DK v Director of Public Prosecutions [2021] NSWCA 134
Hearing dates:
6 May 2021
Decision date:
02 July 2021
Before:
Brereton JA at [1]; McCallum JA at [2]; Simpson AJA at [73]
Decision:
Summons dismissed
Catchwords:
APPEALS – Nature of appeal – Appeal by way of rehearing – Appeal against sentence brought by the Director of Public Prosecutions under s 23(1) of the Crimes (Appeal and Review)Act – Whether Director required to establish error – whether the District Court has a “residual discretion” to dismiss the appeal notwithstanding a finding that the sentencing decision entailed error
Second Reading Speech, Legislative Assembly, New South Wales, Criminal…
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.
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AGLC
DK v Director of Public Prosecutions [2021] NSWCA 134
Case
[2021] NSWCA 134
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions (DPP) appealed against a sentence imposed by the District Court. The DPP contended that the sentencing decision involved error and sought to have the sentence set aside. The appeal was brought by way of rehearing pursuant to s 23(1) of the *Crimes (Appeal and Review) Act*.
The central legal issues before the Court of Appeal were whether the DPP was required to establish error in the sentencing decision to succeed on appeal, and whether the District Court retained a residual discretion to dismiss the DPP's appeal even if error was found.
The Court of Appeal held that an appeal by the DPP under s 23(1) of the *Crimes (Appeal and Review) Act* is an appeal by way of rehearing. Consequently, the DPP is not required to establish error in the sentencing decision. The Court further determined that the District Court does not possess a residual discretion to dismiss an appeal by the DPP where error has been established. The summons was dismissed.