Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 Hearing dates: 05/12/2011 Decision date: 03 February 2012 Jurisdiction: Common Law - Criminal Before: Garling J Decision: (a) Appeal allowed. (b) The order made on 5 August 2011 dismissing the proceedings is set aside. (c) The order made on 5 August 2011 with respect to costs is quashed. (d) The proceedings are remitted to the Local Court to be dealt with by a magistrate, other than O'Shane LCM. (e) The first defendant to pay the plaintiff's costs. (f) The first defendant is to have a certificate under the Suitors' Fund Act 1951 if otherwise entitled. Catchwords: CRIMINAL LAW - Penalty notice for red traffic signal offence - Proceedings dismissed in Local Court as no prima facie case established - Denial of procedural fairness - Magistrate peremptorily refused to permit prosecution to call two police witnesses - Error of law in ruling prosecution had not established prima facie case - Statements that witness evidence is unreliable without analysis as to why does not discharge judicial obligation to give reasons - Order dismissing proceedings set aside and new hearing before new magistrate ordered Legislation Cited: Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Evidence Act 1995 Road Rules 2008 Suitors' Fund Act 1951 Supreme Court Act 1970 Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32; 122 A Crim R 166 Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 Cox v Salt (1994) 12 WAR 12 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 Director of Public Prosecutions v Wunderwald [2004] NSWSC 182 Doney v The Queen [1990] HCA 51; 171 CLR 207 DPP (Cth) v Neamati [2007] NSWSC 746 DPP v Lee [2006] NSWSC 270 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Haw Tua Tau v Public Prosecutor [1982] 1 AC 136 Livesey v New South Wales Bar Association [1983] HCA 17; 151 CLR 288 May v O'Sullivan [1955] HCA 38; 92 CLR 654 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 R v Bilick (1984) 36 SASR 321 R v Murphy (1985) 4 NSWLR 42 R v Prasad (1979) 23 SASR 161 R v Serratore [1999] NSWCCA 377; 48 NSWLR 101 Smith v NSW Bar Association [1992] HCA 36; 176 CLR 256 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Whitehorn v The Queen [1983] HCA 42; 152 CLR 657 Zanetti v Hill [1962] HCA 62; 108 CLR 433 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (P) Representation: I Bourke (P) S Fraser (D2) Office of the Director of Public Prosecutions (P) V L Macri Lawyers (D1) File Number(s): 2011/281797