Police mishandled ‘asshole’ incident between young mother and bus driver, court says

A young mother accused of resisting police officers who had physically dragged her off a bus after she called the driver an “asshole” has been cleared of all wrongdoing.

In August 2015, Polina Gutshabes, a 28-year-old woman from Ukraine, had refused to comply with a bus driver's demand that she close a pushchair in which her two-year-old child was asleep. After she had insulted him, the driver had called the police, who forcibly dragged her out of the vehicle and arrested her. Gutshabes spent the next 47 hours in custody, before being charged with resisting arrest, threatening a public officer, disobeying the police and disturbing the peace.

In her judgment acquitting the Ukrainian, magistrate Doreen Clarke noted that it was the prevailing doctrine that for the charge of resisting arrest to stand, it had to be shown that the police officer who was resisted had been executing the law. “From the evidence brought forward it resulted that when WPS 304 went on the bus, she first asked the defendant, who was sitting quietly in her seat, to get off the bus in order to go to the police station [to file a report]. Until that moment WPS 304 was discharging her duty, however she was not executing the law.”

The court observed a “very apparent conflict” in the evidence as to when the decision to arrest Gutshabes was taken, with three police witnesses giving different versions of events. “In spite of the conflicting versions, there can be no doubt that the police officers involved in this incident had decided a priori that the defendant should get down from the bus and go to the police station...At that stage defendant was not in a state of arrest.” The court said it was convinced that the decision to arrest the woman was made before the physical altercation started and “was taken because of what the officers involved in the incident perceived as defendant's unlawful refusal to obey their order.”

Magistrate Clarke said she was also satisfied that the insults were made after the decision to arrest the woman was taken.” An arrest in cases dealing with contraventions is only justified when the person is caught in the act of committing the contravention, but when the officers had boarded the bus, the defendant was “sitting quietly in her seat,” the court observed. “What they did was to order her to get off the bus, an order which she refused to comply with.”

“There can be no doubt that legitimate orders of the police, in the lawful exercise of their duties are to be complied with, to the letter, immediately,” the court said. But the magistrate pointed out that the offence under the Criminal Code consisted of disobeying a lawful order and that the order given was “not prima facie legitimate, either in content or in form and that the defendant was justified in refusing to obey it. The police had “asked” Gutshabes to voluntarily do – get off the bus – what they couldn't legitimately make her do, the magistrate said, noting that “it consequently also follows that the police officers exceeded their jurisdiction.”

On the charge of insulting or reviling the police officer, the court pointed to the 1997 criminal appeal judgment in Police vs Amante Camilleri which excluded the offence when the insult was made “whilst legitimately protesting against a particular behaviour.”

When the mother had called the police officer a "bitch," the court said, “it is clear that defendant was protesting against the way she was being handled...and that consequently her intention was not to offend.”

Neither could she be found guilty of breaching the public peace, the court held. “Whilst there can be no doubt that this incident grossly disturbed the public peace, the entire incident was unfortunately provoked by the police officers due to their mishandling it; the defendant cannot be held responsible for the consequent breach of the public peace.”

Inspector Elton Taliana prosecuted. Lawyers Giannella De Marco and Steven Tonna Lowell were defence counsel.