Co v Director of Public Prosecutions

[2020] NSWSC 1123

Supreme Court

New South Wales

Medium Neutral Citation:

CO v DPP [2020] NSWSC 1123

Hearing dates:

19 August 2020

Date of orders:

19 August 2020

Decision date:

19 August 2020

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

(1) Leave is granted to file the Summons out of time pursuant to r 51B(6) of the Supreme Court Rules 1970 (NSW) (“SCR”).

(2) Electronic service of the Summons upon the defendant is permitted pursuant to r 51B(12) SCR.

(3) The date of the final hearing of the Summons is abridged pursuant to r 51B(15) SCR.

(4) The appeal under s 52(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is allowed.

(5) The control orders made under s33(1)(g) Children (Criminal Proceedings) Act 1987 (NSW) by Magistrate Day in the Children’s Court at Orange on 12 June 2020 are set aside and the matter remitted to the Children’s Court at Orange to be dealt with in accordance with this decision pursuant to s 55(2)(c) of the Crimes (Appeal and Review) Act.

(6) The matter is next listed for mention at the Children’s Court at Orange on 24 August 2020.

(7) No order is made as to costs. The parties have liberty to apply within 14 days should a costs order be sought.

Catchwords:

CRIME — appeal and review — appeal from Children’s Court and Local Court to Supreme Court — by person convicted or sentenced on a question of law alone — provision of background report — s 25 of the Children (Criminal Proceedings) Act

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 19, s 25, s 33(1)(g)

Children (Detention Centres) Act 1987 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW), s 52(1) and 55(2)

Cases Cited:

BT v R (2012) 227 A Crim R 354; [2012] NSWCCA 276

CTM v Regina [2007] NSWCCA 131

ID, PF and DV v Director General, Department of Juvenile Justice (2008) 73 NSWLR 158; [2008] NSWSC 966

Regina v CVH [2003] NSWCCA 237

Category:

Principal judgment

Parties:

CO (Plaintiff)
Office of the Director of Public Prosecutions (Defendant)

Representation:

Counsel:
Mr N Broadbent (Plaintiff)
Ms V Garrity (Defendant)

Solicitors:
Legal Aid NSW (Plaintiff)
Solicitor for Public Prosecutions (Defendant)

File Number(s):

2020/00241408

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Children’s Court and Local Court

Date of Decision:

12 June 2020

Before:

Magistrate Day

File Number(s):

2020/161323, 2020/76162, 2019/243521, 2019/255548, 2019/306039

Judgment (revised from ex tempore)

1. By way of summons filed in court today, the plaintiff CO seeks an order pursuant to ss 52(1) and 55(2) of the Crimes (Appeal and Review) Act 2001 (NSW) setting aside control orders imposed on him under s 33(1)(g) of the Children (Criminal Proceedings) Act 1987 (NSW) at the Children's Court in Orange by Magistrate Day on 12 June 2020.

2. The matter came before me in my capacity as duty judge on an urgent basis. For reasons I will set out below, I propose to make the orders sought today.

3. An affidavit sworn by Mr Gerry Stapleton…