VW v The Queen - [2021] NSWDC 208

District Court

New South Wales

Medium Neutral Citation: VW v R [2021] NSWDC 208
Hearing dates: 21 April 2021
Date of orders: 21 April 2021
Decision date: 21 April 2021
Jurisdiction: Criminal
Before: Hunt DCJ
Decision:
Appeal is allowed and all orders of the magistrate are set aside

Catchwords:
CRIMINAL LAW – Judgment – Conviction appeal from Children’s Court – Unlawful arrest – Vulnerable arrest – Proper execution of police duties

Legislation Cited:
Children and Young Persons (Criminal Proceedings) Act
Crimes (Appeal and Review) Act.
LEPRA Act
Supreme Court Act

Cases Cited:
Dyason v Butterworth [2015] NSWCA
Engelbrecht v DPP (NSW) [2016] NSWCA 290
Fox v Percy (2003) 214 CLR 118 at para 28.
Jankovic v DPP [2020] NSWCA 31

Category: Principal judgment
Parties: VW
The Crown
Representation:
Legal Aid Commission – the appellant.
Director of Public Prosecutions – the respondant.
Solicitors:

File Number(s): 2019/292615
Publication restriction: There is to be no publication of the name of the appellant or of any material which may tend to identify the appellant.

Judgment

VW appeals against determinations by a Children’s Court magistrate finding two offences that she assaulted police officers in the execution of their duty. The young person is accompanied by a caseworker and represented by Ms Bleasel, and the Crown is represented by Mr Belcher.
I have had the benefit of considering exhibits that were relevant portions of exhibits that were filed in the Children’s Court and had the benefit of some careful written submissions by both parties, which have been enlivened by oral submissions today.
It is appropriate that I briefly say something about the nature of a conviction appeal to this Court. The nature of the appeal is contained in s 18 of the Crimes (Appeal and Review) Act. Section 18 relevantly provides:

“1. An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by s 19.”

Section 19 does not arise for the current purposes.
The nature of the rehearing which this Court holds when a conviction appeal is considered from the Children’s Court has been considered by a number of cases in the Court of Criminal Appeal and the Court of Appeal generally in relation to Local Court proceedings. I propose to take the approach that the appeal, as outlined in Dyason v Butterworth [2015] NSWCA 52 and implicitly confirmed by Engelbrecht v DPP (NSW) [2016] NSWCA 290.
The appeal is not a hearing de novo. The approach to be taken on a s 18(1) rehearing is analogist to a civil appeal taken under s 75A of the Supreme Court Act, as explained in Fox v Percy (2003) 214 CLR 118 at para 28.
I am to form my own judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court. Whilst the magistrate’s reasons are not part of the transcript…

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 VW v The Queen

Details

AGLC: VW v The Queen [2021] NSWDC 208
Case: [2021] NSWDC 208
Decision Date: 21 April 2021

CaseChat Overview and Summary

In the Federal Court of Australia, the case of VW v The Queen involved a conviction appeal from the Children’s Court. The appellant, VW, contested the legality of their arrest and subsequent conviction, arguing that the arrest was unlawful and that they were a vulnerable individual. The central issue before the court was whether the police had properly executed their duties during the arrest, particularly in relation to the treatment of a vulnerable individual. The appeal hinged on the interpretation of the relevant legislation and case law concerning unlawful arrest and the specific circumstances of the appellant’s vulnerability.

The court examined the relevant statutory provisions and case law to determine the standards applicable to the arrest of a vulnerable person. It considered the obligations of police officers to act with due care and respect for the rights of individuals, particularly those who are vulnerable. The court noted that the Children’s Court had not adequately addressed the specific concerns raised by the appellant regarding their vulnerability and the manner of their arrest. The appeal court found that the Children’s Court had erred in not fully considering the evidence and arguments presented about the unlawful nature of the arrest and the impact of the appellant's vulnerability. Consequently, the court concluded that the appeal should be allowed, and the conviction set aside.

The appeal was allowed, and all orders of the magistrate were set aside. This decision highlights the importance of properly considering the vulnerability of individuals during arrests and the need for police to adhere strictly to legal standards when executing their duties. The court's ruling underscores the necessity for thorough examination of the circumstances of an arrest, particularly when it involves vulnerable individuals, to ensure that justice is fairly administered.

Orders

Orders of the court

Appeal is allowed and all orders of the magistrate are set aside

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	VW v R [2021] NSWDC 208
Hearing dates:	21 April 2021
Date of orders:	21 April 2021
Decision date:	21 April 2021
Jurisdiction:	Criminal
Before:	Hunt DCJ
Decision:	Appeal is allowed and all orders of the magistrate are set aside
Catchwords:	CRIMINAL LAW – Judgment – Conviction appeal from Children’s Court – Unlawful arrest – Vulnerable arrest – Proper execution of police duties
Legislation Cited:	Children and Young Persons (Criminal Proceedings) Act Crimes (Appeal and Review) Act. LEPRA Act Supreme Court Act
Cases Cited:	Dyason v Butterworth [2015] NSWCA Engelbrecht v DPP (NSW) [2016] NSWCA 290 Fox v Percy (2003) 214 CLR 118 at para 28. Jankovic v DPP [2020] NSWCA 31
Category:	Principal judgment
Parties:	VW The Crown
Representation:	Legal Aid Commission – the appellant. Director of Public Prosecutions – the respondant. Solicitors:
File Number(s):	2019/292615
Publication restriction:	There is to be no publication of the name of the appellant or of any material which may tend to identify the appellant.