Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713 Hearing dates: 19 June 2012 Decision date: 29 June 2012 Jurisdiction: Common Law Before: Johnson J Decision: The appeal is allowed. The order of Magistrate O'Shane made at the Downing Central Local Court on 20 January 2012 dismissing the charge against the First Defendant of assault under s.61 Crimes Act 1900 is set aside. The matter is remitted to the Local Court to be heard before a different Magistrate conformably with this judgment. The First Defendant is to pay the Plaintiff's costs. The First Defendant is granted a certificate under s.6 Suitors' Fund Act 1951. Catchwords: CRIMINAL LAW - assault - summary hearing in Local Court - charge dismissed - prosecution appeal against dismissal - Magistrate did not permit prosecutor to call certain witnesses - whether denial of procedural fairness - whether error of law in Magistrate's approach to dismissal of charge - whether Magistrate failed to give reasons required by law - duties of Magistrate at defended criminal hearing - error of law and denial of procedural fairness established - matter remitted to Local Court for hearing before a different Magistrate Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Crimes (Sentencing Procedure) Act 1999 Suitors' Fund Act 1951 Local Court Act 2007 Cases Cited: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 Mikhael v Conroy (Finlay J, 6 December 1990, BC9002962) Lake Macquarie City Council v Morris [2005] NSWSC 387; 63 NSWLR 263 Colquhoun v Magistrate Guy [2010] NSWSC 235 Colosimo v Director of Public Prosecutions (NSW) [2006] NSWCCA 293 Director of Prosecutions v Elskaf [2012] NSWSC 21 Doney v The Queen [1990] HCA 51; 171 CLR 207 Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82 FB v R [2011] NSWCCA 217 Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 Director of Public Prosecutions (NSW) v O'Conner [2006] NSWSC 458; 181 A Crim R 294 Director of Public Prosecutions (NSW) v Chaouk [2010] NSWSC 1418 Donges v Ratcliffe [1975] 1 NSWLR 501 Moloney v Collins [2011] NSWSC 628 Munro v ACP [2012] NSWSC 100 Director of Public Prosecutions v Sukhera [2012] NSWSC 311 Director of Public Prosecutions v Langford [2012] NSWSC 310