Director of Public Prosecutions v Jay Williams [2018] NSWSC 1832

Director of Public Prosecutions v Jay Williams [2018] NSWSC 1832

The Local Court erred by misapplying Tahau and Nassr and by failing to apply s 4(1)(c) of the Crimes Act 1900 (NSW) to the evidence. Mr Liu's apartment was particularised by the evidence as the relevant dwelling house. The apartment building and secure car park were on the land belonging to and lying near that dwelling, and the car park was a building or structure within the same curtilage, occupied by Mr Liu or used ancillary to the occupation of the dwelling. Entry into that car park with intent to steal was therefore capable of being entry into a dwelling house for the charged offence, so the dismissal order had to be set aside.

Jurisdiction
Australia
Judgment Date
28 November 2018
Procedural Posture
Criminal Appeal / Appeal to the Supreme Court of New South Wales From an Order of the Local Court Dismissing a Charge
Outcome
Appeal allowed; Local Court dismissal order set aside; matter remitted to Central Local Court; no costs order made.
Legal Topics
['aggravated Enter Dwelling With Intent' 'definition of Dwelling House' 'curtilage' 'appeal From Local Court' 'costs']
['criminal Law' 'criminal Procedure'] ['aggravated Enter Dwelling With Intent' 'definition of Dwelling House' 'curtilage' 'appeal From Local Court' 'costs']

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Procedural Posture

Criminal Appeal / Appeal to the Supreme Court of New South Wales From an Order of the Local Court Dismissing a Charge

Legal Issues

  1. 1 ['Whether the garage or secure underground car park of an apartment complex was included in the definition of "dwelling house" in s 4 of the Crimes Act 1900 (NSW).' 'Whether the Local Court misapplied R v Tahau [1975] 1 NSWLR 479 and Nassr v R [2015] NSWCCA 284 in concluding that the element of entry to a dwelling house was not proved.' 'Whether the dismissal of the charge should be set aside and the matter remitted to the Local Court.' 'Whether a costs order should be made against the defendant.']

Ratio Decidendi

The Local Court erred by misapplying Tahau and Nassr and by failing to apply s 4(1)(c) of the Crimes Act 1900 (NSW) to the evidence. Mr Liu's apartment was particularised by the evidence as the relevant dwelling house. The apartment building and secure car park were on the land belonging to and lying near that dwelling, and the car park was a building or structure within the same curtilage, occupied by Mr Liu or used ancillary to the occupation of the dwelling. Entry into that car park with intent to steal was therefore capable of being entry into a dwelling house for the charged offence, so the dismissal order had to be set aside.

Court Disposition

Appeal allowed; Local Court dismissal order set aside; matter remitted to Central Local Court; no costs order made.

Orders

  • ['The appeal brought by the Director of Public Prosecutions is allowed.' 'Order that, pursuant to section 59 (2) of the Crimes (Appeal and Review) Act 2001, the order of Magistrate Mulroney made on 26 March 2018 at Central Local Court dismissing proceedings against the defendant for the offence of enter dwelling...