Poidevin v Semaan

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.