SUTHERS v. DIRECTOR OF PUBLIC PROSECUTION & ANOR [2003] NSWSC 570

New South Wales Supreme Court

CITATION : SUTHERS v. DIRECTOR OF PUBLIC PROSECUTION & ANOR [2003] NSWSC 570 HEARING DATE(S) : 14 August 2002; 15 May 2003 JUDGMENT DATE : 26 June 2003 JURISDICTION: Common Law JUDGMENT OF : Greg James J at 1 DECISION : I order that the matter be remitted to the magistrate who made the order and I further order, having regard to the matters to which I have earlier referred, that that magistrate is unable to continue to hear the matter. I order that the defendant pay the plaintiff's costs of these proceedings and by consent the costs thrown away by reason of the original proceedings before the magistrate having to be set aside. Those latter costs are to be agreed between the parties. In the event that the matter does not proceed, I reserve leave to the parties to obtain a costs assessment.

CATCHWORDS : Criminal law - procedure - summary proceedings - appeal to Supreme Court on setting aside conviction - whether an acquittal can be entered - whether an analogy between Justices Act 1902, s.109 and Criminal Appeal Act 1912, s.8(1) - common principles but nature different - remitter whether necessary to original magistrate - when original magistrate unable to continue - effect of perceived pre-judgment. Justices Act 1902 Crimes Act 1900 LEGISLATION CITED : Evidence Act 1995 Judiciary Act 1903 (Cth) Criminal Appeal Act 1912 Robinson (1988-89) 180 CLR 531 Noble v. DPP & Ors (2000) 118 A. Crim. R. 305 Webb v. Hay (1994) 181 CLR 41 Downes v. DPP [2000] NSWSC 1054 Dyers [2002] HCA 45 King (1986) 161 CLR 423 Wilkes (1948) 77 CLR 511 CASES CITED : Parker (1997 186 CLR 494 DPP (Nauru) v. Fowler (1984) 154 CLR 627 Ward (1981) A. Crim. R. 171 M (1984) 181 CLR 487 Longman (1989) 168 CLR 79 Crampton (2000) 75 ALJR 133 Doggett (2001) 75 ALJR 1290 WRC [2002] NSWCCA 210 PARTIES : SUTHERS, Alan Douglas v. DIRECTOR OF PUBLIC PROSECUTIONS & ANOR FILE NUMBER(S) : SC No. 11201/02 COUNSEL : Plaintiff: M. Marty Defendant: G. Smith SOLICITORS : Plaintiff: MacMahon & Associates Defendant: S.E. O'Connor