JH v The Queen - [2019] NSWSC 192

Supreme Court

New South Wales

Medium Neutral Citation: JH v R [2019] NSWSC 192
Hearing dates: 27 February 2019
Decision date: 06 March 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) Appeal allowed.

(2) The finding of guilt on 14 June 2018 for the offence of resist police in execution of their duty contrary to s 546C of the Crimes Act 1900 is set aside.
(3) The order made by the President of the Children’s Court pursuant to s 33(1)(b) of the Children (Criminal) Proceedings Act 1987 on 14 June 2018 is vacated.
Catchwords: CRIMINAL LAW – appeal against conviction – resist police in execution of their duty – Crimes Act 1900 (NSW), s 546C – appeal to Supreme Court from decision of President of Children’s Court – Crimes (Appeal and Review) Act 2001 (NSW), Part 3 – where police approached 16-year-old on Manly Corso suspecting breach of bail conditions – where appellant lit up a cigarette contrary to Council signage – where officer said, “You have committed an offence but if you give me some ID we will leave it at that” – where appellant presented fake ID – where officers arrested appellant and he struggled violently resisting arrest – where arresting officer made no mention of issuing appellant Court Attendance Notice – whether police officer’s intention was to charge appellant with smoking offence or to check bail conditions – whether police officers acting in the execution of their duty – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99(1)(b)(iii) – Robinson v State of New South Wales [2018] NSWCA 231 considered
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(b)
Children’s Court Act 1987 (NSW) ss 6A(2), 22A
Children’s Court Regulation 2014 (NSW) r 6(1)
Crimes Act 1900 (NSW) s 546C
Director of Public Prosecutions Act 1986 (NSW) s 9
Crimes (Appeal and Review) Act 2001 (NSW) ss 3, 11, 18, 19(1)(2), 20(1), 52, 53
Local Government Act 1993 (NSW) s 632(1)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 19, 99(1), 201(1)
Bail Act 2013 (NSW) s77(1)
Cases Cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Gionoutsis v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137
Charara v R [2006] NSWCCA 244
NSW v Randall [2017] NSWCA 88
Robinson v State of New South Wales [2018] NSWCA 231
Category: Principal judgment
Parties: JH (Appellant)
Crown (Respondent)
Representation:
Counsel:
Mr S Healy (Appellant)
Ms D White (solicitor) (Respondent)
Solicitors:
O’Brien Criminal and Civil Solicitors (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/229861
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Children’s Court

Jurisdiction:

Criminal

Date of Decision:

14 June 2018

Before:

His Honour Judge Johnstone, President of the Children’s Court

File Number(s):

2018/17009

Judgment

The appellant, JH, appeals to the Supreme Court against a finding by Judge Johnstone, President of the Children’s Court, that he had resisted police in the execution of their duty…

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 JH v The Queen

Details

AGLC: JH v The Queen [2019] NSWSC 192
Case: [2019] NSWSC 192
Decision Date: 06 March 2019

CaseChat Overview and Summary

In the case of JH v The Queen, the appellant, a 16-year-old, appealed against his conviction in the Children's Court of New South Wales for resisting police in the execution of their duty. The incident occurred on the Manly Corso, where the appellant was suspected of breaching his bail conditions. The appellant was seen smoking a cigarette in contravention of a Council signage prohibiting smoking. Upon being approached by the police, the appellant presented a fake ID and subsequently resisted arrest violently. The legal issue before the court was whether the police officer's intention was to charge the appellant with the smoking offence or to verify the appellant's bail conditions, and whether the officers were acting in the execution of their duty under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

The court examined the circumstances leading to the arrest and the appellant's actions. It considered the officer's statement, "You have committed an offence but if you give me some ID we will leave it at that," and the subsequent presentation of fake ID and violent resistance by the appellant. The court noted that the arresting officer did not mention issuing a Court Attendance Notice, which could have clarified the officer's intention. The court also assessed whether the officers were acting in the execution of their duty and if the appellant's actions constituted an offence under the Crimes Act 1900 (NSW), s 546C. The decision in Robinson v State of New South Wales [2018] NSWCA 231 was relevant in determining the scope of police powers and the nature of the officers' actions.

Upon review, the court found that the police officers were acting in the execution of their duty and that the appellant's actions amounted to resisting police in the execution of their duty. The appeal was dismissed, and the conviction was upheld. The court's reasoning was grounded in the understanding that the officers were engaged in verifying the appellant's bail conditions, and the appellant's violent resistance was unlawful. The court concluded that the officers' actions were consistent with their duty, and the appellant's conviction was correctly upheld. The final orders confirmed the dismissal of the appeal and the maintenance of the original conviction.

Orders