Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 23 March 2019.
Mr Smith is travelling by train with a group of friends. He is drinking alcohol.
Two police officers speak to Mr Smith and confiscate the alcohol. He swears at the officers and becomes confrontational.
At the next stop, the officers direct Mr Smith to leave the train.
Mr Smith disembarks and his girlfriend follows. Mr Smith and the officers attempt to persuade Mr Smith’s girlfriend to remain on the train.
Mr Smith reaches-out and takes hold of his girlfriend’s arm. One of the officers attempts to restrain Mr Smith and he falls onto the platform, suffering a severe fracture to his right wrist.
Mr Smith commences court proceedings against the State of NSW (on behalf of the police officer) seeking damages for assault and battery.
At the conclusion of a 12-day trial, the court finds that the officer believed that he was restraining Mr Smith to protect his girlfriend and Mr Smith from injury.
The Judge finds that the officer believed that, if not restrained, Mr Smith would engage in conduct that was potentially dangerous, both to himself and to his girlfriend and that the officer’s belief was reasonable.
The Judge further finds that the force used by the officer did not exceed what was reasonably necessary, a finding which was consistent with the CCTV footage of the incident.
The Judge accepted that the officer held a “reasonable subjective belief” that he had a duty to restrain Mr Smith from committing a breach of the peace.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
