McKELLAR v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2011] NSWCA 91

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McKELLAR v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2011] NSWCA 91 Hearing dates: 11 April 2011 Decision date: 11 April 2011 Before: Beazley JA at 1; Basten JA at 2; Whealy JA at 20 Decision: (1) Dismiss the summons filed in the Common Law Division on 23 August 2010. (2) No order as to costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - criminal conviction - appeal from Local Court to District Court - whether District Court erred in failing to make independent assessment of evidence - Crimes (Appeal and Review) Act 2001 (NSW), s 18

ADMINISTRATIVE LAW - supervisory jurisdiction - whether jurisdictional error on part of District Court - whether Court misconceived function under statute - acceptance of credibility finding made by magistrate Legislation Cited: Crimes (Appeal and Review Act) 2001 (NSW), ss 11, 18, 19 District Court Act 1973 (NSW), s 176 Supreme Court Act 1970 (NSW), ss 69, 75A Cases Cited: Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 Fox v Percy [2003] HCA 22; 214 CLR 118 Category: Principal judgment Parties: Brett McKellar (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of NSW (Second Respondent) Representation: Counsel: G Corr (Applicant) D Arnott SC (First Respondent) Submitting appearance (Second Respondent) Solicitors: Aboriginal Legal Service (NSW/ACT) Ltd (Applicant) S C Kavanagh, Director of Public Prosecutions (First Respondent) I V Knight, Crown Solicitor's Office (Second Respondent) File Number(s): 2010/284892 Decision under appeal Date of Decision: 2010-05-05 00:00:00 Before: Woods ADCJ File Number(s): 2009/191947