Director of Public Prosecutions (NSW) v Burns

The Director of Public Prosecutions (DPP) sought prerogative relief from the Supreme Court of New South Wales, seeking to quash orders made by a District Court judge and have the matter remitted for determination by a different judge. The DPP’s grounds for relief were that the judge had acted without or in excess of jurisdiction by conducting a review rather than a rehearing, that a fair-minded lay observer might apprehend bias due to the judge prejudging the outcome, and that the judge had constructively failed to exercise jurisdiction by disregarding the magistrate's credit findings.

The Supreme Court was required to determine whether the District Court judge had erred in law by conducting the appeal as a review rather than a rehearing, whether the judge’s conduct gave rise to an apprehension of bias, and whether the judge had failed to exercise jurisdiction by ignoring the magistrate's findings regarding a witness's credit. The Court also considered the appropriate terminology for setting aside a conviction under the Crimes (Appeal and Review) Act 2001.

The Court reasoned that the appeal from a summary conviction to the District Court is by way of rehearing under the Crimes (Appeal and Review) Act. While acknowledging that the District Court judge's language in setting aside the conviction was not precisely in line with the statutory wording, the Court found this not to be determinative, noting that the judge had not acted in a manner analogous to exercising a supervisory jurisdiction. The Court found that the DPP's case on apprehended bias had not been made out and that the judge had not constructively failed to exercise jurisdiction.

Consequently, the application for prerogative relief was dismissed with costs. The Court noted that the parties might need to apply to the District Court judge to correct the order to accurately reflect that the conviction was set aside.