Director of Public Prosecutions (NSW) v Earl Burns & Anor [2010] NSWCA 265

Reported Decision: 207 A Crim R 362

New South Wales Court of Appeal

CITATION: Director of Public Prosecutions (NSW) v Earl Burns & Anor [2010] NSWCA 265

HEARING DATE(S): 24 August 2010

JUDGMENT DATE: 26 October 2010

JUDGMENT OF: Beazley JA at 1; Basten JA at 73; Campbell JA at 86

DECISION: The application is dismissed with costs.

CATCHWORDS: APPEAL – appeal to District Court from decision of a magistrate – Crimes (Appeal and Review) Act 2001, s 18 – whether appeal should be conducted by way of review or rehearing - APPEAL – appeal to District Court from decision of a magistrate – Crimes (Appeal and Review) Act 2001, s 20 – whether District Court judge exceeded jurisdiction - APPEAL – appeal to District Court from decision of a magistrate – credit findings – whether District Court judge obliged to accept the credit findings of the magistrate - APPEAL – appeal to District Court from decision of a magistrate – setting aside of conviction – whether any additional order ought to be made by the District Court so as to finally dispose of the matter - APPEAL – appeal to District Court from decision of a magistrate – setting aside of conviction – Crimes (Appeal and Review) Act 2001, s 73 – production of memorandum to finalise proceedings - APPEAL – appeal to District Court from decision of a magistrate – setting aside of conviction – Criminal Procedure Act 1986, s 206 – certificate certifying the matter has been dismissed - PROCEDURE – trial – conduct of trial judge – reasonable questioning of witness by trial judge – whether trial judge has misused advantage of seeing and hearing witness – bounds of reasonable questioning - BIAS – apprehended bias – test for reasonable apprehension of bias – whether fair minded lay observer might reasonably apprehend that District Court judge might have prejudged the outcome of appeal proceedings - WORDS & PHRASES – "dismiss the charge" – "acquit" – "quash" – "set aside conviction" - WORDS & PHRASES – "autrefois acquit" – "autrefois convict"