Director of Public Prosecutions (NSW) v Chaheh [2017] NSWSC 1061

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Chaheh [2017] NSWSC 1061 Hearing dates: 8 September 2016 Date of orders: 15 August 2017 Decision date: 15 August 2017 Jurisdiction: Common Law Before: Rothman J Decision: (1) Appeal allowed;

(2) Pursuant to s 59(2) of the Crimes (Appeal And Review) Act 2001 the order of the Local Court made on 7 October 2015 at Burwood Local Court dismissing proceedings against the defendant for the offences of (i) take and drive conveyance without consent of the owner, contrary to s 154A(1)(a) of the Crimes Act 1900; and (ii) drive whilst disqualified from holding a licence, contrary to s 54(1)(a) of the Road Transport Act 2013 be set aside;

(3) Pursuant to s 59(2) of the Crimes (Appeal And Review) Act 2001 the order of the Local Court made on 7 October 2015 at Burwood Local Court awarding costs against the prosecutor in relation to the proceedings now under appeal, be set aside;

(4) The matter be remitted to Burwood Local Court to be dealt with in accordance with law;

(5) The defendant shall pay the plaintiff's costs of and incidental to the appeal. Catchwords: APPEAL – question of law alone – evidence of offence different from particulars of time of offence on Court Attendance Notice – operation of s 16 of the Criminal Procedure Act 1986 – dismissal of charges by Local Court on that basis involves error of law and ground of appeal involves error of law alone – appeal granted. Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Criminal Procedure Act 1986 Local Court Rules 2009 Road Transport Act 2013 Cases Cited: Carr v Baker (1936) 36 SR (NSW) 301 Day v Rugala [1978] 33 FLR 208 De Romanis v Sibraa [1977] 2 NSWLR 264 Director of Public Prosecutions (NSW) v Knight (2006) 162 A Crim R 555; [2006] NSWSC 646 Fabre v Arenales (1992) 27 NSWLR 437 Ilich v R (1987) 162 CLR 110; [1987] HCA 1 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Lirisitis v Director of Public Prosecutions (NSW) [2016] NSWCA 66 Lodhi v R [2006] NSWCCA 101 Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163; [1929] HCA 25 R v Bogacki [1973] 1 QB 832 R v Stringer (2000) 116 A Crim R 198; [2000] NSWCCA 293 R v VHJ (Court of Criminal Appeal (CCA), 7 July 1996, unrep) The Queen v Baden-Clay [2016] HCA 35 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Gholam Chaheh (Defendant) Representation: Counsel: DT Kell SC/M Pulsford (Plaintiff) SEJ Prince/S Lawrence (Defendant)