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Unexplained arrest leads to overturned convictions

A judge has quashed a man’s convictions of obstructing and assaulting police because the arresting officer failed to explain why he was being arrested.

Brisbane District Court Judge Jennifer Rosengren last month granted Oliver Kent Gill’s appeal against a magistrate’s decision on 15 December 2020 to find him guilty of one count each of obstruct police and assault police, with a $1250 fine and an order to pay $300 compensation to the arresting officer, Constable Michael McLaughlin.

The court was told Gill was arrested after a number of police officers went to investigate a noise complaint and a potential non-compliance with COVID-19 restrictions in a Brunswick Street unit in New Farm about 1.30am on 10 April 2020.

Judge Rosengren, in an 11-page decision, said: “Police had originally attended the premises in response to a noise complaint which was addressed by … (Gill). It was after the music had been turned off that police conducted a search in relation to (Gill) and identified that there was an outstanding warrant for his arrest.”

Judge Rosengren also noted footage of the incident recorded by police body-worn cameras had been helpful in assessing the actions of police in arresting Gill.

“Constable McLaughlin opened the door to … (the) unit. There was light emanating from the television but otherwise it was in darkness. Constable McLaughlin shone his torch around the unit and saw (Gill) several metres from him sitting on a couch in the vicinity of the television,” she said.

“Constable McLaughlin immediately told him that he was under arrest. (Gill) had been holding a beer bottle in his right hand and he was directed to put it down and to raise his hands.

“The footage shows (Gill) to be genuinely surprised and he asked for an explanation as to why he was under arrest. This was not provided and instead he was directed to place his hand behind his back as the police stepped in to arrest him.

“(Gill) continued to voice his disapproval and he was told that if he moved that he would be tasered. (Gill) said that he was not moving and (his partner) Ms Miller stated that he had not done anything wrong. Police repeated that (Gill) was under arrest and that he would be tasered if he moved. He again asked on more than one occasion the reason for his arrest and he was eventually told by (another police officer) that it was for a warrant.

“(Gill) then asked what the warrant was for and one of the police responded ‘we don’t need to tell you what for right now. You’ve been told that you are under arrest.’ He then asked another three times what the warrant was for before he was finally told that it was for failing to appear. He then said ‘I am not going to struggle. Let me up’.”

Despite the magistrates finding of guilt during a summary trial, Gill appealed the finding under s222 of the Justices Act 1886 (Qld).

Although Gill nominated four grounds in his appeal, Judge Rosengren said that, in essence, Gill contended that magistrate erred in finding the arrest was lawful and the force employed by police was reasonably necessary in the circumstances.

In granting the appeal, Judge Rosengren said: “I am satisfied the footage shows that before Constable McLaughlin commenced restraining (Gill) there were reasonable opportunities for him to have told (Gill) why he was being arrested and those opportunities were not taken.

“It was only after Constable McLaughlin had stepped in that (Gill) resisted the attempts that were being made to arrest him. In my view, (Gill’s) conduct which followed was in response to being arrested when an explanation had not been provided to him as to the reason for the arrest.

“The legislative requirement to inform a person of the reason for an arrest as soon as is reasonably practicable, if not followed, undermines a police officer’s assertion of acting in the performance of duties.

“The charges, under s790 of the (Police Powers and Responsibilities Act 2000), are of obstructing Constable McLaughlin in the performance of his duties, and assaulting Constable McLaughlin in the performance of his duties.

“I am not satisfied that the respondent proved beyond reasonable doubt … either of these charges. Thus, I am persuaded that (Gill) has demonstrated error on the part of the magistrate.”

Gill eventually pleaded guilty to an offence contained in the outstanding warrant – which was for low-level drink driving – and was fined $100.

Read the decision.

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