DIRECTOR OF PUBLIC PROSECUTIONS v. AM [2006] NSWSC 348

DIRECTOR OF PUBLIC PROSECUTIONS v. AM [2006] NSWSC 348

The Magistrate's finding that the arrest was improper was not open on the evidence—given the defendant's persistent and escalating conduct, refusal to identify herself, and risk of flight, the arrest was not improper under s.138(1). Further, the Magistrate erred in law by failing to give reasons and failing to address the balancing exercise required by s.138(3). Therefore, the Magistrate's orders dismissing the resist and assault officer charges were set aside and the matter remitted to the Magistrate for re-hearing.

Parties
Plaintiff: Director of Public Prosecutions; Defendant: AM
Jurisdiction
Australia
Judgment Date
02 May 2006
Procedural Posture
Appeal / Supreme Court Review of Magistrate's Decision
Outcome
Orders of the Magistrate dismissing the charges set aside; matter remitted to the Magistrate; no order as to costs.
Legal Topics
Improperly Obtained Evidence, Arrest of Juveniles, Judicial Duty to Give Reasons, Application of S.138 Evidence Act 1995 (nsw)
Criminal Law Evidence Law Youth Justice Improperly Obtained Evidence Arrest of Juveniles Judicial Duty to Give Reasons Application of S.138 Evidence Act 1995 (nsw)

Case Brief

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Parties

Director of Public Prosecutions

Plaintiff

AM

Defendant

Procedural Posture

Appeal / Supreme Court Review of Magistrate's Decision

Legal Issues

  1. 1 Whether the arrest of the defendant was improper for the purposes of s.138(1) of the Evidence Act 1995 (NSW)
  2. 2 Whether the Magistrate erred in law by failing to give reasons for finding impropriety in the arrest
  3. 3 Whether the Magistrate failed to consider s.138(1) and (3) of the Evidence Act 1995 before dismissing charges

Ratio Decidendi

The Magistrate's finding that the arrest was improper was not open on the evidence—given the defendant's persistent and escalating conduct, refusal to identify herself, and risk of flight, the arrest was not improper under s.138(1). Further, the Magistrate erred in law by failing to give reasons and failing to address the balancing exercise required by s.138(3). Therefore, the Magistrate's orders dismissing the resist and assault officer charges were set aside and the matter remitted to the Magistrate for re-hearing.

Court Disposition

Orders of the Magistrate dismissing the charges set aside; matter remitted to the Magistrate; no order as to costs.

Orders

  • The defendant be referred to as 'AM' pursuant to s.11 of the Children (Criminal Proceedings) Act 1987.
  • Orders of Mr. J. Coombs, Magistrate, made on 21 July 2005 at Nowra Children's Court, dismissing one count of 'resist officer' and one count of 'assault officer' contrary to s.58 of the Crimes Act 1900 set aside.