Johnstone v State of New South Wales [2010] NSWCA 70

Reported Decision: 202 A Crim R 422

New South Wales Court of Appeal

CITATION: Johnstone v State of New South Wales [2010] NSWCA 70

HEARING DATE(S): 4 February 2010

JUDGMENT DATE: 9 April 2010

JUDGMENT OF: Beazley JA at 1; McColl JA at 108; Young JA at 131

1. Appeal allowed in part; DECISION: 2. Set aside orders (1) and (2) made by the trial judge; 3. Remit the matter to the District Court for determination of the question of damages and the question whether Senior Constable Munn assaulted the appellant; 4. Order that the respondent pay the appellant's costs both of the first instance hearing and of the appeal.

CATCHWORDS: ARREST – arrest at common law – Christie v Leachinsky [1947] AC 573 – requirement to inform of the "true reason" for arrest - ARREST – arrest without warrant – Crimes Act 1900 – s 352 – preconditions for arrest – lawfulness of arrest - OFFENCES – Transport Administration (Railway Offences) Regulation 1994 – cl 41 – requirement to provide warning - LICENCE – implied licence – trespass on railway land – hole in fence to railway land – whether hole in fence amounts to implied licence – whether prior use or use by other of hole in fence amounts to implied licence - EVIDENCE – Evidence Act 1995 – ss 55 & 56 – relevant evidence – evidence used for multiple purposes – credit findings – whether medical evidence as to damage can be used in adverse credit findings - EVIDENCE – Evidence Act 1995 – s 136 – unfairly prejudicial evidence – procedural fairness – limiting use of evidence – need for an application under s 136 to be made

Crimes Act 1900 Crown Proceedings Act 1988 LEGISLATION CITED: Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002 Law Reform (Vicarious Liability) Act 1983 Transport Administration (Railway Offences) Regulation 1994