[2024] SADC 40

Prosecution: R Counsel: MR G DUDZINSKI - Counsel: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Accused: RAINA JANE CRUISE Counsel: MR A GRAHAM - Counsel: MANGAN EY & ASSOCIATES Hearing Date/s: 17/10/2023 File No/s: DCCRM-22-937 B DISTRICT COURT OF SOUTH AUSTRALIA (Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. R v CRUISE [2024] SADC 40 Reasons for the Verdicts of her Honour Judge Deuter 18 April 2024 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - ASSAULTING, RESISTING, HINDERING, OR OBSTRUCTING POLICE OFFICER - OFFICER ACTING IN EXECUTION OF DUTY The accused is charged with Intentionally Causing Harm to a Prescribed Emergency Worker contrary to s20AA(1) of the Criminal Law Consolidation Act 1935. On 16 October 2021 the accused was part of a group who had been involved in an altercation with security guards at the Exeter Hotel in the Adelaide CBD. Police officers were tasked to locate the group and speak to them regarding the altercation. When police officers located the group, there was a heated conversation, and ultimately a confrontation between the accused and a female officer. When the officer sought the accused’s personal details and then to arrest her, there was a physical altercation, by which the police officer was injured. Issue of whether the police officer had provided details to the accused upon arrest, and whether the attempted arrest was lawful. Verdict: Guilty Road Traffic Act 1961 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) ss 20AA1, 20(3); Summary Offences Act 1953 (SA) ss 74A, 75, referred to. Christie v Leachinsky [1947] AC 573; State of New South Wales v Delly (2007) NSWCA 303; Police v Williams [2014] SASC 177; R v Turner [1962] VR 30; Slavenski v Victoria [2010] VSC 441; Walker v Hamm [2008] VSC 596; Woodley v Boyd [2001] NSWCA 35; McIntosh v Webster (1980) 43 FLR 112; Johnstone v New South Wales (2010) 202 A Crim R 422; Cuthbertson v New South Wales (2018) 99 NSWLR 120; Police v Dafov [2008] SASC 247; Tipping v The King [2023] SASCA 8; South Australia v Crossley [2020] SASCFC 128, considered. -- 1 of 31 -- -- 2 of 31 -- R v CRUISE [2024] SADC 40 Charges 1 The accused, is charged on an Information dated 9 September 2022 with the following offences: Count 3 Offence Details Intentionally Causing Harm to a Prescribed Emergency Worker. (Section 20AA(1) of the Criminal Law Consolidation Act 1935). Particulars The accused on the 17th day of October 2021 at Adelaide, caused harm to Anthea Beck, a prescribed emergency worker who was acting in the course of official duties, intending to cause her harm. Count 4 Offence Details Aggravated Assault. (Section 20(3) of the Criminal Law Consolidation Act 1935). Particulars The accused on the 17th day of October 2021 at Adelaide, assaulted Anthea Beck. Circumstances of aggravation The accused committed the offences against Anthea Beck, a police officer, knowing that she was acting in the course of her official duties. Trial by Judge Alone 2 The accused pleaded not guilty to the charges and has elected to be tried by judge alone. Legal Principles 3 The accused is presumed to be innocent of the charges and is not obliged to prove anything. The obligation lies with the Prosecution to prove the charges and to do so beyond a reasonable doubt. It is also upon the Prosecution to exclude as a reasonable possibility any matter raised by the accused that might affect the proof of the charges. -- 3 of 31 -- [2024] SADC 40 2 Elements of each offence (1) Intentionally Causing Harm to a Prescribed Emergency Worker (Count 3) 4 The elements of this offence are: (1) The accused caused harm to the victim; (2) The harm was caused by a voluntary and intentional act; (3) The accused intended to cause harm; (4) The victim was a prescribed emergency worker, namely a police officer (5) The victim was acting in the course of her official duties; and (6) The act of the accused was unlawful. (2) Aggravated Assault (Count 4) 5 The elements of this offence are: (1) The accused applied force to the victim; (2) The application of force was deliberate, that is, not unintentional or accidental; (3) The accused acted without consent; (4) The act was unlawful in that it was committed without lawful excise. 6 The circumstances of aggravation particularised are that the accused knew the victim was a prescribed emergency worker, namely a police officer, acting in the course of her official duties. 7 I proceed upon the basis that Count 4 is charged as an alternative to Count 3. Directions 8 I give myself the following directions: • The prosecution bears the onus of proving the guilt of the accused. She has the presumption of innocence in her favour. The prosecution must prove each element of each offence beyond reasonable doubt. It is not sufficient for the prosecution to prove a suspicion of guilt, or that the accused is possibly, or probably guilty. • The standard of proof of the prosecution case is beyond reasonable doubt. If I refer to being satisfied in the course of these reasons, I mean satisfied beyond reasonable doubt. -- 4 of 31 -- [2024] SADC 40 3 • I must assess each witness as to their truthfulness and their reliability. I must determine whether I can rely upon the evidence that a witness gives. I can reject or accept all or a part of a witness’ evidence. • The accused elected not to give evidence or call any evidence. I do not draw any adverse inference against her, or the case she presents, for declining to give evidence. • I must consider each piece of evidence to determine what fact in this matter it establishes. However, if the evidence which I accept fails to satisfy me beyond reasonable doubt, of any or all of the elements of the offence, then the accused continues to be presumed innocent. I must then return a verdict of not guilty in relation to that offence. Prosecution Case Background 9 At approximately midnight on Saturday 16 October 2021, the accused, in the company of Matthew Stephen Priest (‘Mr Priest’) and Tyson Cross (‘Mr Cross’), attended the Exeter Hotel on Rundle Street. 10 After an altercation occurred between the accused, Mr Priest and other patrons at the hotel, Mr Priest was forcibly removed from the premises. In the course of the removal of Mr Priest, the accused assaulted two security constables, Hamza Tarawneh and Gregory Wearn. I am aware that the accused was charged with two counts of aggravated assault in respect of Mr Tarawneh and Mr Wearn, to which she pleaded guilty. This offending is irrelevant to the charges I am to determine, beyond placing in context the later events. 11 After the altercation, the accused, Mr Priest, and Mr Cross left the Exeter Hotel and walked west on Rundle Street towards Rundle Mall. At about 12:15AM on Sunday 17 October 2021, uniformed police constables Anthea Beck (Beck) and Aaron Spiniello (Spiniello) arrived at the Exeter Hotel to make enquiries about the altercation with hotel security. After a conversation with security, Beck and Spiniello walked west on Rundle Street, where they intercepted the accused, Mr Priest and Mr Cross, who were then walking east along Rundle Street, back towards the Exeter Hotel. Beck and Spiniello began to speak with the group about the events at the Exeter Hotel which had occurred earlier that night. 12 During this conversation, a sudden and violent altercation ensued between Beck and the accused, which ultimately led to the accused grabbing and dragging Beck to the ground. The incident was captured on the body worn video of both Beck and Spiniello, as well as on Police Security Services Branch (PSSB) CCTV. 13 Whilst Beck and the accused were on the ground, Mr Priest attempted to intervene, but then proceeded to run off down Rundle Street in a westerly direction. Spiniello chased after him, and as he attempted to detain Mr Priest, he was dragged -- 5 of 31 -- [2024] SADC 40 4 to the ground and was assaulted by Mr Priest who ultimately fled in the direction of North Terrace. 14 Spiniello returned to Rundle Street, where Beck and the accused were still engaged in a tousle on the ground. Eventually, Beck and Spiniello were able to successfully detain the accused. 