His Honour Magistrate Sinclair handed down a decision last week that one of our client’s had no case to answer on a charge of obstructing police. The case should never have gone to trial. Rather the Prosecution should have pulled the charge as soon as it had seen the evidence.

In this case, His Honour found that the Police officer Constable White was not acting in the execution of his duty, and in fact had used unreasonable force. Our client was in the words of His Honour, “a normal citizen on a night out”. He was handcuffed, thrown to the ground and charged with an offence he had not committed.

Another police officer, Constable Zahalka had just moments before arrested our client’s girlfriend, purportedly due to a failure to comply with a direction, without having afforded her the legislated safeguard warnings. That arrest was clearly unlawful, and in addition, notwithstanding that she was not resisting and was in fact a slight female, Zahalka started to place her in handcuffs. His Honour found that was unjustified and therefore Zahalka was assaulting her. At this time our client simply reaches toward them and says, “Hey, hey, hey”.

The police gave evidence that our client’s body motion indicated that he was trying to get between them. His Honour found that did not happen. To us, this highlights the importance of interactions with police being recorded, due to the risk they will give evidence that is completely inconsistent with video evidence, as was the case here.

After this very minor action, Constable White pulled our client “back and down, throwing him to the ground forcefully. Constable White applied force with his knee to the head and neck” of our client.

If it had been our client accused of such conduct, the Police would have described it as gratuitous violence. His Honour noted that “patrons of Cavill Avenue are not terrorists or bank robbers. They may turn out to be dangerous but until they do, their rights to fair treatment remain paramount and strict compliance with the law is required”.

That did not happen in this case. “Constable White overreacted … when he threw him to the ground the force used was excessive”.

His Honour made this comment: “In recent years I have noticed that resort to the giving of directions appears to be used especially by younger officers more as a method of creating an excuse to arrest rather than what it was intended for, to achieve compliance with a reasonable request so as to avoid the use of other powers and arrest. It seems to be seen by some as a way of bringing the conversation and situation to an end on terms the police officer chooses rather than carefully considering their powers. To that extent it risks criminalising behaviour that would not otherwise justify police intervention”.

His Honour has also observed “…QPS training in the use of force model in recent years (based on what I have been told in evidence in other matters) has tended to emphasize the need to control a situation and eliminate risk, especially to the officer’s safety. That might be appropriate in some situations, but it is all too easy to fall into a pattern of seeking to ensure compliance with the law and directions (sic) minor matters when it is not necessary”.

In our view His Honour’s observations are quite right. Police have lost the skill of de-confliction, preferring to force the situation, believing that they can arrest and use force without impunity. And indeed they can. Police will arrest without justification, often forcing a situation to become violent, lie overtly in their police facts about what happened (even where the video tells a completely different story), and even when the case is lost (or sometimes pulled by responsible prosecutors), face no consequences. What is worse, is Prosecutors that run these matters to trial, even where the evidence is clear, and the law just as clear.

Sadly, this is a trend of our time. It is the result of a volatile security situation of our own making, caused by the political hysteria of weak governments focussed more on re-election and following the lead of bad international diplomacy, than on an actual security threat. That poor decision making has meant that we as a generation now do have a genuine security threat in our own cities to contend with, which will only get worse due to its continued mismanagement.

Unfortunately in the context of a deteriorating security environment, many Queensland Police Officers stopped focussing on community policing and engagement, and started walking the streets seemingly afraid of every citizen. We now see zero tolerance policing, and a situation where police management endorses our police dressing and acting like a paramilitary force. These police have not been taught to use their mouths to talk to citizens, but to go ‘hands on’ at the first opportunity. It has created a situation where the average citizen would be justified in feeling concerned in his or her interaction with the police. The number of cases we see of unlawful arrests and assaults by the police warrants police management taking a responsible role in changing the culture. As His Honour said, “The kebab wielding patrons of Cabill Avenue are not terrorists or bank robbers”. In our view new training and direction is required.