Luke Jarvie v R (19 November 2009, Unreported per Blanch DCJ) NSWDC

In this matter Greg Walsh acted for Luke Anthony Jarvie who had been charged with the offences of hinder police; resist arrest and assault police arising from an incident at The Rocks on the evening of 26 July 2008.

Luke Jarvie was then aged 19 years and had attended a function at the Rocks with his friends. He had left the function and had walked in an easterly direction towards Argyle and George Streets, Sydney. He was not aware that approximately 400 metres away, another member of the public had been observed by patrolling police, Senior Constables Buxton and Patton, throwing a witches hat from one side of Argyle Street to the other.

Senior Constables Patton and Buxton exited their police vehicles and gave chase to the ‘thrower’. At about 11.40pm on a Saturday evening there are many members of the public upon Argyle Street, however both Patton and Buxton ran at full pace seeking to apprehend the ‘cone thrower’.

At the intersection of Argyle and George Streets, Mr Jarvie heard a noise and turned towards the noise and came into collision with the officers, firstly with Senior Constable Patton. Mr Jarvie instinctively put his hands up and Senior Constable Buxton who was only a few metres behind Patton interpreted Mr Jarvie’s actions as leaping towards Senior Constable Patton and shoulder barging him causing him to lose his balance.

According to Senior Constable Buxton, there was only a second or two between the initial contact between Patton and Jarvie and then Buxton who crash tackled Luke Jarvie front on causing his head to impact severely with the footpath. As a result of the impact Mr Jarvie lost consciousness and was convulsing. Patton and Buxton physically restrained Mr Jarvie. An off duty nurse and other witnesses called for police to take the handcuffs off Mr Jarvie and eventually they did so. The bystanding nurse then gave emergency treatment to Mr Jarvie and he was conveyed by ambulance to Sydney Hospital.

Approximately two weeks after the incident, Luke Jarvie was charged with the offences above. Mr Walsh took steps to investigate the matter including an immediate subpoena to obtain the security footage of the incident as it took place under a CCTV tower opposite the Rocks Police Station. According to the City of Sydney who is responsible for maintaining the tower, no such footage existed. There were however a number of eye-witnesses to the incident.

The matter was fixed for hearing before Magistrate Culver at the Downing Centre Local Court.

The prosecution case was that Luke Jarvie had leaped at Constable Patton and for some reason he and Constable Buxton believed that Jarvie had an object in his hand and that Buxton crash tackled him because of that purported fear. Senior Constable Patton gave evidence that after the initial contact with him and Jarvie, he removed his service weapon and pointed it at Jarvie telling him to get to the ground. He agreed that a period of time between his initial contact and that of Buxton was relatively short, He agreed that he did not say to Jarvie “Drop it!” in relation to the object allegedly in his hand.

In respect of the resist, Patton contended that despite Mr Jarvie convulsing he didn’t put his hands between his back as quickly as he should of and further that he didn’t get to the ground when he did so.

In cross-examination, Patton agreed that Mr Jarvie had absolutely nothing to do with the ‘cone-throwing’ incident and further, that Mr Jarvie had no actual object in his hand. The officer further could not explain as to why, if he believed Jarvie had an object in his hand, he didn’t ask Jarvie to drop it. The officer did mention to Buxton after Jarvie’s friends commented that he had a pre-existing head injury that he ‘thought he had a gun’. Senior Constable Patton maintained that he could not have used any alternative forms of law enforcement such as the baton because he regarded the situation as so serious that it was ‘life-threatening’. Patton was shown a photograph taken by a witness of Mr Jarvie’s facial/head injury and the Constable said that this had been deliberately affected by Mr Jarvie.

Buxton gave evidence that at no stage did he see Patton produce his firearm and not say anything to Mr Jarvie about getting to the ground. He gave a different description of how Mr Jarvie and Senior Constable Patton came into contact which was in conformity of the evidence of not only Mr Jarvie but also the eye witnesses.

Indeed, as was observed by the learned Chief Judge of the District Court:

“One unusual aspect of the police officers evidence is that Senior Constable Buxton did not see Senior Constable Patton draw his gun. In fact nobody else who gave evidence saw Senior Constable Patton draw his gun.”

Senior Constable Buxton also agreed that Mr Jarvie was convulsing and that the facial/head injury could have been occasioned by way of the contact as a result of the tackle. He also agreed that there was some mention by Patton of Mr Jarvie possibly having a gun but of course that did not make its way into the police statement. Buxton also agreed that he made his statement after reading Patton’s statement some months after the incident.

Mr Jarvie gave evidence as did a number of eye witnesses. Mr Jarvie was emphatic that the initial contact between him and Constable Patton was an accident so far as he was concerned. He had instinctively turned towards the noise he had heard and had braced for impact and then after the impact put his hands up instinctively. He had nothing in his hands. He certainly did not have any gun and indeed at all material times Mr Jarvie has been a person of outstanding good character. In a split second he was hit by Buxton and he could not recall anything about that until he work up in the emergency section of the hospital.

