Jankovic v Director of Public Prosecutions [2020] NSWCA 31

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Jankovic v Director of Public Prosecutions [2020] NSWCA 31 Hearing dates: 28 October 2019 Decision date: 05 March 2020 Before: Macfarlan JA at [1]; White JA at [2]; Barrett AJA at [29] Decision: (1) Order that the appellate determination of the District Court on 4 October 2017 upholding convictions of Rodna Jankovic on one charge of resisting a police officer while in execution of duty contrary to s 58 of the Crimes Act 1900 (NSW) and two charges of intimidating a police officer while in execution of duty contrary to s 60(1) of the Crimes Act 1900 (NSW), which convictions were recorded at the Local Court at the Downing Centre on 15 February 2017, be quashed.

(2) Order that the appellate proceeding be remitted to the District Court for determination according to law.

(3) Order that the Director of Public Prosecutions pay the costs of Rodna Jankovic of the proceedings in this Court. Catchwords: CRIME – offences against police in execution of duty – whether police in execution of duty when alleged offences committed – accused arrested without warrant – whether arrest lawful – whether there was evidence on which the court could find, as required by s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), that the arresting officer was "satisfied" that arrest without warrant was "reasonably necessary" for a reason stated in that section – meaning of "reasonably necessary" – need for police officer to engage in a process of comparison and to make an evaluative judgment regarding proportionate response to risk.

ADMINISTRATIVE LAW – judicial review of decision of the District Court dismissing appeal from the Local Court against conviction – review not available unless jurisdictional error established – where function of the District Court was to conduct appeal by way of rehearing "on the basis of" the evidence in the Local Court – where the District Court made a central finding of fact for which there was no basis in the Local Court evidence – whether error of law – whether jurisdictional error.