PEARSON and ANOR v THE DISTRICT COURT OF NEW SOUTH WALES and ANOR [1996] NSWCA 423

PEARSON and ANOR v THE DISTRICT COURT OF NEW SOUTH WALES and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, SHELLER and POWELL JJA 3 May 1996, 12 July 1996

[1996] NSWCA 423

Procedural fairness — Jurisdictional error — Refusal to state a case to the Court of Criminal Appeal on question of fact

FACTS:

On 11th September 1991, Neil Pearson and Neil Pearson and Co Pty Ltd (the Pearsons) were convicted of offences brought against them under the provisions of the Customs Act, 1991. The Pearsons then appealed to the District Court pursuant to s122 of the Justices Act, 1902. That appeal was heard by his Honour Judge Hosking between August, 1993 and March 1994.

On 18th March, 1994, Hosking DCJ held that a prima facie case existed against the appellant. By consent, the matter was stood over until June, 1994 for further submissions on whether the offences were proved beyond reasonable doubt. In June, however, the Pearsons asked that a case be stated to the Court of Criminal Appeal on various matters. Hosking DCJ acceded to that request.

Following this first reference to the Court of Criminal Appeal, the matter resumed before Hosking DCJ in February, 1996. On that day, his Honour indicated that he was mindful to find all charges against the Pearsons proved beyond reasonable doubt. The Pearsons then sought to re-open their case and call further evidence. The Pearsons also sought to have another case stated to the Court of Criminal Appeal on five questions dealing, primarily, with questions of fact.

His Honour declined to either re-open the case or to state a further case to the Court of Criminal Appeal. The Pearsons now seek prerogative relief, by way of summons, against both of these decisions. The Chief Executive Officer of Customs seeks, by way of Notice of Motion, to strike out the affidavits in support of the Pearsons' summons.