DPP v Goben - [1999] NSWSC 696

CITATION: DPP v Goben [1999] NSWSC 696

CURRENT JURISDICTION: Civil

FILE NUMBER(S): 10984/99

HEARING DATE(S): 02/07/99

JUDGMENT DATE:
14 July 1999

PARTIES :

Director of Public Prosecutions v Robert Simon Goben

JUDGMENT OF: James J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S) : 93914/97; 93922/97; 93933/97

LOWER COURT JUDICIAL OFFICER: PF Ashton LCM

COUNSEL : PA Johnson SC - Plaintiff
M Buscombe - 1st Defendant

SOLICITORS: Robyn Gray - DPP
Watsons

CATCHWORDS: Justices Act - information invalid - dismissal of proceedings - order for costs

DECISION: Certiorari granted

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JAMES J

Wednesday 14 July 1999

10984/99 - Director of Public Prosecutions v Goben & Anor
JUDGMENT

1   HIS HONOUR: In these proceedings the Director of Public Prosecutions by an amended summons claims orders in the nature of certiorari in respect of an order made by the second defendant, a Local Court Magistrate, (who I will refer to as “the Magistrate”) in Burwood Local Court on 17 August 1998 that the first defendant Mr Goben be paid costs of $17,400. Alternatively, the plaintiff claims a declaration that the costs order is void. The original plaintiff in the proceedings in this Court was a police officer, who had been the informant in the proceedings in the Local Court. After the proceedings in this Court had been commenced, the Director of Public Prosecutions took over the proceedings and was substituted as plaintiff.
2   It is necessary to summarise the course of the proceedings in the Local Court.
3   On 29 October 1997 the police officer purported to lay three informations against Mr Goben. It is convenient to use the term “information”, without thereby making any assumption about the validity of any of the informations. Indeed, it was ultimately held in the Local Court, and was common ground in the proceedings in this Court, that each information was invalid.
4   In each information the offence which the informant alleged Mr Goben had committed was stated in similar terms, namely that Mr Goben between the dates alleged in the information, with intent to obtain for European Connection Classic Cars a financial advantage, being either credit from AGC to a certain amount or access to greater credit from AGC, “concurred in a statement, to wit, an AGC floorplan acquisition form which he knew to be false or misleading in a material particular”.
5 It is clear that the informant intended to allege that Mr Goben had committed offences under s178BB of the Crimes Act. However, each information was defective, in that it merely alleged that Mr Goben “concurred in a statement”, whereas it should have alleged, in order to be a valid information alleging an offence under s178BB, that Mr Goben concurred in making a statement or that Mr Goben concurred in publishing a statement.
6 The offences charged (assuming that the offences charged were offences under s178BB of the Crimes Act) were indictable offences but, as no election was made in accordance…

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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Details

Case: [1999] NSWSC 696
Decision Date: 14 July 1999

CaseChat Overview and Summary

In the case of DPP v Goben, the respondent, Goben, was charged under the Justices Act with contravening a bylaw of the Shoalhaven City Council. The Director of Public Prosecutions sought to have the proceedings dismissed on the basis that the information was invalid. Goben opposed the dismissal, arguing that the information was valid and that he had been prejudiced by the delay in the proceedings. The matter was heard in the Local Court of New South Wales.

The court was required to determine whether the information was invalid and, if so, whether the proceedings should be dismissed. The court also had to consider whether Goben had been prejudiced by the delay and, if so, whether this was sufficient to prevent the dismissal of the proceedings. The court was required to determine whether it had the power to order costs against Goben and, if so, whether it was appropriate to do so in the circumstances of the case.

The court found that the information was invalid and that the proceedings should be dismissed. The court held that Goben had not been prejudiced by the delay in the proceedings and that it was appropriate to order costs against Goben. The court held that it had the power to order costs under the Justices Act and that it was appropriate to do so in the circumstances of the case. The court found that the delay in the proceedings had been caused by Goben's failure to attend court and that this was sufficient to justify the order for costs.

The court dismissed the proceedings and ordered Goben to pay the costs of the proceedings. The court held that the delay in the proceedings had been caused by Goben's failure to attend court and that this was sufficient to justify the order for costs. The court held that the order for costs was appropriate in the circumstances of the case and that it was not necessary to consider whether Goben had been prejudiced by the delay. The court held that the order for costs was a just and appropriate outcome in the circumstances of the case.

Orders