NSW Police Commissioner Defends Officers Who Performed ‘Unlawful’ Arrest on Curtis Scott

By Poppy Morandin and Jimmy Singh.

NSW Police Commissioner Mick Fuller has sought to defend the actions of police officers involved in the wrongful arrest of NRL player Curtis Scott.

The bodycam footage of the arrest shown in court sparked outrage, with it depicting Scott, who was passed out drunk at the foot of a tree in a park, being awoken by officers by pinching his ears.

Officers alleged that the actions of Scott, in pushing away the hand of the officer who pinched his ear, amounted to one count of assault.

The officers then decided to cuff Scott, whose eyes were still closed, evidently half-asleep, repeating to him: “don’t resist mate, don’t resist.”

After repeatedly asking Scott to get up, he drunkenly stammers “I’m obviously getting dressed.”, evidently startled by the situation.

The situation then significantly escalates, with two officers grabbing Scott and pulling him up while he repeats: “I’ve done nothing wrong.”

The officers then decided to spray him in the face with capsicum spray and informed him that he was under arrest for assaulting a police officer.

Assaulting a police officer is a serious offence, which carries a maximum penalty of imprisonment for 5 years, even where no actual bodily harm is occasioned to the officer, pursuant to section 60(1) of the Crimes Act 1900 (NSW).

It is alleged that one officer then accidentally stood on Scott’s ankle, twisting it over a tree root, and following his reaction to that injury, was punched in the back by another officer and subsequently tasered.

Despite informing officers he was in evident pain, an officer retorted: “it’s not that bad mate jeez.”

The footage ends with officers dragging a stumbling Scott away to an ambulance.

Magistrate Jennifer Giles ruled that the initial hand-cuffing of Scott amounted to an unlawful arrest, leading to police abandoning their case against him.

It is reported that Scott is now seeking more than $100,000 in costs from police.

Despite such an outcome, Mick Fuller has commented in an interview with Ben Fordham on 2GB that: “I watched the entirety of the event and I think sometimes you need to watch the entirety of the event to get it in context.

“Now, in these situations, if someone is trespassing in your front yard and they’re asleep, they’re intoxicated and they’re a young, fit man, there are only a couple of ways to get them out.

“One – for them to stand up and come with you. Secondly, at some stage you have to use force. Often in these situations it does escalate. There is nothing we can do about that if the individual is not going to comply with a reasonable direction.”

“What I’m saying is I’m sympathetic for police, who had to do something with him. The other option is this – you put a baton under each of his arms, you squeeze it down and you put him in the back of a truck. That is no less painful than being sprayed. Nevertheless, to get him up and to get him out of that place, police have to go hands on,” said Fuller.

“I am sympathetic to police that turn up to deal with drunken idiots every night.” he continued.

What is an unlawful police arrest in NSW?

In NSW, pursuant to section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), police may arrest a person without a warrant if police form a reasonable suspicion that the person either is or has committed an offence; and if the officer believes that the arrest is reasonably necessary for one or more valid reasons.

Those reasons may include:

• to stop the offence any further,
• to stop an accused from fleeing,
• to be able to make enquiries regarding identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false,
• to ensure he/she is brought before a court regarding the alleged offence,
• to obtain property in his/her possession that is connected with the offence,
• the preserve evidence or prevent fabrication of it,
• to prevent any interference to any person who may be a witness,
• to protect the safety and welfare of people,
• the seriousness and nature of the offence.

The officer must as soon as reasonably practicable, take the person before an authorised officer, such as a Magistrate, to be dealt with according to law.

An officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer.

Pursuant to section 138 of the Evidence Act 1995 (NSW), evidence that was obtained improperly or unlawfully is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Thus, if an act of a police officer is deemed unlawful or improper by the court (i.e. illegal arrest), the court has the power to essentially ‘throw out’ any evidence which follows it.

In weighing up the desirability of evidence, the court may take into account, without limitation:

• the value and importance of the evidence to the matter
• the nature of the relevant offence and subject-matter,
• the gravity of the impropriety or contravention regarding how the evidence was obtained,
• whether the impropriety or contravention was deliberate or reckless,
• whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights,
• whether a proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention,
• the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

For example, in the case of Bennett [2015] NSWDC 1, the court ruled that it was undesirable to admit evidence that the accused allegedly assaulted a police officer as the officer’s actions prior were found to constitute a deliberate, unlawful deprivation of Bennett’s liberty when the officer knew, or should have known, that his actions were illegal.

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