15 As a result of the altercation, Beck sustained injuries including scratches and bruises on the left side of her face, chin, and neck, as well as abrasions, bruising and swelling to her hands, forearms, and knees. In addition, two patches of hair were torn out from Beck’s scalp, resulting in swelling and soreness.1 Evidence 16 Both Constable Beck and Spiniello gave oral evidence during the course of the trial. I proceed to review their evidence. (1) Spiniello (i) Examination in Chief 17 Spiniello is a police constable stationed at the Hindley Street Police Station. He has been a police officer for approximately six years, and his role includes attending taskings from calls made by members of the public.2 18 On 17 October 2021, he had been working uniform mobile duties with Beck. He gave evidence that at around 12:15AM, they received a tasking relating to a disturbance that originated from the Exeter Hotel on Rundle Street.3 After attending at the Hotel and speaking with the security guards, they were directed in a westerly direction along Rundle Street.4 They had been informed that the incident involved a group of three individuals.5 He and Beck then intercepted the accused, Mr Priest, and Mr Cross on Rundle Street. Spiniello recalled saying words to the effect of ‘stop, I need to have a talk with you about what’s happened at the pub’.6 19 Spiniello told the court that the group responded in a verbally aggressive manner.7 He first proceeded to speak to Mr Priest and attempted to obtain his personal particulars. Whilst he was talking to Mr Priest, an altercation ensued between Beck and the accused. He said that he saw, in his peripheral vision, the accused move quickly and aggressively towards Beck. 20 Spiniello attempted to help and protect Beck and affect an arrest of the accused.8 As he was doing so, he was pushed by Mr Priest. A chase ensued 1 Chronology of events taken from Prosecution Case Statement dated 8 September 2022 (FDN 3). 2 T18. 3 Ibid. 4 T19. 5 Ibid. 6 T20 7 T19. 8 T20. -- 6 of 31 -- [2024] SADC 40 5 whereby Spiniello pursued Mr Priest for the purpose of arresting him.9 Spiniello confirmed that his body-worn camera was activated during this incident, and the footage later was burnt onto a CD.10 This disk of Spiniello’s body-worn footage was tendered by the Prosecution as Exhibit P1. 21 Spiniello told the court he felt that the situation was very dangerous and volatile, as the group’s demeanour was aggressive and intimidating.11 He also confirmed that CCTV footage of the incident was captured by the PSSB.12 A disk of the CCTV footage was tendered by the Prosecution as Exhibit P3. (ii) Cross-Examination 22 Spiniello confirmed that he knew the incident was being recorded by PSSB camera operators.13 23 He said that he had a police radio on his person at the time, and he called for another patrol to attend and assist. This was once during the initial conversation with the group, and then shortly after the physical altercation between Beck and the accused ensued.14 He had initially radioed for assistance because he believed that the incident had the possibility of turning violent.15 24 In cross-examination, Spiniello was asked whether he put his elbow or forearm on the head of the accused. He explained that he attempted to pull Beck up and off the accused, as she was being held down. The PSSB footage was then played, from a timestamp of 12:27:30 seconds until 12:27:47 seconds. Spiniello did not agree that he placed his forearm across the neck of the accused, and disagreed with this proposition several times.16 It was suggested that Spiniello was not being honest on this topic because he knew his behaviour was dangerous. Spiniello refuted this and maintained that he reached across the accused to grab control of her arm and assist Beck.17 25 Spiniello said that when the altercation between Beck and the accused started, he did not hear Beck inform the accused that she was under arrest.18 This was because he was speaking to Mr Priest at the time. From his peripheral vision he saw the accused move at speed and with impact into Beck. The accused made 9 T21. 10 Ibid. 11 T22. 12 Ibid. 13 T23. 14 T25. 15 Ibid. 16 T27-T28. 17 T28-T29. 18 T29. -- 7 of 31 -- [2024] SADC 40 6 physical contact with Beck first.19 Although Mr Cross was standing between Spiniello and the accused, he said he had a clear view of Beck and the accused.20 26 In relation to Mr Priest, Spiniello said that he and the accused were the most aggressive in the group. Mr Priest threatened to break Spiniello’s nose and was filming their interaction.21 27 In his statement dated, 17 October 2021, Spiniello said that ‘without warning I saw Cruise shove Beck and become involved in a fight’. It was put to Spiniello that he wasn’t being truthful in this statement, and that he put this description in to justify what he did afterwards. Spiniello disagreed with this proposition.22 It was his evidence that the accused instigated the altercation by moving violently towards Beck.23 28 Spiniello maintained this position after being played parts of Beck’s body worn footage were played for him to review.24 Spiniello did not agree, after watching the footage in Exhibit D4, and from his memory of events, that what started the altercation was Beck saying the words ‘All right’ in a frustrated manner, and then grabbing hold of the accused’s arm, and pushing her towards the wall. 25 (2) Beck (i) Examination in Chief 29 Beck is a police constable and in October 2021, was working out of the Hindley Street Police Station.26 She has been a police officer for approximately 6 years. On 17 October 2021, she was on mobile unform patrol in the company of Spiniello.27 30 At approximately 12:15AM, they arrived at the Exeter Hotel in Rundle Street due to reports of behavioural offences and a disturbance occurring. She spoke to security guards who explained what had taken place.28 Beck said she then received police communications that the three suspects were walking back towards the Exeter Hotel.29 31 Beck gave evidence of her conversation with the Hotel security officers. Police communications had advised her that there had been an altercation between security at the Exeter Hotel and three subjects. She said that she had been told that 19 Ibid. 20 Ibid. 21 Ibid. 22 T32. 23 T34. 24 Exhibit D4. 25 T37-T39. 26 T41. 27 Ibid. 28 Ibid. 29 T42. -- 8 of 31 -- [2024] SADC 40 7 the woman was on top of the security guard, punching down as he was attempting to restrain one of the men.30 32 When Beck and Spiniello intercepted the group, which consisted of the accused, Mr Priest and Mr Cross, they said to the group words to the effect of ‘hey, guys, like we need to talk about what’s happened at the Exeter’.31 From this point, the situation escalated quickly. Beck knew that the three individuals had been in a serious altercation at the Exeter Hotel, and they appeared to be quite intoxicated, and were immediately aggressive.32 Beck said that the accused appeared moderately intoxicated. She was slurring, swaying, and rambling. When she spoke, little bits of spit came out of her mouth. She smelt like she had been drinking all day.33 Both Mr Priest and Mr Cross were argumentative and loud, but seemed to be less affected by alcohol, compared to the accused.34 33 Beck said that the group ignored her initially as they were conversing with Spiniello, but when Mr Priest attempted to move past them, she went over to stop him from leaving.35 Spiniello was attempting to obtain the group’s personal particulars, and they were refusing to comply, and were rambling. Whenever Beck tried to speak, she was cut off and shouted at with various verbal threats.36 34 Beck then described the training she received at the Police Academy, in relation to how to deal with these types of situations. She said that in such circumstances, she tries to form a triangle with her colleague to her side and the suspected offenders in front, with approximately 1-2 metres between them.37 Beck said that she was attempting to do this with the accused, Mr Priest, and Mr Cross.38 However, whenever she attempted to create this space, the group followed her and were shouting in her face and not listening to her requests for them to produce their ID.39 35 At one stage, Mr Cross had pulled out his ID, and was extending it to Beck, but would then take back his hand at the point she would reach to take the ID from him.40 She described the next series of events as a very fast altercation.41 36 Beck said that the accused gestured her hand towards her, resulting in Beck saying ‘all right -‘and putting her hand on her shoulder for the purpose of effecting an arrest.42 The accused resisted arrest, hitting Beck across the face, cutting her 30 T45. 31 Ibid. 32 Ibid. 33 T42-T43. 34 T43. 35 Ibid. 36 T43-T44. 37 T44. 38 Ibid. 39 Ibid. 40 T45. 