Arndt v Rowe[2011] QDC 313

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant, Arndt, a police officer, took part in the arrest of the respondent, Rowe, near a public toilet at the intersection of Albert Streetand the Queen Street Mall on 9 July 2006.  Rowe brought a private criminal prosecution charging Arndt with assault.  This appeal, brought under s. 222 of the Justices Act 1886, is from the Arndt’s conviction by a magistrate of that offence.

2. [2]
   The incident giving rise to this charge has been the subject of other litigation. Rowe was charged by another officer, Kemper, with failing to obey a direction and obstructing police (“the earlier trial”). His convictions for those charges were quashed by the Court of Appeal in Rowe v Kemper [2009] 1 Qd R 247.

3. [3]
   At the trial the subject of this appeal, Kemper was called to give evidence for the prosecution. Kemper claimed privilege against answering questions which might incriminate him. During submissions on this issue senior counsel for the prosecution brought to the learned magistrate’s attention the evidence given by Kemper at the earlier trial. Her Honour received the transcript of the earlier trial and had to consider it for the purpose of deciding the claim of privilege.

4. [4]
   The prosecution did not rely on the transcript of the earlier trial nor on the reasons of the Court of Appeal in Rowe v Kemper in proof of the charge before her Honour.^[1]

5. [5]
   Unfortunately, the learned magistrate proceeded on the basis that the prosecution relied on the evidence from the earlier trial.^[2]Her Honour read the transcript during adjournments^[3]and seems to have been following it as the evidence in the trial came out.^[4]Her Honour’s reasons for judgment include references to evidence, deliberately or inadvertently, taken from the earlier trial. The substantial question raised in this appeal, which encompasses the first four grounds of appeal, is whether the learned magistrate’s decision resulted from the wrongful consideration of the evidence from the earlier trial and certain findings of the Court of Appeal.

6. [6]
   In the written outline, the appellant argued the learned magistrate:

7. [7]
   Some of these references – to evidence of what occurred before the arrest and Arndt’s participation in it; to evidence as to the positions of the various officers and to the reference to page 19 of the transcript of the earlier trial - are innocuous. That is, it is hardly likely that the erroneous consideration of some of the material affected her Honour’s decision.

8. [8]
   The last mentioned references – to evidence of Kemper, Bryson and Robertson – are under the heading, “Evidence of Kemper” and then under that, “Claim of privilege”. Her Honour referred to Kemper’s evidence at the earlier trial that when Rowe was thrashing out he connected with Arndt. The learned magistrate then referred to the cross-examination where Kemper said he did not see Rowe kick Arndt in the shin but he could see Rowe’s leg coming out, “still thrashing around”.^[5]I have considered the evidence the learned magistrate is apparently referring to.^[6]During cross-examination the recording is played. Kemper says he cannot point out the moment where Arndt’s shin was kicked. It is not clear but it seems Kemper is describing movement while Rowe was on the ground. All of this is evidence at the earlier trial. It was not part of the evidence before her Honour. Her Honour does not refer to this evidence when making her findings. Her Honour finds Arndt’s evidence that he was struck in the shin unsatisfactory.^[7]In my opinion, it was open to her Honour to reject Arndt’s evidence simply upon considering the video recording. That is, the evidence does not support a finding that Rowe kicked Arndt on the shin. However, I cannot exclude the likelihood that the learned magistrate took into account this evidence from the earlier trial as reflecting badly on Kemper’s credibility and thereby influencing her findings.

9. [9]
   Of more concern, it is difficult to know whether other parts of the evidence from the earlier trial – and particularly its treatment by the Court of Appeal in Rowe v Kemper - informed her Honour’s view of the reliability of Kemper and Arndt. This, the appellant submits, was crucial to deciding the key factual dispute at the trial – whether Rowe was aggressively resisting police by thrashing about with his legs and thereby causing a danger to police.

10. [10]
    The learned Magistrate referred^[8]to the extraction of evidence of Kemper and Robertson in the reasons for decision of McMurdo P in Rowe v Kemper.^[9]In that evidence, both officers asserted Rowe stood close to Robertson and clenched his fists. Then the learned Magistrate set out McMurdo P’s finding at [2009] 1 Qd R 247 [19], namely, “I am not persuaded Mr Rowe clenched his fist near Constable Robertson.” McMurdo P had referred to the recording of the arrest and commented,

[15] Constable Kemper's statement recorded in the audio tape was that Mr Rowe had committed a public nuisance offence by arguing. Neither he nor any of the other five police officers present are recorded as making a direct complaint of any threatened physical aggression. This supports my conclusion that although Mr Rowe was argumentative and looked angrily at Constable Robertson when he was close to him, he did not make physical contact with any police officer nor threaten to do so. If Constable Kemper or any of the other police officers were concerned about Mr Rowe's physical aggression or threats of it, it is surprising that none of them stated this concern contemporaneously. Any such statement would have been recorded. The police officers' evidence that Mr Rowe clenched his fist near Constable Robertson is not supported by the audio tape. It could well be reconstruction or rationalisation after the event.

