Abdel-Hady v Magistrate Freund - [2007] NSWSC 1247

Reported Decision:
177 A Crin R 517

New South Wales

Supreme Court

CITATION: Abdel-Hady v Magistrate Freund & Anor [2007] NSWSC 1247

HEARING DATE(S): 18 October 2007

JUDGMENT DATE :
2 November 2007

JURISDICTION: Supreme Court

JUDGMENT OF: Rothman J

DECISION:
1. The decision of her Honour Magistrate Freund given on 2 July 2007 in Director of Public Prosecution v Safwat Abdel-Hady declining to direct that the undermentioned witnesses attend to give oral evidence at the hearing of the committal proceedings be quashed. Those undermentioned witnesses are:
(a) Shane McNally
(b) Leyla Marcos
(c) Catriona Gilchrist.
2. An order pursuant to section 69 of the Supreme Court Act 1970 (NSW) that the proceedings be remitted to the Local Court to be heard and determined according to law.
3. Any order staying the committal proceedings, until further order of this Court or otherwise, is dissolved.
4. Orders may be entered forthwith.
5. The parties have liberty to apply on the question of costs.

CATCHWORDS: CRIMINAL LAW – committal proceedings – direction under section 91 of the Criminal Procedure Act 1986 (NSW) – “substantial reasons” – insufficient reasons – requirement to have regard to effect on trials

LEGISLATION CITED: Crimes (Local Court Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Supreme Court Act 1970 (NSW)

CASES CITED: A.E. Terry’s Motors Ltd v Rinder [1948] SASR 167
B v Gould (1993) 67 A Crim R 297
Bonnard v London General Omnibus (1921) 38 RPC 1
Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665
Commissioner for Superannuation v Scott (1987) 13 FCR 404
DPP v O’Conner [2006] NSWSC 458
Henry Burford [1932] 2 Ch 122
Kennedy v R (1997) 94 A Crim R 341
Losurdo v DPP (1998) 44 NSWLR 618
Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160
O’Brien Glass Industries Limited v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441
Palser v Grinling [1948] A.C. 291
Re: Bonny [1986] 2 Qd.R 80
Re: Migliorini; ex parte Silk Brothers (1974) 22 FLR 491;
Sankey v Whitlam (1978) 142 CLR 1
Tillmanns Butcheries v AMIEU (1979) 42 FLR 331
Waterhouse v Gilmore (1988) 12 NSWLR 270

PARTIES: Plaintiff: Safwat ABDEL-HADY
First Defendant: Her Honour Magistrate FREUND
Second Defendant: Director of Public Prosecutions

FILE NUMBER(S): SC 30077/07

COUNSEL: Plaintiff: G. Brady
First Defendant: D. Blazer
Second Defendant: T. Thorpe

SOLICITORS: Plaintiff: P. Conaghan (Conaghan Hunter Solicitors)
First Defendant: P. Eagle (Crown Solicitors Office)
Second Defendant: K. Woodward (ODPP)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 1539/07

LOWER COURT JUDICIAL OFFICER : Freund LCM

LOWER COURT DATE OF DECISION: 2 June 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ROTHMAN J

2 NOVEMBER 2007

30077/07 Safwat ABDEL-HADY v Magistrate FREUND & Anor
JUDGMENT

1 HIS HONOUR: Mr Abdel-Hady was charged with three offences being an act of indecency, and one count of unlawfully causing each alleged victim (two of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWSC 1247
Decision Date: 2 November 2007

CaseChat Overview and Summary

In the case of Abdel-Hady v Magistrate Freund, the defendant, Abdel-Hady, was charged with offences including the manufacture of a firearm. The magistrate directed that the defendant be committed to stand trial, pursuant to section 91 of the Criminal Procedure Act 1986 (NSW). Abdel-Hady challenged the magistrate's direction, arguing that the magistrate had failed to give "substantial reasons" for the direction, as required by the Act. The nature of the dispute centred on the adequacy of the reasons provided by the magistrate for the commitment to trial.

The court was required to determine whether the reasons provided by the magistrate were sufficient under the statutory requirement. The primary issue was whether the reasons given by the magistrate were sufficient to satisfy the "substantial reasons" test. Additionally, the court had to consider whether the magistrate was required to have regard to the effect of the commitment on the trials of co-accused, as the magistrate had not done so in this case.

The court found that the reasons given by the magistrate were inadequate as they did not constitute "substantial reasons" as required by the Act. The reasons were insufficient because they did not address the evidence in a way that allowed the defendant to properly understand the basis for the commitment. The court also found that the magistrate was required to have regard to the effect of the commitment on the trials of co-accused, and the failure to do so was a further ground for setting aside the direction. Consequently, the direction was quashed and the matter was remitted to the Local Court for rehearing.

Orders