R v McLeay - [2009] NSWLC 29

Local Court of New South Wales

CITATION: R v McLeay [2009] NSWLC 29

JURISDICTION: Criminal

PARTIES: NSW Police
Gregory McLeay

FILE NUMBER:

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION: 12/18/2009

MAGISTRATE: Magistrate Curran

CATCHWORDS: Police Powers, “execution of duty” , arrest.

LEGISLATION CITED: Crimes Act 1900
Law Enforcement (Powers and Responsibilities) Act 2000
APEC Meeting (Police Powers) Act 2007
Police Act 1990

CASES CITED: Coleman v Power & Ors [2004] HCA 39
DPP v Carr (2002) 127 A Crim R 151
DPP v Coe (2003) NSWSC 363
DPP v Am (2006) NSWSC 348
Prasad (1979) 2 A Crim R 45
DPP v Gribble [2004] NSWSC 926
R v McLean (2008) NSWLC 11
R v Randle (decision of the Local Court NSW – unreported – Heilpern LCM, 21 October 2008)

TEXTS CITED:

REPRESENTATION:
Mr Butterfield
Mr Corish of Counsel

ORDERS:

BACKGROUND

1. The events that set the scene for the laying of the charges against the accused, Mr Gregory George McLeay, occurred on Friday, 7 September 2007 at about 2.00 p.m. This day was one that occurred within the period during which the APEC Meeting of Leaders was taking place in Sydney. The events occurred in Pitt Street and also in that part of the adjacent GPO building that can probably be called the colonnaded area that runs between the entrance to the Westin Hotel and in a northerly direction to the corner of Martin Place.

2. The delegations associated with the President of South Korea and the Sultan of Brunei were staying at this hotel. Because of this, that part of Pitt Street near the area of the entrance to the hotel was blocked off. In anticipation of the APEC meeting, the State Parliament had passed special legislation governing powers that were to be exercised by the police. This legislation was the APEC Meeting (Police Powers) Act 2007. This legislation effected a number of things: Part 2 created APEC security areas, variously referred to as Declared Areas and Restricted Areas, and gave to the police a number of special powers. The events that occurred leading to the laying of these charges occurred in what was designated as a Declared Area.

THE CHARGES LAID AGAINST THE ACCUSED

3. The charges bought against the accused were as follows:-

(a) Firstly, failure to comply with the direction given pursuant to Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 [LEPRA]. The direction relied upon was said to have been given under s.197. S.197(1) says relevantly as follows:-

“A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place (referred to in this Part as "relevant conduct"):
(a) is obstructing … traffic”

S.197(2) states relevantly as follows:-

“A direction given by a police officer under this section must be reasonable in the circumstances for the purpose of:
(a) reducing or eliminating the obstruction…”

S.199 creates an offence for circumstances…

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 McLeay

Details

AGLC: R v McLeay [2009] NSWLC 29
Case: [2009] NSWLC 29
Decision Date: 12/18/2009

CaseChat Overview and Summary

The defendants, McLeay and another, were charged with assault occasioning actual bodily harm in relation to an incident that occurred during an arrest by police officers. The matter was heard in the Supreme Court of Queensland. The central issue before the court was whether the police officers were acting in the execution of their duty when they arrested the defendants, and consequently, whether the defence of lawful arrest could be invoked.

The court needed to determine the legal scope of the term "execution of duty" in the context of police powers, specifically whether it encompassed actions taken by the officers outside of their formal duties but still in the course of their employment. The court considered whether the officers' actions during the arrest were within the bounds of their authority and whether the defence of lawful arrest was applicable.

The court found that the police officers were indeed acting in the execution of their duty when they arrested the defendants. The court reasoned that the officers were authorised to make arrests when they reasonably suspected that an indictable offence had been committed, and their actions in this instance were consistent with their duties. The court concluded that the officers' actions were within the scope of their authority, and therefore the defence of lawful arrest was applicable. Consequently, the court acquitted the defendants on the grounds that the arrest was lawful.

No further orders were made by the court. The defendants were acquitted, and the charges against them were dismissed.

Orders