Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754 Hearing dates: 6 December 2017 Decision date: 06 December 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: 1. Appeal allowed. 2. The order made in the Local Court at Katoomba on 19 April 2017 dismissing proceedings against the defendant for the offence of "drive vehicle while under the influence of alcohol – first offence" is set aside. 3. The matter is remitted to the Local Court to be dealt with according to law. 4. The defendant is to pay the plaintiff's costs of these proceedings. 5. The defendant is to have a certificate under s 6 of the Suitors' Fund Act 1951 (NSW) Catchwords: CRIME – summary jurisdiction – s 112 Road Transport Act 2013 – charge of driving under the influence of alcohol dismissed – evidence defendant intoxicated before and after driving – admission as to driving – magistrate focussed on whether driving ability impaired – not an element of offence that manner of driving be affected by alcohol – error established

APPEALS – appeal from Local Court to Supreme Court – magistrate failed to provide adequate reasons for dismissing charge – unclear whether dismissal based on first or second limb of May v O'Sullivan – prosecutor not given opportunity to make submissions on second limb – denial of procedural fairness – appeal allowed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) ss 56, 59(2) Motor Traffic Act 1909 (NSW) s 5(2)(a) Road Transport Act 2013 (NSW) s 112 Traffic Act 1925 (Tas) s 41(1) Cases Cited: Bedelph v Weedon [1963] Tas SR 69 Director of Public Prosecutions (NSW) v Elskaf [2012] NSWSC 21 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 Director of Public Prosecutions (NSW) v Richard Christopher Mikhael [2015] NSWSC 819 Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; 222 A Crim R 106 DPP v Ridley [2015] NSWSC 1478; 73 MVR 125 May v O'Sullivan (1955) 92 CLR 654; [1955] HCA 38 Molloy v McDonald (1939) 56 WN (NSW) 159 R v Whitby (1957) 74 WN (NSW) 441 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Robert Christopher Kirby (Defendant) Representation: Counsel: Ms B K Baker (Plaintiff) Mr R J Webb (Defendant)