P v Joshua William McMillan

Local Court of New South Wales

CITATION:	P v Joshua William McMillan [2010] NSWLC 9
JURISDICTION:	Criminal
PARTIES:	NSW Police Joshua William McMillan
FILE NUMBER:
PLACE OF HEARING:	Wagga Wagga Local Court
DATE OF DECISION:	04/30/2010
MAGISTRATE:	Magistrate Lerve
CATCHWORDS:	Move on direction – LEPRA – reasonableness of direction - whether direction too broad – meaning of CBD
LEGISLATION CITED:	Law Enforcement (Powers and Responsibilities) Act 2002 Local Government Act 1993
CASES CITED:	Spatolisano –v- Hyde [2009] ACTSC 161
TEXTS CITED:
REPRESENTATION:	Sgt. Keane, Police Prosecutor Mr. J. Elliott, Solicitor of the Aboriginal Legal Service
ORDERS:	Offence proved.

1. Although the offence with which the accused is charged is relatively minor, (a fine of $220 is the maximum available penalty) a matter of what is my view considerable interest is raised, and accordingly I reserved my decision to properly research the point that is raised. The point raised is whether the direction given to the accused in this matter was reasonable within the meaning of that word in s. 197(2) of the Law Enforcement (Powers and Responsibilities Act) 2002. There is no issue on the facts, and indeed, by consent, the prosecution “handed up” the brief, which is constituted by statements by Detective Sergeant Burns and Detective Bradley Blanchard and two maps of the relevant area of the city of Wagga Wagga.

Facts

2. The evidence for the prosecutions is contained within the police statements of Detective Sergeant Burns and Detective Blanchard. Those statements are exhibits 1 and 2 respectively in the case. At about 11pm on 18 December 2009 the detectives who have given statements in the matter were conducting foot patrols at the intersection of Fitzmaurice and Sturt Streets, Wagga Wagga. Incidentally, that is a “T” intersection. The Court House is on one corner, and directly opposite the Court House is Romano’s Hotel. Detective Burns recognised the accused. He saw the accused speak with security staff at Romano’s Hotel. There was a group of about 4 or 5 men in that same vicinity. The accused said something that was indistinct to that group. One of that group replied to the accused who in turn pushed that person. Heated words were then exchanged. It was the opinion of Det. Sgt. Burns that the accused was going to start a fight with this person.

3. The two police officers approached the accused, identified themselves and asked the accused to move slightly in order that he could hear what they were saying. There was an exchange between the police and the accused in which the accused continued to use offensive language. He calmed down, but inquired in effect as to why the police were speaking to him.

4. Detective Blanchard then said to the accused:

“We saw otherwise, so this is what’s going to happen. Because you were harassing that group of people, who from what we could see weren’t doing anything to you. We are giving you a Move On Direction. We are directing you to leave the CBD, which…