Director of Public Prosecutions v Hilzinger & Drug Court of New South Wales

The Director of Public Prosecutions sought a writ of certiorari to quash a decision of the Drug Court of New South Wales. The dispute concerned the eligibility of an offender for the Drug Court's jurisdiction, specifically whether the offender's conduct met the "violent conduct" exclusion under section 5(2) of the *Drug Court Act 1998* (NSW). The application was heard by the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was to determine the correct interpretation of the term "violent conduct" as it appeared in the eligibility test under section 5(2) of the *Drug Court Act 1998*. This involved considering whether the elements of the offence, or the circumstances surrounding its commission, were relevant to this eligibility test, and whether damage to property constituted "violent conduct" for the purpose of excluding an offender from the Drug Court's jurisdiction. The Court also considered whether the Drug Court retained a discretion to reject an otherwise eligible offender.

The Court of Appeal reasoned that the "violent conduct" referred to in section 5(2) of the *Drug Court Act 1998* pertains to violence directed towards a person, not damage to property. While damage to property might be a relevant consideration for the Drug Court in exercising its discretion to reject an offender, it did not, in itself, disqualify an offender from being eligible for the Drug Court's jurisdiction under the statutory eligibility test. The Court affirmed that the elements of the offence, rather than the circumstances of its commission, were the focus of the eligibility test.

The summons was dismissed.