West v Commonwealth Director of Public Prosecutions & Anor [1999] NSWCA 398

New South Wales Court of Appeal CITATION : West v Commonwealth Director of Public Prosecutions & Anor [1999] NSWCA 398 FILE NUMBER(S) : CA 40073/99 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 26 October 1999

PARTIES : Anthony John West v Commonwealth Director of Public Prosecutions and District Court of NSW JUDGMENT OF : Priestley JA at 1; Meagher JA at 33; Beazley JA at 34

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 98/12/0206 LOWER COURT JUDICIAL OFFICER : Goldring DCJ

Plaintiff - A.B. Shand QC / D. Alexander COUNSEL : Defendant (1) - P. Renehan Defendant (2) - Submitting Plaintiff - Robinson Beale & Horton SOLICITORS : Defendant (1) - Commonwealth Director of Public Prosecutions Defendant (2) - Submitting CATCHWORDS : District Court appeal from Local Court after criminal conviction ; Reading of depositions of witnesses not able to be produced; Stated case procedure from District Court ACTS CITED : Justices Act s 126 Criminal Appeal Act 1912 Acuthan v Coates (1986) 6 NSWLR 472 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 CASES CITED: ex Parte McGavin ; re Byrne (1945) 45 SR (NSW) 58 R v Brotherton (1992) 29 NSWLR 95 Saffron v DPP (1989) 16 NSWLR 397 DECISION : Summons dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40073/99 DC 98/12/0206

PRIESTLEY JA MEAGHER JA BEAZLEY JA

Tuesday, 26 October 1999

WEST v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

DISTRICT COURT APPEAL FROM LOCAL COURT AFTER CRIMINAL CONVICTION - READING OF DEPOSITIONS OF WITNESSES NOT ABLE TO BE PRODUCED - STATED CASE PROCEDURE FROM DISTRICT COURT. W, convicted in the Local Court, appealed to the District Court, where the prosecution applied under the then s 126 of the Justices Act to read in evidence the depositions of four witnesses in the Local Court whom the prosecution submitted could not be produced. Upon the view taken by the District Court Judge of the proper construction of s 126, and on application of that view to the facts, he granted the application. Upon being asked to state a case on the construction of s 126 he declined to do so. W then applied to the Supreme Court for orders directing the District Court Judge to state a case. Held: although, since the question of construction of s 126 was an arguable one, the judge should have stated a case, nevertheless, after the Court of Appeal heard full argument on the construction question and concluded the District Court Judge's construction was correct, with the result that it would be pointless to require a case to be stated, the court should exercise its discretion to dismiss the application. ORDERS Summons dismissed with costs.