Hansell v Director of Public Prosecutions (NSW)

Hansell (the applicant) appealed to the District Court of New South Wales against a conviction in the Local Court. The Director of Public Prosecutions (NSW) was the respondent. The District Court judge dismissed the appeal, but in doing so, relied on video files that had been included in the material before the District Court but had not been formally tendered as evidence in the Local Court. Neither party had drawn the District Court judge's attention to these additional video files.

The Court of Appeal was required to determine whether the District Court judge's reliance on the video files, which were not evidence in the Local Court, constituted a breach of procedural fairness. The court also considered the appropriate orders to make in light of this determination, including the question of costs.

The Court of Appeal held that the District Court judge's reliance on the video files, without them having been admitted into evidence in the Local Court and without the parties having had an opportunity to address their significance, constituted a breach of procedural fairness. The court reasoned that the appeal to the District Court was a hearing de novo, and while the judge was entitled to consider all material before the Local Court, the introduction of new material not properly admitted into evidence, and upon which the decision was based, was impermissible. Consequently, the District Court's decision was quashed, and the matter was remitted to the District Court to be heard by a different judge.

The Court of Appeal made no order as to costs. This was because the applicant's success was only partial, the respondent had made prompt concessions, and both parties had contributed to the error that occurred in the court below.