N T v The Queen

[2010] NSWDC 348

CITATION:	N T v R [2010] NSWDC 348
EX TEMPORE JUDGMENT DATE:	24 November 2010
JUDGMENT OF:	Tupman DCJ
DECISION:	Appeal upheld, Convictions quashed
CATCHWORDS:	CRIMINAL LAW - Judgment - Conviction Appeal - evidence to found conviction Improperly Obtained - police arrested 13 yr old Aboriginal girl in her home believing she had committed an offence of Breach of Bail Condition - no offence in Bail Act of breaching bail condition - power exists to arrest without warrant for breach of bail condition but inappropriate where alternatives of obtain warrant or issuing summons not considered - breach minor, whereabouts known, escalation of situation foreseeable and unnecessary - police action not unlawful but fell below the minimum standards required - evidence excluded.
LEGISLATION CITED:	Crimes Act 1900 - s58 Summary Offences Act 1988 - s4A Evidence Act 1995 - s138 Bail Act 1978 - s50
CASES CITED:	DPP v Carr [2002] NSWCCA 194 Fleet v District Court and Ors [1999] NSWCA 363
PARTIES:	The Crown N T
FILE NUMBER(S):	2010/65118
SOLICITORS:	The Director of Public Prosecution Aboriginal Legal Service

JUDGMENT

1 HER HONOUR: This is an appeal against conviction in relation to two charges that were before the Children's Court. One is a charge of resist officer in execution of duty and the other is using offensive language. One is contrary to s 58 of the Crimes Act and the second is contrary to s 4A of the Summary Offences Act.

2 I do not propose to canvass the facts of either of these two offences. For reasons that will be clear that will not become necessary. For what it is worth, however, it seems to me that had the evidence that was relied on been admissible, the offences were on their face very clearly made out by the circumstances relied on by the Prosecution. That was not in dispute before the Children's Court Magistrate. What is in dispute is whether or not the evidence relied on to prove each of these cases was admissible. The challenge to the evidence is made on the basis that it is said to amount to an impropriety.

3 Initially in the Children's Court a challenge was taken to the legality of the arrest, but that was not pursued after some evidence and argument. The issue taken in the Children's Court was whether or not the evidence was obtained improperly and a challenge to its admissibility was made under s 138 of the Evidence Act.

4 The factual circumstances relevant for this determination are found in the bundle of documents which include the fairly brief transcript before the Children's Court and exhibits there. The major exhibit is the statement of the arresting officer, Constable Sheils.

5 I accept that on 14 March 2010 at about 3.30 she was rostered to perform duty in a police vehicle with another police officer. At about 3.30 she was advised by another officer that the appellant in this case was to be arrested for breaching her bail…