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Filip Black v Regina

Filip Black v Regina

Case [2017] NSWDC 326 20 November 2017

Appeal

Arrest

Search & Seizure

Resist Police in Execution of Duty

Compensatory Damages

Criminal Law

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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 search
Legislation 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.4A
Cases 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 1
Category: Principal judgment
Parties: Filip Black (Appellant)
Regina (Respondent)
Representation:
Counsel:
Mr L Brasch with Mr J Leaver (Appellant)
Solicitors:
S Parker, Redfern Legal Centre (Appellant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/00292739
Publication restriction: None

Judgment

Filip Black (the appellant) appeals against the conviction entered by her Honour Magistrate Stapleton on 1 May 2017 at the Downing Centre Local Court.
The appellant pleaded not guilty to one count of use offensive language in a public place contrary to section 4A Summary Offences Act 1988.
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.
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…

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 Filip Black v Regina

Details

AGLC: Filip Black v Regina [2017] NSWDC 326
Case: [2017] NSWDC 326
Decision Date: 20 November 2017

CaseChat Overview and Summary

Filip Black sought to appeal against his conviction for resisting police in the execution of their duty. The dispute originated from an incident where police officers conducted a search of Black and subsequently arrested him. Following the completion of the search, Black was informed that he was no longer under arrest, yet the search continued. Black was subsequently charged with resisting police in the execution of their duty, a charge he contested. The matter was heard in the County Court of Victoria, where the appeal was lodged against the conviction.

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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Citations

AGLC Citation

Filip Black v Regina [2017] NSWDC 326

Most Recent Citation

Police v JJ (a pseudonym) [2022] NSWLC 17

Cases citing this decision · 4 of 4 shown

TF v The King
[2024] NSWDC 542 Para 10

…At paragraph [3] of her written submissions the Crown Prosecutor refers to the decision of Filip Black v R [2017] NSWDC 326, a decision of my colleague his Honour Judge Scotting. With unfeigned respect to his Honour I gratefully adopt what he said at [10]-[16], namely:…
Logue v The King
[2023] NSWDC 395 Para 20

…as did occur in this case. In the Crown submissions the approach to section 18 appeal was taken from a decision of this court in Filip Black v Regina [2017] NSWDC 326 commencing at [10]:…
Police v JJ (a pseudonym)
[2022] NSWLC 17 Para 113

…As the District Court observed in Filip Black v Regina [2017] NSWDC 326 at [20]:…
Child A v Hasler
[2019] NSWSC 672 Para 28

…prepared by his Honour, but the reasons were overtaken to a degree by the provision by the plaintiff to the court of a further authority ( Black v R [2017] NSWDC 326) in support of his application for leave. The Magistrate gave the parties access to his written judgment, but said that he would need to consider and…

View all 4 citing cases →

Cases cited in this decision · 12 of 12 shown

Engelbrecht v Director of Public Prosecutions (NSW)
[2016] NSWCA 290 Para 15

…r subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]..…
Bandana v Director of Public Prosecutions
[2016] NSWCA 140 Para 15

…on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]..…
AG v Director of Public Prosecutions (NSW)
[2015] NSWCA 218 Para 15

…ther or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Pu…
Dyason v Butterworth
[2015] NSWCA 52 Para 14

…etionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28].…
Dowse v New South Wales
[2012] NSWCA 337 Para 18

…y standard after due consideration of the circumstances and the context: Dalton v Bartlett (1972) 3 SASR 549 at 555, cited in Dowse v New South Wales [2012] NSWCA 337 at [24] per Basten JA (McColl and Hoeben JJA agreeing).…
Kuru v State of New South Wales
[2008] HCA 26 Para 22

…nuing their investigations when their statutory power that authorises the commission of a trespass comes to an end: Kuru v State of New South Wales (2008) 236 CLR 1.…
Charara v R
[2006] NSWCCA 244 Para 11

…ard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].…
Gianoutsos v Glykis
[2006] NSWCCA 137 Para 10

…pts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31];…
Coleman v Power
[2004] HCA 39 Para 19

…In Coleman v Power (2004) 220 CLR 1 , Gleeson CJ at [14]-[15] said that a Queensland statute prohibiting the use of “threatening, abusive or insulting words” in a public place required more than the language being “merely derogatory” of the person to whom it was addressed. The language needed to be of such a nature…
Fox v Percy
[2003] HCA 22 Para 13

…The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].…
R v Rondo
[2001] NSWCCA 540 Para 26

…e information in the mind of the police officer at the relevant time. Regard must be had for the source of the information and its content: R v Rondo [2001] NSWCCA 540 at [53].…
Taikato v The Queen
[1996] HCA 28 Para 20

…pon the circumstances of the case and the purpose of the provision to which the defence of reasonable excuse is an exception: Taikato v The Queen (1996) 186 CLR 454 at 464 per Brennan CJ, Toohey, McHugh and Gummow JJ. A reasonable excuse is no more or less than an excuse that would be accepted by a reasonable person:…

Legislation cited in this decision · 3

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
21, 23, 23A, 24, 30, 32 7 mentions (from Para 23)
Crimes (Appeal and Review) Act 2001 (NSW)
18(1) 2 mentions (from Para 10)
Summary Offences Act 1988 (NSW)
4A 2 mentions (from Para 2)

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 search
Legislation 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.4A
Cases 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 1
Category:	Principal judgment
Parties:	Filip Black (Appellant) Regina (Respondent)
Representation:	Counsel: Mr L Brasch with Mr J Leaver (Appellant) Solicitors: S Parker, Redfern Legal Centre (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/00292739
Publication restriction:	None