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Byron Shire
June 18, 2021

Police search of Mullum man was illegal

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A Mullumbimby man who was cuffed and sprayed in the face with capsicum spray by police has had charges against him thrown out by the District Court upon appeal.

The decision last Thursday by Her Honour Judge Wells in the Lismore District Court convincingly overturned the findings of Local Court magistrate Michael Dakin and held that the evidence of the two police officers involved, Senior Constables Amos and Hayworth, lacked credibility.

After pulling John Scrivener over for a licence check just outside Mullumbimby on October 25, 2011, police conducted a search of the man, then aged 50, and his car, supposedly on suspicion of drugs. Police then alleged that Mr Scrivener became abusive towards them. However, Mr Scrivener instead claims he was abused and told Echonetdaily he immediately lodged a complaint against the two officers after the incident.

Even though Mr Scrivener had told the officers that he intended to lodge a complaint, he told Echonetdaily that he gave evidence in court that the police nevertheless ‘proceeded to violently assault me, including throwing me on the ground, jumping on me with their knees, punching me, pulling my hair, attempting to choke me and then cuffing me before spraying me in the face with capsicum spray’.

After Mr Scrivener was found guilty by Magistrate Dakin last September for resisting arrest, assaulting police officers in the execution of their duty and behaving in an offensive manner, he lodged an appeal, which was then heard in the higher-ranked District Court. Mr Scrivener won that appeal on August 8.

During the Local Court hearing, Mr Scrivener’s solicitor, Cameron Bell, argued that the search was illegal and that the evidence of the two police officers was so inconsistent that it could not be accepted.

However, Local Court Magistrate Dakin held that the search was legal and went on to find that the police witnesses were truthful notwithstanding the inconsistencies in their evidence. To add insult to injury, the magistrate was critical of Mr Scrivener’s evidence and indicated that he was not a truthful witness.

Magistrate Dakin, a former police officer, even told the court, ‘I prefer the police evidence’.

On appeal, the District Court held that the actions of the police officers in searching Mr Scrivener were not justified as there was not the ‘reasonable suspicion’ required to conduct a legal search. The District Court also held that Mr Scrivener’s evidence was ‘consistent and clear’.

Most importantly, the District Court found that the evidence of the two police officers was not credible. Mr Scrivener told Echonetdaily his lawyer Cameron Bell ‘found at least six discrepancies in the police officers’ evidence. Even the Crown prosecutor said they couldn’t offer any explanation for the discrepancies.’

One of the issues in the case was the allegation by the police officers of the existence of a small ‘resealable’ bag, which Senior Constable Amos said, ‘are normally used to put drugs in, namely cannabis’.

Her Honour noted that in the Local Court hearing the police prosecutor objected to Mr Bell cross-examining as to the whereabouts of that ‘resealable bag’. Although an important issue in the case, the cross-examination was not allowed by the magistrate who said that it was ‘not relevant’. Her Honour stated that this ‘casts a shadow’ as to whether the bag ever existed at all.

Mr Bell said, ‘The decision by Judge Wells was a clear and unarguable finding that, based on the facts and evidence in this case, the conviction of Mr Scrivener by the Local Court magistrate could not be upheld. Her Honour indicated that it was not an appropriate consideration for a magistrate to ask “why would the police act in a way like this towards the defendant”, as it reverses the burden of proof.’

Civil rights issue

The outcome shines a light on local civil rights issues; the increased police presence in Mullumbimby has resulted in a handful of complaints received by Echonetdaily regarding recent aggressive behaviour by police towards the public.

Although the appeal process brought justice for Mr Scrivener, the public may feel less confident that, faced with a similar situation, the Local Court will uphold their rights or allow their defences to be properly heard.

When asked what he had learnt from this experience, Mr Scrivener stated, ‘I’ve realised how easy it is for police to abuse their authority and get away with it, and how difficult it is to defend against false accusations and misrepresentations by police’.

‘I will never again feel safe when being stopped by police and I will always record any encounter I have in the future, for my own safety and security.

‘I don’t think I would do anything differently if the same circumstances arose again, apart from making sure I had my camera rolling.

‘I would recommend to anyone who has a similar experience with police to immediately write down a detailed and accurate account of what happened as soon as possible after the incident. I did this and the written account was later used as the basis for an affidavit that I lodged with my complaint.’

Obtaining proper legal advice is also important.

‘I would also like to say that Cameron Bell has been a really perceptive and supportive representative throughout.’

When asked about the complaints against the officers, duty manager Inspector Darren Steel from the Tweed-Byron LAC told Echonetdaily he had no knowledge of complaints lodged as the process is confidential and he is not on the complaints committee.


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