Director of Public Prosecutions (NSW) v Merhi [2019] NSWSC 1068

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions (NSW) v Merhi [2019] NSWSC 1068 Hearing dates: 20 August 2019 Date of orders: 20 August 2019 Decision date: 20 August 2019 Jurisdiction: Common Law Before: Johnson J Decision: 1. Pursuant to s.59(2) Crimes (Appeal and Review) Act 2001, the appeal against the order of Magistrate Miszalski on 29 January 2019 at Fairfield Local Court is allowed. 2. Pursuant to s.59(2)(a) Crimes (Appeal and Review) Act 2001 the order of Magistrate Miszalski on 29 January 2019 at Fairfield Local Court dismissing proceedings against the Defendant for the offence of resist officer in execution of duty contrary to s.58 Crimes Act 1900 is set aside, and the proceedings the subject of the appeal are remitted to the Local Court to be dealt with according to law by a Magistrate other than Magistrate Miszalski. 3. The Court makes no order as to the costs of the appeal. Catchwords: CRIMINAL LAW – appeal by Director of Public Prosecutions (NSW) under s.56(1)(c) Crimes (Appeal and Review) Act 2001 – charge of resist police officer while in execution of his duty contrary to s.58 Crimes Act 1900 dismissed in Local Court – primary evidence recorded on body-worn video camera – Defendant does not oppose orders sought on appeal – whether Magistrate failed to provide reasons as required by law for decision to dismiss the charge – whether Magistrate erred by failing to afford procedural fairness to the prosecutor – error of law demonstrated on each ground – appeal allowed – matter remitted to Local Court for determination by a different Magistrate Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes Act 1900 Public Health (Tobacco) Act 2008 Surveillance Devices Act 2007 Cases Cited: Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 Director of Public Prosecutions (NSW) v Barbato [2013] NSWSC 1882 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 Director of Public Prosecutions (NSW) v Soliman [2013] NSWSC 346 Director of Public Prosecutions (NSW) v Wililo (2012) 222 A Crim R 106; [2012] NSWSC 713 Director of Public Prosecutions v Elskaf [2012] NSWSC 21 Director of Public Prosecutions v Evans [2017] NSWSC 33 Director of Public Prosecutions v Kirby [2017] NSWSC 1754 Dowse v State of New South Wales (2012) 226 A Crim R 36; [2012] NSWCA 337 May v O'Sullivan (1995) 92 CLR 654; [1995] HCA 38 Preece v Boyd (2003) 38 MVR 540; [2003] NSWSC 172 Texts Cited: --- Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Dany Merhi (Defendant) Representation: Counsel: Mr F Veltro (Plaintiff) Mr A Saddik, Solicitor (Defendant)