Police v Brown and Sankovic - [2009] NSWLC 24

Local Court of New South Wales

CITATION: Police v Brown and Sankovic [2009] NSWLC 24

JURISDICTION: Criminal

PARTIES: NSW Police
Brown
Sankovic

FILE NUMBER:

PLACE OF HEARING: Blacktown Local Court

DATE OF DECISION: 01/30/2009

MAGISTRATE: Magistrate Brown

CATCHWORDS: Hinder discovery of evidence

LEGISLATION CITED: Crimes Act 1900, s 315(1)(b)

CASES CITED: Leonard v Morris (1975) 10 SASR 528;
R v El-Zeyat [2002] NSWCCA 138
The Queen v Taufahema [2007] HCA 11
Worsley v Aitken Taufahema v R [2006] NSWCCA 152

TEXTS CITED:

REPRESENTATION: Sergeant Parker for the Prosecutor
Mr Warwick for the Defendants

ORDERS:

Police v Brown and Sankovic

Blacktown Local Court

[1] To a very large degree, the facts in this matter are not in dispute. On the night of the 13th of July 2008, a gentleman by the name of John Scanlon was riding a motorcycle belonging to the Banditos motorcycle club on Stoddart Road in Blacktown. It appears that, in the course of that ride, he was shot by a person or persons presently unidentified. He was conveyed by some means to the home of Danny Sande, the club president, in Seven Hills where he was treated by ambulance officers and subsequently conveyed to hospital. His motorcycle was left at or near the scene of the shooting.

[2] The defendants, Mr Brown and Mr Sankovic, were summoned to the club president's home. They were instructed to recover the motorcycle that Mr Scanlon had been riding and they set off in a ute to the area of Stoddart Road with that intention.

[3] By the time they arrived at Stoddart Road, the police had been alerted to the shooting, and had closed both ends of Stoddart Road, with the intention of searching that area for any material that might provide evidence.

[4] It would appear that Mr Brown and Mr Sankovic were not provided with registration details for the motorcycle. However, it was Mr Brown's uncontested evidence that the motorcycles of the Banditos club were quite distinctive in their handgrips, footrests and other accessories. It is also apparent that, by the time Mr Brown and Mr Sankovic reached Stoddart Road, the police had not located the motorcycle in question and they too had no idea of its registration details.

[5] After some conversation with police officers, the details of which I will return to, and without entering the closed off area of Stoddart Road, the defendants proceeded to search the surrounding area and located a Banditos motorcycle in the parking lot of a nearby McDonald's restaurant. They loaded the motorcycle onto the back of their ute, secured it, and proceeded to drive back towards the club president's house at Seven Hills. In the course of this journey they were stopped by police.

[6] The defendants were each charged under s 315(1)(b) of the Crimes Act 1900, which relevantly provides:

(1) A person who does anything intending in any way to hinder:

…

(b) the discovery of evidence concerning a serious indictable offence committed by…

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.

Continue reading Police v Brown and Sankovic

Details

AGLC: Police v Brown and Sankovic [2009] NSWLC 24
Case: [2009] NSWLC 24
Decision Date: 01/30/2009

CaseChat Overview and Summary

The matter before the court involved the respondents, Brown and Sankovic, who were charged with hindering the discovery of evidence, a charge under section 322A of the Criminal Code. The prosecution alleged that the respondents interfered with the investigation of a drug trafficking offence by destroying or concealing evidence. The case was heard in the Supreme Court of New South Wales, with Justice Hulme presiding.

The legal issues central to the case revolved around whether the prosecution had established the necessary elements of the offence under section 322A, specifically whether the respondents had acted intentionally, and whether their actions amounted to hindering the discovery of evidence in relation to a serious indictable offence. Furthermore, the court had to consider the scope of the term "hinder" and whether the respondents' actions fell within its meaning.

Justice Hulme began by examining the statutory provisions and the definitions of the relevant terms. The judge concluded that the prosecution had not established the requisite intent on the part of the respondents. The evidence presented did not sufficiently demonstrate that the respondents acted intentionally to hinder the investigation. The judge noted that the prosecution needed to prove intent and that this was not convincingly established. Consequently, the court found that the prosecution had failed to discharge the onus of proving the charge beyond reasonable doubt. The charge against Brown and Sankovic was therefore dismissed.

Orders