Riley v State of New South Wales [2000] NSWCA 64

New South Wales Court of Appeal

CITATION : Riley v State of New South Wales [2000] NSWCA 64 revised - 20/07/2000 FILE NUMBER(S) : CA 40324/99 HEARING DATE(S) : 15/03/00 JUDGMENT DATE : 15 March 2000

Anthony John Riley (By His Next Friend Nola Ann Riley) (Claimant) PARTIES : State of New South Wales (1st Opponent) John Henderson (2nd Opponent) Gregory Shot (3rd Opponent) JUDGMENT OF : Meagher JA at 25; Fitzgerald JA at 2; Heydon JA at 26

LOWER COURT JURISDICTION : District Court LOWER COURT 9617/97 FILE NUMBER(S) : LOWER COURT Cooper DCJ JUDICIAL OFFICER :

COUNSEL : C. Evatt / M. Fraser (Claimant) P. Johnson S.C. / V. Hartstein (1st, 2nd & 3rd Opponents) SOLICITORS : Friend & Hazard (Claimant) I.V. Knight - Crown Solicitor (NSW)

DECISION : Application for leave to appeal granted. Appeal dismissed with costs

- 9 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40324/99 DC 9617/97 MEAGHER JA FITZGERALD JA HEYDON JA

WEDNESDAY 15 MARCH 2000

ANTHONY JOHN RILEY (BY HIS NEXT FRIEND NOLA ANN RILEY) v STATE OF NEW SOUTH WALES & 2 ORS

JUDGMENT

1 FITZGERALD JA: The claimant was a young Aboriginal man, aged 15 at all material times, and the opponents Henderson and Shot were at all material times police officers. Henderson was a Constable and Shot was a Probationary Constable. 2 On the night of 11 January 1996, Henderson and Shot were on foot patrol in the Redfern area. After receiving a complaint from security officers at the Redfern Railway Station, Henderson and Shot saw the claimant and another Aboriginal youth in Eveleigh Street at about 8.30pm. The claimant had had prior dealings with police and was known to Henderson. 3 Later that night at about 11.30pm, Henderson and Shot again saw the claimant in Eveleigh Street. Henderson subsequently arrested the claimant, who was taken to the Redfern Police Station in a caged vehicle. Because he was injured, an ambulance was later called and he was taken to the Prince Alfred Hospital where he was treated. Henderson and Shot then took him to Newtown Police Station. 4 At the Newtown Police Station, Henderson preferred three charges against the complainant, which were described in the District Court judgment referred to below as: "(1) Using a prohibited weapon to wit a slingshot under s 5(1)(b) of the Prohibited Weapons Act; (2) Resisting a member of the Police Force in the execution of his duty under s 546C of the Crimes Act; (3) Failure to comply with bail undertakings under subs 50(1) of the Bail Act." 5 The claimant was held in custody until the morning of 12 January 1996, when he appeared at the Bidura Children's Court, where he was remanded until 29 January 1996 and released on bail. On 29 January 1996 the claimant was further remanded to 6 March 1996. On both those dates he was in custody on other matters. 6 On 6 March 1996, the third charge, failure to comply with bail undertakings, was either withdrawn or dismissed without evidence in the Children's Court. 7 After hearing evidence from Henderson and Shot, the Children's Court Magistrate pointed out that the description of the sling shot which the claimant was alleged to have used did not satisfy the definition in the schedule to the Prohibited Weapons Act, and the first charge, using a prohibited weapon, was also dismissed. 8 After argument, the remaining charge, resisting a member of the Police Force in the execution of his duty, was also dismissed by the Children's Court. The material portion of the Magistrate's judgment was as follows: "On the third occasion which was at 11.35 the officers saw (the claimant) standing at the corner of Eveleigh Lane and Caroline Street. At that time he was not in possession of the sling shot. Up until this point in time neither officer had spoken to (the claimant) and he had not spoken to them. Constable Henderson and Constable Shot at that point in time commenced to run towards him and (the claimant) seeing the police started to run., He was crash tackled to the roadway. That is agreed to by both police. (the claimant) was informed that he was under arrest. The police attempted to handcuff him and following this he attempted to break the hold of the police.