Ward v Zimmer [2015] NSWSC 525

Supreme Court New South Wales

Medium Neutral Citation: Ward v Zimmer [2015] NSWSC 525 Hearing dates: 26 March 2015 Decision date: 07 May 2015 Jurisdiction: Common Law Before: Hall J Decision: (1) Order made extending time for the plaintiff to commence the proceedings out of time. (2) Proceedings dismissed. (3) Parties to be heard on the question of costs. Catchwords: CRIMINAL LAW – Appeal from Local Court – Whether appeal is an appeal from an "interlocutory order or judgment" within s 53(3)(b) Crimes (Appeal and Review) Act – Decision of Magistrate to allow prosecution to re-open their case and adduce further evidence after close of defence case and judgment reserved – Appellant had been charged with handling proceeds of crimes – No DNA evidence adduced by Crown at trial – Crown sought to adduce DNA evidence after close of trial – Whether decision of Magistrate to permit the prosecution case to be re-opened was an "interlocutory judgment or order" – Whether jurisdiction to hear proceedings brought under s 53(3)(b) Crimes (Appeal and Review) Act – Held: that decision was not an interlocutory order – Held that there was no right to appeal to Supreme Court from the Magistrate's decision under s 53(3)(b) – Whether, in any event, the Magistrate's decision involved a question of law alone or a question of mixed fact and law – Whether the Magistrate applied incorrect legal principles in allowing the application by the prosecution to re-open – Consideration of general principle that the Crown cannot 'split' its case – Whether exceptional circumstances existed – Whether the calling of the DNA evidence sought to be adduced was reasonably foreseeable – Held: that even if Supreme Court had jurisdiction no error established - Magistrate had correctly applied relevant principles in granting leave to the prosecutor to re-open its case. Legislation Cited: Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Evidence Act 1995 Supreme Court Rules 1970 Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Brough v Director of Public Prosecutions [2014] NSWSC 1396 DPP v Leonard (2001) 53 NSWLR 227 Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309 Killick v The Queen (1981) 147 CLR 565 Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126 Morris v R [2010] NSWCCA 152 R v Adamson [2005] NSWCCA 7 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 R v Chin (1985) 157 CLR 671 R v Frost (1839) 4 St Tr (NS) R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 R v Levy and Tait (1966) 50 Cr App 198 R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256 R v Powch (1988) 14 NSWLR 136 R v Rice [1963] 1 QB 857 R v Steffan [1993] 30 NSWLR 633 Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392 Shaw v The Queen (1952) 85 CLR 365 Smith v R (2000) 1 WLR 1644 The Queen v Chin (1984-1985) 157 CLR 671 The Queen v Steffan (1993) 30 NSWLR 633 Williams v The Queen (1986) 161 CLR 278 Category: Principal judgment Parties: Craig Ward (Plaintiff) Detective Sergeant Mathew Zimmer (Defendant) Representation: Counsel: K Earl (Plaintiff) C McGorey, solicitor (Defendant)