Following Australia Day celebrations in January of this year, Raiders player Curtis Scott was charged with the following offences:

  • Assault officer in execution of duty (x2)
  • Resist officer in execution of duty
  • Behave in offensive manner in/near public place/school
  • Behave in an offensive or indecent manner
  • Remain on, enter trust lands after request to leave.

However, on Wednesday the court was shown body-worn video from the arresting officers, showing Scott asleep under a tree in Moore Park. The footage shows NSW Police officers trying to wake Scott before handcuffing him and telling him “don’t resist” before being tasered and capsicum-sprayed by police.

After viewing the footage, Magistrate Jennifer Giles commented: “It’s drawing a very long frightening bow to argue police can handcuff someone they are trying to wake up while sleeping under a tree.” It is reported that this prompted the prosecutor to withdraw the two counts of assaulting a police officer, one of resisting an officer in the execution of duty, one of behaving in an offensive manner and one of remaining on Trust lands after being requested to leave.

Costs of more than $100,000 from police are now being sought, with a decision to be handed down on September 25.

This raises questions as to the level of forces that can be applied during an arrest.


Police Powers

The law that governs the power and responsibilities held by police and other law enforcement officers is outlined in the Law Enforcement (Power and Responsibilities) Act 2002 (LEPRA). LEPRA sets out several safeguards for interactions between police and the public. The power of police to arrest and apprehend with force is regulated by LEPRA.

Use of Reasonable Force during an Arrest

Per section 231 of LEPRA, in making an arrest a police officer who exercises a power to arrest another person may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after the arrest. What this means is ‘reasonable force’ in NSW depends on all of the circumstances.

This means in practice is that if you resist arrest strongly, they can use a higher level of force to arrest you than if you put up a mild resistance or none at all.

Furthermore, factors such as a suspect’s age, gender, size, fitness, and skill level compared to that of the officer’s present need to be considered in determining if reasonable force applied. Thus, it can be difficult to determine what ‘reasonable force’ is, particularly after the event has taken place.

It is important to note that once you have submitted to being arrested, police are not allowed to continue to use force, although they are allowed to put handcuffs on you if they believe you may try to escape.

If police continued to use force once you submitted to the arrest, this can constitute an unreasonable use of force.

What happens if the force applied during an Arrest is not reasonable force?

If you have reason to believe that police have not applied reasonable force to arrest you or search you, or they have acted in an overly aggressive manner, you may be able to lodge a formal complaint with the Law Enforcement Conduct Commission – the main body in NSW which investigates complaints made regarding excessive force.

Additionally, it may also call into question whether the police were in execution of their duty at the time, which may give rise to a defence to some offences which are often charged by the police in these types of matters.  If the force applied is found not to be ‘reasonable force’  you may be eligible for compensation through civil proceedings against the NSW Police Force.

If you or someone you know needs advice or representation for an alleged criminal offence, contact the team at Hamilton Janke Lawyer 24 hours a day, seven days a week by calling 4038 1666.

Photo: AAP/NSW Police

Written By
James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia

Reviewed By
Drew Hamilton
Drew Hamilton

Drew Hamilton is founding partner at Hamilton Janke Lawyers. Admitted to the Supreme Court of New South Wales as a Solicitor and also listed on the High Court of Australia register.