Director of Public Prosecutions (NSW) v Nikolovski [2017] NSWSC 1038

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Nikolovski [2017] NSWSC 1038 Hearing dates: 8 August 2017 Date of orders: 08 August 2017 Decision date: 08 August 2017 Jurisdiction: Common Law Before: Adamson J Decision: (1) Extend the time within which the plaintiff is to file the summons up to and including 17 February 2017.

(2) Allow the appeal.

(3) Set aside the order of Milledge LCM dismissing the charge against the defendant under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

(4) Remit the matter to the Local Court for determination according to law. Catchwords: CRIMINAL LAW – appeal – charge of offence of intimidation under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act) – alleged victim was police officer acting in the execution of his duties – charge dismissed by magistrate on the ground that the charge should have been laid under s 60 of the Crimes Act 1900 (NSW) – HELD – magistrate erred in law – matter remitted to Local Court to be determined according to law – prosecutor's discretion to decide what charges to be laid not susceptible to judicial review – importance of ensuring impartiality of judicial process

STATUTORY INTERPRETATION – no assumption can be made that Parliament intended specific provision (13 of the CDPV Act) to override general provision (s 60 of the Crimes Act 1900 (NSW)) as they are contained in different statutes – no statutory intention to have one provision give way to another – offences have different elements and independent operation Legislation Cited: Crimes Act 1900 (NSW), ss 19A, 19B, 60, 61M Crimes (Appeal and Review) Act 2001 (NSW), s 56 Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 10, 13 Criminal Procedure Act 1986 (NSW), s 268 Cases Cited: Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 Director of Public Prosecutions (NSW) v Best [2016] NSWSC 261 Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 Maxwell v The Queen (1996) 184 CLR 50; [1996] HCA 46 Meller v Low (2000) 48 NSWLR 517; [2000] NSWSC 75 R v Manton [2002] NSWCCA 316; (2002) 132 A Crim R 249 Texts Cited: D Pearce and R Geddes, Statutory Interpretation in Australia, (8th ed 2014, LexisNexis Butterworths) Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Blagoya Nikolovski (Defendant) Representation: Counsel: B Baker (Plaintiff) R Burgess (Defendant)