R v McLeay [2009] NSWLC 29

R v McLeay [2009] NSWLC 29

The accused was under arrest from the moment he was taken hold of but had committed no offence nor failed to comply with a police direction. The police did not comply with mandatory statutory requirements for arrest (LEPRA s.99, s.201). As the arrest was unlawful, the element of the police acting in the execution of their duty could not be made out for the assault and resist charges under s.58 of the Crimes Act. Accordingly, all charges were dismissed.

Parties
Prosecution: NSW Police; Accused: Gregory McLeay
Jurisdiction
Australia
Judgment Date
18 December 2009
Procedural Posture
Criminal / Judgment at First Instance
Outcome
All charges dismissed
Legal Topics
Police Powers, Arrest, Assaulting Police, Resisting Police, Lawful/unlawful Arrest
Criminal Law Police Powers Arrest Assaulting Police Resisting Police Lawful/unlawful Arrest

Case Brief

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Parties

NSW Police

Prosecution

Gregory McLeay

Accused

Procedural Posture

Criminal / Judgment at First Instance

Legal Issues

  1. 1 Whether the accused failed to comply with a police direction under LEPRA and the APEC Meeting (Police Powers) Act 2007
  2. 2 Whether there was an assault or resistance to a police officer in execution of duty under s.58 of the Crimes Act 1900
  3. 3 Whether the arrest effected was lawful under LEPRA s.99 and s.201

Ratio Decidendi

The accused was under arrest from the moment he was taken hold of but had committed no offence nor failed to comply with a police direction. The police did not comply with mandatory statutory requirements for arrest (LEPRA s.99, s.201). As the arrest was unlawful, the element of the police acting in the execution of their duty could not be made out for the assault and resist charges under s.58 of the Crimes Act. Accordingly, all charges were dismissed.

Court Disposition

All charges dismissed

Orders

  • Charge under s.199 of LEPRA dismissed for lack of evidence
  • Charges under s.58 of the Crimes Act 1900 (assault and resist police) dismissed due to unlawful arrest and failure to prove execution of duty