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Catchwords: Powers of police to search after arrest Legislation Cited: NSW Crimes Act 1900, s.353A, 352, (repealed)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,24Cases 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 35Texts 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
Janelle Anne Boekeman appealed to this Court from decisions of the Armidale Local Court on 24 January 2011.
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.
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.
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.
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.
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).
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…
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- Case
- [2011] NSWDC 126
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the police officers had the lawful authority to conduct a search of Boekeman's person and effects after she had been arrested. The court had to determine if the search complied with the statutory provisions and common law principles governing searches post-arrest. Specifically, the court examined if the search was justified under the circumstances and whether it was conducted reasonably and with lawful intent.
The court found that the search was conducted without proper authority and was therefore unlawful. The officers did not have a warrant, nor was there any exigent circumstance that would justify a warrantless search. The court held that the search violated Boekeman's rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic). Consequently, the court quashed the conviction, dismissed the charge, and ordered that the matter be returned to the lower court for further proceedings in accordance with law.
Orders
Orders of the court
I uphold the appeal; I quash the conviction and penalty and dismiss the charge.
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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