/

/

Nash v Local Court of New South Wales [2026] NSWSC 197 | Case summary | Zoe

NSWNSWSC

Nash v Local Court of New South Wales

[2026] NSWSC 197

Supreme Court of NSW|2026-03-12|Before: N Adams CJ at CL

View on NSW Caselaw

General information, not legal advice.

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2026-03-12

Before

N Adams CJ at CL

Catchwords

ADMINISTRATIVE LAW — judicial review — procedural fairness
— plaintiff convicted in the Local Court of common assault
— where
the prosecution brief of evidence was not served on the plaintiff prior to

Source

Original judgment source is linked above.

Email me a plain-English brief of this case

Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.

General information, not legal advice.

Or create a free account to save it and ask Zoe follow-up questions.

Catchwords

ADMINISTRATIVE LAW — judicial review — procedural fairness— plaintiff convicted in the Local Court of common assault— wherethe prosecution brief of evidence was not served on the plaintiff prior tohearing — where both parties agreedthat failure to serve the brief ofevidence deprived the plaintiff of a meaningful opportunity to prepare andrespond to prosecutioncase — jurisdictional error established anddecision quashed

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Nash v Local Court of New South Wales [2026] NSWSC 197

Hearing dates: 26 February 2026

Date of orders: 12 March 2026

Decision date: 12 March 2026

Jurisdiction: Common Law

Before: N Adams CJ at CL

Decision: (1) Extend time for bringing these proceedings under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW).
(2) Quash the order of the Magistrate on 20 March 2024 finding the offence of assault proved and placing Mr Nash on a Conditional Release Order without conviction. (3) The second defendant is to pay the plaintiff’s costs of the proceedings to the extent to which the latter may be entitled at law as a self-represented litigant.

The Commissioner’s concession that the plaintiff’s hearing was infected by procedural unfairness should be accepted. I accept the plaintiff’s submission that the failure to disclose the brief of evidence prior to hearing deprived him of a meaningful opportunity to prepare and respond to the prosecution’s case. It also had the capacity to influence how he prepared his cross-examination, what witnesses he called and his own election to give evidence.
The transcript extracted above demonstrates that neither the prosecutor nor the Magistrate was aware of the failure to provide Mr Nash with a copy of the brief of evidence. It is most unfortunate that in the context of a busy Local Court list day the hearing proceeded on an incorrect assumption.
Had Mr Nash been represented in the Local Court an objection could have been made under s 188 of the Criminal Procedure Act and the question of whether the evidence should have been excluded or an adjournment granted could have been considered: Director of Public Prosecutions v West [2000] NSWCA 103; Director of Public Prosecutions (NSW) v Chaouk and Anor [2010] NSWSC 1418; Director of Public Prosecutions (New South Wales) v Maleselo Fungavaka & Anor [2010] NSWSC 917; Director of Public Prosecutions v Lazzam [2016] NSWSC 145; and DPP v Benjamin Nagler [2018] NSWSC 416.
Mr Nash has established jurisdictional error. The grant of relief for jurisdictional error is discretionary: Colquhoun v District Court of New South Wales [2014] NSWCA 460 at [8] (Leeming JA, Beazley P and Barrett JA agreeing); Dyason v Butterworth [2015] NSWCA 52 at [76] (McColl JA, Barrett and Gleeson JJA agreeing). Nothing was put before the Court to suggest that the Court would not exercise its discretion to quash the order made by the Magistrate and I am satisfied such an order should be made.
Some time was spent at the hearing of this matter as to whether an order should be made that the matter be remitted to the Local Court for a re-hearing. It was the Commissioner’s position that it should whereas Mr Nash submitted that, in the exercise of my discretion, I would order the decision to be quashed without remittal to the Local Court.
The decision as to whether to make an order remitting a matter for re-hearing usually arises in the context of a dispute as to whether an order of acquittal should be made instead. Such a dispute usually arises in the context of statutory appeals. The factors relevant to this decision in the context of s 8(1) of the Criminal Appeal Act 1912 (NSW) was considered in WX v R (2020) 102 NSWLR 467; [2020] NSWCCA 142. Beech-Jones J (as his Honour then was) observed the following at [93]:

Similarly, in the context of appeals under the Crimes (Appeal and Review) Act 2001 (NSW), this Court has a statutory power under s 55(1)(a) to set aside a conviction or sentence and further statutory powers under s 55(1)(b) and (2)(c) to set aside a conviction or sentence and remit the matter to the Local Court: see Darlington v Director of Public Prosecutions (NSW) [2023] NSWSC 1139 at [2] (Dhanji J); Employers Mutual Ltd v Heise (No 2) [2022] NSWSC 663 at [9] (Adamson J); Tua v Commissioner of Police (NSW) [2021] NSWSC 1159 at [27] (Lonergan J).
Despite the fact that the parties joined issue on the question of whether I would remit the matter for re-hearing or not, I am not ultimately satisfied that such an order has any practical effect given the nature of the supervisory jurisdiction I am exercising. An order in the nature of certiorari quashes the order of the Local Court on the basis that it was infected with jurisdictional error. The quashing of the order means that a re-hearing could proceed as there has been no determination of the charge. That then leaves it as a matter for the discretion of the prosecutor as to whether to proceed again. It was not suggested that I would or could enter an acquittal in relation to the charge.
The submissions made by Mr Nash as to why I would decline to make an order remitting the matter for a re-hearing are relevant to whether the police would seek a re-hearing of his charge rather than any order that I would make.
Mr Nash submitted that it would be oppressive and prejudicial to seek a retrial for a “structural defect” caused by the Commissioner’s own admitted failures. I accept that it was the fault of the prosecution that Mr Nash was not provided with a copy of the brief, but it was a result of a misunderstanding in a busy Local Court hearing. Mr Nash, as a self-represented defendant, did not understand the difference between the Police Facts and a police brief and thus was unable to convey to the Magistrate that he had not been served with a copy of the police brief.
Mr Nash also pointed to the exchange between Magistrate Moody and Constable Deane at [20] above in which he indicated that the BWV footage had been provided in the brief of evidence. It was suggested that this was some evidence of improper conduct on the part of police. Although I am not satisfied that police acted improperly, it is unfortunate that time was not taken during the hearing to gain confirmation that Mr Nash had not been served with a copy of the brief once it became apparent that he did not have the transcript of the BWV.
Another relevant consideration is the fact that the Magistrate did not enter a conviction against Mr Nash. Given the operation of the “ceiling” principle, the same or lesser sentence would be imposed in the event that Mr Nash was convicted again: R v White [2023] NSWSC 611 at [75] per Beech-Jones CJ at CL.
It will ultimately be a matter of prosecutorial discretion as to whether police decide to prosecute Mr Nash again. Relevant discretionary factors include the fact that police inadvertently misled the Court by giving the impression that the brief had been served, that in the event that Mr Nash was convicted again he would not receive a conviction, that his conditional release order has already expired without further offending and that it is now nearly three years since the date of the alleged assault. These are all matters for the Commissioner.