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Brown v DPP (NSW)

Brown v DPP (NSW)

Case [2018] NSWCCA 94 14 May 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brown, Michael John v Director of Public Prosecutions (NSW) [2018] NSWCCA 94
Hearing dates: 4 April 2018
Decision date: 14 May 2018
Before: Basten JA at [1];
Rothman J at [51];
Garling J at [62]
Decision:
(1)   Extend the time for filing an application for leave to appeal to 26 February 2018.
(2)   Grant the applicant leave to appeal from the judgment given in the District Court on 15 November 2017.
(3)   Dismiss the appeal.

Catchwords:
CRIMINAL PROCEDURE – interlocutory appeal – rejection of application for judge only trial – nature of appeal – function of appellate court – Criminal Appeal Act 1912 (NSW), s 5F – DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 applied – discussion of R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1
CRIMINAL PROCEDURE – interlocutory appeal – application for judge only trial – whether judge only trial in the interests of justice – relevant considerations – change of venue required if application rejected – Criminal Procedure Act 1986 (NSW), s132
Legislation Cited:
Constitution, s 80
Crimes Act 1900 (NSW), s 25A
Criminal Appeal Act 1912 (NSW), ss 3, 5B, 5F
Criminal Procedure Act 1986 (NSW), ss 30, 131, 132
District Court Act 1973 (NSW), s 18F
Evidence Act 1995 (NSW), s 97
District Court Rules 1973 (NSW), Pt 53, r 7
Cases Cited: DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63
Director of Public Prosecutions (NSW) v Farrugia [2017] NSWCCA 197
Domio [2018] NSWDC 16
Ex parte McGavin; Re Berne (1945) 46 SR(NSW) 58
Finance Facilities Pty Ltd v Commissioner of Taxation (1970-7) 127 CLR 106
House v The King (1936) 55 CLR 499; [1936] HCA 40
Macdougall v Paterson (1851) 11 CB 755
R v Belghar [2012] NSWCCA 86; 217 A Crim R 1
R v Matovski (1989) 15 NSWLR 720
R v Simmons; R v Moore (No 4) [2015] NSWSC 259; 249 A Crim R 120
RKF v R [2016] NSWCCA 116
Texts Cited:
D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis Butterworths)
New South Wales Government Gazette, No 152, 15 December 1995, p 8597
Category: Principal judgment
Parties: Michael John Brown (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
Mr I Nash (Applicant)
Mr N J Adams (Respondent)
Solicitors:
Aboriginal Legal Service (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s): 2016/191712
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

15 November 2017

Before:

Marien SC ADCJ

File Number(s):

2016/191712

Judgment

BASTEN JA: The applicant has been committed for trial on a charge under s 25A of the Crimes Act 1900 (NSW) of an assault causing death, committed on 23 June 2016 at Brewarrina. On 15 November 2017 Acting Judge Marien SC rejected an application by the present applicant for a trial by judge alone, sitting without a jury,…

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.

Continue reading Brown v DPP (NSW)

Details

AGLC: Brown, Michael John v Director of Public Prosecutions (NSW) [2018] NSWCCA 94
Case: [2018] NSWCCA 94
Decision Date: 14 May 2018

CaseChat Overview and Summary

In the case of Brown v DPP (NSW), the appellant sought an interlocutory appeal against the refusal of a judge-only trial. The dispute centred on the appellant's application for a trial before a judge alone, which was denied by the lower court. The matter was brought before the NSW Court of Criminal Appeal to determine the correctness of this decision.

The court was tasked with deciding whether the trial judge's decision to reject the application for a judge-only trial was appropriate. This involved examining whether the judge-only trial was in the interests of justice, taking into account all relevant factors. The court also considered whether a change of venue would be necessary if the application was unsuccessful. The legal principles drawn from the Criminal Procedure Act 1986 (NSW) and other relevant statutes and case law were pivotal in this determination.

The NSW Court of Criminal Appeal applied the relevant legal framework, including the provisions of the Criminal Procedure Act 1986 (NSW) and the Criminal Appeal Act 1912 (NSW). The court examined the decision-making process of the trial judge, considering the factors that the trial judge had weighed in rejecting the application for a judge-only trial. The court referenced previous cases such as DAO v The Queen (2011) 81 NSWLR 568; [2011] NSWCCA 63 and R v Belghar [2012] NSWCCA 86; (2012) 217 A Crim R 1 to provide context and guidance on the matter. Ultimately, the court upheld the decision of the lower court, finding that the trial judge had exercised their discretion correctly.

The final orders of the court confirmed the decision of the lower court, dismissing the appeal. The court found no merit in the appellant's argument that the trial judge had erred in rejecting the application for a judge-only trial. The decision underscored the importance of judicial discretion in such matters and the limited role of the appellate court in reviewing these decisions.

Orders