Emily Salisbury v Local Court of New South Wales and anor. [2016] NSWSC 1082

Emily Salisbury v Local Court of New South Wales and anor. [2016] NSWSC 1082

The Magistrate lacked power to require the plaintiff, as a defendant in summary criminal proceedings, to serve expert evidence in advance of the hearing. Neither the Local Court's implied power to control its proceedings nor the general terms of s. 28 of the Local Court Act 2007 (NSW) authorised an order that abrogated fundamental accusatorial principles requiring the prosecution to present its case before the accused is required to disclose any defence evidence. Ground 2 was therefore made out, leave was granted and the appeal allowed.

Jurisdiction
Australia
Judgment Date
10 August 2016
Procedural Posture
Appeal Under S. 53(3)(b) of the Crimes (appeal and Review) Act 2001 (nsw) Against an Interlocutory Order of the Local Court in Summary Proceedings / Application for Leave to Appeal and Appeal From Interlocutory Order
Outcome
Leave granted; appeal allowed; Local Court order requiring service of expert evidence set aside; matter remitted to the Local Court; second defendant to pay the plaintiff's costs.
Legal Topics
['local Court Powers' 'summary Criminal Proceedings' 'disclosure of Expert Evidence by Accused' 'accusatorial Criminal Justice System' 'interlocutory Appeals']
['practice and Procedure' 'criminal Law'] ['local Court Powers' 'summary Criminal Proceedings' 'disclosure of Expert Evidence by Accused' 'accusatorial Criminal Justice System' 'interlocutory Appeals']

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Procedural Posture

Appeal Under S. 53(3)(b) of the Crimes (appeal and Review) Act 2001 (nsw) Against an Interlocutory Order of the Local Court in Summary Proceedings / Application for Leave to Appeal and Appeal From Interlocutory Order

Legal Issues

  1. 1 ['Whether the Local Court had power to order a defendant in summary criminal proceedings to serve expert evidence in advance of the hearing.' "Whether s. 28 of the Local Court Act 2007 (NSW) or the Local Court's implied power to control its own proceedings authorised such an order." "Whether the asserted error in ordering service of expert evidence affected the Magistrate's adjournment of the hearing."]

Ratio Decidendi

The Magistrate lacked power to require the plaintiff, as a defendant in summary criminal proceedings, to serve expert evidence in advance of the hearing. Neither the Local Court's implied power to control its proceedings nor the general terms of s. 28 of the Local Court Act 2007 (NSW) authorised an order that abrogated fundamental accusatorial principles requiring the prosecution to present its case before the accused is required to disclose any defence evidence. Ground 2 was therefore made out, leave was granted and the appeal allowed.

Court Disposition

Leave granted; appeal allowed; Local Court order requiring service of expert evidence set aside; matter remitted to the Local Court; second defendant to pay the plaintiff's costs.

Orders

  • ['Leave is granted to the plaintiff to appeal, under s. 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), against the interlocutory order of the Local Court that the plaintiff serve expert evidence upon which she proposed to rely by 31 May 2016.' 'The appeal is allowed.' 'The order made on 3 May 2016 by...