Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 Hearing dates: 16 October 2018 Decision date: 02 November 2018 Before: Macfarlan JA at [1]; Payne JA at [38]; Sackville AJA at [41] Decision: Amended Summons dismissed with costs. Catchwords: ADMINISTRATIVE LAW – judicial review – applicant was convicted of filming person's private parts, contrary to s 91L of Crimes Act 1900 (NSW) – summons for judicial review of two District Court interlocutory decisions – first decision was grant of leave to Director of Public Prosecutions (DPP) to adduce fresh evidence on appeal from Local Court, namely, tendency evidence – second decision was refusal of applicant's application for counsel appearing for DPP to be precluded from continuing to represent DPP – whether primary judge ought to have submitted questions of law to the Court of Criminal Appeal, pursuant to s 5B of Criminal Appeal Act 1919 (NSW) – no error – whether applicant denied procedural fairness in relation to both District Court decisions – discussion of appellate intervention in criminal interlocutory proceedings – District Court decisions lacked necessary quality of finality – no jurisdictional error established – dismissed also on discretionary grounds including prevention of fragmentation of criminal proceedings Legislation Cited: Crimes Act 1900 (NSW), ss 91I, 91L Crimes (Appeal and Review) Act 2001 (NSW), s 18 Criminal Appeal Act 1912 (NSW), s 5B Criminal Procedure Act 1986 (NSW), ss 130A, 139, 247G, 247W District Court Act 1973 (NSW), s 176 Evidence Act 1995 (NSW), ss 97, 101 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 B v Director of Public Prosecutions [2014] NSWCA 232 Chamoun v District Court of New South Wales [2018] NSWCA 187 Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119 Jenkins v Director of Public Prosecutions [2013] NSWCA 406 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Landsman v Director of Public Prosecutions [2013] NSWCA 369 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 Liristis v Director of Public Prosecutions [2018] NSWCCA 196 McPhillamy v R [2017] NSWCCA 130 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 R v Steffan (1993) 30 NSWLR 633 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Reimers v Health Care Complaints Commission [2012] NSWCA 317 Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 Texts Cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) Ritchie's Uniform Civil Procedure (NSW) Category: Principal judgment Parties: Andrew Leslie Toth (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Self-represented Applicant C McGorey (First Respondent) Submitting Appearance (Second Respondent)