COWDERY v O'Meara [2002] NSWSC 927

COWDERY v O'Meara [2002] NSWSC 927

The information was not valid because it failed to disclose the essential ingredient of intent to pervert the course of justice required for an offence under s319 of the Crimes Act 1900 (NSW). Even if it had been valid, there was no evidence capable of supporting that intent, the plaintiff's taking over and terminating of the private prosecutions had not been shown to be other than a proper exercise of statutory power, and the prosecution would inevitably fail and constituted an abuse of process. The appropriate remedy was to stay the information.

Jurisdiction
Australia
Judgment Date
04 October 2002
Procedural Posture
Summons Seeking Declaration, Permanent Stay or Quashing of an Information Alleging an Offence Under S319 of the Crimes Act 1900 (nsw) / Supreme Court Application Concerning Private Prosecution Information Before Local Court Committal Proceedings
Outcome
Information stayed; first defendant ordered to pay the plaintiff's costs.
Legal Topics
['abuse of Process' 'private Prosecution' 'director of Public Prosecutions Statutory Discretion' 'perverting the Course of Justice' 'validity of Information' 'permanent Stay']
['criminal Law' 'criminal Procedure' 'administrative Law'] ['abuse of Process' 'private Prosecution' 'director of Public Prosecutions Statutory Discretion' 'perverting the Course of Justice' 'validity of Information' 'permanent Stay']

Case Brief

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Procedural Posture

Summons Seeking Declaration, Permanent Stay or Quashing of an Information Alleging an Offence Under S319 of the Crimes Act 1900 (nsw) / Supreme Court Application Concerning Private Prosecution Information Before Local Court Committal Proceedings

Legal Issues

  1. 1 ['Whether the information alleging an offence under s319 of the Crimes Act 1900 (NSW) was invalid because it failed to allege intention to pervert the course of justice.' 'Whether the private prosecution constituted an abuse of process because it would inevitably fail or was brought for an improper purpose.' "Whether the plaintiff's taking over and terminating of the first defendant's private prosecutions under the Director of Public Prosecutions Act 1986 (NSW) could support an allegation of intent to pervert the course of justice." 'Whether the Supreme Court should stay the information.']

Ratio Decidendi

The information was not valid because it failed to disclose the essential ingredient of intent to pervert the course of justice required for an offence under s319 of the Crimes Act 1900 (NSW). Even if it had been valid, there was no evidence capable of supporting that intent, the plaintiff's taking over and terminating of the private prosecutions had not been shown to be other than a proper exercise of statutory power, and the prosecution would inevitably fail and constituted an abuse of process. The appropriate remedy was to stay the information.

Court Disposition

Information stayed; first defendant ordered to pay the plaintiff's costs.

Orders

  • ['That the information laid by the first defendant be stayed.' "That the first defendant pay the plaintiff's costs of these proceedings."]