McKellar v DPP [2014] NSWSC 459

Supreme Court New South Wales

Medium Neutral Citation: McKellar v DPP [2014] NSWSC 459 Hearing dates: 15 April 2014 Decision date: 23 April 2014 Before: Adamson J Decision: (1) Quash the conviction and sentence imposed upon the plaintiff by the Local Court sitting at Dubbo on 27 June 2013. (2) Remit the matter to the Local Court at Dubbo to be heard and determined according to law. (3) Each party bear his or her own costs. Catchwords: CRIMINAL LAW - appeal - procedure - whether accused was required to be physically present in Local Court proceedings even though legally represented - whether magistrate was entitled to deal with accused's matter where accused was not present but appeared by her legal representative - procedure to be followed where accused is not present - effect of s 36 and 37 of the Criminal Procedure Act 1986 (NSW) Legislation Cited: Crimes Act 1900 (NSW), s 117 Crimes Appeal and Review Act 2001 (NSW), s 52 Criminal Procedure Act 1986 (NSW), s 3, s 15, s 36, s 37, s 38, s 192, s 194, s 196, s 199, s 202 Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) English Duties of Justices (Summary Convictions) Act 1950, 11 & 12 Vic c 43, s 13 Justices Act 1902 (NSW), s 70, s 75B, s 77 Local Courts Act 1982 (NSW), s 26 Supreme Court Act 1970 (NSW), s 69 Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 8, s 12 Cases Cited: Barker v Jacob (Supreme Court (NSW), RS Hulme J, 27 March 2000, unrep) Ex parte Dunn (1904) 21 WN (NSW) 152 Ex parte Hughes; re Moulden (1946) 47 SR (NSW) 91 Hill & Ors v King & Ors (1993) 31 NSWLR 654 Mason v Lyon [2005] NSWSC 804 R v Abrahams (1895) 21 VLR 343 R v McHardie [1983] 2 NSWLR 733; (1983) 10 A Crim R 51 R v Paauwe [1971] 2 NSWLR 235 Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001 at 19428 Category: Principal judgment Parties: Tara Lea McKellar (Plaintiff) Director of Public Prosecutions (Defendant) Representation: Counsel: PE Ozen (Plaintiff) Ms H Langley (Defendant) Solicitors: Aboriginal Legal Service (Plaintiff) Solicitor for Public Prosecutions - Office of the Director of Public Prosecutions (Defendant) File Number(s): 2013/291337 Publication restriction: Nil