R v Janel Anne Boekeman

District Court

New South Wales

Medium Neutral Citation:	R v Janel Anne Boekeman [2011] NSWDC 126
Hearing dates:	13 May 2011
Decision date:	29 August 2011
Jurisdiction:	Criminal
Before:	Judge Toner SC
Decision:	I uphold the appeal; I quash the conviction and penalty and dismiss the charge.
Catchwords:	Powers of police to search after arrest
Legislation Cited:	NSW Crimes Act 1900, s.353A, 352, (repealed) Law Enforcement (Power & Responsibility) Act 2002, ss23, 24, 32, 201, 206, 208, 230 and, 237, Police Act 1990 ss.8 and,24
Cases Cited:	Blacktown City Council v Hocking [2008] NSWCCA 144 Botton v Winn Supreme Court of Victoria, Phillips J, unreported 18 December 1987 Brazil v The Chief Constable of Surrey [1983] 3 ALLER 537 Clarke v Bailey [1933] 33 SR NSW 303 Leigh v Cole (1953) 6 Cox's CC 329 Lindley v Rutter (1981) 72 CrimLR 1 R v Naylor [1979] CrimLR 532R Woodley v Boyd [2001] NSWCCA 35
Texts Cited:	Code of Practice for Crime (Custody, Rights, Investigation, Managements and Evidence)
Category:	Principal judgment
Parties:	Janel Anne Boekeman
Representation:	Ms C Kluss - Accused Director of Public Prosecutions Jarratt Webb & Graham Advocacy Pty Ltd
File Number(s):	2009/262917

Judgment

1. Janelle Anne Boekeman appealed to this Court from decisions of the Armidale Local Court on 24 January 2011.

1. On that date she was convicted of three matters; two of which were an assault of a police officer in the execution of his duty and one an offence of resisting an officer in the execution of his duty.

1. Two of the matters, namely one of the assaults and the resist matter were dealt with discretely by me. I dismissed the appeal and confirmed the convictions and, for what it is worth, varied the penalties that had been imposed by the Magistrate.

1. I am now concerned with the remaining matter of an assault of a police officer in the execution of his duty. The facts as they relate to the first two offences are relevant contextually to my consideration of the remaining appeal. Her appeals in each instance were against her conviction and should they fail she appeals against the severity of the sentence imposed.

1. The offence now under consideration is said to have been committed at the Armidale Police Station. Significantly, the events which gave rise to the charge were captured on CCTV. There are some inadequacies in what was captured by the CCTV, however, it is a significant and important piece of evidence in the case. I should note that there is no sound recording of the events depicted in that footage.

1. I am mindful of the caution with which the Courts have approached the use of photographic evidence, particularly as a means of proof of matters of fact. (See Blacktown City Council v Hocking [2008] NSWCCA 144, particularly per Tobias JA [167] ff).

1. However, CCTV footage is different in that it is not still photography and is contemporaneous. Still, there are limitations to its use, which I have noted, including the absence of…