Toth v Director of Public Prosecutions (NSW)

The proceedings before the Court of Appeal concerned a judicial review of a decision by the District Court of New South Wales. The applicant, Mr Toth, sought to challenge his conviction for offences under section 91L of the Crimes Act 1900 (NSW). His appeal to the District Court was to be a rehearing based on the evidence presented in the Local Court.

The primary legal issues before the Court of Appeal were whether the District Court judge had misconceived the nature of the appeal, specifically by conducting a hearing de novo rather than a rehearing, and whether the judge had failed to properly consider the Local Court's findings on the credibility of the accused. Additionally, the court considered whether the District Court judge had breached procedural fairness by failing to consider a substantial argument raised by the applicant, who was a litigant in person, and whether excessive interruptions and questioning by the judge amounted to cross-examination.

The Court of Appeal found that the primary judge had indeed misconceived the nature of the appeal by conducting a hearing de novo and making an independent assessment of the applicant's credibility, without giving due weight to the Local Court's findings. The court also determined that the judge's conduct, including excessive interruptions and questioning, had deprived the applicant of procedural fairness. The court held that it was not necessary to consider the allegation of apparent bias before other grounds of review, as success on any ground would lead to the proceedings being quashed and remitted.

The Court of Appeal ordered an extension of time for the commencement of proceedings, quashed the orders of the District Court made on 22 March 2017, and remitted the applicant's notice of appeal to the District Court to be determined by a differently constituted judge according to law. The first respondent was ordered to pay the applicant's costs.