R v Ali Alkan

Case [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…

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AGLC
R v Ali Alkan [2010] NSWLC 1
Case
[2010] NSWLC 1
Decision Date

CaseChat Overview and Summary

The case before the court involved a defendant, Ali Alkan, who was arrested and charged with certain offences. The primary issue was the admissibility of evidence obtained during the arrest. The court was tasked with determining whether the evidence was lawfully obtained and whether it should be admitted in the proceedings. The dispute hinged on whether the arresting officers had a warrant and whether there were other legal justifications for the arrest and search.

The court examined the legal principles governing arrests and the admissibility of evidence obtained without a warrant. It considered whether the officers had probable cause to arrest Alkan and whether the evidence was obtained in a manner consistent with the law. The court had to balance the rights of the accused against the need for law enforcement to gather evidence. It also assessed whether the evidence was tainted by an unlawful arrest or search.

The court found that the officers lacked a warrant and did not have sufficient grounds to justify the arrest and subsequent search. Consequently, the evidence obtained was deemed inadmissible as it was the result of an unlawful arrest. Given that the evidence was the cornerstone of the prosecution's case, the court dismissed the charges against Alkan. The court emphasised the importance of adhering to legal procedures during arrests and searches to protect individual rights.

The final orders of the court were to exclude the evidence obtained during the arrest and to dismiss the charges against Ali Alkan. The court's decision highlighted the necessity for law enforcement to act within the bounds of the law to ensure that evidence is not compromised by unlawful actions.

Orders

Orders of the court

Evidence Excluded.Charge Dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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