District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Filip Black v Regina [2017] NSWDC 326 Hearing dates: 26 October 2017 Date of orders: 06 December 2017 Decision date: 20 November 2017 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1 Appeal against conviction is allowed.
2 I set aside the conviction and the penalty imposed by the magistrate.Catchwords: CRIMINAL LAW – appeal – arrest – search – seizure – resist police in execution of duty – completion of search – appellant advised no longer under arrest – basis for further search – lawful duty
WORDS AND PHRASES – was the initial search being continued – purpose of searchLegislation Cited: Crimes (Appeal and Review) Act 2001 s.18(1)
Law Enforcement (Powers and Responsibilities) Act 2002 ss21, 23, 23A, 24, 30, 32
Summary Offences Act 1988 s.4ACases Cited: Gianoutsas v Glykis [2006] NSWCCA 137
Charara v R [2006] NSWCCA 244
Fox v Percy (2003) 214 CLR 118
Dyason v Butterworth [2015] NSWCA 52
AG v Director of Public Prosecutions [2015] NSWCA 218
Bandana v Director of Public Prosecutions [2016] NSWCA 140
Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
Dalton v Bartlett (1972) 3 SASR 549
Dowse v New South Wales [2012] NSWCA 337
Coleman v Power (2004) 220 CLR 1
Taikato v The Queen (1996) 186 CLR 454
Henderson v O’Connell [1937] VLR 171
Noordof v Bartlett (1986) 12 FCR 209
Kuru v State of New South Wales (2008) 236 CLR 1
R v Rondo [2001] NSWCCA 540
Straet v Bauer NSWSC unreported 16 March 1998
Coleman v Power (2004) 220 CLR 1Category: Principal judgment Parties: Filip Black (Appellant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr L Brasch with Mr J Leaver (Appellant)
S Parker, Redfern Legal Centre (Appellant)
C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s): 2016/00292739 Publication restriction: None
Judgment
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Filip Black (the appellant) appeals against the conviction entered by her Honour Magistrate Stapleton on 1 May 2017 at the Downing Centre Local Court.
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The appellant pleaded not guilty to one count of use offensive language in a public place contrary to section 4A Summary Offences Act 1988.
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At about 9.15am on 14 July 2016 the appellant was walking on Robertson Road at Centennial Park. He was wearing a black hoodie and carrying a backpack. A police patrol stopped to speak to him. The exchange that followed was recorded by a video camera attached to the shoulder strap of his backpack, providing a complete audio and partial video record of the conversation.
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The appellant objected to being spoken to by the police and was uncooperative with them. When asked by Constable Ritchie what he was doing, he responded, “None of your fucking business”. Constable Ritchie informed the appellant that he was under arrest for offensive language. A short time later in the conversation Constable Ritchie said the appellant “you’re fucking worked up”. The appellant pointed out that it was arrested for offensive language but it was apparently alright for the police officer to…
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- AGLC
- Filip Black v Regina [2017] NSWDC 326
- Case
- [2017] NSWDC 326
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the continued search conducted by the police was lawful and whether it justified the arrest of Black. The court had to determine if the police were continuing the initial search or if the search constituted a separate and distinct action. Additionally, the court needed to establish the purpose of the search and whether it was justified under the circumstances.
The court found that the continued search conducted by the police officers was not justified. The court concluded that the officers were not executing a lawful duty by continuing the search after informing Black that he was no longer under arrest. The court held that the initial search had been completed, and the subsequent search was not a continuation of that search but rather a separate action. The court determined that the police did not have a lawful basis to continue the search, and therefore, the arrest was unlawful. Based on this reasoning, the appeal against the conviction was allowed, and the conviction and penalty imposed by the magistrate were set aside.
Orders
Orders of the court
1 Appeal against conviction is allowed.
2 I set aside the conviction and the penalty imposed by the magistrate.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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