Unlawful arrest claims in Grafton CBD police assault case
WHEN is an arrest an arrest, and when is it lawful, were the points of contention when a Grafton man appeared in court to face police assault charges.
Mitchell Murry entered pleas of not guilty to two charges of assault officer in execution of duty occasioning actual bodily harm in Grafton Local Court on Tuesday last week.
Police alleged that on January 20 this year Mr Murry abused a number of people outside a pizza store, including a NSW Ambulance paramedic and caused malicious damage to the vehicle.
Mr Murry is then accused of assaulting two police officers who tried to arrest him following the incident.
Mr Murry has entered pleas of guilty to the malicious damage and intimidation of the NSW Ambulance paramedics.
In Grafton Local Court on Tuesday, Coffs/Clarence Police District Senior Constable Colin Hadley took to the stand and gave evidence that on the afternoon of January he and another officer spotted Mr Murry in the vicinity of where the malicious damage had taken place, outside Dominos Pizza on Prince St, Grafton.
Snr Constable Hadley told the court the ambulance officers had provided a description of the alleged offender when reporting the malicious damage, and when police arrived at about 6pm Mr Murry was the only person in the vicinity and was seen walking on the footpath without a shirt away from the area.
The court heard that Snr Constable Hadley asked Mr Murry to stop, and words to the effect of "we need to talk to you about what happened near Dominos Pizza".
Snr Constable Hadley said Mr Murry looked at him then continued to walk away, and when he reached for Mr Murry's left arm to prevent him from leaving the scene Mr Murry pulled away. Snr Constable Hadley told the court he had formed the opinion Mr Murry was not going to stop and tried to place him under arrest, which was when the alleged assault took place.
Mr Murry's solicitor Barbara Lu submitted her client was not guilty as he could not be charged with assault officer in execution of duty because the police were not executing their duty and acted unlawfully in both speaking to Mr Murry and by placing him under arrest.
Ms Lu said police made no announcement or warning as to why they wanted to speak to her client, and that when Snr Constable Hadley placed his arm on Mr Murry an arrest was made without proper identification or notice.
"A police officer is not entitled to touch someone, just like anyone else, so if that isn't an arrest it's assault," Ms Lu told the court.
Ms Lu said her client was entitled to walk away and had the right to remain silent, and that the police request to "stop and chat" about the incident was unlawful.
Magistrate Kathy Crittenden said she would need convincing on that point, stating that it was a general police power to talk to people to investigate criminal matters.
"Police have the powers to speak to people. It would be pretty extraordinary if they didn't have the power to investigate by talking to people," the magistrate said.
"Do police have to issue a caution or a warning to talk to everyone? How would they ever get any information?"
"That's their problem," Ms Lu replied.
The matter was adjourned part-heard to Grafton Local Court on September 1.