In this matter Greg Walsh acted for M who on 18 June 2007 was arrested by police at his home in Balmain and charged with assault and resist arrest. It was the accused’s case that he was the subject of a vexatious complaint. This had arisen in the course of an alleged domestic violence incident. The incident had been privately witnessed by persons in the adjoining home who had contacted police.
The case concerned the powers of the police under statue and common law to enter premises and in particular the Law Enforcement (Powers & Responsibilities) Act, 2002.
It was argued by Greg Walsh on behalf of the accused that his arrest was unlawful on a number of grounds. The primary ground that in order for there to be a lawful arrest the police must suspect on reasonable grounds that arrest is necessary to achieve more of the purposes referred to in s99 of LEPRA. In the course of the argument, the observations of Smart AJ in R v Rondo (2001) was referred to. Further, the decisions of the Court of Appeal in State of New South Wales v Kuru and Pringle & Ors v Everingham (2006) arose.
The Court held that the police had trespassed in entering upon the accused’s premises. In factual terms, the accused had directed police to leave his home which they had entered. Three of the officers did so but remained at the front door. However when the Court on to find out that as the accused’s wife had impliedly given permission for police to enter there was no trespass.
The Court then dealt with the issue of the evidence relied upon by the prosecution pursuant to s138 of the Evidence Act 1995. It was submitted by Greg Walsh that such evidence was inadmissible. He relied upon the well known passage in Donaldson v Broomby (1982) A Crim R 160. Reference was also made to the test adopted by Smart AJ in R v Car (2002) NSWSC 194.
In further argument, reliance was had to R v Cornwell (2006) NSWCCA 116. The observation of Howie J referred to as were those of Hall J in Director of Public Prosecutions v AM (2006) NSWSC 438. The presiding Magistrate found that the decision to arrest the accused was entirely motivated by expediency. His Honour further found that the evidence obtained in consequence of the impropriety and was inadmissible. The Magistrate also was not satisfied that a prima facie case existed in relation to the charge of assault occasioning actual bodily harm and assault and all charges were dismissed. An application for costs was granted in favour of the accused.