A FUNERAL director who was accused of burying a coffin filled with bricks to cover up accidentally cremating the wrong person is to face criminal charges. Caring Funerals director Adam James Lee, of Five Dock, then allegedly billed the families of Daisy Jones and Errol Davidson $10,000 for his services.

A magistrate ruled that the incident did not amount to criminal offence but the Court of Appeal has overruled that decision, following an appeal from the Director of Public Prosecutions.

Ms Jones, aged 100, was to be cremated while Mr Davidson, 65, was to be buried but, the court heard, their coffins were mixed up and Mr Davidson was cremated on November 5, 2001.

After realising his mistake, Mr Lee allegedly buried the body of Ms Jones, with some bricks to make the coffin heavier, in Mr Davidson's place on November 7, 2001. One of his employees reported the incident to the Department of Health, which ordered the exhumation of Ms Jones' body.

Mr Lee was charged with two counts of obtaining money by deception for services not properly rendered.

When the case came before Magistrate Pat O'Shane, Mr Lee's lawyers argued he had not committed an offence under criminal law. Ms O'Shane agreed and dismissed the charges.

She said that through some "extreme misfortune, error or negligence the bodies were mixed up", which gave rise to civil proceedings but not to criminal prosecution.

Justice Bruce James upheld the DPP's appeal, saying Ms O'Shane was wrong to determine contentious facts without hearing any evidence. He remitted the case to the local court to be heard by another magistrate.

Yesterday, the Court of Criminal Appeal held Justice James did not have the power to order that the case be heard by another magistrate.

Instead, it ordered that the case be sent back to Ms O'Shane.

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