Morse v Al-Jubouri [2011] NSWSC 1330

Supreme Court New South Wales

Medium Neutral Citation: Morse v Al-Jubouri [2011] NSWSC 1330 Hearing dates: 2 September 2011 Decision date: 07 November 2011 Jurisdiction: Common Law Before: Simpson J Decision: 1. the appeal is allowed; 2. the order that the OSR pay Mr Al-Jubouri's costs is quashed; 3. Mr Al-Jubouri is to pay the costs of the appeal of the OSR. Catchwords: CRIMINAL LAW - appeal by prosecutor against costs order made by Local Court in summary proceedings - prosecution of various offences concerning false claims under the First Home Owners Grant - circumstantial evidence - charges dismissed - grounds of appeal assert magistrate erred in finding that prosecution unreasonably failed to investigate and make inquiries - appeal limited to questions of law - whether finding of unreasonableness error of law or error of fact - limited reference in decision to prosecution case - facts upon which decision made not "fully found" - findings based on assumptions not available on the evidence - error established - failure to give reasons for adverse findings made concerning conduct of the plaintiff during interview with the defendant - interview not in evidence - error established - appeal allowed - order for costs quashed - defendant to pay plaintiff's costs of appeal

STATUTES - acts of parliament - interpretation - s 59 Crimes (Appeal and Review) Act 2001 - provision silent as to orders that may be made on appeal pursuant to 56(1)(e) Crimes (Appeal and Review) Act 2001 Legislation Cited: Crimes (Appeal and Review) Act 2001 First Homeowner Grant Act 2000 Oaths Act 1900 Taxation Administration Act 1996 Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Clark v Flanagan [1934] HCA 73; 52 CLR 416 Collector of Customs v Agfa-Gevaert Limited [1996] HCA 36; 186 CLR 289 Collector of Customs v Pozzolanic Enterprises Pty Limited 1993) 43 FCR 280 De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR(NSW) 1 Farmer v Cottons Trustees (1915) AC 922 Hayes v Federal Commissioner of Taxation [1956] HCA 21; 96 CLR 47 McPhee v S Bennett Ltd (1935) 52 WN(NSW) 8 Category: Principal judgment Parties: David Morse (Plaintiff) Mahmoud Al-Jubouri (Defendant) Representation: Counsel J Sheller (Plaintiff) R M Sweet (Defendant) Solicitors I V Knight (Plaintiff) Jayram & Associates (Defendant) File Number(s): 11/109955