Skip to content Skip to main navigation

News

Chamberlains - complete legal services for business

David Fearnside not guilty

By johnboy - 7 November 2009 12

One of the intriguing aspects of the jury system is that juries have a mind of their own.

The ABC is reporting that it too just a cursory 90 minutes for an ACT Supreme Court jury to decide the AFP’s David Fearnside was not guilty of inappropriately using capsicum spray:

The prosecution alleged Fearnside acted out of arrogance and to punish her.

But his defence counsel argued it was his duty to spray her to stop her from harming herself.

Now will he get reinstated?

What’s Your opinion?


Post a comment
Please login to post your comments, or connect with
12 Responses to
David Fearnside not guilty
CoolRhubarb 8:55 am 11 Nov 09

Mike Crowther said :

” Why not? According to the law he’s done nothing wrong. The problem is putting police into the role of custodians. The poor buggers have neither the training nor equipment to deal with today’s rat-bags. This Govt however hasn’t the wit to notice there is a problem.”

Gee, no equipment. What comes after a canister of capsicum spray and padded cell to quell the bad behaviour? The mind boggles.

Didn’t the spray work? According to the news reports, the lady concerned was left in her padded cell, alone and naked with a new distraction in her life – dealing with the effect of the spray on her body. The AFP trained Mr Fearnside well and provided him with appropriate and effective equipment.

Spideydog 11:16 pm 10 Nov 09

P Taker said :

Spidey dog – it was another officer at the counter using capsicum spray, not Mr Fearnside.

Thats what I was saying 🙂

P Taker 12:35 pm 09 Nov 09

Mike Crowther said :

Why not? According to the law he’s done nothing wrong. The problem is putting police into the role of custodians. The poor buggers have neither the training nor equipment to deal with today’s rat-bags. This Govt however hasn’t the wit to notice there is a problem.

I hope he enjoys a long and unblemished career (and is kept out of the watch-house).

I wholeheartedly agree with you Mike. I hope he finally gets the support he needs. I hope he finds this website and sees your comment.

Spidey dog – it was another officer at the counter using capsicum spray, not Mr Fearnside.

Wilco 4:24 pm 08 Nov 09

TAD said :

You can’t really compare Tominac with this one.

QED?

TAD 11:30 am 08 Nov 09

You can’t really compare Tominac with this one.

Wilco 7:16 am 08 Nov 09

bd 84

Agree completely. This is the second ACT Supreme Court trial in 2009 where the judgment of a very senior ACT DPP prosecutor has been found to be wanting.

As in Tania Tominac’s case, Mr Fearnside’s career and reputation has been ruined because of the attitude of “we’ll put it up in the small chance that the jury will believe us”. It might also explain why in 40 ACT Supreme Court trials in 2008-09, the DPP secured only 13 convictions – a ‘strike rate’ of only 32%. In NSW, the comparable figure in the District Court was 52.2%.

A remedy for those aggrieved might lie in the tort of misfeasance in public office. This tort is concerned with the misuse of public powers or authorities. “Putting it up in the small chance that the jury will believe us” is arguably a misuse of public power.

Spideydog 10:39 pm 07 Nov 09

sepi said :

This woman didn’t seem like a witness that the jury would have much sympathy for.

I do remember footage of this officer capsicum spraying other people in the watchhouse who were just standing at the desk doing nothing = perhaps those people didn’t want to testify.

I think the one you are referring too in regards to footage is another officer.

If you are a witness to a matter, you have no say in whether you want to “testify” or not. If your summoned to court to give evidence, you have no choice.

sepi 9:52 pm 07 Nov 09

This woman didn’t seem like a witness that the jury would have much sympathy for.

I do remember footage of this officer capsicum spraying other people in the watchhouse who were just standing at the desk doing nothing = perhaps those people didn’t want to testify.

bd84 3:20 pm 07 Nov 09

Judging by the evidence reported in the media over the past few weeks, it makes you wonder how the case ever made it to court. The evidence put forward by the prosecution appeared as though it was nothing more than circumstantial and was easily contradicted by the woman in question’s history.

It looks like it was a case of “we’ll put it up in the small chance the jury believe us” rather than looking at the evidence available and making an assessment whether it would prove their case beyond reasonable doubt. If they actually bothered doing this then they would not have ruined this man’s career. I don’t see him being reinstated given that he resigned and wasn’t sacked, I suppose he could reapply for a position.

TAD 1:23 pm 07 Nov 09

Speaking in general terms, firstly an aquittal does not mean that the matter is one that should not have proceeded to court.

For the matter to have gone to charge there needed to be at the first instance a “reasonable prospect of a successful conviction”.

To have been committed to the Supreme Court by a Magistrate the test is that there is a (prima facie)case to answer.

To only prosecute matters where there is a high likelyhood of conviction in the ACT would certainly cut the court lists by 90%.

Wilco 12:30 pm 07 Nov 09

Interesting question. The Canberra Times reported on 5 November that he resigned from the AFP two weeks after it was alleged he has misused the capsicum foam.

http://www.canberratimes.com.au/news/local/news/general/capsicum-spray-to-stop-selfharm/1668687.aspx

Is Mr Fearnside now arguing ‘constructive dismissal’?

Also of note is that the prosecution was conducted by the DPP personally. According to its web site – http://www.dpp.act.gov.au/ – major roles of the DPP include responsibility to:

– screen cases to ensure they only proceed where justified by the evidence and required in the public interest;

– assess at the earliest possible stage whether charges are supported by the evidence; and

– discontinue proceedings at the earliest possible stage where it is appropriate to do so.

If the jury took only 90 minutes to decide on a ‘not guilty’ verdict, then it raises the question of the appropriateness of the charge, the decision to prosecute and the conduct of the prosecution case. Unfortunately for Mr Fearnside, he can’t have his legal costs – which are likely to be significant.

Mike Crowther 11:34 am 07 Nov 09

Why not? According to the law he’s done nothing wrong. The problem is putting police into the role of custodians. The poor buggers have neither the training nor equipment to deal with today’s rat-bags. This Govt however hasn’t the wit to notice there is a problem.

I hope he enjoys a long and unblemished career (and is kept out of the watch-house).

Related Articles

CBR Tweets

Sign up to our newsletter

Top
Copyright © 2017 Riot ACT Holdings Pty Ltd. All rights reserved.
www.the-riotact.com | www.b2bmagazine.com.au | www.thisiscanberra.com

Search across the site