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McNamara v Fenner

McNamara v Fenner

Case [2017] NSWSC 1746 15 December 2017

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Supreme Court

New South Wales

Medium Neutral Citation: McNamara v Fenner [2017] NSWSC 1746
Hearing dates: 4 December 2017
Date of orders: 15 December 2017
Decision date: 15 December 2017
Jurisdiction: Common Law
Before: Harrison J
Decision:
(1) Refuse leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001.
(2) Amended summons otherwise dismissed with costs.

Catchwords: APPEAL – appeal from local court – where prosecutor withdrew all charges on first day of hearing – where plaintiff instead sought dismissal of charges and order for costs – where Magistrate refused to award costs following automatic dismissal – whether Magistrate’s orders were interlocutory or final – whether judicial review is available – whether Magistrate made an error of law or jurisdictional error
Legislation Cited: Crimes (Appeal and Review) Act 2001
Criminal Procedure Act 1986
Stock Diseases Regulation 2009
Supreme Court Act 1970
Cases Cited: Bienstein v Bienstein [2003] HCA 7
Canceri v Taylor (1994) 123 ALR 667
CDW v LVE [2015] WASCA 247
Coles Supermarkets Australia v Antony Townsden [2009] NSWSC 1117
DPP v Shirvanian (1998) 44 NSWLR 129
Halpin v Department of Gaming and Racing [2007] NSWSC 815
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
O’Brien v Hutchinson [2012] NSWSC 429
Question of Law Reserved on Acquittal (3 of 1995) Michael Charles Baenisch (1996) 88 A Crim R 1
R v Feeney [2012] ACTSC 153
RP v DPP [2015] NSWSC 248
Category: Principal judgment
Parties: Michael McNamara (Plaintiff)
Detective Rodney Fenner (Defendant)
Representation:
Counsel:
R Thomas (Plaintiff)
C Melis (Defendant)
Solicitors:
A R Conolly & Company (Plaintiff)
Henry David York (Defendant)

File Number(s): 2017/177849
Publication restriction: Nil

Judgment

HIS HONOUR: By his amended summons filed on 4 July 2017, Michael McNamara seeks leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 from the decision of Magistrate Michael O’Brien in the Local Court delivered on 18 May 2017. In the alternative, Mr McNamara seeks relief by way of judicial review pursuant to s 69 of the Supreme Court Act 1970.
Mr McNamara had been charged with 282 breaches of the Stock Diseases Regulation 2009 with respect to offences allegedly committed between January 2014 and January 2016. On the first day of what was to be a defended three day hearing of the charges at Inverell, the prosecutor sought to withdraw them all pursuant to s 208 of the Criminal Procedure Act 1986. Mr McNamara opposed that course and instead sought a dismissal of the charges pursuant to s 205 of that Act, together with a certificate pursuant to s 205(2) and an order for costs. His Honour permitted the prosecution to withdraw the charges pursuant to s 208, refused to make any alternative order pursuant to s 205 and declined to order the prosecution to pay Mr McNamara’s costs.
Accordingly, Mr McNamara now seeks an order setting aside his Honour’s decision and asks that the charges be dismissed pursuant to s 205.…

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 McNamara v Fenner

Details

AGLC: McNamara v Fenner [2017] NSWSC 1746
Case: [2017] NSWSC 1746
Decision Date: 15 December 2017

CaseChat Overview and Summary

The plaintiff in this matter sought dismissal of charges brought against him by the Director of Public Prosecutions in the Local Court. The plaintiff also sought an order for costs. The charges against the plaintiff were withdrawn by the prosecutor on the first day of the hearing. Following the dismissal of the charges, the Magistrate refused to award the plaintiff costs. The plaintiff appealed to the Supreme Court, arguing that the Magistrate’s orders were interlocutory rather than final, and therefore open to judicial review. The plaintiff further argued that the Magistrate had made an error of law or a jurisdictional error.

The central legal issue before the court was whether the orders made by the Magistrate were interlocutory or final. The court noted that if the orders were interlocutory, then they were open to judicial review. However, if they were final, then the plaintiff’s recourse would be to appeal to a higher court. The court also considered whether the Magistrate had made an error of law or a jurisdictional error, which would also render the orders open to judicial review. Ultimately, the court found that the orders were final, and therefore not open to judicial review. The court further found that the Magistrate had not made an error of law or a jurisdictional error in refusing to award costs to the plaintiff.

The court held that the orders made by the Magistrate were final, and therefore not open to judicial review. The court found that the Magistrate had not made an error of law or a jurisdictional error in refusing to award costs to the plaintiff. The court noted that the plaintiff had not demonstrated any exceptional circumstances that would warrant an award of costs following the automatic dismissal of charges. The court dismissed the appeal and ordered the plaintiff to pay the respondent’s costs of the appeal.

The court’s final orders were that the appeal be dismissed and that the plaintiff pay the respondent’s costs of the appeal. The court found that the orders made by the Magistrate were final and not open to judicial review. The court further found that the Magistrate had not made an error of law or a jurisdictional error in refusing to award costs to the plaintiff. The plaintiff was ordered to pay the respondent’s costs of the appeal.

Orders