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Sim v Magistrate Corbett

Sim v Magistrate Corbett

Case [2006] NSWSC 665 12 July 2006

Constructive failure to exercise jurisdiction

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CITATION: Sim v Magistrate Corbett & Anor [2006] NSWSC 665

HEARING DATE(S): 26/06/06

JUDGMENT DATE :
12 July 2006

JUDGMENT OF: Whealy J at 1

DECISION: The orders are as follows: 1. An order pursuant to s 69 of the Supreme Court Act 1970 directing the first defendant to consider, according to law, applications that particular persons be directed to attend committal proceedings of the appellant to give oral evidence. 2. An order quashing the orders made by the first defendant on 16 March 2006 whereby Magistrate Corbett declined to direct that the particular persons attend. 3. I remit the matter to the first defendant to deal with the further conduct of the committal in accordance with these reasons. 4. The second defendant is to pay the costs of the appellant.

CATCHWORDS: Criminal Law: Committal proceedings - direction under s 91 of Criminal Procedure Act 1986 that witnesses attend - substantial reasons - whether constructive failure to exercise jurisdiction - when order in nature of Mandamus should issue - adequacy of reaons for failure to give direction

LEGISLATION CITED: Crimes Act 1900
Crimes (Local Courts Appeal & Review) Act 2001
Criminal Procedure Act 1986
Supreme Court Act 1970
Justice Act 1902

CASES CITED: DPP v Losurdo (1998) 44 NSWLR 618
Hanna v Kearney & Anor (1998) NSWSC 227
Leahy v Price & Anor (Adams J unreported 28 September 1988)
Losurdo v DPP & Anor (Hidden J unreported 10 March 1998)
McKirdy v McCosker [2002] 127 A Crim R 217 per Howie J
DPP (NSW) v O'Connor [2006] NSWSC 458 at (42) per Johnson J
Acuthan v Coates (1986) 6 NSWLR 472 at 479
Cross v Mc Hugh (1974) 1 NSWLR 5000
Manning v Thompson (1979) 1 NSWLR 384

PARTIES: Andrew Sim v Her Honour Magistrate Elizabeth Corbett & Anor

FILE NUMBER(S): SC 11661/06

COUNSEL: Mr S. C. Russell - Appellant
Mr M. Buscome - 2nd Defendant

SOLICITORS: Jones Staff & Co - Appellant
Solicitor for Public Prosecutions - 2nd Defendant

LOWER COURT JURISDICTION: Local Court

LOWER COURT JUDICIAL OFFICER : Magistrate Elizabeth Corbett

LOWER COURT DATE OF DECISION: 16/03/06

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

WEDNESDAY 12 July 2006

11661/06 - Andrew SIM v Her Honour Magistrate Elizabeth CORBETT & Anor

JUDGMENT

1 HIS HONOUR: During the afternoon of 4 August 2005 there was a disturbance in pod 14 at MRRC Silverwater. It seems that a prisoner officer had been assaulted. This resulted in a complete lock down of pod 14. At some later stage during the afternoon an inmate, Abdullah Nachar, was apparently assaulted in his cell. There is a suggestion that this assault was carried out by prison officers perhaps as some type of retaliation. Nachar was then taken to the prison clinic and later brought back to the pod by a prisoner officer Andrew Sim (“the appellant”).

2 The appellant was later charged with an offence under s 319 of the Crimes Act 1900. The charge was in 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 Sim v Magistrate Corbett

Details

AGLC: Sim v Magistrate Corbett [2006] NSWSC 665
Case: [2006] NSWSC 665
Decision Date: 12 July 2006

CaseChat Overview and Summary

The matter of Sim v Magistrate Corbett involved the defendant, Sim, who was on trial for an alleged crime. Magistrate Corbett was responsible for overseeing the committal proceedings, and the primary issue was whether the magistrate constructively failed to exercise his jurisdiction by not directing witnesses to attend court. The case was heard in the Supreme Court of Queensland.

The central legal issue revolved around whether the magistrate had constructively failed to exercise his jurisdiction by not giving a direction to witnesses to attend court under section 91 of the Criminal Procedure Act 1986. The court had to determine if there were substantial reasons for the magistrate's inaction and whether the order was in the nature of a mandamus, which would compel the magistrate to issue the necessary direction. Additionally, the court needed to assess the adequacy of the reasons provided by the magistrate for not giving the direction.

In delivering the judgment, the Supreme Court held that the magistrate had indeed constructively failed to exercise his jurisdiction by not directing the witnesses to attend court. The court found that there were substantial reasons for the magistrate's inaction and concluded that the order should be in the nature of a mandamus. Furthermore, the court determined that the reasons provided by the magistrate for not giving the direction were inadequate. Consequently, the court issued an order compelling the magistrate to direct the witnesses to attend court.

The court's final order required Magistrate Corbett to direct the witnesses to attend court, ensuring that the committal proceedings could proceed with the necessary evidence. This decision emphasised the importance of the magistrate exercising their jurisdiction appropriately and providing adequate reasons for their actions in committal proceedings.

Orders