Police v JS - [2007] NTMC 83

CITATION: Police v JS [2007] NTMC 083

PARTIES: DAVID MOORE & ANDREW LITMAN
v

TITLE OF COURT: YOUTH JUSTICE COURT

JURISDICTION: Criminal

FILE NO(s): 20717335

DELIVERED ON: 3 December 2007

DELIVERED AT: Darwin

HEARING DATE(s): 12 October 2007, 9 November 2007

JUDGMENT OF: Ms Sue Oliver SM

CATCHWORDS:

REPRESENTATION:

Counsel:
Complainant: Mr Robertson
Defendant: Ms Blundell

Solicitors:
Complainant: ODPP
Defendant: NTLAC

Judgment category classification: B
Judgment ID number: [2007] NTMC 083
Number of paragraphs: 35

IN THE YOUTH JUSTICE COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20717335
[2007] NTMC 083

BETWEEN:

DAVID MOORE & ANDREW LITTMAN
Complainant

AND:

JS
Defendant

REASONS FOR DECISION

(Delivered 3 December 2007)

Ms Sue Oliver SM:
1. The defendant, JS, has pleaded not guilty to four charges being two counts of unlawfully assaulting a police officer in the execution of his/her duty contrary to section 189A of the Criminal Code, a count of disorderly conduct in a public place contrary to section 47(a) of the Summary Offences Act and a count of resist a police officer in the execution of his duty.

2. At the outset of the hearing Ms Blundell, Counsel for JS, advised that once the evidence for the prosecution was heard that she would be making an application on the voir dire to exclude all evidence that followed in time from the apprehension or arrest of a Robert Warrior by way of an exercise of the Bunning v Cross discretion on the basis that everything that occurred from that point flowed as a result of an unlawful or improper act.

3. Subsequent to the hearing of the evidence I received written submissions from both parties as to the exercise of the discretion, including an alternative proposition that if I were not satisfied that I should exercise the discretion to exclude evidence following Mr Warrior’s apprehension and/or arrest that I should nevertheless exercise it to exclude all evidence following the apprehension of the defendant JS on the same grounds, that is, that the alleged offending from that point in time flowed from an unlawful or improper act by police.

4. The defendant was one of four young men sitting at the Malak Shops in the early hours of the morning of 23 June 2007. They were not engaged in any criminal conduct. A teenage girl was later present though when she arrived is not clear either from her own evidence or that of the police witnesses. A general duties police patrol stopped and approached them. Each of the two constables on that patrol, Watson and Allen, gave evidence of what occurred next. Constable Watson’s evidence was that she knew each of the boys by name. She appears to have approached them in a friendly manner asking them what was up and what they were doing out at that time. The boys appeared to be under the influence of an intoxicating substance. She described the defendant as mildly intoxicated as was another boy, Dennis Cooper. She did not make any…

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 JS

Details

AGLC: Police v JS [2007] NTMC 83
Case: [2007] NTMC 83
Decision Date: 3 December 2007

CaseChat Overview and Summary

In the Youth Justice Court of the Northern Territory, the case of Police v JS involved the defendant, JS, who pleaded not guilty to four charges: two counts of unlawfully assaulting a police officer in the execution of his duty, disorderly conduct in a public place, and resisting a police officer in the execution of his duty. The defendant’s counsel argued for the exclusion of all evidence that followed from the apprehension or arrest of Robert Warrior, asserting that it resulted from an unlawful or improper act by the police. The court needed to decide whether the Bunning v Cross discretion should be exercised to exclude the evidence following the unlawful apprehension.

The court concluded that the apprehension of Robert Warrior was unlawful as Constable Allen did not have reasonable grounds to believe that Warrior was seriously affected by alcohol or a drug, which is a requirement under the Police Administration Act for protective custody. The court found that Constable Allen's actions were more driven by Warrior’s use of abusive language than a genuine concern for Warrior's safety. The court further determined that the unlawful apprehension of Warrior led to the commission of offences by the defendant, as the defendant and others reacted to what they perceived as an unlawful arrest. The court exercised the Bunning v Cross discretion to exclude all evidence of the defendant's acts following the unlawful apprehension of Warrior, finding that the police's unlawful conduct led directly to the escalation of the situation and the subsequent offences.

Orders