Wilson v DPP - [2002] NSWSC 935

CITATION: Wilson v DPP [2002] NSWSC 935

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12228/02

HEARING DATE(S): 30/09/02

JUDGMENT DATE: 10 October 2002

PARTIES :

Mervyn James Wilson (Plaintiff)
Director of Public Prosecutions (Defendant)

JUDGMENT OF: Cripps AJ

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER : Hamilton LCM

COUNSEL : C B Craigie SC (Plaintiff)
R A Hulme (Defendant)

SOLICITORS: P Bugden (Plaintiff)
S E O'Connor (Defendant)

CATCHWORDS: Arrest on charges of assault police and resist arrest - whether the learned magistrate was bound to exclude the evidence by reason of s 138 of the Evidence Act 1995.

LEGISLATION CITED: Summary Offences Act 1988, s 4A(1)
Evidence Act 1995, s 138
Director of Public Prosecutions Act 1986, s 9
Justices Act 1902 (As Amended), s 104(4)

CASES CITED: DPP v Carr [2002] NSWSC 194
R v Bozatsas & Spanakis (1997) 97 A Crim R 296

DECISION: (1) Application for leave to appeal dismissed (2) Plaintiff to pay the defendant's costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

Thursday, 10 October 2002

12228/02 - MERVYN JAMES WILSON v DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT

1 CRIPPS AJ: On the 29 March 2002 Mr Wilson was charged with using offensive language in a public place in contravention of s 4A(1) of the Summary Offences Act 1988. He was also charged with two offences under the Crimes Act 1900, s 58 that:

“(i) On the 29 March 2002 at Liverpool did resist Senior Constable Hunter and Constable Ezzy being Constables for police in the execution of their duty and

(ii) That on the same day and at the same place did assault Constable Ezzy being a Constable of the police in the execution of his duty.”

2 The matters came on for hearing before Magistrate Hamilton at Liverpool Local Court on 18 July 2002. Mr Wilson pleaded guilty to the offence under the Summary Offences Act. Although not expressly stated in the transcript it appears to be assumed that the learned magistrate also commenced hearing the two charges under s 58 of the Crimes Act.

3 Senior Constable Hunter and Constable Ezzy had made statements concerning events alleged to have taken place at the Liverpool Railway Station on 29 March 2002.

4 Mr Patel appearing for Mr Wilson informed the Magistrate that he would be objecting to the court receiving the evidence of the two police constables. His application was founded on s 138 of the Evidence Act 1995 and he sought a hearing on the voir dire as to the admissibility of any evidence of the two police officers of events that took place after Mr Wilson was told by one of them he was under arrest.

5 Statements of Senior Constable Hunter and Constable Ezzy were tendered. Senior Constable Hunter gave evidence and was cross-examined by Mr Patel. Constable Ezzy did not give evidence it being assumed, apparently, that if the relevant evidence of Senior Constable Hunter…

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.

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Details

Case: [2002] NSWSC 935
Decision Date: 10 October 2002

CaseChat Overview and Summary

The parties involved in this case are Wilson, the appellant, and the Director of Public Prosecutions, the respondent. The case revolves around an incident where Wilson was arrested for assault of a police officer and resisting arrest. The matter was heard in the Supreme Court of Queensland. The core issue before the court was whether the magistrate was required to exclude evidence obtained during the arrest due to section 138 of the Evidence Act 1995. Section 138 generally allows for the exclusion of evidence obtained in a way that would render a trial unfair, though there are exceptions where the public interest in admitting the evidence outweighs the unfairness.

The court meticulously examined the statutory framework and case law to determine whether the magistrate's decision to admit the evidence was appropriate. The court found that the magistrate had correctly assessed the balance between the public interest in admitting the evidence and the potential unfairness to the defendant. The court held that the magistrate did not err in admitting the evidence, as the public interest in enforcing the law and ensuring police safety outweighed the potential prejudice to Wilson. Consequently, the appeal was dismissed, affirming the decision of the lower court.

Orders