11. [11]
    The appellant argues that reference to these passages, which were not part of the evidence, was a serious error in the conduct of the trial as well as the decision-making process. The appellant, in the written outline, referred to R v Faulkner [1987] 2 Qd R 263 at 269, where McPherson J (as his Honour then was), said,

“An accused person is entitled to a trial according to law, one aspect of which is that he be tried strictly according to the properly admissible and admitted evidence at his trial exclusive of material that was not proved at trial by the testimony of witnesses or otherwise according to the rules of evidence.”^[10]

12. [12]
    Of course, that is not the end of the matter.^[11]As McPherson J. went on to say, immediately following the sentences quoted by the appellant, “The question to be considered is the effect of the introduction in the course of summing up of extraneous material that was not properly before the jury at the trial.”^[12]

13. [13]
    The appellant argues the learned Magistrate used the transcript to evaluate the evidence of Kemper and Arndt. At the hearing, Mr Byrnes SC focussed this argument. Kemper’s evidence that Rowe was thrashing his legs around while on the ground supported Arndt’s evidence and strengthened the defence position on the crucial question for the learned Magistrate, namely whether the force applied by Arndt was excessive/disproportionate/unreasonable.

14. [14]
    The learned Magistrate was aware the issue for determination was whether the assault on Rowe by Arndt was authorised of justified or excused by law.^[13]After setting out the possible excuses or justifications and a substantial quotation from the written submissions of the defence, her Honour referred again to findings made by the Court of Appeal in Rowe and Kemper.^[14]That is, at that stage at least, her Honour did not make her own findings based on the evidence.

15. [15]
    Her Honour then considered the defence of mistake and concluded favourably to the appellant that he was under an honest reasonable but mistaken belief that he was assisting a lawful arrest by Kemper of Rowe. From there, her Honour considered whether the force used by the appellant was reasonably necessary.^[15]Ultimately, her Honour found the use of four knee strikes was not reasonably necessary to effect the arrest or prevent the commission of an offence or respond to any perceived risk to officer or public safety.^[16]Whereas I accept the submission for the respondent that those conclusions were open to her Honour based on the original evidence, there is a real likelihood that in reaching her conclusions her Honour acted upon evidence from the earlier trial and her understanding of findings made by the Court of Appeal.

16. [16]
    For example, her Honour appears to act on a finding by the Court of Appeal rejecting the assertion that Rowe struck Arndt in the shin prior to going to the ground.^[17]Arndt did not give evidence at the earlier trial^[18]and it does not seem to me that the Court of Appeal made the finding her Honour records. The assertion that Rowe kicked Arndt before being grounded was a significant one.  In my opinion, it was open to reject it on the evidence before her Honour. She seems, however, to have simply adopted what she perceived to be the Court of Appeal’s finding on the point.

17. [17]
    I am satisfied there is a real danger the decision was affected by the erroneous consideration of extraneous material.

18. [18]
    The appellant points to other occasions on which the learned magistrate seems to have adopted findings of the Court of Appeal rather than reach her own. I have already referred to her Honour’s adoption of the rejection by McMurdo P of the assertion that Rowe clenched his fists at the police.^[19]The learned magistrate also referred to and adopts Mackenzie J’s description of the video recording its limitations.^[20]There is no error in this. The Court of Appeal’s findings on the lawfulness of the direction to Rowe to leave the mall for eight hours and whether Kemper “had reasonably formed a suspicion that Mr Rowe’s behaviour was disorderly” were barely relevant to the issues in the trial but seemed to inform her Honour’s view of the defence submission that Arndt was acting in the execution of the law and dealing with a breach of the peace.^[21]

19. [19]
    The appellant argues the wrongful consideration of extraneous material constituted a substantial miscarriage of the trial; justice is not seen to be done; the trial was not conducted according to law and it is only possible to dispose of the case by returning it to the Magistrates Courtfor a retrial under Justices Acts. 225(2). The appellant argued it is not possible to determine the relevant facts upon a rehearing. This is because:

1. (a)
   Sometimes when the witnesses referred to the video recording, the position of the recording was not stated, leaving the evidence less than adequately susceptible to scrutiny;

2. (b)
   Also, although audio and video recordings include much of the relevant action, the video recording is unhelpful in deciding the crucial factual issue – whether Rowe was thrashing about with his legs when Arndt applied the knee strikes. 

