SUTHERS v. DIRECTOR OF PUBLIC PROSECUTION & ANOR [2003] NSWSC 570

SUTHERS v. DIRECTOR OF PUBLIC PROSECUTION & ANOR [2003] NSWSC 570

The Supreme Court does not have power in this context to enter an acquittal or dismiss the information summarily, as there remains a sufficiency of evidence for trial, and factual disputes are for the trial fact-finder. Remittal must be in accordance with s.109(d) to the magistrate who made the order, with a further order that the magistrate is unable to continue, thereby invoking s.114 for a new magistrate's appointment.

Parties
Plaintiff: Alan Douglas Suthers; Defendant: Director of Public Prosecutions & Anor
Jurisdiction
Australia
Judgment Date
26 June 2003
Procedural Posture
Appeal / Post Appeal Orders
Outcome
Remitted to original magistrate with order original magistrate may not continue; costs to plaintiff
Legal Topics
Summary Proceedings, Appeal, Setting Aside Conviction, Remitter, Acquittal, Justices Act 1902, Criminal Appeal Act 1912, Magistrate Unable to Continue, Perceived Pre Judgment
Criminal Law Procedure Summary Proceedings Appeal Setting Aside Conviction Remitter Acquittal Justices Act 1902 +3 more

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Parties

Alan Douglas Suthers

Plaintiff

Director of Public Prosecutions & Anor

Defendant

Procedural Posture

Appeal / Post Appeal Orders

Legal Issues

  1. 1 Whether the matter should be remitted to the original magistrate or a new magistrate
  2. 2 Whether an acquittal or dismissal of the information should be entered rather than remitter
  3. 3 Construction and operation of ss.109, 114 Justices Act 1902 in context of quashed conviction and summary proceedings

Ratio Decidendi

The Supreme Court does not have power in this context to enter an acquittal or dismiss the information summarily, as there remains a sufficiency of evidence for trial, and factual disputes are for the trial fact-finder. Remittal must be in accordance with s.109(d) to the magistrate who made the order, with a further order that the magistrate is unable to continue, thereby invoking s.114 for a new magistrate's appointment.

Court Disposition

Remitted to original magistrate with order original magistrate may not continue; costs to plaintiff

Orders

  • Matter remitted to the magistrate who made the original order
  • Order made that the magistrate is unable to continue to hear the matter