Walker v The King - [2024] NSWDC 683

District Court

New South Wales

Medium Neutral Citation: Walker v R [2024] NSWDC 683
Hearing dates: 3, 6 December 2024
Date of orders: 6 December 2024
Decision date: 06 December 2024
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
The appeal is dismissed. See pars [33], [46] and [48].

Catchwords:
CRIME – Appeal from Local Court – Charges under s 58 Crimes Act 1900 – Whether first stop unlawful under LEPRA – Whether evidence flowing from stop should be excluded if stop was unlawful – Whether first search classified as strip search.

Legislation Cited:
Crimes Act 1900, s 58.
Evidence Act 1995, s 138.
International Covenant on Civil and Political Rights, arts 9, 12 and 17.
Law Enforcement (Powers and Responsibilities) Act 2002, ss 21, 28(1)(b), 30(b), 202(1)(c).

Cases Cited:
Daniel Fromberg v R [2017] NSWDC 259 at [7]-[11], [33].
Lacey (A pseudonym) v The Attorney General for New South Wales [2021] NSWCA 27 at [48].

Texts Cited:
Nil.

Category: Principal judgment
Parties: Appellant – Jedda Walker
Crown – R (NSW)
Representation: Counsel:
Appellant – Ms O’Shaughnessy, S. (Solicitor)
Crown – Mr Gilson, O. (Solicitor)
Solicitors:
Appellant – Aboriginal Legal Service
Crown – Office of the Director of Public Prosecutions (NSW)

File Number(s): 2022/00270590
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court

Jurisdiction:

Criminal

Date of Decision:

11 April 2024

Before:

Magistrate Atkinson

Judgment

HIS HONOUR: This is an appeal against two convictions recorded by Magistrate Atkinson sitting in the Downing Centre Local Court. Her Honour had conducted a hearing on 16 February 2024. Her Honour gave judgment on 11 April 2024 and recorded two convictions which are the subject of these proceedings. They are known as Sequence 1 and Sequence 2.
The appellant was originally charged with three offences. Sequence 3 was an allegation that between 12.40pm and 1.20pm on 10 September 2022 at Mascot she did have in her possession a prohibited drug, namely 0.16 grams of methylamphetamine. To that charge the appellant had pleaded guilty, and it is not the subject of the current appeal. However, the circumstances in which the police discovered the methylamphetamine are the subject of the two convictions now under appeal.
The appellant was charged under the Crimes Act 1900 section 58. The Sequence 1 offence is that she did assault Tanya Gibson, being a Leading Senior Constable of the New South Wales Police Force in the execution of her duty. The second offence, Sequence 2, was an allegation that during the same time period on the same day at Mascot she did resist Tanya Gibson being an Leading Senior Constable of the New South Wales Police Force while executing her duty. Each of those allegations was of an offence contrary to section 58 of the Crimes Act 1900. Section 58 has subsequently been amended. As it stood at the time s 58 provided this:

“Whosoever -
assaults any person with intent to commit a serious indictable offence, or
assaults, resists, or wilfully obstructs any officer while…

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 Walker v The King

Details

AGLC: Walker v The King [2024] NSWDC 683
Case: [2024] NSWDC 683
Decision Date: 06 December 2024

CaseChat Overview and Summary

The appeal in Walker v The King concerns charges under section 58 of the Crimes Act 1900, and was heard in the District Court of New South Wales. The appellant, Walker, was charged with possessing a knife in a public place. The case involves an appeal against his conviction and sentence by the Local Court. The central issues include whether the initial stop of Walker by police was lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), whether evidence obtained as a result of the stop should be excluded if the stop was unlawful, and whether a subsequent search should be classified as a strip search.

The legal issues before the court involved the interpretation and application of LEPRA in the context of the initial stop, and the admissibility of evidence obtained from the stop and subsequent search. The court had to consider whether the police had reasonable grounds to suspect that Walker was involved in criminal activity, and whether the evidence obtained during the stop and search should be excluded if the initial stop was unlawful. Additionally, the court had to determine whether the search conducted by the police amounted to a strip search, which would require specific authorisation under LEPRA.

The court found that the initial stop was lawful as the police had reasonable grounds to suspect that Walker was carrying a weapon, and thus the stop was not unlawful. The court also found that the evidence obtained from the stop and subsequent search was admissible as it was not obtained as a result of an unlawful stop. In determining whether the search amounted to a strip search, the court held that it did not, as it was not conducted in a manner that would be considered intrusive or degrading. The appeal was dismissed, and the conviction and sentence of the Local Court were upheld.

Orders

Orders of the court

The appeal is dismissed. See pars [33], [46] and [48].

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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Medium Neutral Citation:	Walker v R [2024] NSWDC 683
Hearing dates:	3, 6 December 2024
Date of orders:	6 December 2024
Decision date:	06 December 2024
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	The appeal is dismissed. See pars [33], [46] and [48].
Catchwords:	CRIME – Appeal from Local Court – Charges under s 58 Crimes Act 1900 – Whether first stop unlawful under LEPRA – Whether evidence flowing from stop should be excluded if stop was unlawful – Whether first search classified as strip search.
Legislation Cited:	Crimes Act 1900, s 58. Evidence Act 1995, s 138. International Covenant on Civil and Political Rights, arts 9, 12 and 17. Law Enforcement (Powers and Responsibilities) Act 2002, ss 21, 28(1)(b), 30(b), 202(1)(c).
Cases Cited:	Daniel Fromberg v R [2017] NSWDC 259 at [7]-[11], [33]. Lacey (A pseudonym) v The Attorney General for New South Wales [2021] NSWCA 27 at [48].
Texts Cited:	Nil.
Category:	Principal judgment
Parties:	Appellant – Jedda Walker Crown – R (NSW)
Representation:	Counsel: Appellant – Ms O’Shaughnessy, S. (Solicitor) Crown – Mr Gilson, O. (Solicitor) Solicitors: Appellant – Aboriginal Legal Service Crown – Office of the Director of Public Prosecutions (NSW)
File Number(s):	2022/00270590
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 11 April 2024 Before: Magistrate Atkinson