Lee v DPP (NSW) & Anor [2004] NSWCA 172

Lee v DPP (NSW) & Anor [2004] NSWCA 172

Section 109(d) of the Justices Act 1902 requires that a matter remitted following an appeal must be remitted to the magistrate who made the original order, unless unavailable, and does not permit remittal to a different magistrate in the circumstances; the earlier order by the Supreme Court judge remitting the matter to a different magistrate was made without power. The original appeal otherwise failed as the principal claim of no offence disclosed was not upheld.

Jurisdiction
Australia
Judgment Date
09 June 2004
Procedural Posture
Appeal / Application for Leave to Appeal and Appeal From Order of Supreme Court Quashing Magistrate's Order
Outcome
Leave to appeal granted; appeal allowed as to remittal order but otherwise dismissed
Legal Topics
['remittal Orders' 'interpretation of Justices Act 1902 S 109(d)' 'deception Offences' 'civil Vs Criminal Liability']
['criminal Law' 'appeal Procedure'] ['remittal Orders' 'interpretation of Justices Act 1902 S 109(d)' 'deception Offences' 'civil Vs Criminal Liability']

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Procedural Posture

Appeal / Application for Leave to Appeal and Appeal From Order of Supreme Court Quashing Magistrate's Order

Legal Issues

  1. 1 ['Whether the facts alleged against the appellant disclosed a criminal offence under s 178BA(1) of the Crimes Act' 'Whether, upon upholding the appeal as to law, remittal could be to a different magistrate than the one who made the original order under Justices Act 1902 s 109(d)']

Ratio Decidendi

Section 109(d) of the Justices Act 1902 requires that a matter remitted following an appeal must be remitted to the magistrate who made the original order, unless unavailable, and does not permit remittal to a different magistrate in the circumstances; the earlier order by the Supreme Court judge remitting the matter to a different magistrate was made without power. The original appeal otherwise failed as the principal claim of no offence disclosed was not upheld.

Court Disposition

Leave to appeal granted; appeal allowed as to remittal order but otherwise dismissed

Orders

  • ['Leave to appeal granted' 'Appeal allowed as to the terms of the remittal order but otherwise dismissed' 'The remittal order set aside and the proceedings remitted to the magistrate who made the order appealed from to be heard and determined' 'No order as to costs']