41 Ibid. 42 Ibid. -- 9 of 31 -- [2024] SADC 40 8 face with her rings, and knocking her police cap off her head. Beck said she attempted to push the accused against the wall, in an effort to control her. However, the accused then grabbed a handful of Beck’s hair and dropped her weight to the ground.43 37 Beck then described the accused rolling them over until she was straddling her and sitting on her chest. Beck said that the accused used one hand to jerk her head backwards and forwards, and the other to strike her with both an open and closed fist.44 At this time, Beck was saying ‘let go’ several times.45 At one stage, Spiniello attempted to pick Beck up and off the accused, but the accused maintained her grip on Beck’s hair.46 Spiniello had to let go of Beck because he was concerned about being attacked by Mr Priest and Mr Cross.47 38 Beck told the court that she then retrieved her defensive spray from her vest and sprayed it in the accused’s direction. The spray fell back down towards Beck, blinding her.48 39 Beck was eventually able to roll the accused over and restrain her by sitting on her. The accused continued to resist and fight her.49 As Beck attempted to stand up, the accused kicked her from her position on the ground. Once Spiniello returned, he and Beck were able to eventually restrain the accused by rolling her over and pinning her arms behind her. They then handcuffed the accused; advised her that she was under arrest; and took her to the back of their police cage vehicle.50 40 Beck said that whilst the accused was straddling her, Beck struck her twice with her left hand, which made contact with the accused’s head.51 The offences for which Beck intended to arrest the accused included disorderly behaviour, regarding the incident at the Exeter Hotel, and subsequently, the assault upon herself. She said she was also arresting the accused for her failure to produce ID.52 41 Beck gave evidence of the injuries she sustained. These included53: • Clumps of hair being ripped out from her scalp, which was bleeding and weepy, leaving several bald patches; • Facial swelling, particularly to her forehead and chin; 43 T46. 44 Ibid. 45 Ibid. 46 T46. 47 T47. 48 Ibid. 49 Ibid. 50 Ibid. 51 T48. 52 T48. 53 Ibid. -- 10 of 31 -- [2024] SADC 40 9 • Scratches on her neck and face; and • Swelling of her hands. 42 At approximately 1:30AM, Beck took photographs of her injuries at the Hindley Street Police Station. A bundle of photographs of Beck taken on 17 October 2023 were tendered by the Prosecution as Exhibit P5. 54 The photographs were described as follows: Page 1: Beck’s head showing bald spots on her scalp. Pages 2-3: The right side of Beck’s face showing scratches and bruising. Page 4: A clump of Beck’s hair. Page 5: Beck’s knee, which was grazed and bleeding. 43 At 8:30PM on 17 October 2021, Beck underwent a medical assessment. She said she also had to see the WorkCover doctor fairly often to check the re-growth of her hair, and to monitor whether she was suffering from any stress, or adjustment disorders.55 Beck said that she wore a scarf over her hair for approximately 4 months, as she did not like others looking at, or enquiring about her bald patches.56 44 On 18 October at 6:00AM, Beck took further photographs of her injuries. These photographs taken by Beck were tendered by the Prosecution as Exhibit P6. The photographs were described as follows57: Page 1: Beck’s side profile, showing a scratch to her cheek and chin, and a black eye. There was also swelling to her forehead above her eyebrow. Page 2: Beck’s face, depicting two black eyes, and a clearer shot of the bruising to her forehead. Page 3: Similar injuries as depicted in previous photographs.58 45 On 18 October at 7:00AM, Beck took further photographs of her injuries. These photographs were tendered by the Prosecution as Exhibit P7. Beck took these further photographs to more clearly capture her injuries.59 54 T49-T50. 55 T51. 56 Ibid. 57 Ibid. 58 T52. 59 T52-T53. -- 11 of 31 -- [2024] SADC 40 10 46 Beck confirmed that during the incident on Rundle Street, she was wearing her body-worn video which was recording the events.60 The footage from Beck’s body-worn video was tendered by the Prosecution as Exhibit D4. (ii) Cross Examination 47 Beck could not remember whether she first said, ‘all right’ or first touched the accused on the shoulder. She said that when she said ‘all right’ or close to it, was when she formed the intention to arrest the accused.61 Beck agreed that after she had warned the accused that she would be arrested if she did not produce her identification, she had asked her to provide it on four more occasions.62 48 Beck said that her initial intention was to assess the situation and obtain statements regarding the incident at the Exeter Hotel, if the circumstances permitted. However, the demeanour of the accused, in that she was not complying with Beck’s requests for ID, and refused to answer questions, meant that Beck could not obtain any details or any statements as she had initially intended.63 49 Beck agreed that in her initial statement she had said ‘Throughout the initial interaction, all I wanted to do was to get her name and personal details so that we can investigate what had happened at the Exeter Hotel in more detail and then follow up with the accused at a later time if need be.’64 She explained that had she been able to obtain the names and details of the participants in the incident at the Exeter Hotel, then the situation could have been resolved more quickly.65 Beck said the reason she did not get to say the words ‘you’re under arrest’ was because the accused had swung and punched her in the face before she was able to do so.66 50 It was put to Beck that as she was pushing the accused backwards towards the wall, the accused struck her as they were both moving backwards.67 Beck disagreed and said: ‘It was all extremely quick. From the moment I put my hand on her and said 'All right', she'd swung at me and from that moment I'm already defending myself, pushing her backwards. This all happened just in seconds.”68 51 Beck said that she arrested the accused for assault, disorderly behaviour, fail to state personal details, fighting in public, assault emergency service worker, and behavioural offences.69 She agreed, however that the only offence that she had 60 T53. 61 T55. 62 Ibid. 63 T56. 64 Statement of Beck dated 9 July 2022. 65 T57. 66 T58. 67 T59. 68 Ibid. 69 T60. -- 12 of 31 -- [2024] SADC 40 11 warned the accused that she might be arrested for was failing to produce identification.70 This was before the escalation of events. 52 In her evidence, Beck said that Spiniello asked the group numerous times for their ‘personal particulars.’71 Beck disagreed with the proposition that Spiniello was only speaking to Mr Priest when he asked this question.72 Beck confirmed that Mr Priest filmed a portion of the interactions that night.73 Mobile phone footage from the phone held by Mr Priest at time of incident was tendered by Defence as Exhibit D9. 53 Beck agreed that in this footage, Spiniello was addressing only Mr Priest in parts of this footage.74 It was agreed however, that Mr Priest did not record the entirety of the interaction.75 54 Exhibit P3 was played during cross-examination of Beck at timestamp 12:27:20 to 12:27:52.76 She was asked if she agreed, in reference to the PSSB footage, that when she made contact with the accused, she had pushed her backwards, causing the accused’s left leg to step backwards. Beck did not agree. Her evidence was that the accused was leaning into her with her head moving forward. That was when she put her hand on the accused’s shoulder. It was agreed that the accused slapped Beck on the head as she was falling backwards.77 55 The PSSB footage78 was then played between 12:27:42.34 and 12:28:10.26.79 Beck was asked about striking the accused three times in the face whilst she was on top of her. Beck said she punched the accused twice as she was screaming ‘let it go’, in reference to her hair. Beck was trying to prise the accused off of her. The third time was, however Beck grabbing the accused’s left wrist to pull the accused’s hand away from her hair. She said the accused had control of her head and was jerking it around as she was on top of her.80 She was scared for her safety, and her head hurt, where her hair was being pulled. Beck’s head hit the footpath. She agreed that she was mistaken when she had given evidence that she had only hit the accused once.81 56 Defence counsel took Beck through her police statements to put to her that in her second and third statements she had said that she had had taken physical control of the accused by taking hold of one arm and walking her back to a shopfront. Beck did not, as she had said in evidence, first put a hand on the 70 T62. 71 T63. 72 Ibid. 73 T71. 74 T72. 75 T73. 76 T76. 77 T76 – T77. 78 Exhibit P3. 79 T79. 80 T79-T81. 