The NSW Supreme Court has found that a decision by local magistrate and former police officer, Michael Dakin, was an ‘error of law’.
Dakin had dismissed the charge of common assault for the police officer who allegedly assaulted a 16-year-old boy on January 11, 2018 in Lateen Lane, Byron Bay.
Police were filmed aggressively restraining and severely beating the naked and drug-affected boy, and the story made national news at the time.
The Department of Public Prosecutions (DPP) subsequently appealed to the NSW Supreme Court after Dakin dismissed the charge of common assault for Sen-Constable Michial Greenhalgh.
Greenhalgh had worked at Byron Bay police station for eight years, until 2019.
Judge Joseph Ierace wrote in his judgment that during the 2018 incident, ‘Police were notified of the disturbance and four officers attended in two police vans’.
Under the influence of a drug
‘[The boy] was naked, pacing up and down and yelling out for help and for water. It was not in dispute that he was under the influence of a drug, that he later claimed he had consumed unwittingly.
‘There was a physical interaction between the complainant and the four officers, during which police attached two sets of handcuffs on his wrists and carried him into one of the police vans.
‘SC Roach applied oleoresin capsicum spray (“OC spray”) to the complainant and the defendant discharged at least two bursts from a taser into his body and struck him multiple times with a police baton. He was also struck twice with a baton by SC Mates’.
‘Police did not arrest the complainant and he was not charged with any offence.
‘It was accepted by the parties that during the course of the incident, the defendant struck the complainant with his baton at least 18 times’.
Force as is reasonably necessary
The issue of common assault was addressed by Judge Ierace, given police officers ‘may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest.’
He wrote in part, ‘Although the Magistrate referred to the meaning of the “reasonably necessary” test and Woodley v Boyd, he did not articulate the objective aspect of it’.
‘Nor did his Honour expressly turn his mind to a consideration of the evidence advanced by each of the parties as to whether, objectively, the contested baton strikes were disproportionate to the level of threat posed by the complainant. No mention was made of what a reasonable person in the defendant’s position would think of the proportionality of the contested baton strikes to the level of threat posed at that point in time by the complainant.’
Judge Ierace has ordered the case be ‘remitted to the local court to be dealt with according to law’, and ‘each party to pay their own costs of these proceedings’.
The case name is Director of Public Prosecutions (NSW) v Greenhalgh [2022] NSWSC 980 (29 July 2022).
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