Police v Brett Lee Nye

[2003] NSWLC 9

Local Court of New South Wales

CITATION:	Police v Brett Lee Nye [2003] NSWLC 9
JURISDICTION:	Criminal
PARTIES:	Police Brett Lee Nye
FILE NUMBER:
PLACE OF HEARING:	Moruya
DATE OF DECISION:	12/20/2002
MAGISTRATE:	Magistrate D Heilpern
CATCHWORDS:	Crimes - Practice and Procedure - Arrest - Evidence
LEGISLATION CITED:	Evidence Act 1995 Summary Offences Act 1988
CASES CITED:	R v Coombe (unrep CCA NSW 24/4/97) Hunt CJ R v Coulstock (1998) 99 A Crim R 143 Carr v DPP (unrep NSWSC Smart J) Hazell v City of Parramatta (1968) 1 NSWLR 165 Bales v Parmeter (1935) 35 SR NSW 182 Williams (1986) CLR 278 Pirani and Diggins v Hardy (NSWSC Smart J 9/9/84) R V Merrit (2002) Crim LN (1474) R v Haddad and Treglia (2000) NSWCCA351 Robinett v Police SCGRG-00-11-2000 R v Dalley Crim LN 55(1446) Ridgeway (1995) 184 CLR 19 R v K 119 ALR 596
REPRESENTATION:	Davis for Police Edmunds/Smith for Defendant
ORDERS:	Charge dismissed.

Reasons for Decision

Proceedings

1 This matter first came before the local court at Batemans Bay for hearing on 26 September 2002. On that day the prosecution case was tendered without objection, some questions were asked of the informant Snr Const Magrin, and some legal argument was entered into. The matter was then adjourned for legal submissions on the issue of “execution of duty” to Moruya on 25 October 2002. On that day the defence indicated that they wished to raise a legal issue as to the admissibility of much of the prosecution case on the basis of s138 Evidence Act 1995. This effectively was a re-opening of the case as the evidence was previously admitted without objection. Graciously, and most fairly, Mr Davis agreed to that course, and I heard legal argument on s138 and on the issue of execution of duty. Thus this judgement deals with two distinct issues, the first evidentiary, and the second substantive.

2 In essence the defence is arguing that the evidence of intimidation should be excluded due to the illegality or impropriety of the officers actions with respect to a young person. Should the evidence be admitted, the defence is arguing that the prosecution have failed to prove that the officer was acting in the execution of his duty.

Facts

3 There is no contention as to what occurred. At 12.40pm on 28 June 2002, Snr Const Magrin and Curry were in uniform patrolling in the CBD of Moruya. They saw a group of 10 – 15 people standing on the corner of Vulcan and Church Street on the footpath and outside an hotel. The group consisted of adult males (one of whom was the defendant, an aboriginal male) and juveniles (one of whom was an aboriginal thirteen year old, KB). The statement of Snr Const Magrin describes what next occurred:

4. The group were loitering and blocking the footpath impeding pedestrian traffic. We pulled the police vehicle to the side of the road to speak to the group. Immediately upon stopping the barman, Bob,…