Semaan v Poidevin [2013] NSWSC 226

Semaan v Poidevin [2013] NSWSC 226

The police officer's attempt to seize Mr Semaan's mobile phone was not a lawful and necessary step to prevent a breach of the peace, and compliance with s 201 of LEPRA was not established; thus, Mr Semaan was entitled to resist, and an essential element of the offence under s 546C Crimes Act 1900 was not made out....

Source-derived case information.

Parties
Plaintiff: Richard Semaan; Defendant: Sergeant Damien Poidevin
Jurisdiction
Australia
Judgment Date
22 March 2013
Procedural Posture
Appeal Against Conviction Criminal / Supreme Court (common Law Division) Appeal From Local Court Conviction
Outcome
Conviction set aside, charge dismissed, no order as to costs.
Legal Topics
Resisting Police Officer, Execution of Duty, Mens Rea, Honest and Reasonable Mistaken Belief, Lawfulness of Police Actions, Effect of S 201 of Law Enforcement (powers and Responsibilities) Act 2002
Criminal Law Resisting Police Officer Execution of Duty Mens Rea Honest and Reasonable Mistaken Belief Lawfulness of Police Actions Effect of S 201 of Law Enforcement (powers and Responsibilities) Act 2002

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Summary, issues, holding and outcome

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Parties

Richard Semaan

Plaintiff

Sergeant Damien Poidevin

Defendant

Procedural Posture

Appeal Against Conviction Criminal / Supreme Court (common Law Division) Appeal From Local Court Conviction

Legal Issues

  1. 1 Whether the attempted seizure of Mr Semaan's mobile phone by Sergeant Poidevin was lawful and in execution of his duty
  2. 2 Whether non-compliance with s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 rendered police conduct unlawful
  3. 3 Whether resisting the seizure constituted the offence under s 546C Crimes Act 1900

Ratio Decidendi

The police officer's attempt to seize Mr Semaan's mobile phone was not a lawful and necessary step to prevent a breach of the peace, and compliance with s 201 of LEPRA was not established; thus, Mr Semaan was entitled to resist, and an essential element of the offence under s 546C Crimes Act 1900 was not made out. The conviction must be set aside and the charge dismissed.

Court Disposition

Conviction set aside, charge dismissed, no order as to costs.

Orders

  • The order made by the Local Court of New South Wales on 4 April 2012 at Burwood convicting Richard Semaan of the offence of resist a police officer in the execution of his or her duty, contrary to s 546C of the Crimes Act 1900, be set aside.
  • The charge against Richard Semaan, being that on 14 September 2011 at Auburn, he did resist Sergeant Poidevin, a member of the Police Force in the execution of his duty, is dismissed.