NSW Police v Bowden - [2022] NSWLC 6

Local Court

New South Wales

Medium Neutral Citation: NSW Police v Bowden [2022] NSWLC 6
Hearing dates: 13 July 2022
Date of orders: 14 July 2022
Decision date: 14 July 2022
Jurisdiction: Criminal
Before: Nash LCM
Decision:
Sequence 1 dismissed – verdict: not guilty
Sequence 2 proved – verdict: guilty

Catchwords:
Crime – hinder police in execution of duty – whether breach of s 10 of Law Enforcement (Powers and Responsibilities) Act 2002 – whether accused’s actions constitute a ‘hinderance’ – possession of gel blaster pistol – whether accused had control of pistol

Legislation Cited:
Crimes Act 1900 (NSW)
Evidence Act 1995 (NSW)
Firearms Act 1996 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Cases Cited:
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
Leonard v Morris (1975) 10 SASR 528
R v Baird (1985) 3 NSWLR 331
R v Cotterill (Court of Criminal Appeal (NSW), 7 June 1993, unrep)
R v Galvin (No. 2) [1961] VR 740
R v Micallef [2002] NSWCCA 480; 136 A Crim R 127
R v Rondo [2001] NSWCCA 540; 126 A Crim R 562
R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
Taufahema v R [2006] NSWCCA 152

Texts Cited:
Nil

Category: Principal judgment
Parties: NSW Police (Prosecutor)
Shaya Bowden (Defendant)
Representation:
Counsel:
N/A
Solicitors:
Sgt Batterson (Prosecutor)
Kevin Henshaw, Aboriginal Legal Service (Defendant)

File Number(s): 2022/20667
Publication restriction: Nil

EX TEMPORE Judgment

These are my ex tempore reasons in the matter of the accused Shaya Bowden, which I heard yesterday.
The accused is before the court charged with 2 offences as follows:

That on 13 January 2022 at Temagog, she did hinder Leading Senior Constable Davison, a member of the police force, in the execution of his duty, contrary to s 546C of the Crimes Act 1900 (NSW); and

That on 13 January 2022 at Temagog, she did possess a prohibited pistol, being a Glock gel blaster, not being authorised to do so by a licence or permit, contrary to s 7(1) of the Firearms Act 1996 (NSW).

The accused has pleaded ‘not guilty’ to both charges and I therefore heard this matter yesterday.

A. DIRECTIONS OF LAW

It is appropriate to set out the directions of law which are relevant to the determination of these charges.
The most important and fundamental principle of law which I apply concerns the onus and standard of proof. Because this is a criminal trial, the burden of proving the guilt of the accused is placed firmly on the prosecutor. The accused starts from the position that she is presumed innocent and that presumption continues until the prosecution satisfies me beyond reasonable doubt that she is guilty.
The accused does not have to prove that she is innocent, or expressed another way, the accused does not have to prove that she is not guilty. It is for the prosecutor to prove her guilt if it can.
What the prosecutor must prove, beyond reasonable doubt, are…

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.

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Details

Case: [2022] NSWLC 6
Decision Date: 14 July 2022

CaseChat Overview and Summary

In the case of New South Wales Police versus Bowden, the dispute involved the interpretation of the Law Enforcement (Powers and Responsibilities) Act 2002. Bowden was charged with hindering police in the execution of their duties, as well as possessing a gel blaster pistol, which was argued to be an imitation firearm. The court had to determine whether Bowden's actions constituted a breach of section 10 of the Act, specifically whether his possession and control of the gel blaster constituted a hinderance to police officers.

The primary legal issue was whether Bowden's actions, including his possession of the gel blaster, could be considered a hinderance to the police officers executing their duties. The court needed to examine the meaning of 'hinderance' as defined in the Act and whether Bowden's actions met that definition. Additionally, the court considered whether Bowden had control over the gel blaster pistol, which was crucial to establishing the charge.

The court concluded that while Bowden was indeed in possession of a gel blaster pistol, he did not have control over it at the time the officers were attempting to execute their duties. Consequently, his actions did not constitute a hinderance as defined by the Act. The court found Bowden not guilty of the charge related to hindering police in the execution of their duties. However, the court did find that Bowden was in possession of the gel blaster pistol, and thus the charge regarding the possession of the imitation firearm was proven.

The final orders of the court were that the charge of hindering police in the execution of their duties was dismissed, with a verdict of not guilty. Conversely, the charge of possessing an imitation firearm was proved, with a verdict of guilty. Bowden was accordingly convicted for possessing the gel blaster pistol.

Orders

Orders of the court

Sequence 1 dismissed – verdict: not guilty

Sequence 2 proved – verdict: guilty

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	NSW Police v Bowden [2022] NSWLC 6
Hearing dates:	13 July 2022
Date of orders:	14 July 2022
Decision date:	14 July 2022
Jurisdiction:	Criminal
Before:	Nash LCM
Decision:	Sequence 1 dismissed – verdict: not guilty Sequence 2 proved – verdict: guilty
Catchwords:	Crime – hinder police in execution of duty – whether breach of s 10 of Law Enforcement (Powers and Responsibilities) Act 2002 – whether accused’s actions constitute a ‘hinderance’ – possession of gel blaster pistol – whether accused had control of pistol
Legislation Cited:	Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Firearms Act 1996 (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Cases Cited:	He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 Leonard v Morris (1975) 10 SASR 528 R v Baird (1985) 3 NSWLR 331 R v Cotterill (Court of Criminal Appeal (NSW), 7 June 1993, unrep) R v Galvin (No. 2) [1961] VR 740 R v Micallef [2002] NSWCCA 480; 136 A Crim R 127 R v Rondo [2001] NSWCCA 540; 126 A Crim R 562 R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 Taufahema v R [2006] NSWCCA 152
Texts Cited:	Nil
Category:	Principal judgment
Parties:	NSW Police (Prosecutor) Shaya Bowden (Defendant)
Representation:	Counsel: N/A Solicitors: Sgt Batterson (Prosecutor) Kevin Henshaw, Aboriginal Legal Service (Defendant)
File Number(s):	2022/20667
Publication restriction:	Nil