Burkhart v Bradley

• Jurisdiction: Northern Territory
• Court: Court of Appeal
• Judge: Southwood,Kelly,Barr JJ
• Judgment Date: 31 May 2013
• Docket Number: FILE NO: AP 11 of 2012 (21132195)
• Date: 31 May 2013

[2013] NTCA 5

COURT OF APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Southwood, Kelly & Barr JJ

FILE NO: AP 11 of 2012 (21132195)

Between:

Ashley James Burkhart

Appellant

and

Sandi Lee Bradley

Respondent

Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645 ;

R v Hawes (1994) 35 NSWLR 294 , followed.

Criminal Code s 29

CRIMINAL LAW — Defensive conduct — Elements of defensive conduct — Section 29 Criminal Code — Conduct must be reasonable response in the circumstances as the person reasonably perceives them — Same requirement as common law — Requirement for reasonable grounds for the perception which prompts the response

APPEAL — Whether Magistrate applied incorrect test — Defensive conduct — Appeal dismissed

APPEAL — Whether Magistrate erred in analysis of evidence and rejection of appellant's evidence — Solid evidentiary basis to reject evidence — Appeal dismissed

APPEAL — Whether verdict against weight of evidence — Whole of evidence capable of supporting guilt beyond reasonable doubt — Appeal dismissed

APPEAL — Appeal against conviction — Whether manifestly excessive — Abuse of power by police officer and lack of remorse — Good character notwithstanding — Appeal dismissed.

REASONS FOR JUDGMENT

THE COURT:

1 In August 2011 the appellant was a serving police officer. As part of his duties, on 18 August 2011 he escorted Mr Robertson, who was then in police custody, to the Alice Springs Hospital. Mr Robertson escaped from custody as the appellant was escorting him back to the police van after attending the hospital, and the appellant chased him and caught up with him at the back of the Memo Club. Mr Robertson lay down on the ground so he would not be tackled. The appellant put his knee in Mr Robertson's back, handcuffed him and lifted him to his feet.

2 At about this time three other police officers arrived on the scene, Constable Anderson, Constable Egan and Constable Perry. They were present when the appellant escorted Mr Robertson across the road to the back of the caged police van. As Mr Robertson was about to enter the back of the police van, the appellant struck Mr Robertson to the side of the jaw with his elbow.

3 Constable Egan later reported the matter to his superior and the appellant was charged with unlawfully assaulting Mr Robertson in circumstances where Mr Robertson suffered harm.

4 At the trial, Mr Robertson said he was being held and ‘then next minute I feel a punch to my face’. He said he had not said or done anything to the police officer before being punched.

5 The appellant gave evidence that Mr Robertson turned his head, pushed backwards and tensed his arms and that he feared that Mr Robertson was about to assault either him or the other officers.

6 None of the three other officers observed Mr Robertson moving in such a manner. Constable Anderson said she had been having a conversation with Constable Egan at the time. She said, ‘Out of the corner of my eye, I noticed a movement and saw (the appellant's) elbow move in a striking motion.’ She did not see anything done or said by Mr Robertson before the blow was struck. She said, ‘I wasn't paying attention to the prisoner at the time; so no, I don't know.’

7 Constable Egan said he was vigilantly watching the prisoner at the back of the cage at the time and did not see him make any movement or gesture before the appellant struck him. He said that Mr Robertson's head was straight at the time he was struck. His evidence was that the appellant struck Mr Robertson for no reason at all.

8 Constable Perry said that he did not see the incident.

9 On 4 July 2012, following a trial in the Court of Summary Jurisdiction, the appellant was convicted and fined $400. He appealed to the Supreme Court and his appeal was dismissed by Riley CJ on 26 October 2012. He now appeals to this Court from that decision.

10 The appellant contends that the Chief Justice erred in not allowing the appeal against the decision of the Court of Summary Jurisdiction on six grounds. In our opinion, for the reasons which follow, the appeal should be dismissed.

Grounds 1 and 2: The learned magistrate applied the wrong test in finding that there was no basis for the appellant to have believed that he was, or other police were, about to be assaulted, or may be about to be assaulted. The learned magistrate erred in applying the test of reasonableness.

11 At his trial, the appellant contended that he was not criminally responsible for his action in striking Mr Robertson as it amounted to defensive conduct within the meaning of s 29(2) of theCriminal Code. Sub-sections 29(1) and (2) provide (relevantly):

1. (1) Defensive conduct is justified and a person who does, makes or causes an act, omission or event by engaging in defensive conduct is not criminally responsible for the act, omission or event.

2. (2) A person engages in defensive conduct only if:

   1. (a) the person believes that the conduct is necessary:

      1. (i) to defend himself or herself or another person;

      2. ……….

      and

   2. (b) the conduct is a reasonable response in the circumstances as the person reasonably perceives them.

12 The appellant contended that Mr Robertson turned his head, pushed backwards and tensed his arms, that he feared that Mr Robertson was about to assault either him or the other officers, and that striking him in the manner in which he did, was a reasonable response in the circumstances as he reasonably perceived them.

13 The magistrate at first instance made the following findings in dealing with the issue of defensive conduct:

I do not accept that the tensing of the arms gave rise to a reasonable apprehension that Robertson was about to assault Burkhart. His arms were restrained behind his back and the chain between the handcuffs was being held by Burkhart. A movement back from the vehicle and a slight turn of the head occurring very quickly may have caused Burkhart to be apprehensive, but provided him with no reasonable grounds for subjectively believing that Robertson was about to assault him. As the Federal Court inEast v Repatriation Commission (1987) FLR 242 define reasonableness, there requires more than a possibility, more than something fanciful and unreal and it must be consistent with the known facts.

It doesn't have to meet the standard of balance of probabilities but it must be pointed to by the facts.Burkhart's subjective view that he was about to be assaulted by Robertson, a person in his custody being restrained by him with his arms handcuffed behind his back, is not in any way based upon reasonable grounds, as the facts do not support the hypothesis that Robertson was about to assault him. At the rear of the police vehicle, Robertson was completely under the physical control of Burkhart.

As to whether Burkhart's actions are a reasonable response to the circumstances as he perceived them, I have already indicated that there was no such reasonable grounds on which Burkhart could form the view that Robertson was about to assault him. Accordingly, it was unreasonable and unlawful for him to strike Robertson.

It is to be noted, however, that if Burkhart apprehended on reasonable grounds that Robertson was about to assault him, there are other reasonable responses he could have resorted to rather than delivering a “clearance strike”; not the least, he could have called for assistance. Not only didn't he, but he didn't see fit to mention to any of the other police officers anything about the “clearance strike” immediately after it occurred. This alone does not make the strike unlawful or unreasonable, but together with all the other matters I have mentioned, the strike was not reasonable.[emphasis added]

14 The appellant contends that the quoted passage shows that in dealing with the issue of defensive conduct the magistrate applied an objective rather than a subjective test. He did so by introducing the concept of reasonableness when discussing whether or not the appellant entertained a subjective belief that Robertson was about to assault him.

15 Riley CJ rejected this ground of appeal and, in dealing with this submission, said:1

‘Whilst the form of expression employed by the magistrate may have been unfortunate it is apparent that his Honour was determining whether there was any basis to support the claim by the appellant that he had subjectively formed the view that he was about to be assaulted by Mr Robertson. His Honour went on...