West v Commonwealth Director of Public Prosecutions & Anor [1999] NSWCA 398

West v Commonwealth Director of Public Prosecutions & Anor [1999] NSWCA 398

The District Court Judge should have stated a case because the construction of s 126 was an arguable question of law and not frivolous. However, s 126(2)(c)(ii) permitted depositions to be read where, for a sufficient reason, the witnesses could not be produced; that requirement was an alternative to production after search and was not limited to failed search or analogous circumstances. Since there was material that the four witnesses were in Canada and the District Court Judge's construction was correct, a stated case would fail and the Court exercised its discretion to dismiss the summons.

Jurisdiction
Australia
Judgment Date
26 October 1999
Procedural Posture
Summons Seeking Orders Directing a District Court Judge to State a Case After a District Court Appeal From Local Court Criminal Convictions / Court of Appeal Determination of Summons
Outcome
Summons dismissed with costs.
Legal Topics
['district Court Appeal From Local Court Conviction' 'reading Depositions of Witnesses Not Produced' 'stated Case Procedure' 'construction of Justices Act S 126' 'discretionary Refusal of Relief']
['criminal Law' 'criminal Procedure' 'appellate Procedure' 'administrative Law'] ['district Court Appeal From Local Court Conviction' 'reading Depositions of Witnesses Not Produced' 'stated Case Procedure' 'construction of Justices Act S 126' 'discretionary Refusal of Relief']

Case Brief

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Procedural Posture

Summons Seeking Orders Directing a District Court Judge to State a Case After a District Court Appeal From Local Court Criminal Convictions / Court of Appeal Determination of Summons

Legal Issues

  1. 1 ['Whether the District Court Judge was bound to state a case under s 5B of the Criminal Appeal Act 1912 on the construction of s 126 of the Justices Act.' 'Whether s 126(2)(c)(ii) of the Justices Act required a failed search, or something analogous to a search, before depositions could be read.' "Whether the Court of Appeal should order a stated case where it had heard argument and concluded the District Court Judge's construction of s 126 was correct."]

Ratio Decidendi

The District Court Judge should have stated a case because the construction of s 126 was an arguable question of law and not frivolous. However, s 126(2)(c)(ii) permitted depositions to be read where, for a sufficient reason, the witnesses could not be produced; that requirement was an alternative to production after search and was not limited to failed search or analogous circumstances. Since there was material that the four witnesses were in Canada and the District Court Judge's construction was correct, a stated case would fail and the Court exercised its discretion to dismiss the summons.

Court Disposition

Summons dismissed with costs.

Orders

  • ['Summons dismissed with costs.']