Charges against a man accused of biting and resisting police during a violent melee have been dismissed after a court found his initial hotel room arrest was unlawful.
"If this form of behaviour is not called out by the courts, [police officers] may think it is appropriate," special magistrate Marcus Hassall said on Tuesday following Adam Ahmad Jabal's two-day hearing.
The behaviour in question included a senior police officer "forcibly" pulling Jabal across a bed without verbally placing him under arrest or reasonably suspecting he was continuing to commit an offence.
The territory police officer with 37-years of experience told the ACT Magistrates Court he agreed there was no lawful authority that allowed him to grab the man to, in his words, "sit him up".
Detective Sergeant Brian Tadic later conceded he had used force to "drag him across the bed" at Braddon's Avenue Hotel last year.
'Act like a man'
Mr Hassall found the officer grabbing Jabal without evidentiary basis, which was followed by a melee involving Tasering and capsicum spray, "on the authorities constitutes an assault".
"Act like a man, you're not f---ing sleeping," Detective Sergeant Tadic told Jabal, who had ignored police demands to get up and claimed he would "come down in five minutes".
The magistrate said the police team leader was the first to show an "impatient, agitated attitude" toward Jabal and the first to initiate force, "foul language" and threats against non-compliance.
"He sets an example for other officers," the magistrate said.
Mr Hassall also found officers had not complied with police guidelines which emphasise negotiation and conflict de-escalation "as being primary considerations prior to using physical force".
Jabal was grabbed less than a minute after police entered his hotel room. The magistrate said there had been clear opportunities to inform him of his arrest, also in line with guidelines.
"You didn't ask him why he hadn't left. You didn't make any effort to get his side of the story," defence barrister Anthony Williamson SC, instructed by Kamy Saeedi Law, asked Detective Sergeant Tadic during cross-examination.
The officer replied: "No, we didn't."
Mr Williamson said negotiating involved a two way dialogue, not just "barking demands at a person".
In submissions to the court, the barrister said his client not being told why he was being taken into custody was "inexcusable" and any purported arrest was "demonstrably unreasonable".
'Police expected to be perfect'
Mr Hassall ultimately said he was satisfied beyond a reasonable doubt Jabal had committed offences of assaulting a frontline community service provider and resisting a territory official at the Northbourne Avenue hotel.
But the charges were dismissed on Tuesday after the magistrate did not allow any evidence acquired after the unlawful arrest and therefore "obtained in consequence of an impropriety or a contravention of Australian law".
Mr Hassall also dismissed a charge of failing to follow a direction to leave a premises.
The magistrate noted Detective Sergeant Tadic made numerous appropriate concessions during his evidence, including that the incident could have been handled better.
Mr Hassall acknowledged several times the difficulties involved in community policing and the high standard to which officers and their actions were held.
"It's easy for the courts to perform the role of a 'Monday morning quarterback', in that police are effectively expected to behave perfectly at all times when those who they provide front-line community services to often, perhaps regularly, do not," he said.
The magistrate also said if Jabal had not been "obtuse, stubborn and non-communicative", the situation would have been different.
"The defendant did not have to behave the way he did, he did not have to resist the way he did," Mr Hassall said.
The hotel incident
Police were called to the Avenue Hotel about 2.15pm on November 26 of last year after staff were unable to obtain identification from Jabal so he could formally extend his booking.
During the hearing, the court heard the man repeatedly promised to fulfill the requirement after handing over $150 to the night staff earlier in the day to extend a booking initially under his wife's name.
The magistrate said it did not appear Detective Sergeant Tadic was aware the money had been accepted by the hotel and that Jabal believed he was entitled to stay in the room.
Body-worn camera footage showed the senior officer appearing "to become agitated or irritated by the defendant's non-responsiveness".
When police pulled Jabal off the bed and tried to escort him out, he planted his feet and was said to move his arm in an "explosive" way toward one officer before an extended struggle.
The court found Jabal thrashed and bit the hand of one police officer while another received a knock to the head.
The man was ineffectively Tasered before being drive-stunned and eventually capsicum sprayed twice.
The court did not make any findings about police's use of force but prosecutor Henry Robinson said it had been "reasonable and necessary" and the response of officers was proportionate to Jabal.
"The defendant is actively making the jobs of four police officers who are detaining him significantly harder," Mr Robinson told the court.
