R v Forbes [2019] NSWDC 851

R v Forbes [2019] NSWDC 851

Although Sergeant Thomas had reasonable grounds to suspect intimidation and was satisfied that arrest was reasonably necessary because of the nature and seriousness of that offence, the Crown did not prove that, before police entered the house, the accused was told he was under arrest or told the lawful reason for the arrest. The mobile phone footage established that the accused asked what crime he was supposed to have committed and was told, 'Resisting arrest mate'. No direction had been given to arrest the accused for resist arrest. Any purported arrest for that offence, and the subsequent entry and use of force to effect it, were unlawful. Therefore Constable Tockuss was not acting in...

Jurisdiction
Australia
Judgment Date
05 December 2019
Procedural Posture
Criminal Judge Alone Trial / Verdict After Trial
Outcome
Accused found not guilty on count 1. Accused also found not guilty of sequence 8 and sequence 9. No further proceedings indicated on sequence 10. Costs application stood over.
Legal Topics
['wounding Police Officer Acting in Execution of Duty' 'lawful Arrest Without Warrant' 'execution of Duty' 'entry to Premises to Arrest' 'use of Force in Arrest' 'recklessness as to Actual Bodily Harm' 'causation']
['criminal Law' 'criminal Procedure' 'police Powers'] ['wounding Police Officer Acting in Execution of Duty' 'lawful Arrest Without Warrant' 'execution of Duty' 'entry to Premises to Arrest' 'use of Force in Arrest' 'recklessness as to Actual Bodily Harm' 'causation']

Case Brief

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Procedural Posture

Criminal Judge Alone Trial / Verdict After Trial

Legal Issues

  1. 1 ['Whether Sergeant Thomas gave a lawful direction under s 99(2) of the Law Enforcement Powers and Responsibilities Act 2002 to arrest the accused.' 'Whether Constable Tockuss was acting in the execution of his duty when wounded.' 'Whether police complied with requirements to communicate arrest and the reason for arrest.' "Whether police lawfully entered the accused's house and used force to effect an arrest." 'Whether a deliberate act of the accused caused the wound to Constable Tockuss.' 'Whether the accused acted recklessly as to causing actual bodily harm.']

Ratio Decidendi

Although Sergeant Thomas had reasonable grounds to suspect intimidation and was satisfied that arrest was reasonably necessary because of the nature and seriousness of that offence, the Crown did not prove that, before police entered the house, the accused was told he was under arrest or told the lawful reason for the arrest. The mobile phone footage established that the accused asked what crime he was supposed to have committed and was told, 'Resisting arrest mate'. No direction had been given to arrest the accused for resist arrest. Any purported arrest for that offence, and the subsequent entry and use of force to effect it, were unlawful. Therefore Constable Tockuss was not acting in...

Court Disposition

Accused found not guilty on count 1. Accused also found not guilty of sequence 8 and sequence 9. No further proceedings indicated on sequence 10. Costs application stood over.

Orders

  • ['Count 1: Not guilty verdict.' 'Sequence 8, resist officer in the execution of duty relating to Senior Constable Rodney Meredith: not guilty.' 'Sequence 9, resisting an officer in the execution of duty relating to Constable Alexander Tockuss: not guilty.' 'Sequence 10, wound person with intent to prevent arrest: no...