81 T81. -- 13 of 31 -- [2024] SADC 40 12 accused’s shoulder.82 Beck maintained that she had touched the accused on the shoulder. This led to the accused raising an arm out towards her. Beck said that she then took hold of the arm and attempted to “push us to the front storefront”. This all happened quickly and was part of Beck trying to take control.83 57 Beck was challenged on her evidence by defence counsel who suggested that touching a person on the shoulder doesn’t control them. Beck explained she was attempting the ‘touch and tell’ method of control. The tell being the telling a person that they are under arrest. However, as the situation developed fast, Beck had to instantaneously grab the accused’s arm to prevent the accused from hitting her.84 58 Beck explained that ‘touch and tell’ was taught at the police academy as part of the three ways of arresting people. It involves touching people in a way that shows them that you are taking control and advising them they are under arrest.85 Beck agreed that the first time she had mentioned touching the accused on the shoulder to signal an arrest was in court.86 59 Beck denied the claim that the accused was not immediately aggressive when she spoke to her, but agreed that she didn’t want to be touched. She was screaming at Beck calling her a ‘filthy whatever’.87 Beck said that the accused was aggressive with her from the start. The accused objected to being touched and responded violently.88 60 Beck denied that she was not paying close regard to the requirements to deal with people lawfully and that she forgot to tell the accused that she was under arrest.89 Defence Case 61 There was no evidence called on the defence case. Summary of Closing Addresses (1) Prosecution Closing 62 The Prosecution argued that the words effecting the arrest of the accused were delayed because of her violent and immediate reaction to Beck and Spiniello. The conduct of the accused prevented the officers from giving details, and the interest of safety meant that the delay was justified. 82 T82-T88. 83 T88. 84 T88-T89. 85 T92. 86 T89. 87 T90. 88 T91. 89 T92. -- 14 of 31 -- [2024] SADC 40 13 63 It was further submitted that the law does not require a police officer offer to utter all of the words in relation to an arrest. No fixed words are required by s 74A of the Summary Offences Act 1953 (SA) (Summary Offences Act). 64 The Prosecutor argued that it would have been obvious to the accused as to the nature of the arrest. Even if police didn’t comply with all the requirements of the Act, whether an offence is going to be proved later is not the relevant consideration. The issue at hand is whether the accused would have known the general nature of the arrest. Whether the offence ends up being proved in court later, is secondary and not relevant to the arrest. 65 The Prosecution submitted that the accused would have known the nature of the arrest, given that it related to the assaults she committed at the Exeter Hotel not 30 minutes prior. On review of the evidence, the first thing police do is ask to speak to her about what happened at the Exeter Hotel. At time stamp on 12:25:42 of the PSSB footage90, the accused is told she was causing dramas at the Exeter Hotel, which she denies. This is inconsistent with her later guilty pleas. 66 The Prosecutor argued that in relation to the failure to provide particulars upon arrest, there were multiple requests for the provision of identification and, the accused was told in no uncertain terms, ‘If you don’t provide this you will be arrested’. She did not provide the identification and was subsequently arrested. 67 It was submitted that what occurred fits into multiple recognised categories of the exceptions to the rule in Christie v Leachinsky (Christie)91 pertaining to lawful arrest. 68 One of these exceptions is self-defence. It was submitted that self-defence was a relevant circumstance in those proceedings. The only phrases spoken by the accused were expletive-ridden and clearly disclosed an intention to fight. These included the accused saying: ‘I’ll smash you one-on-one’. ‘You want to fucking go bitch. You want to go, I’ll take you’. It was submitted that these are not the words of someone who is acting for a defensive purpose but rather words of someone who wants to fight and cause harm. 69 The Prosecutor argued that the accused’s behaviour was not a reasonable response to police wanting to speak to her regarding what occurred at the Exeter Hotel. He pointed to where the CCTV turns to show the accused straddling Beck. At that point, the response is no longer reasonably proportionate to any threat. Beck’s actions there are not reasonably proportionate to whatever threat she may have received, or even perceived. 90 Exhibit P3. 91 [1947] AC 573. -- 15 of 31 -- [2024] SADC 40 14 70 The Prosecution’s primary submission was that in the circumstances, it was necessary to secure a possibly violent criminal (the accused) who had aggressively resisted Beck before she could inform her of her arrest. 71 In making that submission the Prosecution relied on the following facts: (1) Beck and Spiniello had been advised by police communications of the altercation at the Exeter Hotel involving three persons, including a woman who was on top of a security guard; (2) Beck and Spiniello were also told that the group had been ‘very, very aggressive and that the woman (the accused) was throwing more punches than the guys’. (3) The initial interactions with the group, including the accused, were of a group that were all immediately argumentative and defiant as they moved into the personal space of Beck and Spiniello. This is all captured on the footage from Beck’s body worn footage.92 (4) Despite attempts to create space the accused continued to move forward and berate police describing them as ‘dictators’ and like ‘nazi Germany’. The accused and Mr Cross continue to move in close to Beck, and by 00:27 are screaming aggressively with their arms raised. The accused leans into Beck.93 72 The Prosecution submit that given the accused’s earlier actions at the Exeter Hotel, her refusal to back off, together with her aggressive insults directed at Beck, it was critical that she be secured. Beck’s actions to control the accused were necessary.94 73 It was further argued that the accused responded violently before Beck had the opportunity to say the words “you are under arrest”. The accused swung violently at Beck’s face then grabbed her hair as she dragged her to the ground. This was described as the accused violently resisting Beck before she could speak the relevant words. (2) Defence Closing (i) Constable Spiniello considerations 74 Defence submitted that first it must be determined why Spiniello’s evidence was relevant. Defence counsel submitted that the Court should not accept aspects of Spiniello’s evidence for the following reasons: • He refused to concede what was obvious on the PSSB footage, including that he placed her forearm and elbow on the accused’s head, 92 Exhibit P4. 93 Ibid. 94 T45. -- 16 of 31 -- [2024] SADC 40 15 and later across her neck. The fact that he refused to acknowledge that, even after looking at the footage, goes to the accuracy and reliability of his evidence; • He refused to concede anything that could paint him in a bad light; • In the PSSB footage, Spiniello was looking straight at Mr Priest when the altercation occurs; • From consideration of Spiniello’s body-worn footage, his view would have been blocked by Mr Cross, and he could have only seen what was happening between Beck and the accused out of the corner of his eye. 75 Defence also submitted that to say that the officers were in immediate danger, ‘over eggs’ the situation as put by the Prosecution. They were dealing with obnoxious drunk people. There is no evidence that the officers were in immediate danger. (ii) Constable Beck considerations 76 Defence counsel submitted that there are two indicia that show Beck was not acting in the course of her official duties: (1) It was not lawful for her to push Mr Priest when he attempted to walk around her and the accused and leave the situation. She was not entitled to shove him to keep him where she wanted him. There is no power in the Criminal Law Consolidation Act 1935 (SA) (CLCA), to permit her to do what she did. She has therefore not paid close attention to the scope and details of the powers in the CLCA. (2) She could not have had reasonable suspicion that the offence of not providing personal details had been committed, because she hadn’t asked for the accused’s details. Thus, this would not have been a lawful arrest. 77 In this regard, it was argued that Beck’s view that Spiniello saying ‘Can I have your personal particular’s’ was incorrect. Beck saying Spiniello was addressing the group, was reconstructed to suit her evidence that, this was the reason she threatened to apprehend the accused. Defence argue that this goes to Beck’s credibility, as well to the fact that she did not have regard to her legal obligations nor the extent of her powers. 