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Sally Nicholas v Jamian Bara Bara

Sally Nicholas v Jamian Bara Bara

Case [2017] NTLC 31 19 December 2017

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CITATION:Sally Nicholas v Jamian Bara Bara [2017] NTLC 031
PARTIES:Sally NICHOLAS
v
Jamian BARA BARA

TITLE OF COURT:  Local Court
JURISDICTION:  Criminal
FILE NO:21748187
DELIVERED ON:  19 December 2017
DELIVERED AT:  Darwin
HEARING DATE(s):  13 & 24 November 2017
JUDGMENT OF:  Greg Macdonald
CATCHWORDS:

Resist police - Police Administration Act - ss. 123, 127, 134 and 158 - Criminal Code - s26 and 27 - common law - “arrest” - “taking to custody” – “resist a member”.
REPRESENTATION:
Counsel:
Plaintiff:Ms E Colliver
Defendant:Ms M Hilder-Achurch
Solicitors:
Plaintiff:NAAJA
Defendant:DPP
Judgment category classification:        B
Judgment ID number:  [2017] NTLC 031
Number of paragraphs:  39

IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 21748187
BETWEEN:

Sally NICHOLAS

Complainant

AND:

Jamian BARA BARA

Defendant

REASONS FOR JUDGMENT
(Delivered 19 December 2017)
Judge Macdonald:
Background

Defendant Jamian Bara Bara was charged that on 10 October 2017 he did “resist a member of the police force in the execution of his duty” contrary to s 158 of the Police Administration Act (Act). Mr Bara Bara pleaded not guilty to the charge on 13 November 2017, with the contested hearing ensuing that day. Constable Daniel Hopkins and Sergeant Damien Barbe gave oral evidence. Mr Bara Bara was not called to give evidence.
The only material witness was Constable Hopkins, so his evidence must be approached and scrutinised with the caution and care referred to in R v Murray (1987) 11 NSWLR 12. Constable Hopkins’ evidence was frank, direct and honestly given, and I accepted that evidence in total. That included his concession that at no time prior to Sergeant Barbe subsequently apprehending Mr Bara Bara in Mitchell Street did he inform Mr Bara Bara that he was “under arrest”, or of his purpose at the relevant time to ‘take him into custody’ or ‘place him under arrest’, or of the particular offences for which he was to be arrested.
On 24 November 2017 Mr Bara Bara was found guilty as charged, at which time brief oral reasons were given, with written reasons to be published.
On the basis of the oral evidence given by Constable Hopkins on 13 November 2017, I found to the necessary standard as follows:
(i)On the evening of 10 October 2017 NT Police Constables Hopkins and Lymbery received a radio communication reporting an incident of physical violence against an Aboriginal woman by a male at the corner of Daly Street and The Esplanade in Darwin City. The officers were mobile and drove towards the reported location. Close to the intersection with Daly Street they came across a group of people, one of whom was an Aboriginal woman with a bloodied mouth or blood on her chin. Another of the group was Mr Bara Bara.
(ii)Constable Hopkins knew Mr Bara Bara through having taken him into custody the night before and, also due to that contact, was aware Mr Bara Bara had a Domestic Violence Order (DVO) in place in relation to his partner, Ms Benisha Rankin.

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 Sally Nicholas v Jamian Bara Bara

Details

AGLC: Sally Nicholas v Jamian Bara Bara [2017] NTLC 31
Case: [2017] NTLC 31
Decision Date: 19 December 2017

CaseChat Overview and Summary

The case before the court involved Sally Nicholas and Jamian Bara Bara, with the primary dispute centering on the legality of Nicholas' arrest and subsequent detention. The case was heard in a relevant Australian court. Bara Bara was arrested by Nicholas under the authority of the Police Administration Act, specifically sections 123, 127, 134, and 158, as well as the Criminal Code sections 26 and 27. Nicholas argued that Bara Bara had resisted arrest, justifying her actions under common law principles and the specific statutory provisions.

The court was tasked with determining whether Nicholas' arrest of Bara Bara was lawful, focusing on the definitions and interpretations of "arrest" and "resist a member" under the applicable laws. It was necessary to examine whether Bara Bara's actions constituted resistance to a police officer and whether Nicholas' response was proportionate and within legal bounds. The court also needed to consider the interplay between statutory provisions and common law in this context.

In its reasoning, the court examined the statutory and common law definitions of arrest and resistance. It found that Bara Bara's actions did not constitute resistance to a police officer as defined under the law. Consequently, Nicholas' arrest of Bara Bara was deemed unlawful. The court emphasised that for an arrest to be justified, the person must have engaged in conduct that amounted to resisting a police officer, which Bara Bara had not. The court thus ruled in favour of Bara Bara, finding the arrest unlawful and ordering Nicholas to pay damages for false imprisonment and unlawful arrest.

Orders