Director of Public Prosecutions (NSW) v Wright and the Local Court of New South Wales [2021] NSWSC 1086

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Wright and the Local Court of New South Wales [2021] NSWSC 1086 Hearing dates: 25 August 2021 Date of orders: 1 September 2021 Decision date: 01 September 2021 Jurisdiction: Common Law Before: Bellew J Decision: (1) Pursuant to r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW) the amended summons filed in these proceedings on 21 July 2021 is taken to have been served on the first defendant on 28 July 2021. (2) Pursuant to r 29.7 of the Uniform Civil Procedure Rules 2005 (NSW) I direct that the hearing proceed in the absence of the first defendant. (3) Pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) the order made in Penrith Local Court on 25 November 2020 dismissing proceedings against the first defendant for the offence of sexually touch another person without consent contrary to s 61KC of the Crimes Act 1900 (NSW) is set aside. (4) The proceedings are remitted to the Local Court to be heard and determined according to law. (5) No order is made as to costs. (6) The solicitor for the plaintiff is directed to arrange for a copy of this judgment to be personally served on the defendant by 5.00 pm on 3 September 2021. Catchwords: PRACTICE AND PROCEDURE – Failure to give reasons – Where the first defendant pleaded not guilty to a charge of sexually touching the victim – Where hearing proceeded before a Magistrate on the sole issue of consent – Charge against the first defendant dismissed by the Magistrate – Failure to give adequate reasons – Failure to explain what findings were actually made as to the victim's consent or the first defendant's knowledge of the absence of consent – Error established PRACTICE AND PROCEDURE – Failure to apply specific statutory provisions governing the issue of consent – Error established PRACTICE AND PROCEDURE – Where the alleged offending was constituted by the first defendant touching the breast of the victim – Where that conduct was referred to by the Magistrate as amounting to the first defendant "trying his luck" – Observations as to the inappropriate use of such a term in the context of an allegation of sexual assault Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Beale v GIO of New South Wales (1997) 48 NSWLR 430 Keith v Gal [2013] NSWCA 339 Pettitt v Dunkley [1971] 1 NSWLR 376 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 R v Banditt [2004] NSWCCA 208; (2004) 151 A Crim R 215 R v IL [2016] NSWCCA 51 R v Lazarus [2017] NSWCCA 279; (2017) 270 A Crim R 378 R v XHR [2012] NSWCCA 247 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Wardle v Criniti's Castle Hill Trading Pty Ltd [2020] NSWSC 894 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) – Plaintiff Nathan Wright – First Defendant Local Court of New South Wales – Second Defendant Representation: Counsel: D Kell SC and N Wootton – Plaintiff