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DPP v Lee

DPP v Lee

Case [2006] NSWSC 270 12 April 2006

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CITATION: DPP v Adam James Lee & Anor [2006] NSWSC 270

HEARING DATE(S): 07/03/2006

JUDGMENT DATE :
12 April 2006

JUDGMENT OF: Howie J at 1

DECISION: The appeal is allowed. The orders of the Second Defendant dismissing the information are quashed. The proceedings are remitted to the Local Court to be heard by another magistrate other than the Second Defendant. The First Defendant is to pay the Plaintiff's costs. The First Defendant is to be entitled to a certificate for costs pursuant to s 6 of the Suitors' Fund Act.

CATCHWORDS: Criminal Law - Practice and Procedure - Prosecution appeal from orders of magistrate dismissing information - error of law in taking into account irrelevant matters - error in finding no prima facie case - matter remitted.

LEGISLATION CITED: Crimes (Local Court Appeal and Review) Act 2001 - ss 56(1)(c), 59(1), 59(2)(a)
Crimes Act 1900 - s 178BA
Crimes (Sentencing Procedure) Act 1999 - s 10
Justices Act 1902 (repealed) - s 109

CASES CITED: DPP v Lee [2003] NSWSC 612
Lee v DPP [2004] NSWCCA 172
Amalgamated Television Services v Marsden (2001) 122 A Crim R 166
Cox v Salt (1994) 12 WAR 12
R v Love (1989 17 NSWLR 608

PARTIES: Director of Public Prosecutions v Adam James Lee & Anor

FILE NUMBER(S): SC 13551/2005

COUNSEL: P. Lakatos SC - Plaintiff
R. Bonnici - Defendant

SOLICITORS: S. Kavanagh - Plaintiff
Allars Mottee Hannaford - Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate O'Shane

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

WEDNESDAY 12 APRIL 2006
13551/2005 DIRECTOR OF PUBLIC PROSECUTIONS v

ADAM JAMES LEE & ANOR

JUDGMENT
Introduction

1 HOWIE J: On 31 October 2001 Ms Daisy Jones died. Her family wished her to be cremated. On 1 November 2001 Mr Errol Davidson died. His family wished him to be buried. On 5 November 2001 Mr Davidson was mistakenly cremated instead of Ms Jones. On 7 November 2001 Ms Jones was placed in Mr Davidson’s coffin and buried in the plot reserved for him. In order to disguise the difference in weight between Ms Jones and Mr Davidson, pavers or bricks were placed in the coffin with Ms Jones.

2 On 12 November Mr Ebbott, who worked for a funeral business known as Caring Funerals, told a representative of the Department of Health about the burial of Ms Jones. On 14 November Caring Funerals sent an account for $3,309.50, including crematorium fees to Ms Jones’ son who paid the account. On 19 November 2001 Caring Funerals sent an account for $6.585.00 to the widow of Mr Davidson for his funeral. The account was never paid because on 23 November 2001 the body of Ms Jones was exhumed.

3 Arising from these peculiar facts the first defendant, Mr Lee, the funeral director for Caring Funerals, was charged with two offences: obtaining money by deception in relation to the burial of Ms Jones and attempting to obtain money by…

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.

Continue reading DPP v Lee

Details

AGLC: DPP v Lee [2006] NSWSC 270
Case: [2006] NSWSC 270
Decision Date: 12 April 2006

CaseChat Overview and Summary

The matter under consideration is an appeal by the Director of Public Prosecutions against a magistrate's decision to dismiss an information against the respondent, Lee. The crux of the dispute lies in the magistrate's evaluation of whether a prima facie case had been established, which ultimately led to the dismissal of charges. The court of appeal was tasked with reviewing the magistrate's determination and deciding whether there was an error of law in the process.

The central legal issue before the court was whether the magistrate had erred in law by considering irrelevant factors when assessing the evidence and whether the magistrate's conclusion that no prima facie case had been made out was correct. The court had to scrutinise the magistrate's decision-making process to determine if the law was applied correctly. The appeal hinged on whether the magistrate had misdirected themselves by taking into account matters that were not pertinent to the case or had failed to appreciate the sufficiency of the evidence to establish a prima facie case.

The court of appeal found that the magistrate had indeed erred in law by considering irrelevant matters and in concluding that no prima facie case had been established. The court determined that the magistrate's assessment was flawed and that the law had not been correctly applied. Consequently, the court quashed the magistrate's decision and remitted the matter back to the magistrate for a fresh consideration, ensuring that only relevant evidence was taken into account and that the law was correctly applied in making the determination of a prima facie case. The appeal was thus allowed, and the matter was sent back to the lower court for further proceedings.

Orders