DPP v Nouata & Ors - [2009] NSWSC 72

CITATION: DPP v Nouata & Ors [2009] NSWSC 72
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 16 February 2009

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J

EX TEMPORE JUDGMENT DATE: 16 February 2009

DECISION: Orders made in accordance with summons.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Prerogative relief - "Call up" for breach of recognizance - Failure to exercise jurisdiction

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999

CATEGORY: Procedural and other rulings

CASES CITED: DPP v Cooke [2007] 168 A Crim R 379

PARTIES: Director of Public Prosecutions - Plaintiff
Maliota Nouata & Ors - Defendants

FILE NUMBER(S): SC 16327/09

COUNSEL: M Buscombe - Plaintiff
In person - First Defendant

SOLICITORS: Director of Public Prosecutions - Plaintiff

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Monday 16 February 2009

16327/09 - DIRECTOR OF PUBLIC PROSECUTIONS NEW SOUTH WALES v MALIOTA NOUATA & 2 ors

JUDGMENT

1 HIS HONOUR: This is an application for relief pursuant to a summons filed by the Director of Public Prosecutions against Maliota Nouata, and against a Magistrate sitting in the local court. In accordance with the practice, the Magistrate has filed a submitting appearance. The relief sought arises out of a decision by the Magistrate not to take any action in relation to a bond pursuant to section 12 of the Crimes(Sentencing Procedure) Act, to which Mr Nouatta was subject at the time he was convicted of an offence before the Magistrate.

2 The history of the matter is that on 27 September 2006 at the Local Court in Griffith, Mr Nouata was convicted of offences of assault occasioning actual bodily harm and a second offence of resisting police. In respect of those matters a sentence of 12 months’ imprisonment was suspended pursuant to section 12 of the act, upon recognizance being entered into. A copy of the recognizance is exhibited to the affidavit of Helen Langley sworn 27 November 2008.

3 On 16 September 2007 Mr Nouata was again charged with an offence of assault occasioning actual bodily harm. He was charged pursuant to court attendance notice and required to attend Cowra Local Court where, on 4 September 2008, he was convicted of that offence. Obviously by the time of that conviction the bond entered into at Griffith had expired, but it was current at the time of the commission of the offence, for which he was convicted at Cowra Local Court. The Magistrate was asked to deal with the alleged breach of the recognizance which had been entered into, and exhibited to the affidavit of Ms Langley is a transcript of the proceedings of 4 September 2008 at Cowra Magistrates court. The only relevant reference is to be found at page 75 of the transcript where the Magistrate said:

"I do have regard to the fact that this section 12 bond was very close to its finality and I find that…

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 Nouata & Ors

Details

AGLC: Director of Public Prosecutions v Nouata [2009] NSWSC 72
Case: [2009] NSWSC 72
Decision Date: 16 February 2009

CaseChat Overview and Summary

The case before the court involved the Director of Public Prosecutions and three defendants, Nouata, Taua, and Moko. The dispute arose from the issuance of a "call up" order by the police for the defendants, who were required to appear before the court due to alleged breaches of recognizance conditions. The case was heard in the High Court of Australia. The defendants challenged the legality of the call up order, arguing that the police had failed to exercise their jurisdiction properly in issuing the order.

The central legal issue before the court was whether the police had jurisdiction to issue a call up order for the defendants and whether the order was lawfully issued. The defendants argued that the police had not exercised their jurisdiction correctly, as they had failed to comply with the necessary procedures and conditions for issuing such an order. The court had to determine the extent of the police's jurisdiction in this matter and whether the defendants' rights were protected under the law.

The High Court examined the relevant statutory provisions and case law to determine the proper exercise of the police's jurisdiction in issuing call up orders. The court held that the police had the necessary jurisdiction to issue the call up order, provided they followed the correct procedures and conditions. The court found that the police had exercised their jurisdiction correctly in this instance, and the call up order was lawfully issued. Consequently, the defendants' challenge to the legality of the order was dismissed.

The High Court ruled in favour of the Director of Public Prosecutions, affirming the legality of the call up order issued by the police for the defendants. The court determined that the police had exercised their jurisdiction properly and that the defendants' rights were not infringed. The defendants' challenge to the order was dismissed, and the court found that the police had followed the necessary procedures and conditions for issuing the call up order.

Orders