R v McClean [2008] NSWLC 11

Local Court of New South Wales

CITATION: R v McClean [2008] NSWLC 11

JURISDICTION: Criminal

PARTIES: Police McClean

FILE NUMBER:

PLACE OF HEARING: Downing Centre

DATE OF DECISION: 05/29/2008

MAGISTRATE: Magistrate D Heilpern

CATCHWORDS: Police Powers, "execution of duty", arrest and investigation

s58 Crimes Act NSW 1900 LEGISLATION CITED: s99 Law Enforcement (Powers and Responsibilities) Act ss11 and 12 Law Enforcement (Powers and Responsibilities) Act

Adams v Kennedy and Ors [2000] NSWCA 152 Christie v Leachinsky (1947) AC 573 Coleman v Power and Ors [2004] HCA 39 DPP v AM [2006] NSWSC 348 DPP v Carr [2002] NSWSC 194 CASES CITED: Director of Public Prosecutions Reference No 1 of 1993 R v K (1993) 118 ALR 596 Fleet v District Court of NSW & ors [1999] NSWCA 363 Smith v. Corrective Services Commission (N.S.W.) [1980] HCA 49; Williams v R [1987] HCA 36 Zaravinos v State of New South Wales [2004] NSWCA 320

TEXTS CITED:

REPRESENTATION: Horan (Police Prosecutor) Moody of Counsel

ORDERS:

Reasons for Decision

1 This is a matter where the defendant has been charged with two offences – assault police and resist arrest, both charges under s58 of the Crimes Act 1900. The hearing thus far has been conducted on the basis of a preliminary voir dire where the brief has been handed up. I am tasked to determine two matters in the voir dire; the admissibility of the evidence pursuant to s138 of the Evidence Act and whether the prosecution have proved beyond a reasonable doubt that the police were acting in the execution of their duties.