R v DB; R v AP [2020] NSWDC 472

District Court New South Wales

Medium Neutral Citation: R v DB; R v AP [2020] NSWDC 472 Hearing dates: 5 August 2020 Decision date: 24 August 2020 Jurisdiction: Criminal Before: DCJ Yehia SC Decision: In each case, the appeal is upheld. I set aside the orders of the Children's Court. Catchwords: CRIME – appeal and review – resist and assault police in execution of duty – appeal against findings that offences proved by Children's Court POLICE POWERS – power to arrest without warrant – requirements of s 99 LEPRA not met – arrest to be for purposes of commencing proceedings – no power to detain for investigation or questioning – principle that arrest is to be a measure of last resort – statutory presumption that criminal proceedings against children should be commenced without resort to arrest POLICE POWERS – power to detain intoxicated persons – whether requirements of s 206 LEPRA met – meaning of "intoxicated" – detention of intoxicated minors where parent requests that police convey them home – multiple police officers taking a child to the ground and forcing him into a caged vehicle where object of legislation is said to be care and detention not arrest and charge EVIDENCE – discretion to exclude evidence pursuant to s 138 Evidence Act 1995 – whether evidence obtained "in consequence of" an impropriety – whether police statements and body worn video obtained following period of unlawful detention improperly or unlawfully obtained Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 8 Evidence Act 1995 (NSW), s 138 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 99, 105, 206 Cases Cited: Al-Kateb v Goodwin (2004) 219 CLR 562 Alla v Gleeson (Supreme Court (NSW), 25 October 1985, Roden J, unrep) ASIC v Macdonald (No 5) [2008] NSWSC 1169 Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219 Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151 Director of Public Prosecutions v SB [2020] NSWSC 734 Fleet v District Court [1999] NSWCA 363 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 NSW v Robinson [2019] HCA 46 R v Dalley (2002) 132 A Crim R 169 R v Helmout (2001) 125 A Crim 257 Williams v R (1986) 161 CLR 278 Texts Cited: Convention on the Rights of the Child, art 37(b) International Covenant on Civil and Political Rights, arts 9, 24 Category: Principal judgment Parties: Director of Public Prosecutions AP DB Representation: Office of the Director of Public Prosecutions Children's Legal Service, Legal Aid NSW (AP) Rebecca Dunlop (DB) File Number(s): 2019/00112829 2019/00107084 Decision under appeal Court or tribunal: Children's Court Jurisdiction: Crime Date of Decision: 29 January 2020 Before: Children's Magistrate Freund File Number(s): 2019/00045090 2019/00107084