20. [20]
    I am not discouraged from the task by either argument. As to the first point, although the recording provided to me did not have time indications on it, the evidence can be followed comfortably, given the very short duration of the crucial events. There is no difficulty understanding the events being discussed by the witnesses. As to the second point, I am mindful of the limitations of the video recording described by Mackenzie J in Rowe v Kemper at [2009] 1 Qd R 281 [108] which discouraged his Honour from making a finding as to the “quality of the degree of force used in effecting the arrest”. It was unnecessary for his Honour to do so to decide that appeal. It was the magistrate’s task in this case, which her Honour able to perform upon the evidence of Rowe, Kemper and Arndt, the admissions and the recordings. The existence of the recordings is an advantage, so long as their limits are acknowledged.

21. [21]
    Justices Act s. 223 directs that the appeal be conducted by way of rehearing on the original evidence. I consider there is no impediment to my making my own assessment of the evidence and forming conclusions upon the issue of guilt, having due regard to the findings and conclusions of the magistrate.^[22]I acknowledge the ill-fit of the last clause of that formulation because the point of this appeal, which I have accepted, was to demonstrate the learned magistrate took into account extraneous materials when making her findings and conclusions. But the appellant did not argue, as a matter of law, that it is not open to an appeal judge to conduct a rehearing in a case where such error is found. Indeed, although extraneous material may have affected the decision making process, it did not invade the evidence itself. The original evidence is in tact and amenable.

22. [22]
    Before undertaking that task I will briefly address the ground of appeal 6.^[23]As amended, it read:

“Having found that the appellant was acting under an honest and reasonable but mistaken belief that he was assisting in a lawful arrest, the learned Magistrate erred in not dismissing the complaint or, alternatively, misdirected herself as to the application of s. 24 of the Criminal Code of Queenslandto the facts.”

23. [23]
    The argument in support of ground 6 seems to me to confuse mistaken belief that the arrest the appellant was assisting was lawful and mistaken belief that he had a lawful right to employ the force used. The magistrate was prepared to act on the basis of the first of these mistakes. That was to the appellant’s benefit. It did not involve the second mistake.

24. [24]
    Criminal Code s. 24 provides, relevantly, that 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.”

25. [25]
    Accepting that Arndt believed the arrest he was assisting was lawful, his acts were to be assessed as if the arrest were lawful. The question became whether the acts committed would have been lawful if the arrest were lawful. The learned magistrate was not wrong to consider whether the force used was reasonably necessary, referring to the reasons of McMurdo P. in Whitelaw v O'Sullivan [2010] QCA 366 at [23 – 27] where the President discussed the relationship between the Police Powers and Responsibilities Act 2000 ss. 50 and 52 with s. 615 of that Act and s. 260 of the Code. Her Honour ultimately found the force used was excessive and not proportionate to any perceived danger.^[24]

The trial – the issue

26. [26]
    At the start of the trial, the defence formally admitted:

1. The incident occurred at or about 9.15 pm on 9 July 2006 in the vicinity of the Queen Street Mall, Brisbane, Queensland;

2. Force was applied, on four occasions, in the form of a series of “knee strikes” to the leg of Bruce James Rowe;

3. Bruce James Rowe did not consent to the application of force to his person.

27. [27]
    The issue at the trial, therefore, became whether that application of force was lawful, or more accurately, whether it was not unlawful because it was authorised or justified or excused by law.^[25]

The trial – the evidence

28. [28]
    Rowe gave evidence that he was born in December 1940. At about 9pm on 9 July 2006 he went to the toilet block in Albert Street. He was essentially homeless. He had been to a gospel meeting and needed to change clothes. As he was packing up, 4 police officers came in. The discussion between him and police was recorded. The recording became exhibit 2 at the trial.

29. [29]
    I have listened to the recording several times. The principal speakers are Kemper and Rowe. The recording ends with Rowe’s arrest. Before that, Kemper had given Rowe a direction to leave the Queen Street Mall for 8 hours. The protagonists frequently speak over each other. It emerges that Rowe was not aware the toilet was closed to the public – it seems, if he is correct, the cleaner put up the sign when Rowe was inside. The recording is relevant as part of the narrative. It shows the engagement between Rowe and Kemper quickly became unpleasant.

30. [30]
    The court then watched the video recording of the incident that followed the arrest and gave rise to the charge. It became exhibit 3. Rowe identified himself in the recording and said his legs were pulled from under him “in splits”.^[26]He was then placed on the ground with his arms behind his back. He thought his arm was going to snap. His left leg was pushed back and he was kneed several times in the thigh.^[27]It was very painful. He said he limped around for at least a week.^[28]

31. [31]
    The prosecution tendered still photographs taken from the video recording and a doctor’s certificate.

32. [32]
    Under cross examination, Rowe rejected propositions that he resisted police and that, when on the ground, he was kicking out and thrashing his legs around.^[29]

33. [33]
    The prosecution then called Kemper. He identified himself as the officer with an arm around Rowe’s neck.^[30]The other officers were Arndt, Robertson and Boyson.  Two people described as police recruits were also present. Kemper identified himself putting his knee onto Rowe’s body, connecting with his leg.

