Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Owen [2017] NSWSC 1550 Hearing dates: 6 November 2017 Decision date: 17 November 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: 1. Appeal allowed. 2. The order made in the Local Court on 10 March 2017 dismissing the proceedings against the defendant in respect of charges of resisting and assault police officers in the execution of their duty is set aside. 3. The matter is remitted to the Local Court to be dealt with according to law. Catchwords: APPEALS – prosecution appeal – whether magistrate erred by excluding all prosecution evidence of defendant resisting arrest and assaulting officers – decision to exclude was in error – dismissal of charges set aside – remitted to Local Court

EVIDENCE – defendant arrested on outstanding warrant – failure to caution – police officers' evidence of defendant's conduct post-arrest at issue – charged with resist arrest and assault police officer – s 138 Evidence Act 1995 – whether improperly obtained or in consequence of impropriety – "good practice" to caution irrespective of questioning – not an obligatory duty – not an impropriety for purposes of s 138 – further question of causation – lack of caution unconnected to evidence of defendant's conduct

EVIDENCE – unclear on what basis evidence excluded – s 139 Evidence Act 1995 – no questioning – s 139 had no application Legislation Cited: Crimes Act 1900 (NSW) Part 10A, s 356H Crimes (Appeal and Review) Act 2001 (NSW) s 56 Crimes (Sentencing Procedure) Act 1999 (NSW) s 25(2) Evidence Act 1995 (NSW) ss 138, 139 Law Enforcement (Controlled Operations) Act 1997 (NSW) Cases Cited: Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219 Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151 Director of Public Prosecutions v Coe [2003] NSWSC 363 R v Dalley [2002] NSWCCA 284; 132 A Crim R 169 R v G [2005] NSWCCA 291 R v Ladocki [2004] NSWCCA 336 R v Naa (2009) 76 NSWLR 271; [2009] NSWSC 851 Ridgeway v The Queen (1995) 184 CLR 19; [1995] HCA 66 Robinson v Woolworths Ltd (2005) 64 NSWLR 612; [2005] NSWCCA 426 Severino v R [2017] NSWCCA 80 Texts Cited: Code of Practice for CRIME (Custody, Rights, Investigation, Management and Evidence) Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Appellant) Joshua Owen aka James Owen (Respondent) Representation: Counsel: Ms A Mitchelmore (Appellant) Mr J Brock (Respondent)