Hammond v Director of Public Prosecutions (NSW) [2016] NSWSC 701

Hammond v Director of Public Prosecutions (NSW) [2016] NSWSC 701

The Magistrate's conclusion that identification of the plaintiffs as the squad members responsible for the alleged assaults had been conceded, or was not in issue, was erroneous because there was no evidence before the Local Court capable of identifying the plaintiffs and no concession had been made. That erroneous assumption was fundamental to the rulings concerning tendency and coincidence evidence and to the refusal of separate hearings, and therefore fatally infected the order for a joint hearing with error of law.

Jurisdiction
Australia
Judgment Date
01 June 2016
Procedural Posture
Application for Leave to Appeal Against Interlocutory Orders of the Local Court in Summary Criminal Proceedings / Supreme Court Appeal by Leave; Orders Made by Consent With Reasons Delivered
Outcome
Leave to appeal granted; appeal upheld; Local Court order refusing separate hearings set aside.
Legal Topics
['leave to Appeal Against Interlocutory Orders' 'separate Hearings' 'joint Hearing' 'tendency Evidence' 'coincidence Evidence' 'identification Evidence' 'error of Law']
['criminal Law' 'appellate Review' 'evidence' 'criminal Procedure'] ['leave to Appeal Against Interlocutory Orders' 'separate Hearings' 'joint Hearing' 'tendency Evidence' 'coincidence Evidence' 'identification Evidence' 'error of Law']

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Procedural Posture

Application for Leave to Appeal Against Interlocutory Orders of the Local Court in Summary Criminal Proceedings / Supreme Court Appeal by Leave; Orders Made by Consent With Reasons Delivered

Legal Issues

  1. 1 ['Whether leave should be granted under s 53(3)(b) and s 54(1) of the Crimes (Appeal and Review) Act 2001 (NSW) to appeal from an interlocutory Local Court order.' "Whether the Local Court's refusal of separate hearings and order for a joint hearing was infected by error of law because the Magistrate proceeded on an assumed or apparently conceded identification of the plaintiffs despite no evidence capable of identifying them being before the Local Court." "Whether the Local Court orders refusing the plaintiffs' applications for separate hearings pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW) should be set aside."]

Ratio Decidendi

The Magistrate's conclusion that identification of the plaintiffs as the squad members responsible for the alleged assaults had been conceded, or was not in issue, was erroneous because there was no evidence before the Local Court capable of identifying the plaintiffs and no concession had been made. That erroneous assumption was fundamental to the rulings concerning tendency and coincidence evidence and to the refusal of separate hearings, and therefore fatally infected the order for a joint hearing with error of law.

Court Disposition

Leave to appeal granted; appeal upheld; Local Court order refusing separate hearings set aside.

Orders

  • ['Pursuant to s 54(1) of the Crimes (Appeal and Review) Act leave granted to the plaintiffs to appeal.' 'The appeal is upheld.' "The order of the second defendant refusing the plaintiffs' applications for separate hearings pursuant to s 21(2) of the Criminal Procedure Act 1986 (NSW) is set aside."]