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 Constable Whalan of the Southport Police had no basis to form a reasonable suspicion that Mr Helmore had committed any offence. Constable Whalan decided to arrest 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. It was enough for her 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 Constable Whalan. This resulted in him being painfully physically restrained on the pavement. 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.

Before trial Constable Whalan made a written statement about things she claimed she was told, to found the reasonable suspicion for the arrest. It was clear that what she claimed, did not occur.  She did not give that evidence in the witness box, and when cross-examined, accepted she’d made a statement about things that did not occur. As an excuse, she offered that she had prepared the statement from memory. The public should expect the Police to tell the truth and safeguard the rights of members of the public. They are expected to be beyond reproach. Her evidence was found to be unreliable in more than one area.

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.

Once in handcuffs, Mr Helmore is heard expressing his disapproval of the officers’ actions. The objective evidence showed that he blew a raspberry, a common way of expressing disapproval. He does not draw back phlegm or spit, nor intentionally spit in the direction of the police officer. There is no intentional application of force, intention being an element of the offence. As such, even were Mr Helore lawfully in custody, he had not committed the offence of assault under s 340 (1)(b) of the Criminal Code.

The effect of the relevant decisions is that Constable Whelan, 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. In a free and open society, the charges must have failed.