Director of Public Prosecutions (NSW) v Peckham [2022] NSWSC 713

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Peckham [2022] NSWSC 713 Hearing dates: 30 May 2022 Date of orders: 1 June 2022 Decision date: 01 June 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) An order in the nature of certiorari: (a) Removing the record of the proceedings in the Local Court at Dubbo against the First Defendant on 10 February 2022, for the offence of "Contravene Prohibition/Restriction in AVO (Domestic)" contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) being charge number H 85974722-1 further identified by Court Proceedings No 2022/39266, into this Court. (b) Quashing the order of the Local Court at Dubbo (Magistrate G Wilson) on 10 February 2022 convicting the First Defendant and imposing no other penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). (2) The proceedings be remitted to the Local Court at Dubbo to be heard and determined according to law. (3) No order as to costs, with the intention each party bears their own costs. Catchwords: CRIMINAL LAW – procedure – radical departure from orthodoxy – proceedings a travesty – entire proceedings conducted in absence of prosecutor – three minutes – prosecutor not notified of sentencing hearing – where Magistrate aware of absence of prosecutor but chose to continue – transcript must be seen to be believed – denial of procedural fairness – ground of appeal upheld CRIMINAL LAW – sentencing – requirement to give reasons – "incident of judicial process" – massive workload of Magistracy – brief reasons may suffice – no reasons given at all – ground of appeal upheld CRIMINAL APPEALS – judicial review – prerogative relief – where statutory appeal available – ordinary course to decline prerogative relief – case out of the ordinary – process fundamentally flawed – decision should be quashed – advantages of remitter in particular circumstances – certiorari granted Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 3(3), 11, 17, 56(1)(a), 59(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A Criminal Procedure Act 1986 (NSW), ss 190, 192, 201 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCCA 284 Cherdchoochatri v R (2013) 277 FLR 126; [2013] NSWCCA 118 Director of Public Prosecutions (NSW) v Gatu [2014] NSWSC 192 Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147 Director of Public Prosecutions v Wallman [2017] NSWSC 40 Lutz v JK (2016) 310 FLR 392; [2016] ACTSC 200 Milsom v R [2014] NSWCCA 142 O'Neil-Shaw v R [2010] NSWCCA 42 Public Service Board of NSW v Osmond (1986) 159 CLR 656; [1986] HCA 7 R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Faiva Peckham (First Defendant) Local Court of New South Wales (Second Defendant) Representation: Counsel: D Kell SC with M W R Adams (Plaintiff) J Styles and H Webb (First Defendant) Submitting appearance (Second Defendant)