Davis v The King

[2024] NSWDC 414

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Davis v R [2024] NSWDC 414

Hearing dates:

30 July 2024

Date of orders:

6 August 2024

Decision date:

06 August 2024

Jurisdiction:

Criminal

Before:

D Barrow SC DCJ

Decision:

The decision of the learned Magistrate is upheld. The appeal is dismissed.

Catchwords:

Criminal law and procedure – appeal from the Local Court to the District Court – conviction appeal – resist police officer in the execution of his duty

Lawfulness of arrest – whether there was arrest

WORDS AND PHRASES – “arrest” – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 202

Legislation Cited:

Law Enforcement (Powers and Responsibilities) Act 2002

Road Transport Act 2013

Crimes Act 1900

Crimes (Appeal and Review) Act 2001

Cases Cited:

State of New South Wales v Randall [2017] NSWCA 88

Lunney v DPP [2021] NSWCA 186

McNab v DPP (NSW) 2021 106 NSWLR 430

R v Wong [2022] NSWDC 257

R v Inwood [1973] 2 All ER 645

Christie v Leachinsky [1947] AC 573

R v Dungay [2007] NSWCCA 443

NSW v Riley (2003) 57 NSWLR 496, [2003] NSWCCA 208

Category:

Principal judgment

Parties:

Jed Davis (Appellant)
Regina (Crown)

Representation:

Director of Public Prosecutions, Ms N Breward
Solicitor for the Appellant, Mr J Fahey

File Number(s):

2023/00199471

 Decision under appeal 

Court or tribunal:

Local Court

Before:

Prowse LCM

Judgment

1. On 22 February 2023, the appellant was charged with two offences. The first was a charge of driving a vehicle with an illicit drug present in his blood (cannabis). The appellant pleaded guilty to this charge and it was dealt with in the Local Court. It is not the subject of the appeal.

2. The appellant was further charged with resisting arrest pursuant to s 60(1AA) of the Crimes Act 1900. He was convicted in the Local Court after a summary hearing and fined $500. The appellant appeals his conviction.

Overview

3. At approximately 10.38am on 22 February 2023 Senior Constable Douglas Lees (SC Lees) stopped a black Ford Fiesta for random breath testing. The appellant was driving the vehicle. He was in the company of his partner and their four-day old baby. He underwent a breath test. The test returned a very high reading of alcohol, causing SC Lees to ask the appellant if he had used mouth wash. The appellant replied that he had brushed his teeth before leaving home. Five minutes later another breath test was conducted. The appellant passed this test.

4. A random drug test was then conducted. Without a caution and inappropriately, DS Lees asked the appellant when he had last used a prohibited drug. He stated he had not. The test returned a positive reading for cannabis.

5. Following this result, SC Lees told the appellant to get out of his vehicle so they could go “to Grafton” for a secondary test. The appellant refused to get out of his car at that point, stating he was worried about leaving his partner, who could not drive,…