Will v Brighton (No 2) [2021] NSWCA 8

Will v Brighton (No 2) [2021] NSWCA 8

Because the Applicant agreed not to press the application to set aside the primary judge's order quashing the conviction, and because the Court had identified error in the interpretation and application of the defences but no proper determination of the mental element of the offences, leave to appeal should be granted on that condition, the appeal from orders 2 and 4 should be allowed, the matter should be remitted to the Local Court, and there should be no order as to costs given the mixed outcome.

Jurisdiction
Australia
Judgment Date
12 February 2021
Procedural Posture
Application for Leave to Appeal and Appeal / Consequential Orders on the Papers Following Principal Judgment
Outcome
Leave to appeal granted on condition; appeal allowed from orders 2 and 4 made by Rothman J; matter remitted to the Local Court; no order as to costs of the appeal.
Legal Topics
['leave to Appeal' 'conditional Grant of Leave' 'remittal to Local Court' 'serious Cruelty to Animals' 'intention Under S 530(1) of the Crimes Act 1900 (nsw)' 'no Order as to Costs']
['criminal Law' 'appellate Procedure' 'costs'] ['leave to Appeal' 'conditional Grant of Leave' 'remittal to Local Court' 'serious Cruelty to Animals' 'intention Under S 530(1) of the Crimes Act 1900 (nsw)' 'no Order as to Costs']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Appeal / Consequential Orders on the Papers Following Principal Judgment

Legal Issues

  1. 1 ["Whether leave to appeal should be granted on condition that the Applicant not press the application to set aside the primary judge's order quashing the Respondent's conviction." 'Whether orders 2 and 4 made by Rothman J on 23 April 2020 should be set aside and the matter remitted to the Local Court for determination according to law.' 'Whether the Court of Appeal should require the Applicant to specify the evidentiary basis for proving intention and satisfy the Court of a prima facie case before setting aside order 4.' 'Whether the Court of Appeal should direct that the remitted matter be heard by a magistrate other than McAnulty LCM.' 'What costs order should be made in the appeal.']

Ratio Decidendi

Because the Applicant agreed not to press the application to set aside the primary judge's order quashing the conviction, and because the Court had identified error in the interpretation and application of the defences but no proper determination of the mental element of the offences, leave to appeal should be granted on that condition, the appeal from orders 2 and 4 should be allowed, the matter should be remitted to the Local Court, and there should be no order as to costs given the mixed outcome.

Court Disposition

Leave to appeal granted on condition; appeal allowed from orders 2 and 4 made by Rothman J; matter remitted to the Local Court; no order as to costs of the appeal.

Orders

  • ['Upon the Applicant agreeing not to press that part of her application for leave to appeal seeking to set aside order 3 of the orders of Rothman J on 23 April 2020, grant leave to appeal.' 'Allow the appeal from orders 2 and 4 made by Rothman J on 23 April 2020.' 'Remit the matter to the Local Court to be...