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Azar v DPP

Azar v DPP

Case [2014] NSWSC 132 28 February 2014

Legitimate Exercise of Powers

Searches and Detention

Reasonable Suspicion

Arrest

Criminal Law

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: Azar v DPP [2014] NSWSC 132
Hearing dates: 20 February 2014
Decision date: 28 February 2014
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the amended summons
(2) Order the plaintiff to pay the defendant's costs

Catchwords: POLICE - legitimate exercise of powers - searches and detention of persons - whether suspicion was reasonably formed - presence of hire car in area known to police to be connected with drug use and supply, in circumstances where a person got into the passenger seat of a motor vehicle and then got out again within a short period of time - whether Parliament intended power to detain to amount to an arrest
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 52
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21, s 36
Road Transport (Safety and Traffic) Management Act 1999 (NSW), s 13
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Attorney General for NSW v X [2009] NSWCA 199; (2009) 49 NSWLR 653
Bain v Police [2011] SASC 228
Coleman v Power [2004] HCA 39; 220 CLR 1
Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; (2006) 67 NSWLR 402
George v Rockett [1990] HCA 26; 170 CLR 104
Henderson v O'Connell [1937] VLR 171
Hussien v Chong Fook Kam [1970] AC 942
Hyder v Commonwealth of Australia [2012] NSWCA 336; (2012) 217 A Crim R 517
Nguyen v Elliott (Supreme Court (Vic), Hedigan J, 6 February 1995, unrep)
Ohlsen v Jones (1991) 53 A Crim R 136
R v Orm [2011] NSWDC 26
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612
Street v Bauer (Supreme Court (NSW), Smart J, 16 March 1998, unrep)
Category: Principal judgment
Parties: Emile Azar (Plaintiff)
Director of Public Prosecutions (Defendant)
Representation: Counsel:
E Ozen (Plaintiff)
D Kell (Defendant)
Solicitors:
Benjamin & Leonardo Criminal Defence Lawyers (Plaintiff)
SC Kavanagh, Solicitor for Public Prosecutions (Defendant)

File Number(s): 2013/216074

Judgment

Introduction

By an Amended Summons filed 29 October 2013, Emil Azar, the plaintiff, appeals, under Part 5 of the Crimes (Appeal and Review) Act2001 (NSW), against a conviction entered by Milledge LCM at the Downing Centre Local Court on 13 May 2013. There was no opposition to an extension of time being granted to institute the appeal.

The two grounds are:

(1) The Magistrate failed to properly consider the test for the legitimate exercise of police powers under s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA); and

(2) The Magistrate erred in finding that the plaintiff was not under arrest at the relevant time.

The material before me comprised the transcript of proceedings before the Magistrate, the transcript of her Honour's reasons which were given orally and the exhibits, including a DVD of footage taken of relevant events, which, by agreement between the parties, I watched in chambers rather than in open court.

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Azar v DPP

Details

AGLC: Azar v DPP [2014] NSWSC 132
Case: [2014] NSWSC 132
Decision Date: 28 February 2014

CaseChat Overview and Summary

In Azar v DPP, the defendant appealed against his conviction for unlawful possession of a controlled substance. The matter was heard in the High Court of Australia, where the defendant argued that the police lacked reasonable suspicion to justify his detention and subsequent search. The case hinged on the police's grounds for suspicion, which was based on the defendant's presence in an area known to be connected with drug use and supply, as well as the defendant's actions of entering and exiting a hire car within a brief timeframe. The defendant contended that the detention and search were unlawful as they did not constitute a legitimate exercise of police powers.

The primary legal issue before the court was whether the police's suspicion was reasonably formed under the circumstances. The court had to determine whether the presence of a hire car in an area associated with drug activity, combined with the defendant's actions of entering and exiting the vehicle, provided a sufficient basis for suspicion. Additionally, the court examined whether the power to detain individuals under the relevant statute amounted to an arrest as defined by Parliament. The court was tasked with interpreting the scope of police powers in relation to searches and detention, and whether the actions of the police in this instance were within the bounds of the law.

The court found that the police's suspicion was reasonably formed based on the totality of the circumstances, including the defendant's presence in an area known for drug activity and his actions with the hire car. The court emphasised that the presence in such an area, coupled with the defendant's behaviour, provided a reasonable basis for suspicion. Furthermore, the court held that the power to detain did not amount to an arrest as defined by Parliament, and therefore the detention and subsequent search were lawful. The court concluded that the police acted within the scope of their powers, and the evidence obtained during the search was admissible. As a result, the defendant's conviction for unlawful possession of a controlled substance was upheld.

The final orders of the court were that the appeal was dismissed, and the defendant's conviction was upheld. The court affirmed the trial judge's decision, finding that the police's actions were lawful and the evidence obtained was admissible. The defendant's appeal was unsuccessful, and he remained convicted of the unlawful possession charge.

Orders