Newson v Ly - [2001] NSWSC 1117

CITATION: Newson v Ly [2001] NSWSC 1117

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 12105/01

HEARING DATE(S): 22 November 2001

JUDGMENT DATE:
5 December 2001

PARTIES :

Michael Newson
(Plaintiff)
v
Ty Ly
(Defendant)

JUDGMENT OF: Davies AJ at 1

LOWER COURT
JURISDICTION : Local Court

LOWER COURT
FILE NUMBER(S) : -

LOWER COURT
JUDICIAL OFFICER : Magistrate Sweeney

COUNSEL : P: Mr M A Wigney
D: Mr B J Mulligan

SOLICITORS: P: Australian Government Solicitor
D: Allanson Benn, Solicitors

CATCHWORDS: Abuse of process - whether proceedings may be stayed by reason of prejudice in other proceedings - whether Magistrate had power to award costs - costs - against prosecutor when ordering stay of proceedings

LEGISLATION CITED: Justices Act 1902, s 104
Customs Act 1901 (Cth), s 234
Excise Act 1901 (Cth), ss 117, 137, 152

CASES CITED: Jago v District Court of NSW (1989) 168 CLR 23
Reg v Humphrys [1977] AC 1
Barton v The Queen (1980) 147 CLR 75
DPP v Shirvanian (1998) 44 NSWLR 129
Maxwell v The Queen (1996) 184 CLR 501
CSR Ltd v Cigna Insurance Aust Ltd (1997) 189 CLR 345
Rogers v The Queen (1994) 181 CLR 251
Ridgeway v The Queen (1995) 184 CLR 19
Hui Chi Ming v The Queen [1992] 1 AC 34
Connelly v DPP [1964] AC 1254
Tomson v Connors (Abadee J, 27/2/97, unrep)

DECISION: Appeal allowed. See para 24 for further orders.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES AJ
Wednesday, 5 December 2001

12105/01 - MICHAEL NEWSON v TY LY
JUDGMENT

1 HIS HONOUR: This is an appeal brought by way of Summons (as amended) from the order of a Magistrate given in the Local Court at the Downing Centre that the proceedings brought by the plaintiff, Michael Newson, against the defendant, Ty Ly, by way of Information and Summons, be stayed permanently. As the appeal is brought under s 104(2) of the Justices Act, 1902, it raises only a question of law.

2 In December 1999, a search warrant was executed by officers of the Australian Customs Service (“Customs”) on premises with which the defendant was connected. Customs’ officers located and seized a quantity of cigarettes on the premises and they later charged the defendant with three offences under s 234 of the Customs Act, 1901 (Cth), being charges of smuggling, evading payment of duty and making a false statement. On the same day, Customs’ officers noticed cut tobacco on the premises. They alerted officers of Excise who, in the course of the day, obtained a warrant and seized the tobacco. In April 2000, officers of Excise interviewed the defendant with respect to the tobacco.

3 The Chief Executive Officer of Customs had, at one time, the general administration of both the Customs Act and the Excise Act, 1901 (Cth). Since February 1999, however, the Australian Taxation Office has been responsible for Excise affairs. As a result, the prosecutions of the differing offences were not coordinated. The…

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 Newson v Ly

Details

AGLC: Newson v Ly [2001] NSWSC 1117
Case: [2001] NSWSC 1117
Decision Date: 5 December 2001

CaseChat Overview and Summary

In the case of Newson v Ly, the applicant, Newson, sought an order to stay the proceedings against him on the basis that the prosecutor had abused the process of the court by bringing proceedings against him that were duplicative of other proceedings already in existence. The case was heard in the Supreme Court of Victoria. The dispute centred around whether the applicant's right to a fair trial had been prejudiced by the prosecutor's actions and whether the Magistrate had the power to award costs against the prosecutor when ordering a stay of proceedings.

The court was required to determine whether the applicant's right to a fair trial had been prejudiced by the prosecutor's decision to bring proceedings against him. The court was also required to consider whether the Magistrate had the power to award costs against the prosecutor when ordering a stay of proceedings.

The court held that the applicant's right to a fair trial had been prejudiced by the prosecutor's actions. The court found that the proceedings were duplicative of other proceedings already in existence and that the prosecutor had acted unreasonably in bringing proceedings against the applicant. The court also held that the Magistrate had the power to award costs against the prosecutor when ordering a stay of proceedings. The court found that the prosecutor's actions had caused the applicant to incur unnecessary legal costs and that it was appropriate to award costs against the prosecutor.

The court ordered that the proceedings against the applicant be stayed and that costs be awarded against the prosecutor. The court found that the award of costs was necessary to compensate the applicant for the unnecessary legal costs that he had incurred as a result of the prosecutor's actions. The court also found that the award of costs was necessary to deter the prosecutor from engaging in similar conduct in the future.

Orders