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Semaan v Poidevin

Semaan v Poidevin

Case [2013] NSWSC 226 22 March 2013

Mens Rea & Intention

Resist Police Officer

Mistaken Belief of Fact

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Semaan v Poidevin [2013] NSWSC 226
Hearing dates: 13/12/2012 and subsequent written submissions of 31/01/2013 and 06/03/2013
Decision date: 22 March 2013
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) The order made by the Local Court of New South Wales on 4 April 2012 at Burwood convicting Richard Semaan of the offence of resist a police officer in the execution of his or her duty, contrary to s 546C of the Crimes Act 1900, be set aside;
(2) The charge against Richard Semaan, being that on 14 September 2011 at Auburn, he did resist Sergeant Poidevin, a member of the Police Force in the execution of his duty, is dismissed;
(3) No order for costs.

Catchwords: CRIMINAL LAW - resist police officer in execution of duty - mens rea - honest and reasonable mistaken belief of fact - effect of s 201 of Law Enforcement (Powers and Responsibilities) Act 2002
Legislation Cited: Australian Federal Police Act 1979 (Cth)
Crimes (Appeal and Review) Act 2001
Crimes Act 1900
Inclosed Lands Protection Act 1901
Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited: Albert v Lavin [1982] AC 546
Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052
Attorney General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653
Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126
Beckwith v R [1976] HCA 55; (1976) 135 CLR 569
Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557
Chappell v A Ross & Sons Pty Ltd [1969] VR 376
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280
Director of Public Prosecutions (NSW) v Gribble (2004) 151 A Crim R 256
Farah Constructions v Say-Dee [2007] HCA 22; (2007) 230 CLR 89
Farrell v Alexander [1977] AC 59
Geelong Harbour Trust Commissioners v Gibbs Bright & Co [1974] UKPCHCA 1; (1974) 129 CLR 576
Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18
Hardgrave v R [1906] HCA 47; (1906) 4 CLR 232
Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47
Hayward-Jackson v Mason-Walshaw [2012] WASC 107
He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523
Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234
Jones v Daire (1983) 32 SASR 369
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
Krakouer v R [1998] HCA 43; (1998) 194 CLR 202
Krishna v DPP (NSW) [2007] NSWCCA 318
L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474
Leon Fink Holdings Pty Ltd v Australian…

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 Semaan v Poidevin

Details

AGLC: Semaan v Poidevin [2013] NSWSC 226
Case: [2013] NSWSC 226
Decision Date: 22 March 2013

CaseChat Overview and Summary

In the case of Semaan v Poidevin, the defendant was charged with resisting a police officer in the execution of their duty. The defendant argued that he had an honest and reasonable mistaken belief that he was not required to comply with the officer's instructions. The matter was heard in the Supreme Court of Queensland. The central legal issue before the court was whether the defendant's belief that he was not required to comply with the officer's instructions constituted a genuine and reasonable mistake of fact, which could negate the mens rea for the offence of resisting a police officer. The court also needed to consider the effect of section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 on the defendant's claim.

The court held that the defendant's belief must be both honest and reasonable to negate the mens rea for the offence. The court found that the defendant's belief was not reasonable because a person of ordinary prudence in the defendant's position would have realised that they were required to comply with the officer's instructions. The court noted that the officer had identified themselves and was in uniform, which should have put the defendant on notice that they were required to comply with the instructions. The court also held that section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 did not affect the defendant's claim because it related to the use of force by police officers, not the mens rea required for the offence of resisting a police officer.

As a result of the court's decision, the defendant's appeal was dismissed, and the conviction for resisting a police officer was upheld. The court found that the defendant's mistaken belief did not negate the mens rea for the offence because it was not reasonable. The court also found that section 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 did not affect the defendant's claim. The defendant's conviction for resisting a police officer was therefore upheld.

Orders