78 Defence counsel submitted that it was plain from the PSSB footage that Beck was striking the accused from a semi-standing position, not upwards from a laying down position, as she said in her evidence. He did agree that it might be hard to remember where exactly she was in this situation. He submitted that the PSSB footage was therefore the most reliable evidence. -- 17 of 31 -- [2024] SADC 40 16 79 It was submitted that the body worn footage and the CCTV footage clearly showed the accused holding her handbag in her left hand. Counsel argued that it can be inferred that the accused’s left hand was therefore by her side when the physical altercation starts. 80 Defence counsel submitted that the court should reject Beck’s evidence that she touched the accused on the arm and that the accused swung her arm immediately, as this is inconsistent with the PSSB footage. The swing, or the slap, occurred when the accused was moving backwards, and Beck was moving forward and applying force to the accused. He argued that the forward momentum of Beck is telling. It cannot be a reaction to the slap because it occurs prior to the accused slapping her. Beck carried the momentum towards a shop front, which Defence submits leads to a conclusion that it is Beck who is leading the physical contact. He also argued that Beck’s evidence of her ‘touch and tell’ procedure should be disregarded. 81 Defence counsel submitted that it could not be excluded as a reasonable possibility that: • Beck in all the circumstances, forgot to say, ‘you’re under arrest’, despite providing a warning. That is, she got her statements around the wrong way; and • the accused was only being arrested for failing to provide identification and that would make the arrest unlawful. 82 Defence counsel set out that a lawful arrest requires that: • the fact of the arrest is communicated; • the reason for the arrest is communicated; • there is a sufficient act of arrest; and • the arrester possesses the requisite state of mind as articulated in s 75 of the Summary Offences Act. 83 In relation to Beck’s warning to, or threatening of the accused, that she would be arrested for failing to provide identification, defence counsel argued that Beck did not possess the requisite state of mind for an arrest. For the whole exchange, Beck did not request the accused’s name. Defence counsel conceded that the accused could have been arrested for the earlier assaults; or for disorderly behaviour. However, on the evidence it cannot be said that the accused must have known what she was being arrested for on the night. 84 The next exception to a lawful arrest that defence counsel said had not been made out, was that the accused made it practically impossible to be given the requisite information. Defence counsel submitted that what needed to happen was -- 18 of 31 -- [2024] SADC 40 17 that the accused needed to be told she was under arrest before there was a physical altercation. However, the exception was not made out, because Beck grabbed the accused’s arm/shoulder before uttering the words ‘you’re under arrest’. 85 Defence counsel conceded that reasons, not facts for arrest, can be foregone in certain circumstances as articulated in the test in Christie. These involve the person who is being arrested, being the person bringing about the circumstances which make it practicably impossible to be provided with the requisite information, and warning relating to their arrest. In these proceedings, however, this was too far of a stretch. The accused did not bring about circumstances which made it impossible to inform her about the nature of her arrest. 86 Defence counsel submitted that Beck did not give an answer to the question as to why it was not practical to inform the accused as to nature of her arrest. Beck did not set out why she could not inform Cruise why she was under arrest before she made physical contact with her.95 Consideration Analysis of the facts and elements (Intentionally Causing Harm to a Prescribed Emergency Worker) 87 I have set out the elements that must all be established beyond reasonable doubt for the charge to be proved. Elements five and six comprise the primary issues in dispute. I will consider all the elements. (i) The accused caused harm to the victim 88 It is not in dispute that the accused caused harm to Beck. In her evidence, Beck outlined the injuries she sustained as a result of the altercation. These included:96 • Clumps of her hair being ripped out from her scalp, which was left bleeding and weepy, and with several bald patches; • Swollen face, particularly her forehead and chin; • Grazed knee; • Scratches on her neck and face; and • Swollen hands. 89 Photographs of Beck’s injuries were tendered as Exhibits P5, P6 and P7. I find beyond reasonable doubt that these injuries fall within the definition of ‘harm’, pursuant to the definition in s21 of the CLCA. 95 T58.-T60. 96 T58. -- 19 of 31 -- [2024] SADC 40 18 (ii) The harm was caused by a voluntary and intentional act 90 The accused grabbed Beck by the hair and dragged her to the ground. Beck gave evidence that the accused hit her across the face, cutting her face with her rings. She also said that the accused used one hand to jerk her head backwards and forwards, and the other to strike her with both an open and closed fist.97 At one stage, when Beck stood up, the accused kicked her from her position on the ground. 91 The incident is depicted in the body worn video of Beck (Exhibit P4) and of Spiniello (Exhibit P1) as well as on PSSB footage (Exhibit P3). I am satisfied beyond reasonable doubt that the harm occasioned to Beck was caused by a voluntary and intentional acts performed by the accused. (iii) The accused intended to cause harm 92 During the altercation, the accused uttered phrases which were riddled with expletives and disclosed an intention to fight. These included phrases directed towards Beck such as ‘I’ll smash you one-on-one’ and ‘You want to fucking go bitch. You want to go, Ill take you’. 93 The accused came into physical contact with Beck on several occasions, by way of kicking her; pulling, and grabbing her hair, and striking her with an open and closed fist. Such conduct at the very least creates a likelihood of harm occurring. 94 I am satisfied beyond reasonable doubt, upon all the evidence, that the accused intended to cause harm to Beck. (iv) The victim was a prescribed emergency worker, namely a police officer 95 It is not in dispute that Beck was a police officer and that the accused was aware of that. At the time of the offending, Beck had been a police officer for six years, and was working out of the Hindley Street Police Station. I find beyond reasonable doubt that Beck was a police officer as at 17 October 2021. (v) The victim was acting in the course of her official duties 96 The defence case is that Beck was not acting in the course of her official duties, when she was attempting to execute an unlawful arrest. 97 The Prosecution dispute this, noting that at the time of the alleged offending, Beck was wearing her police uniform and had been tasked to investigate an incident involving the accused, that had occurred at the Exeter Hotel earlier in the night. The Prosecution submits that the accused must have known the general nature of the arrest because she was unequivocally informed on several occasions and responded verbally in an aggressive manner. Firstly, in relation to the arrest for failure to provide particulars, there were multiple requests for the provision of 97 T46. -- 20 of 31 -- [2024] SADC 40 19 identification and the accused was told in unambiguous terms: ‘If you don’t provide this you will be arrested’. She did not provide any identification and she was subsequently arrested. 98 The Prosecution submits that there cannot be a finding that the accused would not have known the general nature of the arrest, which would result in Beck not acting in the course of her official duties.98 It is not unreasonable to suggest that the words used by both Beck and Spiniello would have set off in the accused’s mind that police were asking for her name. That again seems unsurprising given some of the accused’s responses captured on the body-worn footage including when she says, ‘I don’t have ID darling’. She could have easily provided her name.99 99 The Prosecution submitted that it is not unreasonable to suggest that when Spiniello stated, ‘I want your personal particulars’, that this was understood by the accused as a request made to the whole group who had been involved in the incident at the Exeter Hotel. This is supported by the evidence of Beck that when she heard this, her understanding was that it was a request to the whole group.100 Additionally, when the request was made, the accused clearly responded (as captured on footage) with the comment, ‘who are you?’