R v Ali Alkan

[2010] NSWLC 1

Local Court of New South Wales

CITATION:	R v Ali Alkan [2010] NSWLC 1
JURISDICTION:	Criminal
PARTIES:	R v Ali Alkan
FILE NUMBER:	H38832480
PLACE OF HEARING:	Downing Centre Local Court
DATE OF DECISION:	01/12/2010
MAGISTRATE:	Magistrate Heilpern
CATCHWORDS:	Arrest, Evidence
LEGISLATION CITED:	S138 Evidence Act 1995 S6 Police Act 1990 s99, s230, s2301 Law Enforcement (Powers and Responsibilities) Act 2002
CASES CITED:	Director of Public Prosecutions V Carr (2002) 127 A Crim R 151 Greer v R [2004] NZCA 75 R v Coulstock (1988) A Crim R 143 DPP v Gribble [2004] NSWSC 926 Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 Fleet v District Court of NSW & Ors [1999] NSWCA 363 Williams v R [1987] HCA 36 Coleman v Power and Ors [2004] HCA 39 R v McClean [2008] NSWLC 11. R v Ridgeway (1995) 184 CLR 19
TEXTS CITED:
REPRESENTATION:	Sergeant Green, Police Prosecutor Winston Terrancini SC for the Defendant
ORDERS:	Evidence Excluded.Charge Dismissed

Reasons for Decision

1    The defendant was shot with a Taser twice by a police officer, Sergeant McDevitt, as he moved from the roadway to the footpath in the early hours of the morning in Oxford Street, Sydney. Prohibited drugs were then located in a cigarette packet in his pocket. He was charged with possession of these drugs. This case has proceeded by way of a voir dire on the admissibility of the prosecution evidence. The defence claims that as it was illegally or improperly obtained, it ought not be admitted. The prosecution argues that the actions of McDevitt were neither unlawful nor improper. The issue to be determined is whether the evidence ought to be admitted.

2    I foreshadowed on the hearing day that I would reject the tender of that evidence, and give reasons for that rejection below.

3    The submissions have proceeded on the basis that there are two matters that are not in issue. The first is that the defendant was being “arrested” at the time by being Tased. The second is that the evidence was “obtained” as a result of that arrest.

4    In coming to this decision I have taken into account each of the tendered items numbered one to nine and the oral submissions of the representatives of the parties. This judgement has been written without the benefit of transcript.

5    This judgment is divided into the following sections:

Factual Scenario


Subjective view of McDevitt



Statutory Framework – s138

Illegality of Arrest

Use of Force

Impropriety of Arrest


Admissibility

Factual Scenario

6    Each item of police evidence was tendered without objection, and without cross-examination. The result is that the evidence of the police is accepted subject to two important qualifications. There is CCTV of the incident, which was captured by City of Sydney surveillance cameras. This is crucial, as the recording devices integrated into the Taser gun were obscured by McDevitt and were unable to be utilized. Mr Terracini described this as “unfortunate”, “suspicious” and “extraordinary”. Nevertheless, the…