Australia: NSW magistrate blasts cops, awards defendant $100k in legal costs

A Downing Centre Local Court Magistrate has awarded NRL player Curtis Scott $100,000 in legal costs after the assault charges against him were withdrawn and dismissed, slamming police over their multiple assaults against the intoxicated man as he was asleep beside a tree.

The $100,000 will, of course, be paid by the taxpayer – not by the offending officers.

NSW Police Commissioner Mick Fuller has defended the actions of the Police officers involved, raising concerns he is giving the green light to his officers to continue brutalising members of the public.

Only some of the footage of Mr Scott's arrest has been made public, although after viewing the full evidence including body cam footage from Police which was played in court, Magistrate Jennifer Giles compared the arrest to ‘gratuitous violence off dark web' and remarked that Mr Scott “might have been safer” wandering drunkenly onto the road and being hit by a car rather than being pepper-sprayed and tasered by NSW police.

He would at least have still had the free use of his hands, and being upright, would have got an ambulance much more quickly. He wouldn't have been blinded for 20 minutes and wouldn't have been electrocuted while lying handcuffed on the ground.”

Mr Scott was found by police asleep underneath a tree near the Sydney Cricket Ground. Footage shows them handcuffing and pepper-spraying him while he is still drunk and disoriented. They ask him more than 20 times to get up and Mr Scott can be heard saying “I'm getting dressed” before repeating that he had “done nothing wrong”.

Trying but failing to drag him onto his feet, police pepper-sprayed his face which caused him to moan and yell he was “fucking dying”. He then swatted police away with his hands in cuffs.

Footage also shows him being flanked by several officers as he is treated by paramedics before being put into the back of a police van. Twelve officers in total were involved in his arrest.

Mr Scott was originally charged with seven offences, including two counts of assaulting a police officer, but all of the charges were subsequently withdrawn and dismissed.

The Magistrate also said that it was extraordinary that “the faulty and unwarranted” case against Mr Scott by NSW Police proceeded. His lawyers have stated publicly that they tried on several occasions to negotiate with NSW Police, however they were intent on pursuing the matter in court.

NSW Police Commissioner Mick Fuller has spoken publicly on 2GB radio, saying he fully supports the police officers involved.

“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”, Fuller stated.

“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….”

“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.”

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

These are highly concerning comments, considering the level of brutality Police are using during their encounters with members of the public – not just in New South Wales, but around the country.

This was an important case for police accountability, and despite all charges being dismissed against Mr Scott, and a Magistrate awarding him legal costs in a case that she believed was pursued by Police although it had “no real prospect of success” it is dismaying that the words of the Police Commissioner are in no way contrite, for either the treatment of Mr Scott, or for relentlessly pursuing a case which had no real merit.

In fact, the NSW Police Act 1990 makes clear that one of the functions of police is “the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way.

Mr Scott's lawyers are encouraging him to pursue civil proceedings against New South Wales Police for wrongful arrest, malicious prosecution and assault.

There are also calls for the offending officers to be charged with assault or at the very least disciplined over their conduct, but that seems unlikely given the current attitude of police top brass across the nation when it comes to brutalising members of the public.

Arrests can be rendered unlawful for a range of reasons: there may have been no basis for the arrest or police may have used excessive force during the arrest. Both of these were present in the case of Curtis Scott.

Police can arrest a person if they have a warrant, or without a warrant if they are “satisfied that the arrest is reasonably necessary”:

1. to stop the person committing an offence or another offence,
2. to stop the person fleeing,
3. to enable inquiries to be made to establish the person's identity,
4. to ensure that the person appears in court
5. to obtain property connected with an of fence,
6. to preserve evidence or prevent the fabrication of evidence,
7. to prevent harassment or interference of witnesses,
8. to protect the safety or welfare of any person, or
9. because of the nature and seriousness of the offence.

If an arrest is made in circumstances where it is not reasonably necessary for any of the above, it will constitute an unlawful arrest.

Section 231 of the LEPRA makes clear that police officers can only use “such force as is reasonably necessary” to arrest a person.

Any force beyond this amounts to an assault, and officers are liable for criminal prosecution over such conduct.

But as already stated, it is extremely rare for police officers to face criminal prosecution over the assaults they commit against members of the public.

In fact, the mechanisms for police accountability in New South Wales are deficient to say the least, with the body responsible for investigating police misconduct – the Law Enforcement Conduct Commission – being chronically under-resourced and having no power to discipline officers, let alone to bring criminal charges against them.

If you are charged with a criminal offence arising from an unlawful search or arrest, such as drug possession or resisting arrest, it is advisable to speak with an experienced criminal defence lawyer as early as possible. Many Sydney law firms offer a free first consultation if you are going to court, so you can get an idea about your options and the best way forward without having to pay money.

If your lawyer believes that your arrest was unlawful, he or she should write to police formally requesting that the charges against you be dropped, and foreshadowing an application for legal costs if they nevertheless pursue the charges against you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.