. In my view, if the accused did not understand that the request was directed at her, it begs the question why she responded in the manner that she did. 100 The Prosecution submit that Beck also repeatedly informed the accused that if she did not provide her identification, she would be arrested. In the circumstances, I find that the accused must have reasonably understood the general nature of the offence as it related to a failure to provide particulars. She knew that her conduct was being investigated, and a request was made for her to provide her ‘personal particulars’. It is reasonable to infer that when she was told that, she was being asked to provide her ID, and that a request was being made for her name. 101 Defence counsel submitted that there are several circumstances which support the finding that Beck was not acting in the course of her official duties. These are: 101 • that threatening to arrest the accused for failing to provide identification would constitute an unlawful arrest as Beck had not taken the step of requesting the accused’s name. Beck did not have the requisite state of mind for an arrest pursuant to s75 of the Summary Offences Act. • That a threat to arrest someone for an offence that has not been committed, namely failing to provide identification, that you know has not been committed because you have been there for all of the relevant 98 T100. 99 T101. 100 T72, 73 & 75. 101 T108. -- 21 of 31 -- [2024] SADC 40 20 circumstances, amounts to an assault. This is because if a person threatens to apprehend another person, and they are in a position to carry out that threat, the other person would apprehend that they are in a position where physical force may be applied to them. As a result the threat to arrest someone unlawfully amounts to an assault, and everything else that follows thereafter, where there were requests for identification to be produced following on from that threat is unlawful. • Beck agreed that the accused told her that she did not have her ID.102 It is unlikely that the accused would offer her ID or say that she did not have it on her if she did not think that either Beck or Spiniello were asking her to produce it. It is evident that she was aware that she was being asked to produce her identification, but refused or was unable to do so. The purported arrest 102 The Prosecution submits that it was not feasible for Beck to fully inform the accused of the reasons for her arrest due to the hostile and volatile nature of their interaction and that this subsequently, enlivened the application of the exceptions to effecting a lawful arrest as per the principles in Christie.103 103 It was submitted that the following factual circumstances supported a finding that the accused made it difficult/impossible for Beck to fully inform her of arrest: • Beck was aware that the accused had behaved violently towards authority figures just prior to their altercation. She was informed via police communications of the interaction between the accused and the security guards at the Exeter Hotel. She was told that the accused had been pulling down patrons facemasks and was swinging and punching at the security guards. • In her evidence, Beck says given what she knew about the accused’s previous violent actions; the fact that this has been confirmed by her own observations of continued aggression from the accused; the increasingly defiant and aggressive actions of the accused and Mr Cross together; and her subjective belief that she was about to be assaulted, it was critical that the accused was secured. The circumstances as they were, not only permitted Beck’s actions, they were necessary. • Put another way, the practical realities of what police were facing during this interaction meant that it was in the interest of safety that Beck acted immediately. Additionally, the accused violently assaulted Beck before she had a chance to say the words ‘you are under arrest’. This assault included the accused swinging violently at Beck’s face and 102 T63. 103 [1947] AC 573. -- 22 of 31 -- [2024] SADC 40 21 latching onto her hair and dragging her to the pavement (resulting in the injuries depicted in Exhibit P5). In addition, the CCTV footage is consistent with Beck’s evidence that when asked why she did not say ‘you’re under arrest’, her response was that ‘I started the sentence with ‘all right’ and I got two syllables in and it was fighting’. In these circumstances, the accused resisted violently towards Beck before she could speak the relevant words. 104 The Prosecution’s secondary submission was that it was reasonable in all the circumstances for the accused to know the reason for her arrest. She had been in two physical altercations the night before, and must have been aware police were wanting to talk to her in relation to those events. Her responses as captured on CCTV footage suggests she was clearly aware why she was being spoken to by police. 105 I am satisfied beyond reasonable doubt that in all the circumstances Beck was acting in the course of her official duties as a police officer. (vi) The act of the accused was unlawful 106 The defence case is that Beck’s actions in purporting to arrest the accused were unlawful, and as a result the accused’s response was not unlawful. Lawful Arrests 107 One of the leading authorities for the proposition that where a police officer arrests a person without warrant or reasonable suspicion, it is incumbent on the arresting officer to inform the person of the grounds of the arrest, is the decision in Christie. Viscount Simon outlined the following five relevant principles, which form the test for establishing whether an act of arrest was lawfully conducted:104 1. If a police officer arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, they must in ordinary circumstances inform the person arrested of the true ground of arrest. The officer is not entitled to keep the reason to themselves, 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 they are seized. 2. If the citizen is not so informed, but is nevertheless seized, the police officer, apart from certain exceptions, is liable for false imprisonment. 3. The requirement that the person arrested should be informed of the reason why they are seized naturally does not exist if the circumstances are such that they must know the general nature of the alleged offence for which they are detained. 104 [1947] AC 573 at pp 587-588. -- 23 of 31 -- [2024] SADC 40 22 4. The requirement that the accused person should be so informed does not mean that technical or precise language need be used. The matter is one of substance, and turns on the elementary proposition that a person is, prima facie, entitled to their freedom and is only required to submit to restraint on their freedom if they know in substance the reason why it is claimed that restraint should be imposed. 5. The person arrested cannot complain that they have not been supplied with the above information as and when they should be, if they themselves produce the situation which makes it practically impossible to inform them, e.g., by immediate counter-attack or by running away. 108 Viscount Simon further articulated that:105 …it is not an essential condition of lawful arrest that the constable should at the time of arrest formulate any charge at all, much less the charge which may ultimately be found in the indictment. But this, and this only, is the qualification which I would impose upon the general proposition. It leaves untouched the principle, which lies at the heart of the matter, that the arrested man is entitled to be told what is the act for which he is arrested. The “charge” ultimately made will depend upon the view taken by the law of his act. In ninety- nine cases out of a hundred the same words may be used to define the charge or describe the act, nor is any technical precision necessary… 109 The rationale for this principle was further discussed by Ipp JA in the case of State of New South Wales v Delly:106 The rationale underlying the rule that persons are entitled to know why they are being arrested is that they should be put in a position to be able to give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation. 