AG v Director of Public Prosecutions (NSW)

The applicant, the Attorney-General, sought judicial review of a decision by a District Court judge who had dismissed an appeal against a conviction in the Local Court. The appeal to the District Court was brought by way of rehearing under the *Crimes (Appeal and Review) Act 2001* (NSW). The core of the dispute concerned the extent of the District Court judge's appellate jurisdiction and whether the judge had constructively failed to exercise that jurisdiction by misapprehending its scope.

The legal issues before the Supreme Court were whether the District Court judge had erred in law by failing to properly apprehend the nature of an appeal by way of rehearing from a Local Court conviction, particularly in relation to the review of credibility findings made by the magistrate. The Court also considered whether the District Court judge had constructively failed to exercise jurisdiction by failing to undertake the required review of the magistrate's findings, and whether the judge had erred in law by concluding that a finding of error by the magistrate was a prerequisite to exercising certain powers under section 20 of the *Crimes (Appeal and Review) Act 2001* (NSW), such as remitting the matter to the Local Court.

The Court reasoned that an appeal by way of rehearing under section 18 of the *Crimes (Appeal and Review) Act 2001* (NSW) involves a fresh consideration of the evidence by the appellate court, albeit with due regard to the advantages a trial magistrate has in assessing credibility. The Court clarified that it is not necessary for the appellate court to find a specific error on the part of the magistrate before exercising its powers under section 20. The District Court judge had erred in law by treating the appeal as being limited to a review for error and by failing to undertake a proper rehearing of the evidence, particularly concerning the credibility of witnesses. The Court noted the "natural limitations" of proceedings that are wholly or substantially on the record, but this did not absolve the District Court judge from the obligation to conduct a rehearing.

The summons was dismissed, and the applicant was ordered to pay the respondents' costs.