Arresting assumptions of being 'in custody': R v Osborne-Horton (2017)

1st Mar 2018


This case began, like many others before it, with the defendant getting drunk at the pub after work. 

His girlfriend joined him, having just received a large body tattoo. They argued. The defendant said he would drive home. She tried to stop him. He insisted that he would, so she rang his father on her mobile to enlist his help, handing her phone to the defendant. Taking it from her before realising it was his father on the line, he pushed her phone back to her. This action constituted the substance of the allegation of common assault which was the only count (of the four charges) dismissed at the first instance hearing.

Desperate, she rang triple-0. Her evidence was that the emergency operator was interested more in whether she had suffered domestic violence. Police arrived at the defendant’s utility and questioned him about his contact with his girlfriend. Police said his girlfriend alleged that he had shoved her with her phone. The defendant vehemently denied assaulting her. Police told him that he was under arrest for domestic assault and the two male officers pushed him up against the side of his ute and tried to handcuff him.

The defendant, clearly a physically strong young man, tore himself away from the grasp of the officers and ran away. This was captured on CCTV footage (obtained by the defendant). 

He was run down a few minutes later further up the street with capsicum spray, drawn service revolvers and an officer shouting “taser him!” 

He was charged with common assault, two counts of assault against police officers under s60(1) of the Crimes Act 1900 (NSW) (Crimes Act) and with the common law offence of escaping lawful custody. 

The case was heard at first instance by her Honour Magistrate Schurr of the NSW Local Court in May to June 2017. It was then heard on appeal in November 2017 before his Honour Judge Williams SC in the District Court of NSW.


Assault police charges (x2)

At the heart of this matter is the police mistake in charging the defendant with the wrong section of the Crimes Act. The offence in s60(1) Crimes Act of assault police does not contain the lower alternative of ‘resist arrest’ as is contained in the s58 Crimes Act provision.

As his lawyer, I admitted at first instance that the defendant had committed the offence of resist arrest, but that he had not been charged with a section encompassing this lower distinction.

I argued that moving his arms and torso to pull himself from the grasp of the police was not an assault as he did not: initiate contact with the officers; move towards them offensively nor strike any blow at them. What he did, I said, was rip himself away from their hold. The CCTV footage showed a repeated swinging motion from their grasp at roughly chest height, which eventually succeeded in him freeing himself from the hands and arms of the officers who were holding on to his upper body.

The defendant did not give evidence.

In the primary hearing, her Honour found that the assaults were proven because it appeared to her from the footage that the defendant, though never striking the officers, had swung his arms toward them, constituting a non-contact assault.

Escape lawful custody

Escape from lawful custody is a common law offence, which means that the prosecution bears the more unusual burden of not only proving the facts to support the charge, but also showing the parameters of the case law and the limits of its application to those facts before being able to prove the offence to the requisite standard of proof.

I submitted that the police prosecutor needed to prove not only that the defendant’s actions were an escape (clearly, his actions in breaking free were) but that he was, at the time he escaped, indeed in custody at law. I said that to do this on these facts required the prosecutor to establish that ‘custody’ commenced from the moment the words of arrest were spoken and physical control was attempted to be asserted over the arrestee. For this to be so, the prosecution would need some basis in the case law or legislation to support this conclusion.

However, our searches of the Australian case authorities on this offence failed to unearth a single case in which an escape from custody was in any circumstance other than some correctional or law enforcement building or vehicle, or curial precinct.1 The only local guidance I could find, and which I presented to the Court, came from the Queensland Supreme and District Court Bench Book (a code state) which stated that, ‘[a] person is in lawful custody if he has been arrested and detained or imprisoned in a manner that has been authorised by law’.2 (emphasis added)

The defendant’s case was not that, without a building or vehicle to be absconded from, dashing away could not be an escape custody; rather, where the onus of proof is a factual and a legal obligation for the prosecution to discharge, on these facts the prosecution had failed to show that an attempted arrest automatically renders a person in custody for the purposes of this offence. I argued that though it was possible to envisage escaping lawful custody outside the familiar custodial environs that these cases usually involved, without an authority that an attempted arrest equals custody, an obvious lack of control or compliance would suggest that there was no custody of the defendant at that point in time.