110 In Police v Williams107 a police officer failed to conform with the rule in Christie and was found not to have executed a lawful ‘act of arrest’. The arrest was unlawful as the police officer repeatedly yelled ‘police with dog, get out of the car’ despite not having any power to compel the appellant in that way. It was held that the appellant was within his rights to ignore such requests, in circumstances where the police officer never performed a lawful act of arrest, in that he did not inform the appellant that he was under arrest, nor did he provide any reasoning for the basis of the purported arrest.108 111 The test for what is considered to be a reasonable degree of force that may be lawfully used to effect an arrest is dependent upon two factors:109 105 Ibid 593. 106 [2007] NSWCA 303. 107 [2014] SASC 177. 108 Ibid at [249]-[251]. 109 R v Turner [1962] VR 30. -- 24 of 31 -- [2024] SADC 40 23 He is entitled to use such a degree of force as in the circumstances he reasonably believes to be necessary to effect his purpose, provided that the means adopted by him are such as a reasonable man placed as he was placed would not consider to be disproportionate to the evil to be prevented (i.e. the commission of the felony or the escape of the felon). 112 The principles defining what is a reasonable degree of force that may be lawfully used to effect an arrest were also discussed by Kyrou J in Slavenski v Victoria, where he articulated that:110 The power of an arresting officer to use reasonable and proportionate force to effect an arrest includes the use of such force to restrain or recapture an arrestee, who resists or breaks away from the arresting officer after the arrest. In other words, the power is not exhausted merely because the arrest was formally established by an initial touching of the arrestee by the arrester. 113 Justice Kyrou referenced several cases relating to the assessment of the reasonableness of a police officer’s conduct. In Walker v Hamm,111 Smith J emphasised that an assessment of the reasonableness of a police officer’s conduct must be made in a ‘realistic manner’ that takes into account ‘the reality that the officer has to make decisions quickly, often in emergencies and under pressure’. 114 In the case of Woodley v Boyd,112 Heydon JA said that ‘in evaluating the police conduct, the matter must be judged by reference to the pressure of events and the agony of the moment, not by reference to hindsight’.113 His Honour referred to the following observation of Connor J in McIntosh v Webster.114 Arrests are frequently made in circumstances of excitement, turmoil and panic [and] it would be altogether unfair to the police force as a whole to sit back in the comparatively calm and leisurely atmosphere of the courtroom and there make minute retrospective criticisms of what an arresting constable might or might not have done or believed in the circumstances. 115 In Police v Dafov (Dafov) Vanstone J quoted that the elements of a lawful arrest were described by Gilles P in The Law of Criminal Investigation (The Law Book Company, 1982) p 144, in the following terms:115 At common law, an arrest will (assuming that it is made for an object sanctioned by the law) be lawful and thus validly made, provided that there is a sufficient act of arrest, the arrester communicates to the arrestee that the latter is under compulsion, the arrester notifies the arrestee as to the reason for his arrest, and the arrester possesses the state of mind required of one acting pursuant to the given power of arrest. 116 In Dafov, the arrest was found to be unlawful, as although the police officer was acting in the course of his official duties, he remained on the respondent’s property after he had been told to leave, for the purpose of obtaining the 110 [2010] VSC 441, [129]. 111 [2008] VSC 596, [55]. 112 [2001] NSWCA 35. 113 Ibid at [37]. 114 (1980) 43 FLR 112, 123. 115 [2008] SASC 247 at [82]. -- 25 of 31 -- [2024] SADC 40 24 respondent’s name and address. Vanstone J found that pursuant to s42 of the Road Traffic Act 1961, (SA), while a police officer might ask the driver of a vehicle on a road to stop, and the vehicle might stop on private land adjacent to the road; and while the police officer might there seek the information contemplated by the section; if told by the occupier to leave, the police officer could not, by authority of this section, remain on that land and insist on being given answers. 117 In New South Wales v Delly116, Ipp JA explained the rationale underlying the Christie principle as being that persons are entitled to know why they are being arrested, so that they can ‘give an explanation of any misunderstanding, or to call attention to others for whom they may have been mistaken, or to give some other exculpatory reason, and to assert that further inquiries may save them from the consequences of false accusation’.117 His Honour considered that in relation to the obligation to notify an arrested person of the reasons for the arrest, in Christie there was a difference in the words used by Viscount Simon and Du Parcq LJ on the one hand, and Simonds LJ on the other. Ipp JA said:118 The former require the arrested person to be told the “charge” or the “crime” or the “offence” for which the arrest is made. The latter states that, while the arrested person must know the “reason for arrest”, the arresting police officer need not “formulate any charge at all, much less the charge which may ultimately be found in the indictment”. Lord Simonds points out that the “charge” will depend on the view” that is taken at a later time. According to his Lordship, arrested persons are entitled to know what are the facts said to constitute the crime for which they are arrested. 118 In a subsequent judgment of Beasley JA in Johnstone v New South Wales119 that was referred to in the above case, Beazley JA elaborated on the remarks of Ipp J in New South Wales v Delly. Her Honour said: What must be determined is whether what a person was told was sufficient, so as to be informed of the true reason for the arrest. What is required will depend on the particular circumstances and will range from not needing to be told anything, to being told both the facts which have given the police officer cause for suspicion that an offence has been committed, as well as what the suspected offence is.120 119 In South Australia there have been two recent appeal decisions where the issue of a lawful arrest has been considered. In Tipping v The King121 the Court of Appeal considered the question underpinning the rule in Christie namely, whether when a policeman arrests without warrant, because he entertains a reasonable suspicion that the suspect has committed a felony, is he under a duty to inform the suspect of the nature of the charge, and if he does not do so, is the detention a false imprisonment.122 116 (2007) 70 NSWCA 303. 117 Ibid at [9]. 118 Ibid at [7]. 119 (2010) 202 A Crim R 422. 120 Ibid at [56]. 121 [2023] SASCA 8. 122 Ibid at [44]. -- 26 of 31 -- [2024] SADC 40 25 120 The Court found that ‘the question of whether an arresting police officer conveys to the arrestee sufficient information as to the reason for his or her arrest so as to make the arrest lawful must be answered having regard to the information reasonably available to the arresting police officer at the time of the arrest’. 121 In South Australia v Crossley123, Kourakis CJ articulated that the importance of the obligation upon police officers to announce the charge on which a person is arrested is twofold. Firstly, it enables the arrested person to make an informed decision about his or her response to the foreshadowed loss of liberty. Secondly, it allows the arresting officer to assess that response for the purpose of determining the degree of force which is reasonably required to effect the arrest. In that case, it was found that on any view of the evidence, Mr Crossley was not told he was under arrest until after capsicum spray was used.124 CCTV footage 122 The PSSB footage was an important consideration in these proceedings. Its use of it by the defence was critical to the accused’s case. 123 In the decision of Cuthbertson v New South Wales,125 Montgomery DCJ set out a number of principles relating to the use of CCTV footage (including by reference to several decisions of the New South Wales Court of Appeal), which can be summarised as follows: • A court can treat photographs as evidence and not merely as material to understand the evidence. • It is open to the Court to arrive at observations of movement and action of police officers from the CCTV footage. • The CCTV evidence shows events without the subjective assessment and exercise of judgment and thought of the participants of the events, at the time depicted. • The CCTV footage contains evidence which the Court is free to consider in determination of the factual contest. • CCTV footage is of particular value in three ways: a) first, the film permits close examination of important moments of physical confrontation, much like a replay, including at slow motion, of a sporting event; b) second, the film provides a visual record of behaviour of participants and therefore visual evidence of events where known 123 [2020] SASCFC 128. 