P v Joshua William McMillan [2010] NSWLC 9

Local Court of New South Wales

CITATION: P v Joshua William McMillan [2010] NSWLC 9

JURISDICTION: Criminal

PARTIES: NSW Police Joshua William McMillan

FILE NUMBER:

PLACE OF HEARING: Wagga Wagga Local Court

DATE OF DECISION: 04/30/2010

MAGISTRATE: Magistrate Lerve

CATCHWORDS: Move on direction – LEPRA – reasonableness of direction - whether direction too broad – meaning of CBD

LEGISLATION CITED: Law Enforcement (Powers and Responsibilities) Act 2002 Local Government Act 1993

CASES CITED: Spatolisano –v- Hyde [2009] ACTSC 161

TEXTS CITED:

Sgt. Keane, Police Prosecutor REPRESENTATION: Mr. J. Elliott, Solicitor of the Aboriginal Legal Service

ORDERS: Offence proved.

1. Although the offence with which the accused is charged is relatively minor, (a fine of $220 is the maximum available penalty) a matter of what is my view considerable interest is raised, and accordingly I reserved my decision to properly research the point that is raised. The point raised is whether the direction given to the accused in this matter was reasonable within the meaning of that word in s. 197(2) of the Law Enforcement (Powers and Responsibilities Act) 2002. There is no issue on the facts, and indeed, by consent, the prosecution "handed up" the brief, which is constituted by statements by Detective Sergeant Burns and Detective Bradley Blanchard and two maps of the relevant area of the city of Wagga Wagga.

Facts

2. The evidence for the prosecutions is contained within the police statements of Detective Sergeant Burns and Detective Blanchard. Those statements are exhibits 1 and 2 respectively in the case. At about 11pm on 18 December 2009 the detectives who have given statements in the matter were conducting foot patrols at the intersection of Fitzmaurice and Sturt Streets, Wagga Wagga. Incidentally, that is a "T" intersection. The Court House is on one corner, and directly opposite the Court House is Romano's Hotel. Detective Burns recognised the accused. He saw the accused speak with security staff at Romano's Hotel. There was a group of about 4 or 5 men in that same vicinity. The accused said something that was indistinct to that group. One of that group replied to the accused who in turn pushed that person. Heated words were then exchanged. It was the opinion of Det. Sgt. Burns that the accused was going to start a fight with this person.