Wilson v DPP [2002] NSWSC 935

New South Wales Supreme Court

CITATION : Wilson v DPP [2002] NSWSC 935 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12228/02 HEARING DATE(S) : 30/09/02 JUDGMENT DATE : 10 October 2002

PARTIES : Mervyn James Wilson (Plaintiff) Director of Public Prosecutions (Defendant) JUDGMENT OF : Cripps AJ

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Hamilton LCM JUDICIAL OFFICER :

COUNSEL : C B Craigie SC (Plaintiff) R A Hulme (Defendant) SOLICITORS : P Bugden (Plaintiff) S E O'Connor (Defendant) CATCHWORDS : Arrest on charges of assault police and resist arrest - whether the learned magistrate was bound to exclude the evidence by reason of s 138 of the Evidence Act 1995. Summary Offences Act 1988, s 4A(1) LEGISLATION CITED : Evidence Act 1995, s 138 Director of Public Prosecutions Act 1986, s 9 Justices Act 1902 (As Amended), s 104(4) CASES CITED : DPP v Carr [2002] NSWSC 194 R v Bozatsas & Spanakis (1997) 97 A Crim R 296 DECISION : (1) Application for leave to appeal dismissed (2) Plaintiff to pay the defendant's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

CRIPPS AJ

Thursday, 10 October 2002

12228/02 - MERVYN JAMES WILSON v DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT 1 CRIPPS AJ: On the 29 March 2002 Mr Wilson was charged with using offensive language in a public place in contravention of s 4A(1) of the Summary Offences Act 1988. He was also charged with two offences under the Crimes Act 1900, s 58 that: "(i) On the 29 March 2002 at Liverpool did resist Senior Constable Hunter and Constable Ezzy being Constables for police in the execution of their duty and (ii) That on the same day and at the same place did assault Constable Ezzy being a Constable of the police in the execution of his duty." 2 The matters came on for hearing before Magistrate Hamilton at Liverpool Local Court on 18 July 2002. Mr Wilson pleaded guilty to the offence under the Summary Offences Act. Although not expressly stated in the transcript it appears to be assumed that the learned magistrate also commenced hearing the two charges under s 58 of the Crimes Act. 3 Senior Constable Hunter and Constable Ezzy had made statements concerning events alleged to have taken place at the Liverpool Railway Station on 29 March 2002. 4 Mr Patel appearing for Mr Wilson informed the Magistrate that he would be objecting to the court receiving the evidence of the two police constables. His application was founded on s 138 of the Evidence Act 1995 and he sought a hearing on the voir dire as to the admissibility of any evidence of the two police officers of events that took place after Mr Wilson was told by one of them he was under arrest. 5 Statements of Senior Constable Hunter and Constable Ezzy were tendered. Senior Constable Hunter gave evidence and was cross-examined by Mr Patel. Constable Ezzy did not give evidence it being assumed, apparently, that if the relevant evidence of Senior Constable Hunter was not to be admitted into evidence the same result would follow in the case of Constable Ezzy. 6 At the conclusion of the voir dire hearing the learned magistrate expressed his conclusion, and gave reasons for it, that s 138 of the Evidence Act did not operate to exclude the evidence referred to above because he was not satisfied that the conduct of the police (in arresting Mr Wilson at the Liverpool Railway Station on 29 March 2002) was improper. He expressed the opinion that if he were wrong in that conclusion he was of the opinion that the desirability of admitting the evidence would outweigh the undesirability of admitting it. 7 After being told by Mr Patel that his decision would be challenged in the Supreme Court the learned magistrate adjourned the proceedings. 8 On 13 August 2002 Mr Wilson commenced proceedings against Senior Constable Hunter in the Supreme Court seeking orders that the order of the learned magistrate made on 18 July adjourning the proceedings be quashed, that the two charges against the plaintiff under s 58 of the Crimes Act should be dismissed and, presumably in the alternative, that the two charges against the plaintiff under s 58 of the Crimes Act should be permanently stayed. 9 On 22 August 2002 the Director of Public Prosecutions filed a notice pursuant to s 10 of the Director of Public Prosecutions Act 1986 that he had, pursuant to s 9 of the Act, taken over as the defendant in the appeal. 10 The matter came on for hearing on Monday, 30 September 2002. An amended summons was filed, by consent, seeking orders that leave to appeal be granted, the appeal be allowed and the matter be remitted to the learned magistrate to be heard and determined according to law. The grounds specified in the amended summons are as follows: "1. (As to leave). The learned magistrate adjourned the proceedings in order that his interlocutory ruling in relation to the admission of certain evidence be tested in this Court. 2. The learned magistrate erred in law as to the evidence of s 138 of the Evidence Act 1995 in declining to Exercise his discretion under s 138(2)(a) to exclude evidence obtained in consequence of the Plaintiff." [sic] 11 The present proceedings were brought to this Court pursuant to s 104(4) of the Justices Act 1902 (As Amended) which provides as follow: "A defendant or any informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a magistrate in summary proceedings, on the ground that it involves a question of law alone, but only with the leave of the Supreme Court."