APPEALS FROM LOCAL TO DISTRICT COURT
In Burns [2010] NSWCA 265, the respondent (R) reported to Dubbo police station, pursuant to his bail conditions. As R appeared to be under the influence of alcohol (in breach of his bail conditions), he was arrested and searched. Police located a Phillips head screwdriver, a small red torch, a pocket knife with a foldaway blade and a small lip balm. They subsequently charged R with possessing housebreaking implements without lawful excuse. R was convicted at the Local Court defended hearing.
On appeal, the District Court quashed the conviction. The DPP sought prerogative relief in the Court of Appeal, complaining that the District Court judge, in his concern that R did not have a fair trial, failed to conduct a hearing in accordance with section 18 of the Crimes (Appeal and Review) Act; s18 states an appeal against conviction is to be reheard on the evidence given in the original Local Court proceedings. Instead, the judge acted without jurisdiction by reviewing the decision of the magistrate.
The NSW Court of Appeal held the District Court judge was entitled to reject the magistrate’s credibility finding a witness’ evidence in circumstances where the magistrate misused their advantage as the primary fact finder. The District Court judge correctly exercised his jurisdiction conferred by s18 by basing his decision by way of rehearing on the transcript.
The District Court judge also “quashed” the conviction - a power pertaining to appeals in the higher courts. Instead, the conviction should have been “set aside”.
The DPP argued the District Court judge prejudged the outcome of the appeal. It was apparent, from the learned District Court judge’s reasoning, that he did not accept the magistrate’s conclusion as to the witness’ credit. The District Court was entitled to conclude the respondent was not guilty on the basis that the witness established the respondent’s defence.
The DPP application was dismissed. Costs were ordered against the DPP.
