DIRECTOR OF PUBLIC PROSECUTIONS v. AM [2006] NSWSC 348

Reported Decision : 161 A Crim R 219

New South Wales Supreme Court

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS v. AM [2006] NSWSC 348

HEARING DATE(S) : 30 November 2005

JUDGMENT DATE : 2 May 2006

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : An order that the defendant be referred to as "AM" pursuant to s.11 of the Children (Criminal Proceedings) Act 1987. An order pursuant to s.59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 that the orders of Mr. J. Coombs, Magistrate, made on 21 July 2005, at the Nowra Children's Court, dismissing one count of "resist officer" and one count of "assault officer" contrary to s.58 of the Crimes Act 1900 be set aside. An order that the matter be remitted to the Magistrate to be dealt with according to law. No order as to costs.

CATCHWORDS : Evidence Act 1995 (NSW), s.138(1) - meaning of the terms "improper" and "in consequence of an impropriety" - purpose or intention to commit an impropriety is not essential in all cases - in some circumstances an assessment against an objective standard of behaviour is sufficient and subjective intention is irrelevant - not all inappropriate conduct on the part of a law enforcement officer will necessarily be "improper" within the meaning of that term in s.138(1)(a) - alternatively, conduct involving a relevant failure by a law enforcement officer to comply with statutory obligations may constitute either or both unlawfulness and impropriety for the purposes of a public policy discretion - whether arrest was unnecessary - therefore improper - duty of a judicial officer to give reasons - magistrate erred in law in failing to give reasons for the conclusion fundamental to the application of s.138 to the facts of the case - meaning of the "obtained" in s.138(1) of the Evidence Act 1995 (NSW).