R v Ali Alkan [2010] NSWLC 1

Local Court of New South Wales

CITATION: R v Ali Alkan [2010] NSWLC 1

JURISDICTION: Criminal

PARTIES: R v Ali Alkan

FILE NUMBER: H38832480

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION: 01/12/2010

MAGISTRATE: Magistrate Heilpern

CATCHWORDS: Arrest, Evidence

S138 Evidence Act 1995 LEGISLATION CITED: S6 Police Act 1990 s99, s230, s2301 Law Enforcement (Powers and Responsibilities) Act 2002

Director of Public Prosecutions V Carr (2002) 127 A Crim R 151 Greer v R [2004] NZCA 75 R v Coulstock (1988) A Crim R 143 DPP v Gribble [2004] NSWSC 926 CASES CITED: Attorney General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 396 Fleet v District Court of NSW & Ors [1999] NSWCA 363 Williams v R [1987] HCA 36 Coleman v Power and Ors [2004] HCA 39 R v McClean [2008] NSWLC 11. R v Ridgeway (1995) 184 CLR 19

TEXTS CITED:

REPRESENTATION: Sergeant Green, Police Prosecutor Winston Terrancini SC for the Defendant

ORDERS: Evidence Excluded.Charge Dismissed

Reasons for Decision

1 The defendant was shot with a Taser twice by a police officer, Sergeant McDevitt, as he moved from the roadway to the footpath in the early hours of the morning in Oxford Street, Sydney. Prohibited drugs were then located in a cigarette packet in his pocket. He was charged with possession of these drugs. This case has proceeded by way of a voir dire on the admissibility of the prosecution evidence. The defence claims that as it was illegally or improperly obtained, it ought not be admitted. The prosecution argues that the actions of McDevitt were neither unlawful nor improper. The issue to be determined is whether the evidence ought to be admitted. 2 I foreshadowed on the hearing day that I would reject the tender of that evidence, and give reasons for that rejection below.