Director of Public Prosecutions v Emanuel [2009] NSWCA 42

Reported Decision: 193 A Crim R 552[2010] ALMD 4532

New South Wales Court of Appeal

CITATION: Director of Public Prosecutions v Emanuel [2009] NSWCA 42

HEARING DATE(S): 27 February 2009

JUDGMENT DATE: 11 March 2009

JUDGMENT OF: Spigelman CJ at 1; Tobias JA at 41; Basten JA at 42

1 An order that the record of the District Court of New South Wales, sitting in its criminal jurisdiction at Wollongong on 31 August 2007, be called up and the order that the conviction be set aside and the matter remitted is quashed. 2 Declare that the orders made by the Wollongong Local Court on 11 September 2007 and 25 September 2007 are invalid and of no effect. 3 The time for institution of the appeal by the cross applicant be extended to 4 March 2009. DECISION: 4 Leave to appeal granted. 5 The convictions recorded against the cross appellant on 25 June 2007 are set aside. 6 The sentences imposed upon the cross appellant on 25 June 2007 are set aside. 7 The proceedings are remitted to the Local Court to be heard by a magistrate other than the magistrate who imposed the convictions and sentences on 25 June 2007.

CATCHWORDS: ADMINISTRATIVE LAW – judicial review – grounds of review – jurisdictional error – misconception of nature of function and powers – supervisory compared with appellate jurisdiction – District Court Act 1973 s 18. - APPEAL – appeal – practice and procedure – New South Wales – District Court – nature of appeal from Local Court – rehearing not supervisory in nature – District Court Act 1973 s 18. - APPEAL - new trial - in general and particular grounds - particular grounds – denial of procedural fairness – failure to provide mandatory statutory adjournment – Legal Aid Commission Act 1979 s 57. - CRIMINAL LAW – jurisdiction, practice and procedure – adjournment, stay of proceedings or order restraining proceedings – adjournment – failure to provide mandatory statutory adjournment – denial of procedural fairness – Legal Aid Commission Act 1979 s 57.