Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50 Hearing dates: 9 December 2016 Date of orders: 02 February 2018 Decision date: 02 February 2018 Jurisdiction: Common Law Before: Rothman J Decision: (1) The defendant be referred to by the use of the pseudonym "GW";

(2) The appeal be allowed in part;

(3) The order of Magistrate G Wilson made on 14 March 2016 at Dubbo Children's Court dismissing proceedings against the defendant for the offence of assault police officer in execution of duty, contrary to s 60(1) of the Crimes Act 1900; resist officer in the execution of duty, contrary to s 546C of the Crimes Act; and use of offensive weapon, contrary to s 33B(1)(a) of the Crimes Act, be set aside, pursuant to the terms of s 59(2) of the Crimes (Appeal and Review) Act 2001;

(4) The matter be remitted to the Children's Court at Dubbo for determination according to law;

(5) The defendant pay the plaintiff's costs of the appeal;

(6) The defendant be granted an indemnity certificate under the provisions of s 6(1) of the Suitors' Fund Act 1951 in relation to the plaintiff's costs, and the defendant's costs pursuant to s 6(2) of the Suitors' Fund Act 1951. Catchwords: APPEAL – "question of law above" – magistrate's decision not to disclose reasoning adequately nor conclusions of facts – magistrate failed to conduct balancing exercise under s 138 of Evidence Act – decision quashed. ARREST – arrest for breach of bail without consideration of alternatives is not necessarily improper and the evidence obtained not necessarily in consequence of impropriety. Legislation Cited: Bail Act 2013 (NSW), s 77 Children (Criminal Proceedings) Act 1987 (NSW), s 8 Crimes (Appeal and Review) Act 2001 (NSW) Crimes Act 1900 (NSW), ss 33B(1)(a), 60(1), 546C Criminal Appeal Act 1912 (NSW), s 56 Evidence Act 1995 (NSW), s 138 Suitors' Fund Act 1951 (NSW) s 6 Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472 Alramadan v Director of Public Prosecutions (NSW) [2007] NSWCCA 322 Director of Public Prosecutions (NSW) v AM (2006) 161 A Crim R 219; [2006] NSWSC 348 Director of Public Prosecutions (NSW) v Fairbanks (2012) 219 A Crim R 399; [2012] NSWSC 150 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 at 408 Krishna v Director of Public Prosecutions (NSW) (2007) 178 A Crim R 220; [2007] NSWCCA 318 Morris v the Queen (1987) 163 CLR 454; [1987] HCA 50 NT v R [2010] NSWDC 348 R v R (1989) 18 NSWLR 74 Robinson v Woolworths Ltd (2005) 227 ALR 353; (2005) 64 NSWLR 612; [2005] NSWCCA 426 Williams v the Queen (1986) 161 CLR 278; [1986] HCA 88 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) GW (Defendant) Representation: Counsel: J Davidson (Plaintiff) C Webster SC/S Anderson (Defendant)