Elwood v Director of Public Prosecutions [2023] NSWSC 772

Supreme Court New South Wales

Medium Neutral Citation: Elwood v Director of Public Prosecutions [2023] NSWSC 772 Hearing dates: 7 July 2023 Date of orders: 14 July 2023 Decision date: 14 July 2023 Jurisdiction: Common Law Before: Davies J Decision: (1) Grant leave to appeal. (2) Uphold grounds 1b, and 2a and 2b of the Amended Summons. (3) Set aside the decision of Magistrate Prowse of 26 October 2022 committing the plaintiff for trial in relation to sequences 13, 16 and 25. (4) Set aside the decision of Magistrate Prowse of 26 October 2022 in relation to sequences 19 and 20. (5) Remit the proceedings to the Local Court at Dubbo to be dealt with by a magistrate other than his Honour Magistrate Prowse. (6) No order for costs of the proceedings to the intent that each party should pay their own. Catchwords: CRIME – appeal and review – appeal from Local Court to Supreme Court – by offender after being committed for trial on three indictable matters and two summary matters – first case conference held almost a year after charges were laid – magistrate refused further adjournments and entered pleas of not guilty by the Court – where negotiations between prosecution and defence were active and ongoing – where offender indicated he wanted to continue to negotiate – magistrate erred by prejudging without hearing why the parties were seeking an adjournment – magistrate failed to consider different pathways available under s 76 of the Criminal Procedure Act– decision deprived offender of significant right of discount for a plea – grounds of appeal involving questions of law alone upheld – decision of the Magistrate set aside – proceedings to be remitted before a different magistrate Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) s 53 Criminal Procedure Act 1986 (NSW) ss 67, 74, 76 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 25A, 25D Supreme Court Rules 1970 (NSW) pt 51B r 5 Cases Cited: Coles v Director of Public Prosecutions [2022] NSWSC 960 Exp Cousens; Re Blacket (1946) 47 SR (NSW) 145 Hijazi v Director of Public Prosecutions [2022] NSWSC 1218 Landrey v Director of Public Prosecutions [2022] NSWCA 211; (2022) 406 ALR 613 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 R v PL [2012] NSWCCA 31 Sankey v Whitlam (1978) 142 CLR 1 Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 Wentworth v Rogers [1984] 2 NSWLR 422 Texts Cited: Nil Category: Principal judgment Parties: Tray Elwood (Plaintiff) Director of Public Prosecutions (Defendant) Representation: Counsel: N Broadbent & H Ryan (Plaintiff) J Roy (Defendant)