Director of Public Prosecutions v Evans [2017] NSWSC 33

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Evans [2017] NSWSC 33 Hearing dates: 2 February 2017 Date of orders: 07 February 2017 Decision date: 07 February 2017 Jurisdiction: Common Law Before: Davies J Decision: (1) Extend time to appeal to 18 July 2016.

(2) Order pursuant to s 62(4) of the Crimes (Appeal and Review) Act 2001 (NSW) that the appeal be heard and dealt with in the absence of the Defendant notwithstanding that the Supplementary Notice of Appeal was not personally served on the Defendant.

(3) Appeal allowed.

(4) An order setting aside the order of Magistrate Brown on 14 March 2016 at Penrith Local Court dismissing the charges against the Defendant of assault police officer in execution of his duty and resist police officer in execution of his duty contrary to s 58 of the Crimes Act 1900 (NSW).

(5) Order that the matter be remitted to the Local Court to be dealt with according to law by a magistrate other than Magistrate Brown.

(6) Order that the Defendant pay the Plaintiff's costs of the proceedings. Catchwords: APPEAL AND NEW TRIAL – magistrates - defendant charged with assaulting and resisting police officer in the execution of his duty – police officer attempted to pull defendant away from burning building after requesting him to move – police officer asserts defendant punched him multiple times – defendant denies assault - defendant found not guilty – self-defence raised by magistrate - appeal by prosecutor – no findings of fact on critical issue of assault – whether defence of self-defence engaged – s 418(2)(c) Crimes Act – whether defendant protecting property from unlawful, taking destruction, damage or interference – whether police officer acting in the execution of his duty – failure to provide adequate reasons – no basis for self-defence – proceedings remitted to the Local Court Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Director of Public Prosecutions Act 1986 (NSW) Evidence Act 1995 (NSW) Supreme Court Rules 1970 (NSW) Cases Cited: Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCA 293 Coyle v State of NSW [2006] NSWCA 95 Director of Public Prosecutions (NSW) v Araura [2012] NSWSC 1120 Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713 Douglas v R [2005] NSWCCA 419 Downes v DPP [2000] NSWSC 1054 DPP v Gribble [2004] NSWSC 926 Flanagan v R [2013] NSWCCA 320 R v Burgess; R v Saunders [2005] NSWCCA 52 The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 Category: Principal judgment Parties: Director of Public Prosecutions (Plaintiff) Troy Dale Evans (Defendant) Representation: Counsel: D Kell SC (Plaintiff) No appearance (Defendant)