124 Ibid at [2]. 125 (2018) 99 NSWLR 120. -- 27 of 31 -- [2024] SADC 40 26 to the police officers at times of their respective exercises of power including arrest, detention and use of force; and c) third, the visual record displays the physical environment to be taken into account when determining between conflicting accounts of what was said. Review of the CCTV footage 124 Applying these principles, I have reviewed the CCTV footage and the actions of all parties. A chronology of events (without sound) is: CRUISE CHRONOLOGY OF CCTV FOOTAGE IN EXHIBIT P3 TIMESTAMP EVENT – 17 October 2021 on Rundle Street, Adelaide 12:27:25.5AM • The accused moves towards Beck 12:27:26.02AM • Beck moves towards the accused (view is slightly obscured) 12:27:26.14AM • Both the accused and Beck move together slightly backwards towards the shopfront 12:27:26.82AM • The accused swings her arm at Beck’s head, knocking her police cap off her head 12:27:27AM • Beck has a hold of accused’s arm as they move closer to the shop front 12:27:28AM • Camera pans and Spiniello, who was speaking with Mr Cross and Mr Priest, moves over to assist Beck 12:27:29AM • Spiniello pushes Mr Cross away from Beck and the accused 12:27:30AM • Spiniello grabs and pushes Mr Cross again as Mr Priest approaches the group 12:27:30.42AM • Camera pans over as the altercation between Beck and the accused commences • They are moving left across the screen, the accused’s open hand is pushing against Beck’s face pushing her away from her 12:27:3.14AM • The accused grabs a fistful of Beck’s hair, near the top of hear head, with her right hand 12:27:32AM • The accused yanks Beck to the ground by her hair, they fall to the ground together 12:27:33AM • Beck tries to get up and off of the accused whilst she is still holding onto Beck’s hair • Spiniello approaches and tries to push Mr Cross and Mr Priest away. 12:27-35AM- 12:27:37AM • Spiniello tries to pull Beck up off the accused by wrapping his arms around her waist and torso. View is then obscured by Mr Cross and Mr Priest 12:27:41.9AM • Spiniello puts forearm against the accused’s face/neck in attempt to separate her from Beck; he also attempts to control/grab the accused’s arm/hand -- 28 of 31 -- [2024] SADC 40 27 12:27:44AM • Spiniello gets up and reaches for his capsicum spray and tries to push Mr Cross and Mr Priest away • Spiniello moves towards Mr Priest and pushes them again properly this time 12:27:58AM • Struggle with Beck and the accused continues, they are on the pavement • Spiniello once again attempts to separate the two by putting his forearm across the throat/face of the accused • The accused is still hanging onto Beck’s hair 12:27:59AM • Spiniello moves towards Mr Priest and Mr Cross and then he sprays the capsicum spray in Priest’s direction • A chase between Spiniello and Mr Priest ensues • Camera pans away to follow Mr Priest and Spiniello 12:28:39AM • Camera pans back onto the accused and Beck • Beck and the accused are now on the other side of the pavement closest to the road • The accused is on top of Beck, straddling her trying to pin Beck’s arms down 12:28:44AM • The accused is still on top of Beck. They are struggling and she is trying to pin down Beck’s arms 12:28:49AM • Beck manages to roll the accused onto her side; Mr Cross is standing above the two of them and is bending over slightly • Beck and the accused struggle slightly whilst both on their sides, facing each other 12:28:80AM • Beck stands up and stands over the accused who is still on the pavement • The accused kicks her feet out in the direction of Beck, might have made contact with Beck’s stomach, leg, torso (view is slightly obscured) 12:29:05AM • The accused tries to gets up whilst still struggling against Beck • Beck attempts to straddle the accused, and eventually manages to pin her down • Spiniello returns from chasing Mr Priest 12:29:17AM • The accused is on the pavement, Beck is straddling her sitting on her chest, they are holding each others arms 12:29:29AM • Security guards arrive and the detention process begins officially 125 Whilst the CCTV footage does not have sound, it clearly shows the aggression of the accused towards Beck. In a time-span of just two seconds, the accused moved aggressively towards Beck and swung her arm at her knocking off her police hat. Within six seconds she has grabbed Beck’s hair and started to drag her to the ground. I am satisfied that the CCTV footage confirms Beck’s evidence of what occurred when she attempted to speak to, and subsequently arrest the accused. -- 29 of 31 -- [2024] SADC 40 28 126 In watching the footage, the accused is very aggressive in her facial expressions, and appears to be screaming at Beck. She clearly starts the physical altercation with Beck. Based upon my review of the footage and the accused’s immediate aggressive attitude towards Beck, I am satisfied that Beck had little or no opportunity to speak rationally to the accused regarding the reasons for her arrest. 127 I am of the view that the words of Heydon JA in Woodley v Boyd126 apply. The conduct of Beck must be judged by reference to the pressure of events and the agony of the moment. 128 All the evidence supports a finding that the accused, who had already been involved in assaulting security guards at the Exeter Hotel, was aggressive and then violent towards Beck as soon as she was approached by police. 129 I am satisfied upon all the evidence that Beck acted lawfully in her interactions with the accused as she attempted to interact with her. Beck had been tasked to Rundle Street to investigate an altercation at the Exeter Hotel where security guards were assaulted. Upon confronting the accused, Mr Priest and Mr Cross, the accused immediately became aggressive and confrontational. 130 I am satisfied on the evidence of Beck, Spiniello and as shown on the CCTV footage that the accused immediately moved forward in a confrontational manner. She began shouting and abusing the police officers. In making this finding, I pause to note that I found both Spiniello and Beck to be witnesses who were credible and reliable. They impressed as young police officers who were doing their best to control an explosive situation involving persons who were not responding to their requests for their personal particulars. Beck in particular gave evidence in a calm manner without trying to embellish her version of events. She also made appropriate concessions. 131 When Spiniello left to deal with Mr Priest and Mr Cross, Beck was faced with the aggression and violence of the accused. I accept her evidence that she was concerned for her safety. Again, the CCTV footage supports Beck’s evidence regarding the threats of the accused. 132 I reject the defence’s submission that Beck’s actions were not reasonably proportionate to the threat posed by the accused. This is simply not borne out by the CCTV footage or the body-worn footage. 133 I find that the evidence establishes that the accused, by her actions and verbal threats, made it impossible for Beck to fully inform of the reason for her arrest. The delay in Beck obtaining the accused’s details was justified as a result of the accused’s violent and aggressive response to being approached by police. The accused would have been well aware of what had happened at the Exeter Hotel and why police would want to speak to her. Her aggressive and challenging 126 [2001] NSWCA 35 at [37]. -- 30 of 31 -- [2024] SADC 40 29 response then quickly became violent as she grabbed Beck’s hair and pulled her to the ground. These actions were consistent with the earlier threats to ‘smash’ Beck. 134 I am satisfied that Beck attempted to inform the accused why she was being arrested (for failing to provide her personal particulars/ID), but that her aggressive response meant that Beck immediately encountered a situation where she had to physically manage the accused’s attack upon her. The observations of Connor J. in McIntosh v Webster as set out above, very much apply. As was noted by Connor J, it would be unfair to Beck to sit back in the calm of a courtroom and ‘make minute criticisms of what an arresting constable might or might not have done or believed in the circumstances’. 135 Upon a review of all the evidence, including the extensive video and CCTV footage, I am satisfied that the actions of Beck were not unlawful. As a result, I find that the actions of the accused in response to Beck’s approach was unlawful. Verdict 136 I find the accused guilty of the offence of Intentionally Causing Harm to a Prescribed Emergency Worker. -- 31 of 31 --