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Ward v Zimmer

Ward v Zimmer

Case [2015] NSWSC 525 7 May 2015

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Supreme Court

New South Wales

Medium Neutral Citation: Ward v Zimmer [2015] NSWSC 525
Hearing dates: 26 March 2015
Decision date: 07 May 2015
Jurisdiction: Common Law
Before: Hall J
Decision:
(1) Order made extending time for the plaintiff to commence the proceedings out of time.
(2) Proceedings dismissed.
(3) Parties to be heard on the question of costs.

Catchwords: CRIMINAL LAW – Appeal from Local Court – Whether appeal is an appeal from an “interlocutory order or judgment” within s 53(3)(b) Crimes (Appeal and Review) Act – Decision of Magistrate to allow prosecution to re-open their case and adduce further evidence after close of defence case and judgment reserved – Appellant had been charged with handling proceeds of crimes – No DNA evidence adduced by Crown at trial – Crown sought to adduce DNA evidence after close of trial – Whether decision of Magistrate to permit the prosecution case to be re-opened was an “interlocutory judgment or order” – Whether jurisdiction to hear proceedings brought under s 53(3)(b) Crimes (Appeal and Review) Act – Held: that decision was not an interlocutory order – Held that there was no right to appeal to Supreme Court from the Magistrate’s decision under s 53(3)(b) – Whether, in any event, the Magistrate’s decision involved a question of law alone or a question of mixed fact and law – Whether the Magistrate applied incorrect legal principles in allowing the application by the prosecution to re-open – Consideration of general principle that the Crown cannot ‘split’ its case – Whether exceptional circumstances existed – Whether the calling of the DNA evidence sought to be adduced was reasonably foreseeable – Held: that even if Supreme Court had jurisdiction no error established - Magistrate had correctly applied relevant principles in granting leave to the prosecutor to re-open its case.
Legislation Cited: Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912
Evidence Act 1995
Supreme Court Rules 1970
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Brough v Director of Public Prosecutions [2014] NSWSC 1396
DPP v Leonard (2001) 53 NSWLR 227
Johnston v Nationwide News Pty Ltd (2005) 62 NSWLR 309
Killick v The Queen (1981) 147 CLR 565
Legal Practitioners Complaints Committee v a Practitioner (1987) 46 SASR 126
Morris v R [2010] NSWCCA 152
R v Adamson [2005] NSWCCA 7
R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
R v Chin (1985) 157 CLR 671
R v Frost (1839) 4 St Tr (NS)
R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272
R v Levy and Tait (1966) 50 Cr App 198
R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256
R v Powch (1988) 14 NSWLR 136
R v Rice [1963] 1 QB 857
R v Steffan [1993] 30 NSWLR 633
Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392
Shaw v The Queen (1952) 85 CLR 365
Smith v R (2000) 1 WLR 1644
The Queen v Chin (1984-1985) 157…

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 Ward v Zimmer

Details

AGLC: Ward v Zimmer [2015] NSWSC 525
Case: [2015] NSWSC 525
Decision Date: 07 May 2015

CaseChat Overview and Summary

The matter of Ward v Zimmer involved an appeal from a decision made by a Magistrate in the Local Court of New South Wales. The appellant was convicted of handling the proceeds of crime. The central issue in the appeal was whether the decision by the Magistrate to allow the prosecution to reopen their case and adduce additional evidence after the close of the defence case constituted an “interlocutory order or judgment” under section 53(3)(b) of the Crimes (Appeal and Review) Act 1995 (NSW). The appellant argued that the decision was erroneous and that the prosecution should not have been permitted to adduce DNA evidence, which was not presented during the trial.

The legal issues the court had to address included the interpretation of the phrase “interlocutory order or judgment” within the context of the Act, the scope of the Supreme Court's jurisdiction to hear appeals under section 53(3)(b), and whether the Magistrate's decision involved a question of law alone or a question of mixed fact and law. Additionally, the court needed to determine whether the Magistrate had applied incorrect legal principles in allowing the prosecution to reopen its case, specifically whether the Crown had violated the principle that it cannot "split" its case. The court also considered whether there were exceptional circumstances justifying the reopening of the case and whether the calling of the DNA evidence was reasonably foreseeable.

The court held that the Magistrate’s decision did not constitute an interlocutory order or judgment, thus the Supreme Court did not have jurisdiction to hear the appeal under section 53(3)(b) of the Act. Even if jurisdiction existed, the court found that no error had been established in the Magistrate's decision. The Magistrate had correctly applied the relevant legal principles in granting the prosecution's application to reopen its case. The court found that the Magistrate had considered all relevant factors, including the principle that the Crown cannot split its case, and determined that exceptional circumstances justified the reopening of the case. The court concluded that the calling of the DNA evidence was reasonably foreseeable and thus the decision was not an error. The appeal was dismissed.

Orders