DPP v Benjamin Nagler [2018] NSWSC 416

Supreme Court New South Wales

Medium Neutral Citation: DPP v Benjamin Nagler [2018] NSWSC 416 Hearing dates: 21 February 2018 Date of orders: 06 April 2018 Decision date: 06 April 2018 Before: Hamill J Decision: (1) Appeal allowed. (2) Quash the order of the Local Court dismissing the proceedings against the defendant in relation to two counts of assault occasioning actual bodily harm made at Port Macquarie on 12 May 2017. (3) Remit the matter to the Local Court to be dealt with according to law. (4) Defendant to pay the plaintiff's costs. (5) Defendant to have a certificate under the Suitors' Fund Act 1951 (NSW). Catchwords: CRIMINAL LAW – summary hearing well and truly off the rails – evidence of complainants in domestic violence case recorded by police – "DVEC" – whether made "as soon as reasonably practical" after event – interpretation of relevant provisions – application of erroneous legal test – where evidence excluded on different basis – where lawyer asserts temporal "gap" in recording –requirements of voir dire – no proper voir dire conducted – substance of evidence excluded not known to Magistrate – no capacity to assess probative value

CRIMINAL LAW – refusal of adjournment – where Magistrate prohibits complainant from giving evidence after excluding DVEC – brief service provisions – interpretation of statute – relevant considerations – reasons difficult to fathom – where exclusion of evidence and refusal of adjournment resulted in no case against defendant – heavy workloads in lower courts – over-listing – where haste interferes with proper legal process Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) ss 56, 59 Criminal Procedure Act 1986 (NSW) ss 40, 183, 185A, 188, 216, 289C - 289K Evidence Act 1995 (NSW) ss 41, 137, 138 Justices Act 1902 (NSW) s 66B, 66E, 66F, 66G Suitors' Fund Act 1951 (NSW) s 6 Supreme Court Act 1970 (NSW) s 23 Cases Cited: Cunningham v Cunningham (No 2) [2012] NSWSC 954 DPP v Richardson [2015] NSWSC 1753 DPP v West [2000] NSWCA 103; (2000) 48 NSWLR 647 Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Ridgeway v The Queen (1995) 184 CLR 19 The Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 Ward v Williams (1955) 92 CLR 496 Category: Principal judgment Parties: Crown (Appellant) Benjamin Nagler (Respondent) Representation: Counsel: Ms M Kumar (Appellant) Mr D Hannaway (Respondent)