Kane Stephen Davis v Director of Public Prosecutions (NSW) & Anor [2011] NSWSC 153

Supreme Court New South Wales

Medium Neutral Citation: Kane Stephen Davis v Director of Public Prosecutions (NSW) & Anor [2011] NSWSC 153 Hearing dates: Tuesday 15 February 2011 Decision date: 15 March 2011 Jurisdiction: Common Law Before: Hoeben J Decision: (1) The plaintiff's summons is dismissed.(2) I make an order in the nature of certiorari pursuant to s69 of the Supreme Court Act 1970 that the record of the proceedings of the Local Court sitting at Penrith in respect of the plaintiff for the offence of Drive with midrange concentration of alcohol be removed to this Court and in respect of those proceedings, I make the following orders:(a) I quash the further order of his Honour Bugden LCM made 19 November 2008 that the plaintiff suffer no further licence disqualification as a result of his conviction for the offence of Drive with a midrange prescribed concentration of alcohol.(b) I quash the orders of his Honour Bugden LCM made on 28 January 2010 pursuant to the purported re-opening of the proceedings pursuant to s43 Crimes (Sentencing Procedure) Act 1999 imposing:(i) First, a licence disqualification period of 12 months to commence 14 June 2008 and expire 13 June 2009.(ii) Subsequently, a licence disqualification period of 6 months to commence 14 June 2008 and expire 13 December 2008.(3) I order the plaintiff to pay the first defendant's costs of these proceedings. Catchwords: APPEAL FROM LOCAL COURT - power of Local Court to re-open sentence proceedings - whether errors of law had occurred entitling Local Court to re-open proceedings pursuant to s43 Crimes (Appeal and Review) Act 2001 - scope of s43 of that Act - whether denial of procedural fairness in later proceedings. Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Local Court Act 2007 Road Transport (General) Act 2005 Road Transport (Safety and Traffic Management) Act 1999 Supreme Court Act 1970 Cases Cited: Director-General of Fair Trading v O'Shane (NSW Supreme Court Graham AJ, unreported, 22 August 1987) Erceg v District Court (NSW) (2003) 143 A Crim R 455 at 475 Ho v Director of Public Prosecutions (1995) 82 A Crim R 80 at 90 Nitiva v DPP and 2 Ors [1999] NSWCA 332 R v Finney (No 2) [2004] NSWCCA 150 Sullivan v Department of Transport (1978) 20 ALR 323 Category: Principal judgment Parties: Kane Stephen Davis - Plaintiff Director of Public Prosecutions (NSW) - First Defendant Magistrate Peter Bugden - Second Defendant Representation: Counsel: Mr A Miller - Plaintiff Ms CA Webster - First Defendant Submitting Appearance - Second Defendant Solicitors: Bell Lawyers - Plaintiff IV Knight, Crown Solicitor - First Defendant Submitting Appearance - Second Defendant File Number(s): 2010/246220