DK v Director of Public Prosecutions

Case [2021] NSWCA 134


Court of Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: 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

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 33(1B)

Conciliation and Arbitration Act 1904 (Cth), s 142

Crimes Act 1900 (NSW), s 61I

Crimes (Appeal and Review) Act 2000 (NSW), ss 11, 17, 18, 23(1), 26, 27, 68A

Criminal Appeal Act 1912 (NSW), s 5D

Criminal Procedure Act 2009 (Vic), s 289(2)

Justices Act 1902 (NSW), s 131AB, 131AC(3)

Suitors Fund Act 1951 (NSW)

Supreme Court Act 1970 (NSW), s 69

Supreme Court Act 1970 (NSW), s 75A

Trade Practices Act 1974 (Cth), s 44F

Cases Cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25,

Clarke v R [2015] 254 A Crim R 150; NSWCCA 232

CMB v Attorney General for NSW (2015) 256 CLR 346; [2015] HCA 9

DPP v Karazisis (2010) 31 VR 634; [2010] VSCA 350

Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13

Dyason v Butterworth [2015] NSWCA 52

Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29

Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75

Hordern v R [2019] NSWCCA 138

Isaacs v Cachia [1989] NSWCA 105

Lacey v Attorney General of Queensland (2011) 242 CLR 573; [2011] HCA 10

Norvenska v Director of Public Prosecutions(Cth) [2007] NSWCCA 158

R vHernando (2002) A Crim R 451; [2002] NSWCCA 489

R v Holder [1983] 3 NSWLR 245

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Liberti (1991) 55 A Crim R 120

R v Longshaw (1990) 20 NSWLR 554

R v Marcus [2016] NSWCCA 237

R v Swaffield (1998) 192 CLR 159; [1998] HCA 1

Re Coldham; Ex Parte Municipal Officers Association of Australia (1989) 84 ALR 208; [1989] HCA 13

Tarrant v R [2007] NSWCCA 124

The Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2012) 246 CLR 379; [2012] HCA 36

Wany v Director of Public Prosecutions [2020] NSWCA 318

Texts Cited:

Second Reading Speech, Legislative Assembly, New South Wales, Criminal…

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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.

Orders

Orders of the court

Summons dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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