Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925

Further application of Petronella Boege pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 1925

The application was dismissed because the purported s 133 orders pronounced by Goldring DCJ were not validly made: the transcript did not show that his Honour considered the statutory requirements or formed the opinions required by s 133(1)(a) or s 133(1)(b), so the orders did not bind Shillington QC DCJ and there was no jurisdictional error of the kind alleged. In any event, considering the application as if the orders were valid, the evidence did not disclose any doubt or question as to the applicant's guilt, any mitigating circumstance, or any part of the evidence; the inconsistencies between the prosecution witnesses did not go to the elements of the common assault offence and the...

Jurisdiction
Australia
Judgment Date
15 December 2015
Procedural Posture
Application for an Inquiry Into Conviction Under S 78 of the Crimes (appeal and Review) Act 2001 (nsw) / Second S 78 Application Determined on the Papers in the Supreme Court of New South Wales
Outcome
Application dismissed.
Legal Topics
['common Assault' 'inquiry Into Conviction' 'doubt or Question as to Guilt' 'district Court Appeal From Local Court' 'attendance of Witnesses on Appeal' 'jurisdictional Error']
['criminal Law' 'appeals and Review' 'criminal Procedure'] ['common Assault' 'inquiry Into Conviction' 'doubt or Question as to Guilt' 'district Court Appeal From Local Court' 'attendance of Witnesses on Appeal' 'jurisdictional Error']

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Procedural Posture

Application for an Inquiry Into Conviction Under S 78 of the Crimes (appeal and Review) Act 2001 (nsw) / Second S 78 Application Determined on the Papers in the Supreme Court of New South Wales

Legal Issues

  1. 1 ['Whether new transcript material concerning orders pronounced by Goldring DCJ justified fresh consideration of a second s 78 application.' 'Whether Goldring DCJ made valid orders under s 133 of the Justices Act 1902 (NSW) requiring prosecution witnesses to attend the District Court appeal.' 'Whether Shillington QC DCJ fell into jurisdictional error by proceeding without giving effect to the purported s 133 orders.' "Whether there appeared to be a doubt or question as to the applicant's guilt, any mitigating circumstance, or any part of the evidence in the case."]

Ratio Decidendi

The application was dismissed because the purported s 133 orders pronounced by Goldring DCJ were not validly made: the transcript did not show that his Honour considered the statutory requirements or formed the opinions required by s 133(1)(a) or s 133(1)(b), so the orders did not bind Shillington QC DCJ and there was no jurisdictional error of the kind alleged. In any event, considering the application as if the orders were valid, the evidence did not disclose any doubt or question as to the applicant's guilt, any mitigating circumstance, or any part of the evidence; the inconsistencies between the prosecution witnesses did not go to the elements of the common assault offence and the...

Court Disposition

Application dismissed.

Orders

  • ['Application dismissed']