LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016

LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016

Section 19 Evidence Act 1995 did not remove the Plaintiff's mother's ability to object under s.18 Evidence Act 1995 merely because the Plaintiff was charged with a domestic violence offence. The reference in s.19 to s.279 Criminal Procedure Act 1986 is confined to proceedings to which s.279 applies, namely proceedings involving the compellability of a spouse in the specified domestic violence or child assault contexts. The Magistrate's contrary construction misconceived the function and powers of the Children's Court and constituted jurisdictional error; alternatively, it was error of law on the face of the record. Certiorari was therefore granted.

Jurisdiction
Australia
Judgment Date
02 September 2011
Procedural Posture
Claim for Prerogative Relief Under S.69 Supreme Court Act 1970 Concerning a Ruling in Children's Court Criminal Proceedings / Hearing of Further Amended Summons; Relief in the Nature of Certiorari Sought and Granted
Outcome
Application for prerogative relief granted; Children's Court ruling quashed; proceedings remitted; no order as to costs.
Legal Topics
['compellability of Parent as Prosecution Witness' 'objection Under S.18 Evidence Act 1995' 'construction of S.19 Evidence Act 1995' 'domestic Violence Offence' 'prerogative Relief' 'certiorari' 'jurisdictional Error' 'error of Law on the Face of the Record']
['criminal Law' 'evidence' 'administrative Law' 'statutory Construction'] ['compellability of Parent as Prosecution Witness' 'objection Under S.18 Evidence Act 1995' 'construction of S.19 Evidence Act 1995' 'domestic Violence Offence' 'prerogative Relief' 'certiorari' 'jurisdictional Error' 'error of Law on the Face of the Record']

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Procedural Posture

Claim for Prerogative Relief Under S.69 Supreme Court Act 1970 Concerning a Ruling in Children's Court Criminal Proceedings / Hearing of Further Amended Summons; Relief in the Nature of Certiorari Sought and Granted

Legal Issues

  1. 1 ["Whether s.19 Evidence Act 1995 operated to prevent the Plaintiff's mother from objecting under s.18 Evidence Act 1995 to being required to give evidence for the prosecution against her son." 'Whether the reference in s.19 Evidence Act 1995 to s.279 Criminal Procedure Act 1986 extends to all domestic violence offences or only to proceedings to which s.279 applies concerning spouses and specified child assault offences.' "Whether the Magistrate's ruling involved jurisdictional error or error of law on the face of the record warranting relief in the nature of certiorari under s.69 Supreme Court Act 1970."]

Ratio Decidendi

Section 19 Evidence Act 1995 did not remove the Plaintiff's mother's ability to object under s.18 Evidence Act 1995 merely because the Plaintiff was charged with a domestic violence offence. The reference in s.19 to s.279 Criminal Procedure Act 1986 is confined to proceedings to which s.279 applies, namely proceedings involving the compellability of a spouse in the specified domestic violence or child assault contexts. The Magistrate's contrary construction misconceived the function and powers of the Children's Court and constituted jurisdictional error; alternatively, it was error of law on the face of the record. Certiorari was therefore granted.

Court Disposition

Application for prerogative relief granted; Children's Court ruling quashed; proceedings remitted; no order as to costs.

Orders

  • ["The record of the proceedings of the Children's Court at Nowra against the Plaintiff on 3 February 2011 be removed into this Court." "Pursuant to s.69 Supreme Court Act 1970, an order is made quashing the decision of the Children's Court at Nowra to the effect that, because of the operation of s.19 Evidence Act...