Poidevin v Semaan [2013] NSWCA 334

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Poidevin v Semaan [2013] NSWCA 334 Hearing dates: 27 August 2013 Decision date: 10 October 2013 Before: Ward JA at [1]; Emmett JA at [2]; Leeming JA at [6] Decision: 1. Leave to appeal granted. 2. The draft notice of appeal stand as the notice of appeal in the proceedings, and the further requirements of the rules with respect to its filing and service be waived. 3. The orders made on 22 March 2013 be set aside, and in lieu thereof the appeal pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 be dismissed with costs. 4. No order as to the costs of the appeal to the Court of Appeal, with the intent that each party bear his own costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - confined to ground that involves a question of law alone - no error in law in Magistrate failing to consider defence of honest and reasonable mistake of fact which was not raised before him

POLICE - powers and duties - power to seize property to prevent breach of the peace - police officer attempted to seize respondent's mobile phone - respondent convicted of resisting a police officer in the due execution of duty - police officer obliged to inform respondent as soon as reasonably practicable after exercising the power of his name, place of duty and the reason for exercising the power - elements of offence made out even though no evidence that information was given - no obligation to prove that officer formed view that it was impracticable to give information before exercising power - consideration of nature of power at common law and as preserved by statute Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Inclosed Lands Protection Act 1901 Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: Albert v Lavin [1982] AC 546 Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440 Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93 Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 Giddings v Director of Public Prosecutions [2008] NSWSC 169; (2008) 181 A Crim R 536 Gollan v Nugent (1988) 166 CLR 18 Humphries v Connor (1864) 17 IRCL 1 Minto v Police [1987] 1 NZLR 374 Piddington v Bates [1961] 1 WLR 162 R (Laporte) v Chief Constable of Gloucestershire [2006] UKHL 55; [2007] 2 AC 105 Reg v Howell [1982] 1 QB 416 Thompson v Vincent [2005] NSWCA 219; (2005) 153 A Crim R 577 Texts Cited: Glanville Williams, "Arrest for Breach of the Peace" [1954] Criminal Law Review 578 Category: Principal judgment Parties: Sergeant Damien Poidevin (Applicant) Richard Semaan (Respondent) Representation: Counsel: N Adams SC; B Baker (Applicant) M Dennis (Respondent) Solicitors: Crown Solicitor's Office (Applicant) Nyman Gibson Stewart (Respondent) File Number(s): 2013/117536 Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 226 Date of Decision: 2013-03-22 00:00:00 Before: Rothman J File Number(s): 2012/149182