25 March 2013

Powers of Police in NSW

I haven't practised in criminal law for many years, but I make sure I keep up with significant cases. The case of Semaan v Poidevin [2013] NSWSC 226 (22 March 2013)  is one...

Poidevin was a police officer, and Semaan was a man in the vicinity of a disturbance to which the police were called. Poidevin spoke to Semaan and went off to speak on his radio. Semaan got out his mobile phone and started dialling. Poidevin told him to stop doing that and attempted to grab the phone. Semaan turned away from the police officer to shield his phone. Semaan apparently received a serious injury in the ensuing scuffle, the police officer did not, and there was no charge of assaulting the police officer.

Semaan was charged with breach of s546C of the Crimes Act 1900 (NSW) - resist a police officer in the execution of his duties, and convicted in the Local Court. He appealed to the Supreme Court of NSW and the conviction was set aside.

The judgement is worth reading if you deal in this sort of area - especially if you deal with the usual trio - assault police, resist arrest and offensive language. Rothman J deals with statutory and common law rights to confiscate property to avoid a breach of the peace, as well as the powers of police mentioned in s 201 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA).

Lessons to be learned

s 546C Crimes Act 1900 (NSW)

Poidevin was concerned that Semaan was going to ring friends and ask them to join him and create a disturbance. However, the unlawful conduct is hindering or resisting - it is not conduct that has the effect of hindering. Semaan might have telephoned his mother or girlfriend or his lawyer. It was not a necessary result that a breach of the peace might have occurred. Semaan had the right to protect his property from the police officer in the circumstances. Poidevin had no right to attempt to seize the property.

s 201 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

When a police officer exercises the powers set out in s 201(3), such as the power to seize any property (subs (e)), he must provide the following  before exercising the power or as soon as practicable after:

(a) evidence that the police officer is a police officer (unless the police officer is in uniform),
(b) the name of the police officer and his or her place of duty,
(c) the reason for the exercise of the power.

In this case Rothman J said (p 109 with my emphasis):

The prosecuting authority must prove that the police officer was executing his duty, and, to do so, must assert and prove the "lawfulness" of the officer's conduct. Because of the non-compliance with s 201(1) of LEPRA, and the failure to prove that the time for compliance had not yet arisen or passed, the prosecution is unable to do that and, therefore, it is unable to prove that Mr Semaan has resisted the officer in the execution of his duty.
So the failure to comply with s201(1) effectively means that there was no lawful exercise of the relevant power - there was no retrospective validation of the officer's actions.  The police had to prove that they had complied, or the time for compliance had not yet arisen. 

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