Kang v Bishop [2019] NSWCA 7

Kang v Bishop [2019] NSWCA 7

The prosecutions were validly commenced by Mr Bishop as a public officer acting in official capacity, authorised by s 14 of the Criminal Procedure Act 1986 (NSW), and no statutory requirement for delegation existed. The primary judge's decision was not attended by error, and leave to appeal was refused on the basis that there was insufficient doubt to warrant reconsideration and no issue of principle or general public importance arose.

Parties
Applicant: Edward Kang; First Respondent: Jay Bishop; Second Respondent: Department of Finance, Services and Innovation; Third Respondent: Local Court of New South Wales
Jurisdiction
Australia
Judgment Date
08 February 2019
Procedural Posture
Application for Leave to Appeal / Appeal / Court of Appeal – Application for Leave to Appeal and Appeal Disposition
Outcome
Leave to appeal dismissed; appeal dismissed as incompetent; costs ordered against applicant/appellant.
Legal Topics
Authority to Prosecute, Public Officer Definition, Commencement of Prosecutions, Judicial Review of Criminal Convictions
Criminal Law Judicial Review Procedure Authority to Prosecute Public Officer Definition Commencement of Prosecutions Judicial Review of Criminal Convictions

Case Brief

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Parties

Edward Kang

Applicant

Jay Bishop

First Respondent

Department of Finance, Services and Innovation

Second Respondent

Local Court of New South Wales

Third Respondent

Procedural Posture

Application for Leave to Appeal / Appeal / Court of Appeal – Application for Leave to Appeal and Appeal Disposition

Legal Issues

  1. 1 Whether prosecutions for offences under the Crimes Act 1900 (NSW) were validly commenced by Mr Bishop
  2. 2 Whether 'any person' in s 14 of the Criminal Procedure Act 1986 (NSW) should be read down or subject to limitation
  3. 3 Whether Mr Bishop was a 'public officer' acting in official capacity

Ratio Decidendi

The prosecutions were validly commenced by Mr Bishop as a public officer acting in official capacity, authorised by s 14 of the Criminal Procedure Act 1986 (NSW), and no statutory requirement for delegation existed. The primary judge's decision was not attended by error, and leave to appeal was refused on the basis that there was insufficient doubt to warrant reconsideration and no issue of principle or general public importance arose.

Court Disposition

Leave to appeal dismissed; appeal dismissed as incompetent; costs ordered against applicant/appellant.

Orders

  • Summons seeking leave to appeal dismissed.
  • Appeal dismissed as incompetent.