DARGIN v SIMPSON [1992] NSWCA 52

DARGIN v SIMPSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS AP, CLARKE and SHELLER JJA 7 February 1992, 7 February 1992

[1992] NSWCA 52

COMMITTAL — INDICTABLE — SUMMARILY — CRIMINAL LAW and PROCEDURE — held that a magistrate may dispose summarily of the offences listed in s495(1) of the Crimes Act 1900 without first embarking upon a committal proceeding pursuant to Subdivision 7A of the Justices Act 1902.

Samuels AP This is an appeal from a judgment of Mr Justice Studdert dismissingthe appellant's summons and it raises, in essence, two points. The first is that a magistrate, before acting under s495 of the Crimes Act 1900 must hear evidence as to the nature of the offence and as to the defendant's involvement, and the second is that the magistrate should hear the evidence as if he were embarking upon a committal proceeding, thus conferring upon the defendant the evidentiary benefits provided by sub-division 7A of the Justices Act.

The learned judge rejected the submissions and I am entirely in agreement with his conclusions. I should say for myself only this. The argument put to us, which I have summarised without, I hope, doing it any injustice, seems to me to be wholly contrary to the definition of "committal proceedings" in s3(1) of the Justices Act 1902 and to the provisions of s495(1) and s495(2), and the terms of s497 of the Crimes Act.

The consequence, as Mr Williams was constrained to concede, although I must say he did so very frankly, is that it is possible that a magistrate might be required to embark upon a lengthy committal proceeding at the end of which, or near the end of which, he would decide that the matter could be dealt with summarily. If he did come to that decision he could not invoke the material that had been presented to him in the committal proceeding but would be required to call upon the prosecution to commence proving its case all over again.