DPP v Nouata & Ors [2009] NSWSC 72

New South Wales Supreme Court

CITATION : DPP v Nouata & Ors [2009] NSWSC 72 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 16 February 2009 JURISDICTION : Common Law

JUDGMENT OF : Michael Grove J

EX TEMPORE JUDGMENT DATE : 16 February 2009

DECISION : Orders made in accordance with summons.

CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Prerogative relief - "Call up" for breach of recognizance - Failure to exercise jurisdiction

LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999

CATEGORY : Procedural and other rulings

CASES CITED : DPP v Cooke [2007] 168 A Crim R 379

PARTIES : Director of Public Prosecutions - Plaintiff Maliota Nouata & Ors - Defendants

FILE NUMBER(S) : SC 16327/09

COUNSEL : M Buscombe - Plaintiff In person - First Defendant

SOLICITORS : Director of Public Prosecutions - Plaintiff

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MICHAEL GROVE J

Monday 16 February 2009

16327/09 - DIRECTOR OF PUBLIC PROSECUTIONS NEW SOUTH WALES v MALIOTA NOUATA & 2 ors JUDGMENT

1 HIS HONOUR: This is an application for relief pursuant to a summons filed by the Director of Public Prosecutions against Maliota Nouata, and against a Magistrate sitting in the local court. In accordance with the practice, the Magistrate has filed a submitting appearance. The relief sought arises out of a decision by the Magistrate not to take any action in relation to a bond pursuant to section 12 of the Crimes (Sentencing Procedure) Act, to which Mr Nouatta was subject at the time he was convicted of an offence before the Magistrate. 2 The history of the matter is that on 27 September 2006 at the Local Court in Griffith, Mr Nouata was convicted of offences of assault occasioning actual bodily harm and a second offence of resisting police. In respect of those matters a sentence of 12 months' imprisonment was suspended pursuant to section 12 of the act, upon recognizance being entered into. A copy of the recognizance is exhibited to the affidavit of Helen Langley sworn 27 November 2008. 3 On 16 September 2007 Mr Nouata was again charged with an offence of assault occasioning actual bodily harm. He was charged pursuant to court attendance notice and required to attend Cowra Local Court where, on 4 September 2008, he was convicted of that offence. Obviously by the time of that conviction the bond entered into at Griffith had expired, but it was current at the time of the commission of the offence, for which he was convicted at Cowra Local Court. The Magistrate was asked to deal with the alleged breach of the recognizance which had been entered into, and exhibited to the affidavit of Ms Langley is a transcript of the proceedings of 4 September 2008 at Cowra Magistrates court. The only relevant reference is to be found at page 75 of the transcript where the Magistrate said: "I do have regard to the fact that this section 12 bond was very close to its finality and I find that there are special circumstances and I will take no action in relation to that bond, the bond having very nearly expired at the time of the commission of this offence and has currently expired".