Poidevin v Semaan [2013] NSWCA 334

Poidevin v Semaan [2013] NSWCA 334

There was no error of law in the Magistrate failing to consider a defence of honest and reasonable mistake of fact, as it was not raised or supported by evidence. Nor was the prosecution required to negative such a defence absent it being an issue. The obligation in s 201(1) of Law Enforcement (Powers and Responsibilities) Act 2002 does not require that the officer have actually formed a subjective view about practicability at the time but turns on objective facts. The findings below supported that the seizure of the mobile phone was within the lawful execution of the officer's duty in preventing a breach of the peace. The Supreme Court's orders setting aside the conviction based on...

Jurisdiction
Australia
Judgment Date
10 October 2013
Procedural Posture
Appeal / Court of Appeal Determination on Application for Leave to Appeal and Substantive Appeal
Legal Topics
['resisting Police Officer' 'police Powers to Seize Property' 'honest and Reasonable Mistake of Fact' 'lawful Execution of Duty' 'compliance With Law Enforcement (powers and Responsibilities) Act 2002, S 201']
['criminal Law' 'police Powers'] ['resisting Police Officer' 'police Powers to Seize Property' 'honest and Reasonable Mistake of Fact' 'lawful Execution of Duty' 'compliance With Law Enforcement (powers and Responsibilities) Act 2002, S 201']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal / Court of Appeal Determination on Application for Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 ['Whether the onus lay on the prosecutor to prove the absence of an honest and reasonable mistake of fact by the respondent' "Whether compliance with s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 was necessary to establish the lawfulness of the officer's duty at the time of resistance" 'Proper scope of police powers to seize property to prevent breach of the peace']

Ratio Decidendi

There was no error of law in the Magistrate failing to consider a defence of honest and reasonable mistake of fact, as it was not raised or supported by evidence. Nor was the prosecution required to negative such a defence absent it being an issue. The obligation in s 201(1) of Law Enforcement (Powers and Responsibilities) Act 2002 does not require that the officer have actually formed a subjective view about practicability at the time but turns on objective facts. The findings below supported that the seizure of the mobile phone was within the lawful execution of the officer's duty in preventing a breach of the peace. The Supreme Court's orders setting aside the conviction based on...

Court Disposition

Orders

  • []