R v DB; R v AP - [2020] NSWDC 472

District Court

New South Wales

Medium Neutral Citation: R v DB; R v AP [2020] NSWDC 472
Hearing dates: 5 August 2020
Decision date: 24 August 2020
Jurisdiction: Criminal
Before: DCJ Yehia SC
Decision:
In each case, the appeal is upheld. I set aside the orders of the Children's Court.

Catchwords:
CRIME – appeal and review – resist and assault police in execution of duty – appeal against findings that offences proved by Children’s Court
POLICE POWERS – power to arrest without warrant – requirements of s 99 LEPRA not met – arrest to be for purposes of commencing proceedings – no power to detain for investigation or questioning – principle that arrest is to be a measure of last resort – statutory presumption that criminal proceedings against children should be commenced without resort to arrest
POLICE POWERS – power to detain intoxicated persons – whether requirements of s 206 LEPRA met – meaning of “intoxicated” – detention of intoxicated minors where parent requests that police convey them home – multiple police officers taking a child to the ground and forcing him into a caged vehicle where object of legislation is said to be care and detention not arrest and charge
EVIDENCE – discretion to exclude evidence pursuant to s 138 Evidence Act 1995 – whether evidence obtained “in consequence of” an impropriety – whether police statements and body worn video obtained following period of unlawful detention improperly or unlawfully obtained

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW), s 8
Evidence Act 1995 (NSW), s 138
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 105, 206

Cases Cited:
Al-Kateb v Goodwin (2004) 219 CLR 562
Alla v Gleeson (Supreme Court (NSW), 25 October 1985, Roden J, unrep)
ASIC v Macdonald (No 5) [2008] NSWSC 1169
Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219
Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151
Director of Public Prosecutions v SB [2020] NSWSC 734
Fleet v District Court [1999] NSWCA 363
Jankovic v Director of Public Prosecutions [2020] NSWCA 31
NSW v Robinson [2019] HCA 46
R v Dalley (2002) 132 A Crim R 169
R v Helmout (2001) 125 A Crim 257
Williams v R (1986) 161 CLR 278

Texts Cited:
Convention on the Rights of the Child, art 37(b)
International Covenant on Civil and Political Rights, arts 9, 24

Category: Principal judgment
Parties: Director of Public Prosecutions
AP
DB
Representation: Office of the Director of Public Prosecutions
Children’s Legal Service, Legal Aid NSW (AP)
Rebecca Dunlop (DB)

File Number(s): 2019/00112829
2019/00107084
Decision under appeal

Court or tribunal:

Children's Court

Jurisdiction:

Crime

Date of Decision:

29 January 2020

Before:

Children's Magistrate Freund

File Number(s):

2019/00045090
2019/00107084

Judgment

DB appeals against a finding of guilt in relation to one offence that, on 5 April 2019, he resisted Sergeant Chapman, Senior Constable Wallbridge and Senior Constable Rose in the execution of their duty.
AP appeals against…

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 R v DB; R v AP

Details

AGLC: R v DB; R v AP [2020] NSWDC 472
Case: [2020] NSWDC 472
Decision Date: 24 August 2020

CaseChat Overview and Summary

The appeals by DB and AP arose from their convictions in the Children's Court for resisting and assaulting police officers during the execution of their duties. The central issues before the court were whether the police had lawful grounds to arrest and detain the minors, and if the evidence obtained during their detention should be excluded due to any impropriety.

The court examined whether the police met the requirements of section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) for arresting without a warrant and whether the statutory presumption against arresting minors was correctly applied. The court found that the police did not have lawful grounds to arrest the minors as the circumstances did not warrant the use of such a measure, and the statutory presumption against arrest should have been followed. Additionally, the court considered the interpretation of "intoxicated" under section 206 of LEPRA, concluding that the detention of the minors for the purpose of being conveyed home did not meet the statutory criteria. The court also evaluated the legality of the detention and the admissibility of evidence obtained during this period.

The court concluded that the police lacked the lawful authority to arrest and detain the minors, and the evidence obtained during the period of unlawful detention was improperly obtained. Therefore, the evidence should have been excluded under section 138 of the Evidence Act 1995. Consequently, the court upheld the appeals, set aside the Children's Court orders, and quashed the convictions against DB and AP.

Orders

Orders of the court

In each case, the appeal is upheld. I set aside the orders of the Children's Court.

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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Medium Neutral Citation:	R v DB; R v AP [2020] NSWDC 472
Hearing dates:	5 August 2020
Decision date:	24 August 2020
Jurisdiction:	Criminal
Before:	DCJ Yehia SC
Decision:	In each case, the appeal is upheld. I set aside the orders of the Children's Court.
Catchwords:	CRIME – appeal and review – resist and assault police in execution of duty – appeal against findings that offences proved by Children’s Court POLICE POWERS – power to arrest without warrant – requirements of s 99 LEPRA not met – arrest to be for purposes of commencing proceedings – no power to detain for investigation or questioning – principle that arrest is to be a measure of last resort – statutory presumption that criminal proceedings against children should be commenced without resort to arrest POLICE POWERS – power to detain intoxicated persons – whether requirements of s 206 LEPRA met – meaning of “intoxicated” – detention of intoxicated minors where parent requests that police convey them home – multiple police officers taking a child to the ground and forcing him into a caged vehicle where object of legislation is said to be care and detention not arrest and charge EVIDENCE – discretion to exclude evidence pursuant to s 138 Evidence Act 1995 – whether evidence obtained “in consequence of” an impropriety – whether police statements and body worn video obtained following period of unlawful detention improperly or unlawfully obtained
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW), s 8 Evidence Act 1995 (NSW), s 138 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 105, 206
Cases Cited:	Al-Kateb v Goodwin (2004) 219 CLR 562 Alla v Gleeson (Supreme Court (NSW), 25 October 1985, Roden J, unrep) ASIC v Macdonald (No 5) [2008] NSWSC 1169 Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219 Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151 Director of Public Prosecutions v SB [2020] NSWSC 734 Fleet v District Court [1999] NSWCA 363 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 NSW v Robinson [2019] HCA 46 R v Dalley (2002) 132 A Crim R 169 R v Helmout (2001) 125 A Crim 257 Williams v R (1986) 161 CLR 278
Texts Cited:	Convention on the Rights of the Child, art 37(b) International Covenant on Civil and Political Rights, arts 9, 24
Category:	Principal judgment
Parties:	Director of Public Prosecutions AP DB
Representation:	Office of the Director of Public Prosecutions Children’s Legal Service, Legal Aid NSW (AP) Rebecca Dunlop (DB)
File Number(s):	2019/00112829 2019/00107084
Decision under appeal	Court or tribunal: Children's Court Jurisdiction: Crime Date of Decision: 29 January 2020 Before: Children's Magistrate Freund File Number(s): 2019/00045090 2019/00107084