For a free consultation call (07) 3180 0120

Cautionary Message Regarding use of Force

In the Magistrates Court of Southport, our client Mr Joel Helmore had his charges of Serious Assault Police and Commit Public Nuisance dismissed, following a finding that he had been unlawfully arrested and therefore was falsely imprisoned.

The incident occurred at Southport outside Melbas Nightclub. The evidence showed that that Mr Helmore was not committing any offence at the time of being arrested, nor had he committed any offence prior to the Police attending and arresting his friend. He was simply standing on the side of the road, filming the police arresting his friend. It was found that Police had no basis to form a reasonable suspicion that Mr Helmore had committed any offence. Police arrested Mr Helmore after he was pointed out by a bouncer, and the bouncer briefly uttered some words. The critical issue at trial was whether this officer had a reasonable suspicion that Mr Helmore was or had committed an offence. Further, the arrest must have been necessary for one of the reasons set out in s 365(1) of the Police Powers and Responsibilities Act.

It was shown that the Police Officer didn’t think she needed to have one of the reasons in s 365. In her view, it was enough to have a reasonable suspicion. What followed was Mr Helmore being arrested, handcuffs being applied, and being searched against a police vehicle. Mr Helmore offered no resistance. Once arrested, he expressed his disapproval and blew a raspberry in the direction of Police. This resulted in him being restrained on the pavement with severe force. While it was not in issue in the trial, it was accepted by the Police that the force used was not necessary, as he was offering no resistance.

The defendant was therefore unlawfully in custody at the time that the police place him in handcuffs, and he is incapable of obstructing or assaulting the police. Further he is entitled to use reasonable force to resist that arrest, provided it is not disproportionate.

If it had been found that a reasonable suspicion existed, and one of the reasons in 365 authorised the arrest, the application of force in applying handcuffs in circumstances where it was not justified to overcome resistance (s 254 of the Criminal Code) or otherwise “reasonably necessary force to exercise the power” (s 615 PPRA), renders an otherwise lawful arrest, unlawful. The defendant cannot obstruct or assault a police officer in the execution of her duties during an unlawful arrest.

The objective evidence showed that he blew a raspberry, a common way of expressing disapproval. Notwithstanding, Police gave evidence that was inconsistent with the BWC.

The effect of the relevant decisions is that the arresting officer, who lacked a reasonable and indeed actual suspicion that Helmore had committed an offence, was unlawfully assaulting him by falsely imprisoning him. The unlawful assault is exacerbated by the application of handcuffs. This is a cautionary indication of the sorts of matters where Police can find themselves having committed criminal offences themselves, notwithstanding that they may consider they are doing the right thing.