant from his brother and to put a safe distance between the complainant and the police.

I accept the evidence of the appellant and Arndt that the complainant did not obey that direction. The video recording does not show the appellant to have attempted to sit down near the wall of an adjacent building. I accept the evidence of the appellant that instead the complainant said, "No, fuck off cunt". I further accept his evidence that the complainant attempted to stare down the appellant. I accept his evidence that the complainant was half smirking and sort of moving his jaw around like he was grinding his teeth. These are not matters which could be confirmed to be true or false by an inspection of the video.

Mr O'Sullivan also gave evidence that the complainant was opening and closing his fists. That's not something I could confirm to be true or false by looking at the video. Mr O'Sullivan gave evidence that upon those words being said and upon those gestures, he assessed that the threat level had increased. He gave evidence that he believed the complainant wanted to fight and so he gave the complainant a further direction, "Lie down on the ground".  As I have noted, that was slightly different from the evidence given by other police officers, which was to the effect that the direction had been to get on the ground. But in any event, the complainant did not either get on the ground or lie on the ground.

The complainant was sprayed. It is clear from the video that the spray upset the complainant, caused him to swat in front of his face but it did not cause him to go to and remain on the ground, nor did it cause him to lie on the ground.

Mr O'Sullivan had prior experience with persons who had been sprayed with capsicum spray. He knew that not all were disabled by spray. His experience had been such that some continued to go on to assault him as well as other police officers.

The video evidence relating to the crucial issues which I have identified is obscure. It does not reveal the demeanour of the complainant. It does not reveal the physical actions of the complainant at the time of the strikes with the baton.

After the complainant had been twice sprayed, the video evidence does show that he was on one or possibly both knees.  But it also reveals that he began to get up and did rise off both knees.  A consequence of this is that I must proceed on the basis that, notwithstanding having been sprayed twice and having been directed, at the very least, to get on the ground, if not to lie down, he was seen to be rising.

He was again down on one knee and swatting with both hands.  I am unable to see, at that stage, whether he was gritting his teeth or balling his fists at the moment before the first strike with the baton.  One thing I did see in the video was at the moment before the first strike with the baton, his back was stooped and I could see some movement of the white shirt that the complainant was wearing.  I find that he was not being still.

This objective evidence from the video is not sufficient to enable me to determine whether the complainant's movements were either objectively co-operative or objectively threatening or objectively ambiguous.  All I could see was that he was moving.

Where I have a reasonable doubt about findings of fact, I must give the appellant the benefit of that reasonable doubt.  I have a reasonable doubt that the appellant had repeatedly directed the complainant to lie on the ground, and not simply to get on the ground.  I have a reasonable doubt that the appellant held an honest belief that the complainant still posed a very significant threat to his safety and to the safety of the other police officers.

The video evidence depicted that after the capsicum spray, the complainant bent over with one knee and one hand on the ground.  His physical pose raises the real prospect that the complainant was intending to obey directions, but his physical pose is ambiguous.  It is also consistent with an intention to refuse to comply with a direction to lie down.  It is at least consistent with an intention to carry out a verbal threat.

The verbal threat which I find to have been made after the capsicum was administered was a threat by the complainant to Mr O'Sullivan to the effect that he would kill him, or at least to the effect that he would assault him.  Because of those threats which I find, I further find that the appellant's belief that the complainant was a threat to him was a belief based upon reasonable grounds.

It was submitted for the respondent to the appeal that the City Safe footage provided independent evidence of the assault;  I accept that.  It was further submitted for the respondent that it was more reliable than the testimony of those embroiled in the event, itself;  only to a certain extent do I accept that.

I reject that submission in three respects:  the footage does not reveal what words were spoken by the complainant or by the appellant;  it does not reveal what physical or facial gestures were made by the complainant immediately before he was struck;  thirdly, it does not reveal whether the complainant's body movements were consistent with submission by the complainant or with aggression by him.

The respondent submitted that I should find that the complainant did not, in fact, pose a threat at the time that he was struck, because of his position - that is, with at least one knee and one fist on the ground;  and that he was not a threat, because there were at least six police officers around.  The video reveals that other police officers were arriving, but does not reveal whether that was obvious either to the complainant or to Mr O'Sullivan.

As I proceed on the basis that the complainant was continuing to threaten at least to assault, was continuing to refuse to lie down despite repeated directions and despite three applications of capsicum spray, I regard there to have been reasonable grounds to believe that he was posing a threat of assault to Mr O'Sullivan.

The next issue is whether the application of force by Mr O'Sullivan was reasonable.  One notes from the video that after Mr O'Sullivan's first and second strikes in rapid succession, the complainant remained above the ground.  Because he was a large man and larger than O'Sullivan, and significantly larger than one of the other police officers, a threat by him to assault was a real threat genuinely perceived by O'Sullivan.

The three baton blows were delivered to a particular area.  They were delivered in accordance with training;  they were delivered with an unlikelihood that they would cause permanent injury.  Alternatives available to Mr O'Sullivan might have been open or closed hand contact by him.  However, the complainant had been at least three times sprayed with capsicum spray;  to approach close to the complainant had some practical difficulties.  It might have brought O'Sullivan into the spray;  had O'Sullivan touched the complainant or sought to grapple with him, he may have been slippery with the spray.

For these reasons, the prosecution has failed to discharge its onus of proof that the three baton blows were not reasonably necessary.  There was no argument about whether one baton blow rather than two, or two rather than three, were appropriate.  The argument was about whether baton blows were appropriate at all.

I allow the appeal.  I set aside the verdict of guilty and instead enter a verdict of acquittal.

MR BURNS:  Thank you, your Honour.  The position regarding costs is, given the history of the proceedings, somewhat complicated.  The parties hope to resolve those issues‑‑‑‑‑

HIS HONOUR:  Thank you.

MR BURNS:  ‑‑‑‑‑without troubling your Honour any further.  In the unlikely event that there may be one or two points unresolved, it's proposed that some short written submissions be provided to your Honour should that be necessary.  I have to say that I think that's unlikely.

HIS HONOUR:  Thank you, Mr Burns.

MR BURNS:  I suppose the - one order your Honour might consider making is that the issue of costs be reserved, and it's up to the parties to bring that back on if need be.

MS RYAN:  Yes, your Honour, in my submission, it's actually quite straightforward, but that's something we can work out between ourselves.

HIS HONOUR:  That'll mean it'll be easy for the two of you to resolve it.

MS RYAN:  We hope so.  Thank you, your Honour.

HIS HONOUR:  The issue of costs is reserved.