"RP" v Ellis & Anor [2011] NSWSC 442

Supreme Court New South Wales

Medium Neutral Citation: "RP" v Ellis & Anor [2011] NSWSC 442 Hearing dates: 13 May 2011 Decision date: 19 May 2011 Before: HOEBEN J Decision: (1) I make an order pursuant to section 69 of the Supreme Court Act 1970 in the nature of mandamus quashing the whole of the order for the committal for trial of the plaintiff and remitting the matter to the Children's Court to be determined according to law. (2) There should be no order as to costs of these proceedings. Catchwords: Application for prerogative relief pursuant to section 69 of the Supreme Court Act 1970 or leave to appeal pursuant to section 53(3)(a) Crimes (Appeal and Review) Act 2001 in relation to committal proceedings - failure to exercise jurisdiction by a Magistrate - failure to apply proper test - failure to answer the question that the law prescribed - misunderstanding the true nature and content of the opinion that was required at law to be formed - doli incapax was an element of the offence - failure to consider that issue - order for committal should be quashed and matter remitted to the Children's Court to be determined according to law. Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001 Criminal Procedure Act (1986) (NSW) Summary Offences Act 1988 Supreme Court Act 1970 Cases Cited: BP v R, SW v R [2006] NSWCCA 172 Potier v Magistrate Maloney [2005] NSWSC 336 Waterhouse v Gilmore & Ors (1988) 12 NSWLR 273 at 278 Category: Principal judgment Parties: RP - Plaintiff Elizabeth Anne Ellis, Magistrate - First Defendant The Director of Public Prosecutions - Second Defendant Representation: Counsel Mr C Smith - Plaintiff Submitting Appearance - First Defendant Ms A Mitchelmore - Second Defendant Solicitors Aboriginal Legal Services (NSW/ACT) Limited - Plaintiff IV Knight, Crown Solicitor - First Defendant SC Kavanagh, Solicitor for Public Prosecutions - Second Defendant File Number(s): 2011/00075244