Citation: DPP v Adam James Lee & Anor [2006] NSWSC 270
Court: Supreme Court of New South Wales, Common Law Division
Date: 12 April 2006
Judge(s): Howie J
Background
In late 2001, a Sydney funeral business made a serious error: two deceased persons were interred in the wrong manner and in the wrong plots, contrary to the express wishes of their respective families. To disguise the discrepancy in weight, bricks or pavers were placed in one of the coffins. Despite these errors, the funeral business subsequently invoiced both families for the services purportedly rendered.
The funeral director was charged with two offences under s 178BA of the Crimes Act 1900: obtaining money by deception (in relation to one family who paid the invoice) and attempting to obtain money by deception (in relation to the other family whose invoice was never paid after the matter came to light). The central allegation was that the funeral director knew services had not been properly rendered when payment was sought.
The matter had a protracted procedural history. A magistrate first dismissed the charges in 2002 without hearing any evidence. The Director of Public Prosecutions (the DPP) successfully challenged that dismissal in the Supreme Court, and the matter was remitted. After evidence was finally heard in late 2004 and early 2005, the same magistrate dismissed the charges again, for substantially the same reasons as before. The DPP brought a second appeal to the Supreme Court.
Legal Issues
- Whether the magistrate committed an error of law by taking irrelevant matters into account when dismissing the informations
- Whether the magistrate erred in law by failing to apply the correct legal principles to the evidence before her
- Whether the evidence established a prima facie case on both charges sufficient to warrant the matter proceeding to determination
- Whether the prosecution should be permanently stayed or otherwise terminated, having regard to the lengthy history of the proceedings and the submission that any conviction would likely result in no penalty
Decision
Howie J found that the magistrate had made errors of law in dismissing the informations. The magistrate took into account irrelevant considerations and failed to properly apply the applicable legal principles to the evidence before her. Given that the magistrate had reserved her decision and delivered written reasons, a higher degree of analytical rigour was expected, and the errors were accordingly more apparent.
On the question of a prima facie case, the Court found that evidence from a witness who worked at the funeral business, if accepted, was capable of establishing both offences beyond reasonable doubt. The case was not, as submitted on behalf of the funeral director, one that depended on weak circumstantial evidence about knowledge and intention. The Court expressed the view that the true nature of the prosecution case appeared to have been misunderstood during submissions.
The funeral director's counsel argued that continuing the prosecution would be oppressive given it had been before the courts for more than four years, and that even a successful prosecution would likely result in only a dismissal under s 10 of the Crimes (Sentencing Procedure) Act 1999 (meaning a finding of guilt without a conviction being recorded). Howie J rejected both arguments. The Court was not satisfied that the prosecution was so weak, or that a s 10 outcome was so inevitable, as to justify terminating the proceedings by dismissing the appeal.
The Court declined to make the declarations sought by the DPP, finding no purpose would be served by them. The proceedings were remitted to the Local Court for a fresh hearing before a different magistrate, with the Court noting that much of the evidence was uncontested and could be dealt with by way of depositions.
Orders Made
- The appeal is allowed
- The orders of the magistrate dismissing the informations are quashed
- The proceedings are remitted to the Local Court to be heard afresh by a magistrate other than the magistrate who made the original orders
- The First Defendant is to pay the DPP's costs
- The First Defendant is entitled to a certificate for costs under s 6 of the Suitors' Fund Act
Key Takeaways
- A magistrate who dismisses criminal informations after taking irrelevant matters into account commits an error of law reviewable on appeal under s 56(1)(c) of the Crimes (Local Court Appeal and Review) Act 2001.
- Where a magistrate reserves judgment and delivers written reasons, a higher standard of analytical rigour applies and errors in reasoning are more readily identified.
- The argument that a prosecution should be terminated because any eventual conviction would likely attract no penalty (such as a s 10 dismissal) was rejected as an insufficient basis for bringing an appeal to a close where a prima facie case existed.
- Under s 59(2)(a) of the Crimes (Local Court Appeal and Review) Act 2001, the Supreme Court has power to remit proceedings to be heard by a different magistrate, resolving a jurisdictional question that had arisen in the earlier rounds of this litigation concerning the now-repealed Justices Act 1902.
- Sufficient evidence existed, on the Court's analysis, to support findings of guilt on both the obtaining-by-deception charge and the attempt charge, with key witness evidence capable of establishing the defendant's knowledge and intention if accepted.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA (obtaining money by deception)
- Crimes (Local Court Appeal and Review) Act 2001 (NSW), ss 56(1)(c), 59(1), 59(2)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Justices Act 1902 (NSW) (repealed), s 109
- Suitors' Fund Act (NSW), s 6
Cases:
- DPP v Lee [2003] NSWSC 612
- Lee v DPP [2004] NSWCCA 172
- Amalgamated Television Services v Marsden (2001) 122 A Crim R 166
- Cox v Salt (1994) 12 WAR 12
- R v Love (1989) 17 NSWLR 608