Director of Public Prosecutions v Cooke & Anor [2007] NSWCA 2

Reported Decision: 168 A Crim R 379

New South Wales Court of Appeal

CITATION: Director of Public Prosecutions v Cooke & Anor [2007] NSWCA 2

HEARING DATE(S): 31/01/2007

JUDGMENT DATE: 7 February 2007

JUDGMENT OF: Sully JA at 1; Howie JA at 2; Price JA at 40

DECISION: 1. The record of the District Court sitting in its criminal jurisdiction at Campbelltown in the proceedings before his Honour Acting Judge Mahoney QC on 28 September 2006 of Regina v Glen Cooke 06/21/3111 being proceedings for breach of five bonds entered pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 on 5 September 2005 with the Liverpool Local Court be called up into this Court; 2. The determination by Mahoney ADCJ in those proceedings to take no action on the breach of the five bonds under s 98(2)(a) of the Crimes (Sentencing Procedure) Act 1999 is quashed; 3. The proceedings for the breach of the five bonds be remitted to the District Court for determination according to law.

CATCHWORDS: Courts and Tribunals - Proceedings in nature of Certiori - Failure by Judge to revoke bonds under s 12 of Criminal Procedure Act - whether error of law in reasons given - proper approach to s 98(3)(b) of the Act - Criminal Law - breach proceedings for s 12 bonds - whether Judge erred in law in failing to revoke bonds - relevant consideration in determining proceedings under s 98 of the Act.

Crimes (Sentencing Procedure) Act 1999 - ss 12, 98, 99 LEGISLATION CITED: Criminal Appeal Act 1912 - s 5D Supreme Court Act 1970 - ss 23, 69(4)

R v Tolley [2004] NSWCCA 165 R v Graham (2004) 62 NSWLR 252 CASES CITED: Director of Public Prosecutions v Burrow [2004] NSWSC 433 R v Marston (1993) 60 SASR 320 R v Zamagias [2002] NSWCCA 17