Lee v Director of Public Prosecutions (NSW)

The appeal concerned the interpretation and application of section 109(d) of the *Justices Act 1902* (NSW) (now repealed). The appellant, Lee, sought to appeal against a decision of the District Court which had, in part, set aside a remittal order made by a magistrate and remitted the proceedings back to that same magistrate. The appeal was heard by the Court of Appeal of New South Wales, comprising Mason P, Giles JA, and Campbell AJA.

The central legal issue before the Court of Appeal was the proper construction of section 109(d) of the *Justices Act 1902* (NSW) in circumstances where an appeal to the District Court resulted in a remittal order. Specifically, the court had to determine whether, upon allowing an appeal against a magistrate's decision, the District Court judge was empowered to remit the matter back to the original magistrate who had made the decision being appealed, or if a different course was mandated by the legislation.

The Court of Appeal reasoned that section 109(d) of the *Justices Act 1902* (NSW) contemplated that a judge hearing an appeal from a magistrate's decision could, in allowing the appeal, remit the proceedings to the magistrate who made the order appealed from. The court found that the District Court judge had erred in setting aside the remittal order and substituting a different one, as the original remittal to the magistrate who heard the matter was consistent with the statutory provision. Consequently, the Court of Appeal allowed the appeal in relation to the terms of the remittal order, setting it aside and remitting the proceedings to the magistrate who had originally made the order appealed from, to be heard and determined. The appeal was otherwise dismissed, and no order was made as to costs.