New South Wales Court of Appeal CITATION: Adam James Lee v Director of Public Prosecutions (New South Wales) and Anor [2007] NSWCA 51 HEARING DATE(S): 14 March 2007 JUDGMENT DATE: 14 March 2007 JUDGMENT OF: Spigelman CJ at 1, 20; Mason P at 18; Ipp JA at 19 DECISION: 1 Leave to appeal refused; 2 The Claimant to pay the opponent's costs of the appeal; 3 The Claimant to have a certificate under the Suitors' Fund Act if otherwise entitled. CATCHWORDS: APPEAL – appeal from a magistrate - whether a single judge of the Supreme Court correctly characterised the decision of a magistrate of the District Court as raising a question of law and displaying error – whether a single judge of the Supreme Court correctly exercised discretion to remit the matter for a further trial - APPEAL - practice and procedure - New South Wales - Suitors' Fund Act LEGISLATION CITED: Crimes (Appeal & Review) Act 2001; s56; s59(2) Suitors' Fund Act 1951 Adam James Lee (Claimant) PARTIES: Director of Public Prosecutions (NSW) (First Opponent) Her Honour Magistrate Patricia June O'Shane (Second Opponent) FILE NUMBER(S): CA 40266/06 COUNSEL: R Bonnici (Claimant) P I Lakatos SC (First Opponent) J Lewis, Justin Lewis & Co Lawyers (Claimant) SOLICITORS: R Paul, Office of the Director of Public Prosecutions (First Opponent) P Eagle, Crown Solicitors' Office (NSW) (Second Opponent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 13551/05 LOWER COURT JUDICIAL OFFICER: Howie J LOWER COURT DATE OF DECISION: 12 April 2006 LOWER COURT MEDIUM NEUTRAL CITATION: DPP v Adam James Lee & Anor [2006] NSWSC 270 - 4 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40266/06 SPIGELMAN CJ MASON P IPP JA WEDNESDAY 14 MARCH 2007 ADAM JAMES LEE v DIRECTOR OF PUBLIC PROSECUTIONS (NEW SOUTH WALES) AND ANOR JUDGMENT 1 SPIGELMAN CJ: This is an application for leave to appeal from a judgment of Howie J. The facts and issues in the case are set out comprehensively by Howie J and I refer to those parts of his judgment as if incorporated herein. The jurisdiction of the Court was restricted to a question of law alone by s 56 of the Crimes (Appeal & Review) Act 2001. 2 The Court has heard a range of submissions, but the basic thrust of the submissions was to the effect that Howie J erred in determining that there was a question of law alone and also erred in his determination that the magistrate had committed a number of errors. 3 In my opinion, leave to appeal should be refused. His Honour was plainly right and an appeal would be futile. 4 The first basis upon which, in my opinion, his Honour was correct in his analysis was that the various statements in the magistrate's reasons for judgment indicate that she approached the matter on the basis of a no case to answer test. It was not necessary for her Honour to do so. She could have adopted a different approach in terms of assessing the Crown case as not establishing the offences beyond reasonable doubt. 5 Nevertheless, for the reasons Howie J gave, that is not what her Honour did. She did adopt a no case to answer approach, or, as it was referred to on a number of occasions in submissions, applied a prima facie case test. As I have indicated, it was not necessary for that to occur but that is what occurred. Accordingly there was a question of law alone before his Honour. 6 For the reasons his Honour gave, her Honour erred in finding that there was no case to answer or no prima facie case. There was in all relevant respects, such a case. 7 The second and alternative basis upon which his Honour found a question of law with respect to which her Honour erred involved the statements appearing throughout her Honour's judgment, to which Howie J refers at length, in which she appears to treat the question of whether the Claimant participated in the switching of the bodies as being an essential part of the prosecution case. It does appear from her Honour's frequent references, including particularly in the very last paragraph of her reasons, that she regarded that as an essential component of the prosecution case. 8 As Howie J notes, it was not. Accordingly, there was a question of law that arose in this respect perhaps, most relevantly, to be put in terms of her Honour taking into account irrelevant considerations. It does appear from the analysis of her Honour's judgment by Howie J that her Honour regarded this as a decisive factor in her decision to dismiss the proceedings. 9 I agree with the reasons of Howie J that in this respect her Honour erred. 10 One of the matters that was urged upon this Court was that, as there was no direct evidence that the Claimant was involved in the despatch of the two tax invoices, there was a weakness in the Crown case which could have led to the result that an essential aspect of the offence was not established beyond reasonable doubt. 11 Howie J in his reasons, on a number of occasions, refers to the proposition that it would have been open to a magistrate to infer that the Claimant was sufficiently involved in this step of the proceedings. Clearly in the way his Honour expressed it, it was also open for a magistrate to come to the opposite conclusion. 12 Mr Bonnici, who appeared for the Claimant in this Court, emphasised that, on a proper understanding of her Honour's reasons, that is what this Court should infer her Honour did in fact do. He gave particular attention to the passage appearing at pp 4 to 5 of her Honour's reason for judgment. I do not read that passage in this way. It does not appear to me that her Honour decided the proceedings on this basis and that the two errors that I have identified, accepting Howie J's analysis, were in fact committed by her Honour. 13 Whether or not the outcome will be the same at what will now be the third trial of this matter is not something about which this Court should speculate. 14 Mr Bonnici also submitted that Howie J erred in exercising the discretion under s 59(2) of the Act to remit the matter for a further trial by reason of a range of factors, including alleged weaknesses in the Crown case and the degree of oppression that is involved in a third trial of these allegations. 15 His Honour exercised the discretion on grounds which he set out in his reasons. It was open to his Honour to exercise the discretion in this way. There has been no submission put which indicates that his Honour's exercise of the discretion was erroneous in the relevant sense. The submissions were really directed to the fact that a different judge may have, in the circumstances relied upon, exercised the discretion in a different way. In my opinion there is no basis for the Court to intervene with his Honour's exercise of the discretion. 16 The respondent seeks costs. There is no basis for this Court to not make the normal order that costs will follow the event. However as the issue comes before the Court by reason of deficiencies in the judgment of the magistrate, the Claimant should have a certificate under the Suitors' Fund Act 1951 if he is otherwise entitled. 17 Accordingly, the orders I propose are: 1. Leave to appeal refused. 2. The Claimant pay the Opponent's costs of the appeal. 3. The Claimant to have a certificate under the Suitors' Fund Act if otherwise entitled. 18 MASON P: I agree. 19 IPP JA: I agree. 20 SPIGELMAN CJ: The orders of the Court are as I have indicated. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.