Fehon v Domican [2002] NSWSC 103

Fehon v Domican [2002] NSWSC 103

Because the prosecution did not prove that any form of oath or affirmation had been approved by the presiding member or that the defendant had been made aware of the form he was required to take or make, an essential part of the alleged requirement under s 28 was not proved; the magistrate was correct to dismiss the information.

Jurisdiction
Australia
Judgment Date
01 March 2002
Procedural Posture
Appeal Under S 104 of the Justices Act From Dismissal of an Information Charging an Offence Under S 30 of the National Crime Authority Act, 1984 / Supreme Court Summons Following Local Court Decision
Outcome
Summons dismissed with costs.
Legal Topics
['national Crime Authority Hearing' 'requirement to Take Oath or Make Affirmation' 'refusal or Failure to Comply With Requirement' 'proof of Offence']
['criminal Law' 'criminal Procedure' 'evidence'] ['national Crime Authority Hearing' 'requirement to Take Oath or Make Affirmation' 'refusal or Failure to Comply With Requirement' 'proof of Offence']

Case Brief

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Procedural Posture

Appeal Under S 104 of the Justices Act From Dismissal of an Information Charging an Offence Under S 30 of the National Crime Authority Act, 1984 / Supreme Court Summons Following Local Court Decision

Legal Issues

  1. 1 ['Whether the defendant refused or failed to comply with a requirement under s 28 of the National Crime Authority Act, 1984 to take an oath or make an affirmation.' 'Whether proof of an offence under s 30(2)(a) required proof that the form of oath or affirmation had been approved by the presiding member and made known to the defendant.']

Ratio Decidendi

Because the prosecution did not prove that any form of oath or affirmation had been approved by the presiding member or that the defendant had been made aware of the form he was required to take or make, an essential part of the alleged requirement under s 28 was not proved; the magistrate was correct to dismiss the information.

Court Disposition

Summons dismissed with costs.

Orders

  • ['The summons is dismissed with costs.']