R v Murray [2020] NSWDC 729

R v Murray [2020] NSWDC 729

The magistrate erred in finding compliance with section 202 merely because the interaction was brief. On the evidence, the appellant was walking, not running, and there was no noise, panic, jostling or other circumstance preventing Senior Constable Hadley from giving the reason for arrest before or at the time he grabbed the appellant's arm. The reason for arrest was therefore not given as soon as reasonably practicable, rendering the arrest unlawful. Because the case was conducted on the basis that if the arrest was unlawful the two offences of assaulting police in the execution of duty occasioning actual bodily harm could not be made out, the appeal had to be allowed and the convictions...

Jurisdiction
Australia
Judgment Date
19 November 2020
Procedural Posture
Criminal Conviction Appeal Pursuant to Section 18 of the Crimes (appeal and Review) Act / Appeal Against Convictions
Outcome
Appeal allowed; convictions set aside and charges dismissed.
Legal Topics
['conviction Appeal' 'common Assault' 'assaulting Police in Execution of Duty' 'arrest Without Warrant' 'requirement to Provide Reason for Arrest' 'lawfulness of Arrest']
['criminal Law' 'criminal Procedure' 'police Powers'] ['conviction Appeal' 'common Assault' 'assaulting Police in Execution of Duty' 'arrest Without Warrant' 'requirement to Provide Reason for Arrest' 'lawfulness of Arrest']

Case Brief

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Procedural Posture

Criminal Conviction Appeal Pursuant to Section 18 of the Crimes (appeal and Review) Act / Appeal Against Convictions

Legal Issues

  1. 1 ["Whether the appellant's arrest was unlawful because police arrested him for failing to answer questions or comply with requests to stop and talk." 'Whether section 99(1)(b) of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) was satisfied because the arresting officer was satisfied arrest was reasonably necessary to identify the appellant.' 'Whether section 202 of the Law Enforcement (Powers & Responsibilities) Act 2002 (NSW) was complied with by providing the reason for arrest as soon as reasonably practicable.' 'Whether the offences of assaulting officers in the execution of duty occasioning actual bodily harm could be made out if the arrest was unlawful.']

Ratio Decidendi

The magistrate erred in finding compliance with section 202 merely because the interaction was brief. On the evidence, the appellant was walking, not running, and there was no noise, panic, jostling or other circumstance preventing Senior Constable Hadley from giving the reason for arrest before or at the time he grabbed the appellant's arm. The reason for arrest was therefore not given as soon as reasonably practicable, rendering the arrest unlawful. Because the case was conducted on the basis that if the arrest was unlawful the two offences of assaulting police in the execution of duty occasioning actual bodily harm could not be made out, the appeal had to be allowed and the convictions...

Court Disposition

Appeal allowed; convictions set aside and charges dismissed.

Orders

  • ['The appeal is allowed.' 'The 2 convictions of offences under s60(2) of the Crimes Act are set aside and the charges dismissed.' 'The sentencing orders for those convictions are set aside.']