Poidevin v Semaan

Case [2013] NSWCA 334


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Poidevin v Semaan [2013] NSWCA 334
Hearing dates:27 August 2013
Decision date: 10 October 2013
Before: Ward JA at [1];
Emmett JA at [2];
Leeming JA at [6]
Decision:

1. Leave to appeal granted.

2. The draft notice of appeal stand as the notice of appeal in the proceedings, and the further requirements of the rules with respect to its filing and service be waived.

3. The orders made on 22 March 2013 be set aside, and in lieu thereof the appeal pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 be dismissed with costs.

4. No order as to the costs of the appeal to the Court of Appeal, with the intent that each party bear his own costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - confined to ground that involves a question of law alone - no error in law in Magistrate failing to consider defence of honest and reasonable mistake of fact which was not raised before him

POLICE - powers and duties - power to seize property to prevent breach of the peace - police officer attempted to seize respondent's mobile phone - respondent convicted of resisting a police officer in the due execution of duty - police officer obliged to inform respondent as soon as reasonably practicable after exercising the power of his name, place of duty and the reason for exercising the power - elements of offence made out even though no evidence that information was given - no obligation to prove that officer formed view that it was impracticable to give information before exercising power - consideration of nature of power at common law and as preserved by statute
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001
Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Inclosed Lands Protection Act 1901
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Albert v Lavin [1982] AC 546
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93
Edyp v Brazbuild Pty Ltd [2011] NSWCA 218
Egan v Willis [1998] HCA 71; (1998) 195 CLR 424
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Giddings v Director of Public Prosecutions [2008] NSWSC 169; (2008) 181 A Crim R 536
Gollan v Nugent (1988) 166 CLR 18
Humphries v…

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AGLC
Poidevin v Semaan [2013] NSWCA 334
Case
[2013] NSWCA 334
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Poidevin, against the respondent, Semaan, concerning a conviction for resisting a police officer in the execution of their duty. The appeal was heard in the Court of Appeal of New South Wales by Ward, Emmett and Leeming JJA.

The central legal issues before the Court of Appeal were whether the Magistrate erred in law by failing to consider a defence of honest and reasonable mistake of fact that was not raised during the original proceedings, and whether the elements of the offence of resisting a police officer were made out despite the absence of evidence that the officer informed the respondent of their name, place of duty, and the reason for exercising their power to seize a mobile phone. The Court also considered the nature of the police power to seize property to prevent a breach of the peace at common law and as preserved by statute.

The Court determined that an appeal confined to a question of law alone could not succeed on the ground that the Magistrate failed to consider a defence not raised before him. Regarding the offence, the Court held that the elements were made out even if the officer did not provide the required information, as there was no obligation to prove that the officer had formed the view that it was impracticable to give that information before exercising the power. The Court found no error of law in the Magistrate's decision.

Consequently, leave to appeal was granted, and the draft notice of appeal was made the formal notice. The orders made on 22 March 2013 were set aside, and the appeal pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 was dismissed with costs. No order was made as to the costs of the appeal to the Court of Appeal, with each party to bear their own costs.

Orders

Orders of the court

1. Leave to appeal granted.

2. The draft notice of appeal stand as the notice of appeal in the proceedings, and the further requirements of the rules with respect to its filing and service be waived.

3. The orders made on 22 March 2013 be set aside, and in lieu thereof the appeal pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 be dismissed with costs.

4. No order as to the costs of the appeal to the Court of Appeal, with the intent that each party bear his own costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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