The mother of a dead teenager who was found not guilty of resisting arrest after being decked and wrangled into a paddy wagon in Sydney’s CBD is considering taking legal action against NSW Police.

Melissa Dunn committed suicide in a Maroubra car park after having an argument with her boyfriend in 2012. She was arrested after a night out with friends in January 2012 when she was 16 years old. She charged with resisting arrest, and acquitted in the Local Court in August 2012 after Magistrate Hogg found the arresting exhibited “an inordinate amount of force” which “beggar[s] belief”.

The police officer involved received counselling and retraining in restraint techniques, but an internal investigation found that while the arrest was unnecessary, it was not unlawful.

The mother of Dunn is said to be considering taking action against NSW Police for wrongful arrest.

While media reports do not reveal whether there was any finding by a court as to the legality of Dunn’s arrest, it is an available inference that the court which acquitted her did in fact make such a finding.

This is because the elements of the offence of resist/hinder police in execution of duty has three elements: (a) resist (b) police (c) in execution of duty. From the CCTV footage in the ABC article (see below), Dunn can be seen to resist a police officer. That means that the third element, that the officer was acting in execution of duty, was not proved beyond reasonable doubt. If the officer was acting in the execution of duty, and therefore arresting Dunn in a lawful manner, then it would have been an offence for her to resist him.

When is it lawful to resist an arresting officer?

When the officer is not executing their duty, that is, the arrest is unlawful, for example, because it is not necessary, or the amount of force being used is excessive.

For an officer to arrest a person, they must first have reasonable suspicion that the defendant has or is about to commit an offence: R”v”Rondo [2001]”NSWCCA”540,”(2001)”126″A”Crim”R”562 per”Smart” J”(Spigelman”CJ”and”Simpson”J”concurring)”at”[53].

The officer must lawfully announce the arrest, unless it is not practicable to do so: Law Enforcement (Powers and Responsibilities) Act 2002 (‘LEPRA’)s 201; “Christie”v”Leachinsky [1947]”AC 573,”1″All”ER”567,”and” in”particular”the”judgment”of”Viscount”Simon”at”587I588; Johnstone”v”State”of”New”South”Wales”[2010]” NSWCA”70.

Police officers must only use reasonable force when arresting someone: LEPRA s 231.

Where an officer uses excessive force, the arrest is unlawful, and they are no longer acting in execution of duty. So much was successfully argued by Mark Dennis, counsel, in the Supreme Court matter of Semaan v Poidevin [2013] NSWSC 226. While this decision was overturned on appeal in Poidevin v Semaan [2013] NSWCA 334, the principle concerned was not.

Conclusion

If you are charged with resisting arrest, you should talk to a lawyer about it. If the arrest was unnecessary (e.g. the officer could have ensured your appearance at court via CAN), or the force used was excessive, you may have a defence at law.

Acknowledgment: the paper by Mark Dennis of Forbes Chambers was of assistance in the preparation of this article.

Read more: http://criminalcle.net.au/attachments/Arrest_paper__The_Measure_of_Last_Resort__June_2011.pdf

http://www.abc.net.au/news/2015-03-24/sydney-mother-launches-legal-action-against-nsw-police/6345392

Image credit: ABC News and Daily Mail

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