A number of eye witnesses gave evidence supporting Mr Jarvie’s evidence. These witnesses included a law student and a student of architecture. The identity of the nurse, despite extensive investigations, was never ascertained however neither Patton or Buxton recorded her details at the scene.

In cross-examination of Mr Jarvie, it was never suggested that he had any object in his hand, nor that he was involved in any cone throwing incident, nor that Patton pulled out his service revolver, nor told him to get to the ground. In respect of the resist, the police prosecutor could not even suggest that Mr Jarvie was conscious at the time after his head hit the ground as clearly on any view he was convulsing.

It was submitted to Magistrate Culver that the prosecution had not made out its case beyond reasonable doubt. Indeed it was an overwhelmingly strong defence case in which the Court had before it a young man of outstanding good character who had given clear evidence that he had not assaulted, hindered or resisted the police at all. Indeed, quite unusually, Senior Constable Buxton’s evidence supported the evidence of Mr Jarvie as did that of the eye-witnesses.

It was submitted that the initial contact between Mr Jarvie and Patton was entirely the fault of the police officer. It could not be suggested that an initial contact amounted to an assault and indeed for the conduct of the police running at full pace on a very busy place such as the Rocks on a Saturday night gave rise, in objective terms, to a real risk of impact with any member of the public. According to Patton, the members of the public parted ‘as if it was the red sea’.

Mr Walsh submitted to the Magistrate that there could not be an assault if the incident is one over which the accused had no control. The evidence of Patton that somehow Mr Jarvie has leaped 2-3 metres to the left causing initial contact was not supported by any other evidence including that of Constable Buxton. Significantly, the prosecutor had not put the critical aspects of the prosecution case to Mr Jarvie.

At the end of the day, what Mr Jarvie had done in turning towards the noise that he heard and bracing himself could not in any view amount to an assault. Indeed, what he had done was no more than to entirely appropriately defend himself. For instance, the risk of impact with another elderly member of the public, or for that matter a young person, was obvious. It was contended to Magistrate Culver that Patton’s conduct in running at full pace and colliding with Mr Jarvie of itself may have been unlawful as his conduct may well have amounted to an assault in the context of occurring recklessly when he should of foreseen the likelihood of inflicting fear or injury and ignored the risk, Vallence v R (1961) 108 CLR 56.

Magistrate Culver rejected all of the submissions by Mr Walsh and was comfortably satisfied that Mr Jarvie was guilty of each of the offences. The Magistrate considered that the inconsistencies between Patton and Buxton rebutted any suggestion of Mr Walsh’s conspiracy theory. The Magistrate essentially made findings rejecting the evidence of Mr Jarvie and each of the witnesses and accepted that Mr Jarvie had leaped 2-3 metres to the left and shoulder barged Patton who then drew his weapon and told Mr Jarvie to get to the ground, and that because Mr Jarvie did not get to the ground when asked to do so, Buxton physically took him to the ground as a matter of necessity because of the officers fear for their safety.

Magistrate Culver even found Mr Jarvie guilty of the resist arrest despite the overwhelming evidence that he had suffered a very severe head injury consistent with the contemporaneous photographs and rejected any suggestion that he had no volition or control over his acts.

Magistrate Culver rejected Mr Walsh’s contentions that critical elements of the prosecution case were not put to Mr Jarvie and that she found that there was no obligation on the part of the prosecutor to put such essential matters.

Magistrate Culver adjourned the matter for sentence and was initially considering imposing a full-time jail sentence on Mr Jarvie. In this regard, Mr Jarvie in 2006 had suffered a head injury in which he sustained a fractured skull and had been left with ongoing disabilities. His head had made contact with the footpath as a result of being tackled by Buxton, being the same side as the original injury 2 years earlier.

Luke Jarvie had been a member of the Life Saving movement since he was 6 years old and had received many awards as a dedicated life saver. He was also an extremely talented sports person and relied upon a testimonial of his rugby coach who was the Deputy Commissioner of Police in NSW. That person indicated to Magistrate Culver that he had observed Luke to be targeted by opposition players repeatedly over a decade because of his talent as a footballer, and he had never once retaliated on any occasion. His observations of Luke Jarvie was of outstanding good character and that he was contributed much to the community and was an outstanding sportsman. It was a tragedy that as a result of his head injury, he was unable to undertake a course of engineering at university.

Magistrate Culver placed Mr Jarvie on two year good behaviour bond. He appealed to the District Court and his matter was heard by Chief Judge Blanch on 19 November 2009. His Honour upheld the appeal and quashed each of the convictions. His Honour noted in particular that Mr Jarvie was a person of good character and that the way the circumstances had unfolded was more in keeping with Mr Jarvie’s evidence and that of his witnesses than that given by the police.