Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492 Hearing dates: 28 April 2017 Date of orders: 09 June 2017 Decision date: 09 June 2017 Jurisdiction: Common Law Before: Bellew J Decision: (1) The time for instituting the appeal is extended to 26 October 2016.

(2) The appeal is allowed.

(3) The orders made on 26 May 2016 at Tamworth Local Court dismissing proceedings against the defendant for offences of:

(i) produce child abuse material;

(ii) possess child abuse material; and

(iii) disseminate child abuse material

contrary to s. 91H(2) of the Crimes Act 1900 (NSW) are set aside.

(4) The proceedings are remitted to the Tamworth Local Court to be dealt with according to law.

(5) Absent agreement, the parties are to file with my Associate, by 5.00 pm on 14 June 2017, written submissions as to the question of costs, such submissions not to exceed two pages in length in each case. Catchwords: PRACTICE AND PROCEDURE – Application for extension of time in which to bring an appeal against a decision of Magistrate in the Local Court – Proceedings commenced approximately four months following the expiration of the limitation period – Delay adequately explained – Extension of time granted

STATUTORY INTERPRETATION – Legislative provision creating offences of producing, possessing and disseminating child abuse material – Where defendant allegedly took a photograph of a partially naked child – Defendant charged and prosecuted in the Local Court – Where Magistrate concluded that it was necessary for the prosecution to prove malice as an element of the offence – Where Magistrate concluded that there was no evidence of malice and dismissed all charges – Malice not an element of any of the offences – Error established