Director of Public Prosecutions v Shannon Paul Wunderwald [2004] NSWSC 182

New South Wales Supreme Court

CITATION : Director of Public Prosecutions v Shannon Paul Wunderwald [2004] NSWSC 182 HEARING DATE(S) : 16 March 2004 JUDGMENT DATE : 16 March 2004

JUDGMENT OF : Sully J at 1 DECISION : Appeal allowed; Order of 2nd defendant made on 23 April 2003 & dismissing the information laid against the 1st defendant is set aside; Proceedings remitted to Downing Centre Local Court; No order as to costs

Crimes (Local Courts Appeal and Review) Act 2001 (NSW) LEGISLATION CITED : Summary Offences Act 1988 (NSW) Criminal Appeal Act 1912 (NSW) CASES CITED : Zanetti v Hill (1962) 108 CLR 433 at 442, 443 PARTIES : Director of Public Prosecutions Shannon Paul Wunderwald FILE NUMBER(S) : SC 12068/03 COUNSEL : D. Frearson - D.P.P D. Bertini - 1st Defendant SOLICITORS : C. K. Smith - D.P.P Southside Law Practice - 1st Defendant

LOWER COURT Local Court JURISDICTION : LOWER COURT 527/2003 FILE NUMBER(S) : LOWER COURT P. O'Shane, Lower Court Magistrate JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SULLY J

16 March 2004

12068/03 – DIRECTOR OF PUBLIC PROSECUTIONS v SHANNON PAUL WUNDERWALD

JUDGMENT 1 HIS HONOUR: By a summons filed on 13 August 2003 the Director of Public Prosecutions brings as plaintiff proceedings in this Court by way of appeal against an order of a Local Court magistrate. The right of the Director to bring such proceedings depends upon the provisions of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW), (hereinafter "the Appeal and Review Act"). 2 Particularly relevant are sections 56 and 59 of the Appeal and Review Act. Section 56 provides, relevantly, that a prosecutor may appeal to this Court against an order made by a Local Court dismissing a matter the subject of any summary proceedings; but may do so only on a ground that involves a question of law alone. 3 Section 59(2) provides, relevantly, that this Court "may determine" such an appeal either by dismissing the appeal, or by setting aside the order from which the appeal has been brought; and by making such other order as this Court thinks just. 4 Two defendants are cited by the summons. The first is one Shannon Paul Wunderwald. Mr Wunderwald was the defendant in the Local Court proceedings which give rise to the present appeal. The second defendant thus cited is Miss Patricia O'Shane, who is a Local Court magistrate and who was the magistrate who made the order from which the present appeal is brought. 5 The first defendant, Mr Wunderwald, has appeared by counsel, and has put reasoned submissions in opposition to the granting of any relief as sought in the summons. The learned Magistrate has entered an appearance submitting to such order as this Court might think fit to make, save only any adverse order as to costs.