CATCHWORDS:
CASE STATED
APPEAL TO DISTRICT COURT FROM LOCAL COURT
PROSECUTION FOR OFFENCE PURSUANT TO NOXIOUS WEEDS ACT 1993
INFORMATION LAID BY EMPLOYEE OF SHIRE COUNCIL
FINDING THAT OFFENCE PROVED AND ORDER FOR PAYMENT OF COSTS IN LOCAL COURT SET ASIDE
REFUSAL OF COSTS IN FAVOUR OF SUCCESSFUL APPELLANT IN DISTRICT COURT
RESTRICTION ON AVAILABILITY OF COSTS BY s 70 OF CRIMES (LOCAL COURTS APPEAL AND REVIEW) ACT 2001
WHETHER EMPLOYEE OF SHIRE COUNCIL ACTING IN PRIVATE CAPACITY WHEN INSTITUTING PROCEEDINGS
"APPELLANT WHOSE CONVICTION IS SET ASIDE" INCLUDES APPELLANT WHOSE SENTENCE WITHIN EXTENDED DEFINITION IN THAT ACT IS SET ASIDE
DISCUSSION OF ADEQUACY OF FORMULATION OF QUESTIONS OF LAW IN CASE STATED

LEGISLATION CITED:
Constitution (Local Government) Amendment Act 1986
s5B Criminal Appeal Act 1912
s70 Crimes (Local Courts Appeal and Review) Act 2001
s10(1)(a) Crimes (Sentencing Procedure) Act 1999
s68(4)(b) Local Government Act 1993
Noxious Weeds Act 1993
Solicitors Act 1932 (Imp)

DECISION:
QUESTION IN CASE STATED ANSWERED IN THE NEGATIVE
APPELLANT TO PAY RESPONDENT'S COSTS OF CASE STATED.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2004/2626
SPIGELMAN CJ
GROVE J
BELL J
Wednesday 6 April 2005

CASTLEBAR HOLDING PTY LIMITED (ACN 055 472 065)

GEOFFREY JOHN RILEY

Judgment

SPIGELMAN CJ: I agree with Grove J.
GROVE J: This matter is before the Court pursuant to s 5B of the Criminal Appeal Act 1912:
“5B (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.
(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.”
Section 5B is in that form consequent upon amendments taking effect from 1 March 1999. The amendment added s 5B(2) which, in clear terms, removed the limitation that once an appeal to the District Court had been disposed of by judicial decision,…

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 Castlebar Holding v Riley

Details

AGLC: Castlebar Holding v Riley [2005] NSWCCA 105
Case: [2005] NSWCCA 105
Decision Date: 6 April 2005

CaseChat Overview and Summary

In the matter of Castlebar Holding v Riley, the District Court of New South Wales heard an appeal from the Local Court decision which had found the appellant guilty of an offence under the Noxious Weeds Act 1993. The dispute centred around the propriety of the proceedings initiated by an employee of the Shire Council and the subsequent refusal of costs to the appellant after his conviction was set aside. The appellant argued that the employee had acted in a private capacity and thus the proceedings were invalid, further contending that the refusal of costs by the District Court was erroneous under section 70 of the Crimes (Local Courts Appeal and Review) Act 2001.

The legal issues before the District Court included whether the employee of the Shire Council was acting in a private capacity when instituting the proceedings against the appellant, and whether the appellant, whose sentence was set aside, qualified as an "appellant whose conviction is set aside" for the purposes of being awarded costs under the relevant statute. The court was also tasked with examining the adequacy of the formulation of the questions of law as presented in the case stated.

The District Court found that the employee of the Shire Council was acting in an official capacity and not in a private one, thereby upholding the validity of the proceedings. The court further held that the appellant, despite having his sentence set aside, fell within the extended definition of an appellant whose conviction was set aside, thereby entitling him to costs. The court criticised the case stated for not adequately formulating the questions of law, leading to potential confusion and misdirection in the proceedings. The court ultimately set aside the refusal of costs in favour of the appellant, ordering that the costs be paid to him.

Orders