Khoder Addouj v R [2016] NSWDC 47

District Court New South Wales

Medium Neutral Citation: Khoder Addouj v R [2016] NSWDC 47 Hearing dates: 21 March 2016 Date of orders: 08 April 2016 Decision date: 08 April 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: (1) The appeal against conviction is allowed (2) I set aside the conviction and penalty imposed by the magistrate Catchwords: CRIMINAL LAW – appeal – arrest – search – seizure – resist police in execution of duty – completion of search – appellant advised no longer under arrest – basis for further search – lawful duty WORDS AND PHRASES – was the initial search being continued – purpose of search Legislation Cited: Crimes Act 1900 s. 546C Crimes (Appeal and Review) Act 2001 s.18(1) Law Enforcement (Powers and Responsibilities) Act 2002 ss21, 23, 23A, 24, 201, 203 Cases Cited: Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Henderson v O'Connell [1937] VLR 171 Noordof v Bartlett (1986) 12 FCR 209 Coleman v Power (2004) 220 CLR 1 Kuru v State of New South Wales (2008) 236 CLR 1 Category: Principal judgment Parties: Khoder Addouj (Appellant) Regina (Respondent) Representation: Counsel: Ms S Keating (Appellant)

Solicitor: C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/00153467

Judgment 1. Khoder Addouj (the appellant) appeals against conviction entered by her Honour Magistrate Keogh at the Downing Centre Local Court on 30 October 2015. The appellant pleaded not guilty to one count of resisting police in execution of their duty contrary to s. 546C Crimes Act 1900. The appellant was convicted and fined the sum of $600. 2. At about 9.50pm on 22 May 2015 the appellant was observed by police in the vicinity of the Beresford Hotel in Surry Hills where he spoke to another male. He got into a car and drove a short distance. The appellant was stopped by the police in Oxford Street. He was asked to get out of the car and the police searched it. The police located some steroid cream and the appellant was arrested for possession of that item. At that time the appellant was handcuffed. The police called for a caged police vehicle to attend and the appellant was strip searched in the rear of the caged vehicle. In the meantime, the police continued to search the car. 3. In the car the police located the sum of $3,700 in cash. Of that sum, $1,400 of it was in the console of the car and the appellant told the police it was his. That sum was later returned by the police to the appellant. The police located a further $2,300 in cash and a Nokia mobile phone secreted under the dashboard of the car. The appellant told the police that he did not own the car and that he had no knowledge of the origin of the $2,300 in cash or the Nokia mobile phone. He told the police that he owned a Samsung mobile phone. The police noticed the Samsung mobile phone in the possession of the appellant when they stopped him. When he got out of the car after being stopped by the police the Samsung phone remained on the front passenger seat of the vehicle. During the course of the search the police observed that it rang a number of times and that the appellant received multiple text messages. 4. It is unclear from the evidence as to how long the appellant had been detained by the police before he was subjected to the strip search, but he was kept in the caged police vehicle for approximately 30 minutes while the strip search was undertaken. 5. After a further period, Sergeant Wall (the informant) told the appellant that he was seizing the cash and that he was no longer under arrest. The appellant protested and asked the informant for the names of all of the police involved. He was then released from the police vehicle. He retrieved the Samsung mobile phone from the car and unlocked it. 6. The informant asked the appellant to hand over the phone. At the same time, the informant put his hand on the Samsung mobile phone, which was still in the appellant's hand. The informant also said, "You are still being searched. Hand over the phone". The appellant moved his hand back causing the informant to lose his balance. Other police came forward and restrained the appellant and they all fell to the ground. The informant forcibly removed the Samsung mobile phone from the appellant's grip and he was placed under arrest for resisting a police officer in the execution of his duty. 7. The appellant did not put in issue the legality of the search of the car or of his person. The appellant accepted that the police had the power to do so by reference to sections 21 and 36 Law Enforcement (Powers and Responsibilities) Act 2002 (the Act). At the time the appellant's person was searched he was under arrest and the police also had the power to search him pursuant to sections 23, 23A and 24 of the Act. 8. The only issue in the appeal was whether I was satisfied beyond reasonable doubt that the informant was acting in the execution of his duty when he requested and took hold of the phone without first giving a warning that the appellant was required by law to comply with the request in compliance with section 203(1) of the Act. 9. The prosecution contended that a warning was not required because the appellant had already complied with or was in the process of complying with the direction, requirement or request: section 203(2) of the Act. The appellant's contention was that the police officers requirement that the appellant be detained for the purpose of a search of the car and his person ended with he was told he was no longer under arrest and could leave.