COLLIER v DIRECTOR PUBLIC PROSECUTIONS [1994] NSWCA 54

COLLIER v DIRECTOR PUBLIC PROSECUTIONS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and HANDLEY JA 13 September 1994, 13 September 1994

[1994] NSWCA 54

Appeal to District Court — order for destruction of tomahawk made without jurisdiction — order of District Court contains order of destruction — whole order contains error of law on face of record — HELD — order invalid in entirety — order quashed — Anderson v The Judges of District Court of New South Wales (1992) 27 NSWLR 701.

JUSTICES — appeals from to District Court — powers of District Court on appeal — power to confirm, quash a set aside "order" — accused conviction in Local Court of remaining upon inclosed lands and behaving in offensive manner — appeals to District Court — offensive behaviour allegedly involved use of tomahawk — judge (Holt DJC) concludes that offence charged made out — confirms conviction — proceeds to fine accused, orders payment of witnesses expenses and orders destruction of tomahawk -

HELD: (Gleeson CJ; Kirby P and Handley JA concurring) (1) The judge had no jurisdiction to make order for destruction of tomahawk; (2) The order of destruction was part of the "order" of the District Court on the appeal; (3) An order on the matter of certiorari must issue to the District Court to quash the whole of the order made and the part of the order relating to the destruction of the tomahawk could not be severed. Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701 applied.

Gleeson CJ This is a summons seeking prerogative relief in the nature of an order of certiorari. As things have turned out, it is possible to dispose of the matter on a relatively narrow ground. However, it is convenient to state in a summary form the background circumstances of the case before going to deal with that ground.