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Tez v Longley

Tez v Longley

Case [2004] NSWSC 74 20 February 2004

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Reported Decision:
142 A Crim R 122

Supreme Court

CITATION: Tez v Longley and DPP (NSW) [2004] NSWSC 74

HEARING DATE(S): 09/02/2004

JUDGMENT DATE:
20 February 2004

JUDGMENT OF: Shaw J at 1

DECISION: Summons dismissed; Plaintiff to pay the defendants' costs

CATCHWORDS: review of Magistrate's decision - committal proceedings - s48E Justices Act 1902 (NSW) - refusal to allow complainant to be called for cross-examination - jurisdictional error - mandamus - declaration

LEGISLATION CITED: Crimes Act 1900 (NSW), s35(1)(b)
Criminal Procedure Act 1986 (NSW), s93, Schedule 1, Schedule 2
Justices Act 1902 (NSW), s48E
Supreme Court Act 1970 (NSW), ss69, 75

CASES CITED: Acuthan v Coates (1986) 6 NSWLR 472;
B v Gould and Director of Public Prosecutions (1993) 67 A Crim R 297;
Bacon v Rose [1972] 2 NSWLR 793;
DPP v Losurdo (1998) 44 NSWLR 618;
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416;
Goldsmith v Newman (1992) 59 SASR 404;
Lamb v Moss & Brown (1983) 49 ALR 533;
Lawler v Johnson & Anor (2002) 56 NSWLR 1;
Leahy v Price (Supreme Court, 28 September 1998);
McKirdy v McCosker [2002] NSWSC 197; (2002) 127 A Crim R 217;
O'Hare v DPP [2000] NSWSC 430;
Pettitt v Dunkley [1971] 1 NSWLR 376;
Public Service Board v Osmond (1985) 159 CLR 656;
R v Anderson (CCA(NSW), 15 February 1994, unreported);
R v Kennedy (1997) 94 A Crim R 341;
Sankey v Whitlam (1978) 142 CLR 1;
The King v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228;

PARTIES :
Jonathon Tez - Plaintiff
Christopher Longley - 1st Defendant
Director of Public Prosecutions (NSW) - 2nd Defendant

FILE NUMBER(S): SC 13310/2003

COUNSEL: M. King (sol) - Plaintiff
I. Bourke - 2nd Defendant

SOLICITORS: Kings Lawyers - Plaintiff
S.E. O'Connor, Solicitor for Public for Prosection - 2nd Defendant

LOWER COURTJURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 2316328

LOWER COURT
JUDICIAL OFFICER : Magistrate C. Longley

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

20 February 2004
13310 of 2003

Jonathon Tez (Plaintiff)

v

Christopher Longley (First Defendant)

and
Director of Public Prosecutions (Second Defendant)

JUDGMENT

1 Shaw J: This matter was commenced by summons filed on 11 December 2003. The plaintiff appeals against a Magistrate’s refusal of an application under s 48E(2)(a) of the Justices Act 1902 (NSW) and seeks declarations and prerogative relief pursuant to ss 69 and 75 of the Supreme Court Act 1970 (NSW).

2 The plaintiff is accused of attacking Youssef (Joe) Assaf (sometimes referred to as Youssef Yassaf) on 28 May 2003, and is charged with maliciously inflicting grievous bodily harm pursuant to s 35(1)(b) of the Crimes Act 1900 (NSW). The application relates to committal proceedings in respect of this charge.

Background

3 At or about 7.00pm Mr. Assaf was allegedly stabbed and wounded at his home at George Street, Waterloo. The victim later identified Nicole…

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 Tez v Longley

Details

AGLC: Tez v Longley [2004] NSWSC 74
Case: [2004] NSWSC 74
Decision Date: 20 February 2004

CaseChat Overview and Summary

The matter of Tez versus Longley arose in the Supreme Court of New South Wales, where the applicant sought judicial review of a magistrate's decision in committal proceedings. The case involved allegations of assault against the applicant, with the complainant being a key witness. The magistrate had refused to allow the complainant to be called for cross-examination, a decision the applicant sought to challenge on the basis that it constituted a jurisdictional error. The applicant sought an order of mandamus to compel the magistrate to permit the complainant's cross-examination and a declaration that the magistrate's decision was invalid.

The central legal issue before the court was whether the magistrate's refusal to allow the complainant to be called for cross-examination constituted a jurisdictional error warranting judicial review. The applicant argued that the refusal to permit cross-examination on a critical witness deprived the applicant of a fair trial, which is a fundamental right under the common law. The court was required to determine if this constituted a jurisdictional error and whether it warranted the issuance of a writ of mandamus and a declaration of invalidity.

The court found that the magistrate's refusal to allow the complainant to be called for cross-examination was indeed a jurisdictional error. The refusal deprived the applicant of the opportunity to challenge the credibility and reliability of the complainant's evidence, thereby undermining the fairness of the proceedings. The court held that the right to cross-examine witnesses is an integral part of the right to a fair trial and that the magistrate's error was of a jurisdictional nature. Consequently, the court granted the applicant's prayers for mandamus and a declaration, ordering the magistrate to permit the complainant's cross-examination and declaring the magistrate's decision invalid.

Orders