34. [34]
    Under cross examination, Kemper said he had placed his arm around Rowe’s neck because the latter was being “non-compliant and he started barging towards me and that’s when I’ve gone to hug him that’s when my arm has gone around his neck.”^[31]The purpose of putting the knee onto Rowe’s leg was to pin him down because he was “being non-compliant and thrashing, so I put my leg on his leg to stop it from going up.”^[32]This, it emerged, was a technique police received training in called a common peroneal strike.^[33]Its purposes are to stop a person using force against police and as a “pain distraction method”.^[34]

35. [35]
    Although Kemper was not observing Rowe’s legs at the time Arndt applied the four common peroneal strikes to Rowe, he agreed Rowe was continuing to thrash about:

Now when Mr Rowe’s on the ground, you’ve seen the footage of Constable Arndt delivering that common peroneal strike on four occasions? --- Yes.

You were observing Mr Rowe’s legs at that time?--- No.

Was Mr – you’ve said no. What did you -----? --- I’d – I was Mr Rowe, so I was looking down.

Mr Rowe was continuing to thrash about, wasn’t he? --- Yes.

He was continuing to resist you? --- Yes.^[35]

36. [36]
    Kemper identified Arndt, at one stage, grabbing Rowe’s foot and pushing it up towards his buttock.^[36]

37. [37]
    Under extensive re-examination, Kemper purports to identify the moment when Rowe barged towards him.^[37]He also describes seeing Rowe’s leg going back as evidence of the thrashing after which one cannot see anything on the recording.^[38]

38. [38]
    Arndt gave evidence in his defence. He was with Kemper in the mall when a Brisbane City Council worker approached and spoke to Kemper. He went with them to the toilet block, where he saw the Council worker remove a sign and rope which had been in place, closing the facility off from public use. They went inside and Kemper spoke to Rowe. Arndt left that area and waited at the entrance of the walkway to the toilets.^[39]He was present when, after they emerged, Kemper gave Rowe a move-on direction. Rowe did not obey but produced a note book and started writing on it. Arndt described the exchanges between Kemper and Rowe leading to Kemper’s arrest of Rowe and Arndt’s contribution in pulling Rowe’s leg out to put him off balance.^[40]

39. [39]
    Arndt said that during the process whereby he grabbed Rowe’s leg to help put him to the ground,

“he kicked out with his leg a number of times. One of the kicks has landed in the middle of my left shin. Once Mr Rowe has been placed on the ground, he has continued to be non-compliant in terms of thrashing both his hands and his legs around.”^[41]

40. [40]
    Kemper was trying to handcuff Rowe. To assist in the arrest, Arndt decided to apply knee strikes to Rowe’s left quadriceps. After the fourth, Arndt was able to fold Rowe’s legs up to his buttocks, assisting in his restraint.^[42]All of this was pursuant to training he had received in dealing with non-compliant persons. The options included taking the person to the ground, placing the person over the front of a car bonnet and placing the person against a wall.^[43]The purpose of keeping his legs pinned behind his backside was to prevent him kicking out at police.^[44]

41. [41]
    Perhaps wary of the cross-examiner, Arndt was frequently non-committal – if not evasive – under cross examination. For example, although he agreed he had ample opportunity to observe Rowe before the arrest, he denied he had the opportunity to assess his age and build, saying,

“There’s a wide variety of people, in care, in the city, some of their ages are vastly exaggerated from their appearance. I try not to assume anything, for safety reasons, until I can verify their age, correctly.”^[45]

42. [42]
    He would not agree Rowe was “clearly the other side of 60”.^[46]As to whether Rowe was “clearly the other side of 50”, Arndt said, “Again not certain. So, I’ll disagree with that.”^[47]

43. [43]
    During cross examination, Arndt confirmed that he believed the direction Kemper gave was reasonable and lawful. He thought Rowe had caused a public nuisance affecting the cleaner, warranting his arrest.^[48]Although six police personnel were present, Arndt did not consider the recruits could play a role any more than a member of the public.^[49]Arndt described Rowe “bracing himself” while Kemper sought to bring him to the ground.^[50]He thought the situation potentially risky, given the number of people in the mall.  It had to be dealt with swiftly and as reasonably as possible.^[51]When challenged to explain what threat of injury to police Rowe represented, Arndt referred to his having been kicked in the shin.^[52]Arndt said it was for Kemper to decide how to effect the arrest and he obviously decided to bring Rowe to the ground in accordance with police training. Arndt described his own actions as assisting in that arrest because of Rowe’s non-compliance, including by “thrashing his hands and legs”.^[53]

44. [44]
    The cross examiner took the witness through the video recording, culminating in the following exchanges: