Khoder Addouj v The Queen

[2016] NSWDC 47

District Court

New South Wales

Medium Neutral Citation:	Khoder Addouj v R [2016] NSWDC 47
Hearing dates:	21 March 2016
Date of orders:	08 April 2016
Decision date:	08 April 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	(1) The appeal against conviction is allowed (2) I set aside the conviction and 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 Act 1900 s. 546C Crimes (Appeal and Review) Act 2001 s.18(1) Law Enforcement (Powers and Responsibilities) Act 2002 ss21, 23, 23A, 24, 201, 203
Cases Cited:	Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Henderson v O’Connell [1937] VLR 171 Noordof v Bartlett (1986) 12 FCR 209 Coleman v Power (2004) 220 CLR 1 Kuru v State of New South Wales (2008) 236 CLR 1
Category:	Principal judgment
Parties:	Khoder Addouj (Appellant) Regina (Respondent)
Representation:	Counsel: Ms S Keating (Appellant) Solicitor: C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/00153467

Judgment

1. Khoder Addouj (the appellant) appeals against conviction entered by her Honour Magistrate Keogh at the Downing Centre Local Court on 30 October 2015. The appellant pleaded not guilty to one count of resisting police in execution of their duty contrary to s. 546C Crimes Act 1900. The appellant was convicted and fined the sum of $600.

2. At about 9.50pm on 22 May 2015 the appellant was observed by police in the vicinity of the Beresford Hotel in Surry Hills where he spoke to another male. He got into a car and drove a short distance. The appellant was stopped by the police in Oxford Street. He was asked to get out of the car and the police searched it. The police located some steroid cream and the appellant was arrested for possession of that item. At that time the appellant was handcuffed. The police called for a caged police vehicle to attend and the appellant was strip searched in the rear of the caged vehicle. In the meantime, the police continued to search the car.

3. In the car the police located the sum of $3,700 in cash. Of that sum, $1,400 of it was in the console of the car and the appellant told the police it was his. That sum was later returned by the police to the appellant. The police located a further $2,300 in cash and a Nokia mobile phone secreted under the dashboard of the car. The appellant told the police that he did not own the car and that he had no knowledge of the origin of the $2,300 in cash or the Nokia mobile phone. He told the police that he owned a Samsung mobile phone. The police noticed…