Curro v The Queen (No. 1)

[2021] NSWDC 757

District Court

New South Wales

Medium Neutral Citation:

Curro v R (No. 1) [2021] NSWDC 757

Hearing dates:

17 September 2021

Date of orders:

17 September 2021

Decision date:

17 September 2021

Jurisdiction:

Criminal

Before:

Neilson DCJ

Decision:

The appeal against the two convictions recorded that are the subject of the all grounds appeal is accordingly dismissed.

Catchwords:

CRIME – APPEAL – Appellant convicted of two charges: (i) resisting 2 police officers in the execution of their duty; and (ii) assaulting one of them – The police were arresting the appellant – Challenge to the necessity of the arrest and on allegation of the use of excessive force – Use of excessive force does not vitiate an arrest, if it be otherwise justified.

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:

DPP (NSW) v GW [2018] NSWSC 50

Hyder v The Commonwealth of Australia [2012] NSWCA 366

Woodley v Boyd [2001] NSWCA 35

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Appellant – Andrew Curro
R – Crown

Representation:

Appellant
Bowe
Crown
Dando

File Number(s):

2019/00154191

Publication restriction:

Nil

Judgment

1. HIS HONOUR: This is an appeal against two convictions recorded by Magistrate Viney sitting in the Burwood Local Court on 15 March 2021. The two relevant offences were known as sequence 3 and sequence 5. Sequence 3 was an allegation that on 16 May 2019 at Five Dock the appellant did resist Philip Brookes and Natasa Kopanja being a Senior Constable/Constable executing his/her duty. The sequence 5 offence was that on 16 May 2019 at Five Dock the appellant did assault Natasa Kopanja being a constable in the execution of her duty. Also contested was an offence known as sequence 4 which was of an allegation of an assault upon Senior Constable Brookes during the arrest by Senior Constable Brookes and Constable Kopanja of the appellant at the residence at which he was staying at the time at Five Dock. The learned magistrate was not convinced that that offence had been made out and dismissed the allegation of assault of Senior Constable Brookes.

2. The appellant has prepared written submissions. There are a number of different submissions about different aspects of this case. The written submissions in question are headed “Submissions All Grounds Appeal” and comprise four pages and were signed by the appellant’s solicitor, Mr Bowe, on 9 September 2021. The challenge made is under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (“LEPRA”) and under s 231 of LEPRA. As far as the first challenge is concerned the submissions of the appellant are these:

“12 It is obvious from the evidence that neither police officer was aware as to the ‘nature’ or ‘seriousness’ of the offence. They had not appropriately turned their minds that the arrest was reasonably necessary. There does not seem to be any proper assessment that it was reasonably necessary. In a proper assessment of what is reasonable, police officers should have turned their mind to why the appellant…