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Sasterawan v Morris

Sasterawan v Morris

Case [2010] NSWCCA 91 7 May 2010

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Reported Decision: 201 A Crim R 302

New South Wales

Court of Criminal Appeal

CITATION: Sasterawan v Morris [2010] NSWCCA 91
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 10 March 2010

JUDGMENT DATE:
7 May 2010

JUDGMENT OF: Basten JA at 1; Hulme J at 49; Schmidt J at 55

DECISION: (i) Grant leave to the Applicant to file the Second Amended Application for Leave to Appeal, dated 5 March 2010 and extend time accordingly.
(ii) Refuse leave to appeal.
(iii) Make no order as to costs

CATCHWORDS: APPEAL - interlocutory orders - leave to appeal - orders granting prosecutor adjournment of hearing, leave to call evidence by videolink - Criminal Appeal Act 1912 s 5F - APPEAL - interlocutory orders - leave to appeal refused – application for costs - Criminal Appeal Act 1912 , s 17 - CRIMINAL LAW - appeal - leave to appeal - District Court appeal hearing - conviction in Local Court - offences under s 178BB Crimes Act 1900 - challenge to interlocutory orders

LEGISLATION CITED: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court of Judicature (Consolidation) Act 1925 (UK)

CATEGORY: Principal judgment

CASES CITED: Alexandroaia v R (1995) 81 A Crim R 286
Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] NSWCA 14
Commonwealth v Mullane [1961] HCA 28; 106 CLR 166
Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497
House v The King [1936] HCA 40; 55 CLR 409
John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508
Lethlean (1995) 83 A Crim R 197
Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158
Markisic v Vizza [2002] NSWCCA 53
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476
Re Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386
R v Barbaro (1992) 106 FLR 387
R v Bozatsis & Spanakakis (1997) 97 A Crim R 296
R v BWM (1997) 91 A Crim R 260
R v Cheng [1999] NSWCCA 373; 48 NSWLR 616
R v Matovski (1989) 15 NSWLR 720
R v JS (No 2) [2007] NSWCCA 309; (2007) 179 A Crim R 10
Rich v Australian Securities and Investments Commission [2005] NSWCA 233; 54 ACSR 365
Robinson v Woolworths Ltd [2005] NSWCCA 426; [2005] 227 ALR 353
Salter v Director of Public Prosecutions [2009] NSWCA 357
Sasterawan v Morris [2008] NSWCA 70
Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547
Steffan v R (1993) 30 NSWLR 633

PARTIES: Wahyu Sasterawan (Appellant)
Judith Morris (Officer of Ministry of Transport) (Respondent)

FILE NUMBER(S): CCA CCA 2005/7992

COUNSEL: Mr J Berwick (Appellant)
Mr P Bodor QC with Mr P O'Donnell (Respondent)

SOLICITORS: City Law…

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 Sasterawan v Morris

Details

AGLC: Sasterawan v Morris [2010] NSWCCA 91
Case: [2010] NSWCCA 91
Decision Date: 7 May 2010

CaseChat Overview and Summary

The appellant, Sasterawan, sought leave to appeal against the interlocutory orders made in the District Court that granted the prosecutor an adjournment of the hearing and allowed evidence to be called by videolink. The orders were made in relation to a conviction in the Local Court on two counts of an offence under section 178BB of the Crimes Act 1900. Sasterawan argued that the District Court erred in making these orders and that they deprived him of a fair hearing. The appeal was heard in the District Court, and the primary judge refused leave to appeal and dismissed the application for costs. Sasterawan sought leave to appeal to the Court of Criminal Appeal.
The legal issues before the Court of Criminal Appeal were whether the District Court erred in granting the prosecutor an adjournment and allowing evidence to be called by videolink, and whether the appellant was entitled to leave to appeal and costs. The Court considered the relevant statutory provisions, including sections 5F and 17 of the Criminal Appeal Act 1912, which govern appeals from the District Court to the Court of Criminal Appeal. The Court also considered the common law principles relating to the grant of adjournments and the admissibility of evidence by videolink.

The Court of Criminal Appeal held that the District Court did not err in granting the prosecutor an adjournment and allowing evidence to be called by videolink. The Court found that the District Court had considered the relevant factors and exercised its discretion reasonably. The Court also held that the appellant was not entitled to leave to appeal or costs. The Court found that the District Court's decision was not so plainly wrong as to justify interference by the Court of Criminal Appeal. The Court noted that the appellant had not demonstrated that the orders made by the District Court had deprived him of a fair hearing or that they were an abuse of process. The Court further held that the appellant had not shown that the District Court had committed a substantial injustice in refusing leave to appeal and dismissing the application for costs.

No further orders were made by the Court of Criminal Appeal. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders