Director of Public Prosecutions (NSW) v Mustow [2016] NSWSC 1538

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Mustow [2016] NSWSC 1538 Hearing dates: 25 October 2016 Decision date: 03 November 2016 Before: R A Hulme J Decision: 1. Pursuant to UCPR 59.10(2) I extend the time for instituting the claim for judicial review in respect of the order of Magistrate Prowse made on 30 January 2015 at the Local Court at Liverpool until 2 May 2016. 2. The record of proceedings in the Local Court against the first defendant for the offence of assault occasioning actual bodily harm be removed to this Court, and the following orders quashed: i) The order of Magistrate Baptie made on 29 February 2016 at the Local Court at Liverpool which found that the Court did not have jurisdiction to determine a charge against the first defendant for the offence of assault occasioning actual bodily harm (s 59 of the Crimes Act 1900); and ii) The order of Magistrate Prowse made on 30 January 2015 at the Local Court at Liverpool which dismissed a charge against the first defendant for the offence of assault occasioning actual bodily harm (s 59 of the Crimes Act 1900). 3. The matter be remitted to the Local Court to determine the charge of assault occasioning actual bodily harm according to law. 4. Any application for costs is to be filed and served within 14 days. Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from Local Court – Criminal Procedure Act 1986 (NSW) ss 202, 205 and 208 – where defendant pleaded guilty to one charge but Magistrate found him guilty of a more serious charge and purported to dismiss the lesser charge as a backup – defendant successfully appealed conviction to the District Court – defendant re-charged with the lesser offence – second Magistrate ruled the Local Court had no jurisdiction to hear the fresh charge – error in one or both of the Magistrate's decisions – orders quashed and the lesser charge remitted for determination according to law Legislation Cited: Crimes Act 1900 (NSW) s 59 Crimes (Appeal and Review) Act 2001 (NSW) ss 56, 65 Criminal Procedure Act 1986 (NSW) Ch 4, Pt 2, Div 3, ss 202, 205, 208 Uniform Civil Procedure Rules 2005 (NSW) r 59.10 Supreme Court Act 1970 (NSW) s 69 Cases Cited: Director of Public Prosecutions (NSW) v Richardson [2015] NSWSC 1753 Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; 222 A Crim R 106 State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Christopher James Mustow (First Defendant) Local Court of New South Wales (Second Defendant) Representation: Counsel: Ms B Baker (Plaintiff) In person (First Defendant)