Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 1882

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 1882 Hearing dates: 30 October 2013 Decision date: 20 December 2013 Jurisdiction: Common Law Before: HOEBEN CJ at CL Decision: (1) The appeal is allowed. (2) Pursuant to s59(2) of the Crimes (Appeal and Review) Act 2001 the order of his Honour Hodgson LCM made on 21 March 2013 at Port Macquarie Local Court dismissing proceedings against the defendant for the offence of "assault with act of indecency" contrary to s61L Crimes Act 1900 is set aside. (3) The matter is remitted to the Port Macquarie Local Court to be dealt with according to law by a magistrate other than his Honour Hodgson LCM. Catchwords: APPEAL - appeal from decision of Local Court Magistrate pursuant to s59(2) Crimes (Appeal and Review) Act 2001 - offence of "assault with act of indecency" contrary to s61L Crimes Act 1900 - whether adequate reasons given - no express finding as to whether complainant consented to defendant's actions - whether recklessness as well as specific intent should have been considered - no express finding as to intent - matter remitted to Local Court to be heard according to law. Legislation Cited: Crimes Act 1900 (NSW)- s61L Crimes (Appeal and Review) Act 2001 (NSW) - s56(1)(c) Cases Cited: Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; 222 A Crim R 106 DPP v Soliman [2013] NSWSC 346 DPP v Starr [2012] NSWSC 315; 221 A Crim R 525 R v Bonora [1994] 35 NSWLR 74 R v Mueller [2005] NSWCCA 47; 62 NSWLR 476 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) - Plaintiff Paul Angelo Barbato - Defendant Representation: Counsel: Ms J Girdsham SC - Crown Submitting Appearance - Defendant Solicitors: S Kavanagh, Solicitor Public Prosecutions - Plaintiff Rural Law - Defendant File Number(s): 2013/205133