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Russell v Scott

Russell v Scott

Case [2017] NSWSC 1720 12 December 2017

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Russell v Scott & Anor [2017] NSWSC 1720
Hearing dates: 29 November 2017
Decision date: 12 December 2017
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The summons is dismissed.
(2) The plaintiff is to pay the first defendant’s costs.

Catchwords:
STATUTORY APPEAL – appeal from decision of the Local Court under s 53(3)(b) of the Crimes (Appeal and Review Act 2001 – competency of appeal – whether direction that evidence be given via audio-visual link an “interlocutory order”
ADMINISTRATIVE LAW – judicial review – whether Magistrate erred in acting on “unsubstantiated assertions” by informant when determining whether the matters in s 5B(2) of the Evidence (Audio and Audio-Visual Links) Act existed
Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 3(1)
Crimes (Appeal and Review) Act 2001 (NSW), s 53(3)(b)
Crimes Act 1900 (NSW), s 61
Criminal Appeal Act 1912 (NSW), s 5F(3)
Crimes (Forensic Procedures) Act 2001 (NSW), ss 24, 26
Criminal Procedure Act 1986 (NSW), ss 3, 294B, 306M
Evidence Act 1995 (NSW), ss 13, 18
Evidence (Audio and Audio-Visual Links) Act 1998 (NSW), ss 5B, 20A, 20E, 20F
Local Court Act 2007 (NSW) ss 26, 28, 44, 71
Local Court Rules 2009 (NSW), r 8.3
Supreme Court Act 1970 (NSW), s 69
Cases Cited: AF v R [2015] NSWCCA 35
ASIC v Rich [2004] NSWSC 467
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651
Barton v Walker [1979] 2 NSWLR 740
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Decision Restricted [2017] NSWCCA 93
Director of Public Prosecutions (NSW) v Leonard (2001) 53 NSWLR 227; [2001] NSWSC 797
Emily Salisbury v Local Court of New South Wales and anor [2016] NSWSC 1082
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
KN v R [2017] NSWCCA 249
LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016
Orban v Bayliss [2004] NSWSC 428
R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125
R v Qaumi and Ors (No 9) [2016] NSWSC 171
R v Quami & Ors (AVL) [2015] NSWSC 1711
R v RAG [2006] NSWCCA 343
R v Wilkie; R v Burroughs; R v Mainprize [2005] NSWSC 794
Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research in Tertiary Education (2012) 206 FCR 92; [2012] FCAFC 117
Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357
Walker v Bugden [2005] NSWSC 8989
Ward v Zimmer [2015] NSWSC 525
WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275
WO v R [2009] NSWCA 370
Category: Principal judgment
Parties: Andrew Cameron Russell (Plaintiff)
Detective Senior Constable Amy Scott (First Defendant)
Local Court…

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 Russell v Scott

Details

AGLC: Russell v Scott [2017] NSWSC 1720
Case: [2017] NSWSC 1720
Decision Date: 12 December 2017

CaseChat Overview and Summary

The appellant, Russell, appealed to the District Court of New South Wales against a decision of the Local Court. The dispute was regarding the competency of an appeal against the Local Court’s decision to allow the testimony of a witness via an audio-visual link. The respondent, Scott, had argued that the appeal was not competent as it was not based on an interlocutory order. The court was tasked with determining whether the Local Court's direction for the evidence to be given via an audio-visual link was an interlocutory order and thus appealable.

The primary legal issue was whether the Local Court’s decision to allow evidence to be given via an audio-visual link constituted an interlocutory order under section 53(3)(b) of the Crimes (Appeal and Review Act 2001. Additionally, the court had to consider whether the Magistrate had erred in relying on unsubstantiated assertions by an informant when determining the existence of the matters in section 5B(2) of the Evidence (Audio and Audio-Visual Links) Act.

The court held that the Local Court’s direction allowing the witness to give evidence via an audio-visual link was indeed an interlocutory order, as it was a matter that substantially affected the rights of the parties and was not a final order. The court found that the Magistrate had erred by acting on unsubstantiated assertions by the informant without proper evidence. The appeal was deemed competent, and the decision of the Local Court was quashed. The matter was remitted back to the Local Court for reconsideration, with directions to properly assess the evidence before making any such direction in the future.

The final order of the court was that the appeal was allowed, the decision of the Local Court was quashed, and the matter was remitted back to the Local Court for reconsideration in accordance with the court’s directions.

Orders