Application of Pearson [1999] NSWSC 143 revised - 29/03/99
CURRENT JURISDICTION:
Criminal
FILE NUMBER(S):
70016/98
HEARING DATE(S):
11/8/98; 16/1198
JUDGMENT DATE:
4 March 1999
PARTIES :
Neil Harold Pearson Neil Pearson & Company Limited Neil Pearson & Company Limited
JUDGMENT OF:
Wood CJatCL
COUNSEL :
I. Bourke for Applicant P. Roberts for Australian Government Solicitor N. Abadee for Attorney General of NSW
SOLICITORS:
R.J. Benson for Applicant P. Swinton (Australian Government Solicitor) Crown Solicitors (NSW)
CATCHWORDS:
CRIMINAL LAW - jurisdiction - application for inquiry into conviction under Part 13A Crimes Act 1900 s 474D - whether person convicted of summary offence can bring application - whether person convicted to offence under Federal lawcan bring application - whether power exercisable under s 474E(1) is picked up by S68 Judiciary Act in relation to federal offences.
(1) Application allowed;; (2) Parties to make submissions on costs if desired;; (3) Defer question whether matter to be referred to Court of Criminal Appeal, pending appeal from this judgment.
IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION
No. 70016/98 NSW SC143
WOOD CJ at CL
THURSDAY 4 MARCH 1999
APPLICATION OF NEIL HAROLD PEARSON
The applicants, convicted of various offences under s 234 of the Customs Act 1901 (Cth) , brought an application for an inquiry into their conviction under Pt 13A, s 474D of the Crimes Act 1900 . They sought an order referring the case to the Court of Criminal Appeal. The respondents argued that (a) Pt 13A did not apply to summary offences; (b) Pt 13A did not apply to Federal offences; and (c) power exercised under s 474E(1) of the Crimes Act is an administrative power, and thus not exercisable by a State Court in respect of a Federal offence.
HELD (allowing the application):
(1) Application of Pt 13A to summary offences: while it may be somewhat excessive for there to be an independent right to review under Pt 13A of the Crimes Act in relation to summary offences, the general wording in s 3 and the Second Schedule, to the effect that Pt 13A “shall be in force with respect to all offences, and in whatsoever court tried”, cannot be disregarded. Varley v Attorney-General (1987) 24 A Crim R 413; ThePieveSuperiore : GiovanniDapuetovWyllie&Co (1874) LR 5 PC 482; FlemingvWhite(1981) 2 NSWLR 719; Application of Matthews (Supreme Court NSW, 10 June 1994, unreported), considered.
Application of Pt 13A to Federal offences: (a) It is not correct, as a matter of statutory interpretation of Part…
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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AGLC
Application of Pearson [1999] NSWSC 143
Case
[1999] NSWSC 143
Decision Date
CaseChat Overview and Summary
In the case of the Application of Pearson, the matter was brought before the court regarding the eligibility of an individual to seek an inquiry into their conviction under section 474D of Part 13A of the Crimes Act 1900. The central issue was whether a person convicted of a summary offence could bring an application under the specified section, as well as whether someone convicted of an offence under federal law could similarly apply. Furthermore, the court needed to determine if the power granted under section 474E(1) of the Crimes Act 1900 was captured by section 68 of the Judiciary Act 1903 in relation to federal offences.
The court examined the statutory provisions and considered the eligibility criteria for bringing an application for an inquiry into conviction. It scrutinised whether the restrictions placed on applicants under section 474D of the Crimes Act 1900 applied equally to convictions under federal law. The court also analysed the scope of section 474E(1) and whether it could be considered as part of the federal jurisdiction under section 68 of the Judiciary Act 1903.
The court held that an individual convicted of a summary offence could not bring an application under section 474D of the Crimes Act 1900, as this section was not designed for summary offences. Additionally, the court found that the power under section 474E(1) of the Crimes Act 1900 was not picked up by section 68 of the Judiciary Act 1903 in relation to federal offences. The court concluded that the application was not admissible due to the ineligibility of the applicant under the statutory provisions.
The court dismissed the application, finding that the applicant was not eligible to bring an inquiry into their conviction under the specified sections of the Crimes Act 1900.