TANGE v DIRECTOR OF PUBLIC PROSECUTIONS [1997] NSWCA 304

TANGE v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER, BEAZLEY JJA and BROWNIE AJA 5 March 1997

[1997] NSWCA 304

Brownie AJA. This is an application under s 69 of the Supreme Court Act for relief in the nature of certiorari. The claimant, Mr Tange, was charged together with Mr Solomon with stealing a motor vehicle at Randwick on 1 December 1995. When the case came on for hearing in the Local Court on 21 May 1996 Mr Solomon did not appear. The case proceeded in his absence. The magistrate hearing the case found both accused men guilty and sentenced them to imprisonment. Mr Solomon did not appeal but Mr Tange did, that is, he appealed to the District Court. His appeal was heard by Judge P J Phelan on 3 September 1996 and the appealwas dismissed. On that occasion Mr Tange called Mr Solomon as a witness.

Today Mr Tange makes, in essence, three complaints. First, he says that in breach of the provisions of s 41(1B)(d) and s 80AA of the Justices Act, the magistrate wrongly proceeded in the absence of Mr Solomon. There are, I think, two short answers to that. First, whatever defects there may have been so far as concerned Mr Solomon were irrelevant so far as concerned Mr Tange. Secondly, there was an appeal by Mr Tange to the District Court which was in the nature of a re-hearing. There can be no complaint of the kind I am now speaking of in relation to what happened in the District Court.

The second complaint made is that the evidence of identification was inadequate. Mr Tange has referred us in particular to the decisions of the High Court in Pitkin v R (1995) 130 ALR 35 and Domican v R (1992) 173 CLR 55. Even if there was an error made in the Local Court and/or the District Court as to identification, it is, I think, accurate to say that that is not an error going to jurisdiction of either of those courts which would justify this Court granting the relief now sought. It was, at best, from Mr Tange's point of view an error, but not an errorwhich went to jurisdiction. It cannot be described as an error on the face of the record. It cannot fit within any of the recognised categories of circumstances where relief in the nature of certiorari is available.