I argued that there was no custody because the defendant was never under the control of the officers. There was no authority in the Australian cases to show that uttering words of arrest alone constitutes being in custody. I said that the prosecution’s burden of proving this at common law had not been met and that the charge must therefore be dismissed. The defendant could not, I said, escape from custody as this was a status that had not come into existence at that point, even if all that was required to satisfy this was physical control of the arrestee.

Without any prescribed place needing to be occupied or involved – such as a custodial or law enforcement environment – the fact that the police never had physical control or compliance of the defendant meant that the legal and factual onus the prosecution bears could not be made out.

However, her Honour found that the defendant could indeed be convicted of this offence by means of her Honour’s reading of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Her Honour remained silent on the failure of the police to produce any case law to support this charge.

Appeal of conviction

These points were raised in our appeal against conviction before his Honour Williams DCJ, who allowed our appeal and dismissed all three of the charges against the appellant.

His Honour stated that he was as well placed as the first instance fact-finder to consider the effect of the CCTV footage. In his judgment, his Honour found that, from his viewing of the footage, he did not consider the appellant’s arm movements to have been directed towards the police officers, but rather that ‘the appellant’s actions were to pull away from the grasp of the police’. His Honour observed that the ’footage shows no more than an attempt to resist or escape the arrest’, but the appellant was not charged with resist arrest.

His Honour said that the lack of guidance in statute and common law on whether the appellant was in ‘custody’ at that time was ‘interesting and surprising’, and that the appellant could not be said to be in custody at the time he fled the arrest, as he was never under the control of the police in the first place.


Police and prosecutors should take note from this case that, where there is any ambiguity possible in a suspect’s physical actions against force applied in order to complete an arrest, laying a s60(1) charge without a back-up of resist arrest (s58) will mean that no conviction will result if the arrestee’s actions are not found to constitute an assault against the police.

Two other lessons are discernible from the appeal of the assaults; the first is a practical one for defence lawyers, that where possible, if the police have not sought to obtain CCTV footage of an event that is the subject of a charge in a location where this might be thought to exist, this evidence should be sought to be obtained quickly, before the standard overwrite to footage occurs (which is between 7-30 days). Without the objective evidence of the footage from a local office building (that I obtained after some efforts) the somewhat different recollections of the two police officers would have proven difficult to undermine.

Second, and more broadly, it is of interest that the first instance judge found that, based on her viewing of the footage, the swinging of the defendant’s arms constituted an assault against both officers. Whereas, on a rehearing of this evidence, the District Court judge watching the same footage came to the opposite conclusion; that the appellant’s swaying body and swinging arms were an attempt to break free of the grasp of the police.

When it comes to different judicial officers interpreting the same actions captured on CCTV footage, truth, like beauty, lies in the eyes of the beholder. 


Paul Blake is Solicitor Director at Blake Lawyers, Sydney, and an Accredited Specialist in Criminal Law.


The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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1 In the case of R v Timmis [1976] Crim LR 129 [UK] the defendant was found guilty of escape after being arrested and placed alone in a police vehicle. In one of the briefer and more phlegmatic escape custody incidents to occur in the English common law world, the defendant got out, walked across the road into a pub, drank a pint of beer and made no attempt to conceal himself. In this decision the case indicates that at common law in the UK, where there is no breaking out, once an arrest has occurred, absenting oneself is an escape from custody. This case is distinguishable clearly from our facts, in that a state of detention was prevailing in the English case consequent upon the completed arrest, regardless of how limited and tentative this custody was to prove.

2 Queensland Courts, Supreme and District Court Benchbook – Escape from Lawful Custody s142, [1], <http://www.courts.qld.gov.au/__data/assets/pdf_file/0004/86143/sd-bb-133-escape-from-lawful-custody-s142.pdf>.

Tags: Paul Blake Custody CCTV Assault Resist arrest