Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333

Johnston v Director of Public Prosecutions (NSW) [2021] NSWSC 333

The Magistrate erred in finding that the Director's election was validly made before the presentation of facts because the requirements of reg 117(2) were not satisfied; however, there is now no practical utility in granting relief as the Director has since filed an ex officio indictment in the District Court and the Local Court proceedings will be withdrawn.

Parties
Plaintiff: Peter Phillip Johnston; First Defendant: Director of Public Prosecutions (NSW); Second Defendant: The Local Court of New South Wales
Jurisdiction
Australia
Judgment Date
09 April 2021
Procedural Posture
Judicial Review Application / Final Orders on Application for Statutory Order of Review
Outcome
Application dismissed
Legal Topics
Election to Proceed on Indictment, Judicial Review, Time Limits for Election, Ex Officio Indictment, Certiorari and Mandamus, Interpretation of Criminal Procedure Legislation
Criminal Law Criminal Procedure Election to Proceed on Indictment Judicial Review Time Limits for Election Ex Officio Indictment Certiorari and Mandamus Interpretation of Criminal Procedure Legislation

Case Brief

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Parties

Peter Phillip Johnston

Plaintiff

Director of Public Prosecutions (NSW)

First Defendant

The Local Court of New South Wales

Second Defendant

Procedural Posture

Judicial Review Application / Final Orders on Application for Statutory Order of Review

Legal Issues

  1. 1 When is a prosecutorial election to proceed on indictment validly made under s 263 of the Criminal Procedure Act 1986 (NSW)?
  2. 2 Whether a Magistrate erred in holding that an election had been made by the Director prior to the plea of guilty and presentation of facts on sentence
  3. 3 Whether an ex officio indictment may be filed after a plea of guilty in the Local Court and presentation of facts

Ratio Decidendi

The Magistrate erred in finding that the Director's election was validly made before the presentation of facts because the requirements of reg 117(2) were not satisfied; however, there is now no practical utility in granting relief as the Director has since filed an ex officio indictment in the District Court and the Local Court proceedings will be withdrawn.

Court Disposition

Application dismissed

Orders

  • The summons is dismissed.
  • The plaintiff is to pay the defendant's costs.