D P P v C D K [2000] NSWSC 783

New South Wales Supreme Court

CITATION : D P P v C D K [2000] NSWSC 783 FILE NUMBER(S) : SC 10086/00 HEARING DATE(S) : 18/4/00 JUDGMENT DATE : 18 April 2000

PARTIES : DIRECTOR OF PUBLIC PROSECUTIONS v C.D.K. JUDGMENT OF : O'Keefe J

LOWER COURT Local Court JURISDICTION : LOWER COURT 5/99 FILE NUMBER(S) : LOWER COURT Magistrate, J McIntosh JUDICIAL OFFICER :

COUNSEL : Mr Paul Lakatos - For Plaintiff Mr S Corish - For Defendant Director of Public Prosecutions SYDNEY For Plaintiff SOLICITORS : Western Aboriginal Legal Service BROKEN HILL NSW For Defendant

CATCHWORDS : Duty of Court to give reasons for decision - What constitutes reasons for decision LEGISLATION CITED : Justices Act 1902 s.109 CASES CITED : Pettitt v Dunkley (1971) 1 NSWLR 376 Carlson v King (1947) 64 WN (NSW) 75 DECISION : Matter remitted to Magistrate for statement of reasons in accordance with law.; Defendant to pay costs and to have Certificate under Suitor's Fund Act, 1951 if entitled.

THE SUPREME COURT OF NEW SOUTH WALES SYDNEY REGISTRY COMMON LAW DIVISION

O'KEEFE J

TUESDAY 18 APRIL 2000 10086/00 - DIRECTOR OF PUBLIC PROSECUTIONS v C D K JUDGMENT 1 HIS HONOUR: These proceedings arise out of the hearing of charges against the defendant before the Wilcannia Childrens' Court. He had been charged with a number of offences, including assault police (4 charges), unregistered vehicle, refuse breath test, fail to submit to breath analysis. After a hearing, the Childrens' Court Magistrate determined as follows: "Well, on all the evidence before me I am not satisfied that the charges have been made out beyond reasonable doubt and I dismiss sequences 1 to 4 and 7 to 11 inclusive." 2 The reference to the "sequences" is a reference to the grouping of a number of charges in a particular way. The Magistrate was then asked by the Crown: "Has your Worship put on the record your reasons for dismissing those charges?" To which the Magistrate replied: "The evidence". 3 The prosecutor appealed to this Court on the basis that the Magistrate has failed in his duty of giving the reasons for the decision at which he arrived and The Director of Public Prosecutions took over the conduct of and was substituted as the plaintiff in the appeal in accordance with s.10 of the Director of Public Prosecutions Act, 1986. 4 The locus classicus in matters of the kind involved in the present appeal is Pettitt v Dunkley (1971) 1 NSWLR 376. In the course of that decision, Asprey JA (at 381) quoting from Jordan CJ in Carlson v King (1947) 64 WN (NSW) 65, said: "It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbent not only upon magistrates (Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1) and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council (Ex parte Reid; Re Lynch)((1943) 43 SR (NSW) 207)." 5 The giving of reasons not only informs the parties as to why the judicial officer has arrived at his or her conclusion, but is also an important part of the judicial process itself as, by having to give reasons, the judicial officer is required to address the issues in the case and by so doing, hopefully, is more likely to arrive at a correct conclusion. 6 As Pettitt v Dunkley (supra) indicates, it is the duty of every court to give reasons for its decision that are adequate for the purpose of the decision. In this case clearly the learned Magistrate has not turned his mind to that matter and a statement that his reasons are "the evidence " is not a statement of reasons within the meaning of that term as used in the relevant authorities, including Pettitt v Dunkley. For these reasons I am of the opinion that the learned Magistrate fell into error. 7 The issue that then arises is, what relief should be granted in respect of the matter. Section 109 of the Justices Act, 1902 enables the Court when dealing with a matter such as this, to quash a conviction, to reverse any order or make any such order as the Court deems just. In this case the Magistrate has clearly come to the conclusion that the young person against whom the charges were laid, was not guilty of the offences referred to in the conclusion stated by the Magistrate. He said: "I think it would not be fair to the young person to have to face trial again in relation to these matters".