Shephard v Director of Public Prosecutions (NSW) [2003] NSWSC 83

Reported Decision : 57 NSWLR 455

New South Wales Supreme Court

CITATION : Shephard v Director of Public Prosecutions (NSW) [2003] NSWSC 83 HEARING DATE(S) : 03-04/02/03 JUDGMENT DATE : 28 February 2003

JUDGMENT OF : James J at 1 DECISION : Appeal allowed

CATCHWORDS : Criminal law - indictable offences dealt with summarily - Pt 2 Div 3 subss (18) - (27) LEGISLATION CITED : Pt2 Div3 Criminal Procedure Act s75A-75F, s100D, s100K Justices Act R v Fisher (2002) NSWCCA 188 CASES CITED : Cowan v The Police (1994) 75 A Crim R 24 Tassell v Hayes (1987) 163 CLR 34 PARTIES : Maurice Richard Shephard v Director of Public Prosecutions FILE NUMBER(S) : SC 13034/2002 COUNSEL : D Jordan - Plaintiff PI Lakatos - Defendant SOLICITORS : Douglas Humphreys SE O'Connor

LOWER COURT Local Court JURISDICTION : LOWER COURT 00039773/02/147 FILE NUMBER(S) : LOWER COURT Mr Gary Still JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Friday 28 February 2003

13034/02 Shephard v Director of Public Prosecutions (NSW)

JUDGMENT 1 This is an appeal pursuant to Pt 5 of the Justices Act in which the plaintiff Maurice Richard Shephard claims orders pursuant to s 109(a) of the Justices Act quashing (1) his conviction on 4 June 2002 at the Newtown Local Court on a charge of breaking and entering and committing a serious indictable offence (stealing) on 2 May 2002 (2) an order made in the Newtown Local Court on 29 August 2002 refusing an application made by him under s 100D of the Justices Act that his conviction on the charge of breaking entering and stealing be annulled, and a consequential order that the proceedings against him on the charge of breaking entering and stealing be remitted to the Newtown Local Court to be dealt with according to law. The person shown as being the defendant to the appeal in the Court documents which have been filed in the appeal is the police officer who was the informant in the prosecution of the plaintiff in the Local Court. It was common ground on the hearing of the appeal that the proper defendant to the appeal was the Director of Public Prosecutions and, to the extent to which it may be necessary, I make an order substituting the Director of Public Prosecutions as the defendant. 2 The appeal was instituted out of time but at the hearing of the appeal counsel for the defendant informed the Court that the Director did not oppose the making of an order extending the time for the institution of the appeal and I make such an order. 3 The history of the prosecution of the plaintiff is set out in an affidavit by a solicitor in the employ of the Legal Aid Commission, who since about August 2002 has had the carriage of the matter for the plaintiff. At the hearing of the appeal there was no dispute about the facts deposed to by the solicitor in her affidavit.