Cooper v Director of Public Prosecutions (NSW)

In *Cooper v Director of Public Prosecutions (NSW)*, the applicant sought judicial review of an order made by the Drug Court of New South Wales terminating his participation in a Drug Court program. The applicant's program had been terminated after he was detained on remand for new offences, which prevented him from complying with the program's requirements. The primary judge made the termination order based on an oral application that focused on the likelihood of a full-time custodial sentence for the new charges, without expressly addressing the jurisdictional preconditions for making such an order under section 10(1)(b) of the *Drug Court Act 1998* (NSW).

The issues before the Court of Appeal were whether the primary judge had constructively failed to exercise jurisdiction by not addressing the jurisdictional preconditions to the termination order, and whether the judge had failed to take into account relevant considerations or had regard to irrelevant considerations. The court also considered whether the transcript of the oral application constituted part of the "record" for the purposes of an error of law on the face of the record.

The Court of Appeal held that the primary judge's failure to address either of the remaining jurisdictional preconditions for making the termination order evinced a constructive failure to exercise jurisdiction. The court reasoned that the judge's focus on the probability of a custodial sentence for the new charges, without considering the statutory requirements for termination, meant that the judge had not properly exercised the power conferred by the Act. Consequently, the impugned decision was quashed.

The Court of Appeal ordered that the time for filing the applicant's Summons for Judicial Review be extended, the order made by the Drug Court on 26 November 2021 terminating the applicant's program be set aside, and the Drug Court be directed to determine the application for termination according to law.