Lawler v Johnson & Director of Public Prosecutions [2002] NSWSC 864

Reported Decision : (2002) 56 NSWLR 1 (2002) 134 A Crim R 199

New South Wales Supreme Court

CITATION : Lawler v Johnson & Director of Public Prosecutions [2002] NSWSC 864 revised - 13/11/2003 FILE NUMBER(S) : SC 11083/02 HEARING DATE(S) : 6, 7 May 2002; 23 August 2002 JUDGMENT DATE : 20 September 2002

PARTIES : Frederick Lawler v Paul Johnson & Director of Public Prosecutions JUDGMENT OF : O'Keefe J

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT P Johnson JUDICIAL OFFICER :

COUNSEL : Mr P Hogan; Mr M Ainsworth - For Plaintiff Mr I Bourke - for Second Defendant SOLICITORS : Kells, The Lawyers, Wollongong - For Plaintiff S E O'Connor, Solicitor for Public Prosecutions - for Second Defendant CATCHWORDS : Committal Proceedings - Practice and Procedure - Evidence - Oral Evidence by Complainant - Oral evidence by other witness - Special reasons - Norm or datum for comparison - Statutory construction - Substantial reasons - Offence involving violence - Prescribed sexual offence - Offences under ss 67 and 76 of Crimes Act not within definitions Justices Act 1902 ss48E,48EA Crimes Act 1900,ss4, 67, 76, 405B, 405C Crimes (Sexual Assault) Amendment Act 1981 Crimes (Personal and Family Violence) Amendment Act 1987 LEGISLATION CITED : Crimes Legislation Amendment (Sentencing) Act 1999 Criminal Procedure Act 1986 Justices (Procedure) Further Amendment Act 1983 Justices (Paper Committals) Amendment Act 1987 Justices Amendment (Committals) Act 1996 O'Hare v DPP [2000] NSWSC 430, 22 May 2000, unreported B v Gould (1993) 67 A Crim R 297 Regina v Kennedy NSWCCA, 1 July 1997, unreported Losurdo v DPP NSWCA, 23 September 1998, unreported Acuthan v Coates (1986) 6 NSWLR 472 Hilton v Hyde (1987) NSWSC, 29 April 1987 CASES CITED : W v AG; P v Wellington District Court (1993) 1 NZLR 1, per Cooke P Gun; Ex Parte Stephenson (1977) 17 SASR 165 L v Director of Public Prosecutions NSWSC 26 August 1994, unreported Regina v VCH NSWCCA 11 September 1992, unreported Kant v Director of Public Prosecutions (1994) 34 NSWLR 216 Director General New South Wales Department of Community Services v Childrens Court of New South Wales;Re Peter and Ors [2002] NSWSC 679, unreported Stanoevski v The Queen (2000) 202 CLR 115 DECISION : Declaration that magistrate erred; Orders of refusal made by the magistrate on 6 March 2002 quashed; Order that matter be remitted for determinations in accordance with law as stated in reasons for judgment; Second defendant (DPP) to pay plaintiff's costs.