Adams v Kennick Trading

Local Court of NSW|2007-09-21|Before: Magistrate J, Justice Sheller JA, Beazley JA, Justice Young CJ, Sheller J, Young J

Background The applicant was charged with two offences: · S114 (1) (d) Crimes Act 1900 of Enter Land With Intent To Commit An Indictable Offence. · S115 Crimes Act 1900 of having previously been convicted of an Indictable Offence did commit an offence under s114, namely Enter Land With Intent To Commit An Indictable Offence. The offences relate to an attempted Break and Enter into the Reception Office of The Bourke Riverside Motel, 3 Mitchell Street, Bourke on 21 September 2007.

The charges were fixed for summary trial on 7 March 2008. The applicant did not appear on the date fixed for hearing. The applicant was, in his absence, convicted pursuant to the provisions 196 and 199 of the Criminal Procedure Act on the application made by the prosecutor. The court proceeded upon the two Court Attendance Notices to determine the offences were established under s199. A Police Statement of Facts was also provided to the court. A warrant issued under s25 (2) Crimes (Sentencing Procedure) Act 1999 for the applicant's arrest to allow the imposition of a sentence.

The warrant has been executed. The applicant has lodged an Application for Annulment of his conviction under s4 Crimes (Appeal and Review) Act (the 2001 Act) on the ground that under s8 (2) (c) "It is in the interests of justice to annul the order having regard to the following circumstances: I am wrongly accused of these offences. I did not enter the Riverside hotel on the day alleged." . Through his legal representative the applicant does not contend that he was unaware of the hearing date or otherwise hindered from attending court that day or that there was any other excuse for his non-attendance at the hearing.

The applicant contends that s8 (2) (c) enables the court to review the Police Brief of Evidence and to determine whether there is a triable issue as to the applicant's guilt similar to the principles in civil proceedings of setting aside default judgment: see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506-507. The applicant contends that it would be "perverse' if an accused were to have lesser rights of redress in setting aside a judgment entered in his absence than those that are available to a defendant in civil proceedings (where default judgment is entered in absence). There is no question that, if the applicant's contention were correct, the court could receive and consider the Brief of Evidence in the interests of justice. The Brief of Evidence was provisionally tendered, pending the resolution of the question as to whether s8 (2) (c) enabled consideration of such a ground. 2. Issues The following question arises for the court's determination: Do the words in s8 (2) (c) "(c) that, having regard to the circumstances of the case, it is in the interests of justice to do so." include a consideration whether there is a triable issue as to the applicant's guilt? 3. Legislative History to the Annulment Legislation In Miller v Director of Public Prosecutions [2004] NSWCA 90 the Court of Appeal outlined the history of the annulment provisions. The court there considered the provisions in their form under the Justices Act 1902 as at the 1997 amendment (prior to the repeal of that Act) and the embodiment of those provisions in the 2001 Act. However, the court made comments about the similar provision in the 2001 Act. Save for some changes, which are dealt with below, the provisions of the current legislation, have not substantially changed since the 1997 amendment.

It is instructive to quote the reasons of Justice Sheller JA with whom Beazley JA (as well as with the additional comments Justice Young CJ in Eq) and Justice Young CJ in Eq agreed: " 18 The meaning of the expression "otherwise hindered by … illness … or other cause from taking action in relation to the relevant proceedings" is not clear. Section 100K is in a new Part 4A of the Justices Act "Review of decisions by Local Courts" which replaced Part 4A "Annulment of convictions" in 1997: Justices (Amendment) Procedure Act 1997 No 107 (Schedule 1). Before that replacement, s100A(3) enabled a Justice to make an order that a conviction be annulled where the Justice was "satisfied that a defendant was unable to appear at the hearing of the proceedings by virtue of which the conviction was made or the penalty was imposed: (a) because the summons or attendance notice issued in respect of the proceedings did not come to the notice of the defendant; or (b) where the hearing of the information was adjourned, because the defendant was not aware of the adjourned date." 19 In the Second Reading Speech introducing the Justices amendment (Procedure) Bill, the Minister said: "This bill provides for amendments to be made to the Justices Act 1902 to enable defendants in proceedings for summary offences to notify the court of their plea in writing, convictions to be made in ex parte proceedings, and such convictions to be reached on the basis of written evidence. The bill also contains provisions to widen avenues for seeking a review of a decision made by the Local Court and to make it clear that certain documents constitute an information. The Local Court determines the vast majority of criminal matters dealt with by the court system. In 1996, 219,641 defendants were dealt with by Local Courts throughout New South Wales. The Justices Act 1902 provides the machinery for listing and determining offences punishable summarily in the Local Court. The current procedures result in many time-consuming, costly and generally unnecessary appearances before the Local Court. Currently each defendant entering a plea in answer to an information laid against him or her must appear before the court either in person or by counsel. This personal appearance is required despite the fact that a defendant who wishes to plead guilty may agree with the facts of the case and wishes only to put to the court, if anything, matters in mitigation for the offence or on the penalty to be imposed. For those pleading not guilty, the defendant is required to appear in person before the court on at least two occasions. The first of those appearances will be limited to arranging a suitable date for the hearing of the case, while the second appearance is required for the actual determination. The initial appearance of the defendant usually lasts no more than a few minutes. Currently, the Justices Act allows a magistrate to hear and determine a matter in the absence of a defendant. However, the Act does not enable a defendant to be convicted without the informant and other witnesses being called to give oral evidence to the court. This means that witnesses, both civilian and police, are called to court to give evidence in a case where everyone is present except the defendant. The resultant cost to the community in terms of lost working hours and the removal of police officers from policing duties can amount to many hundreds of thousands of dollars each year. Many witnesses and victims of crime called to give evidence, who are often under a great deal of stress, are left wondering why they have to be at court when the defendant does not. This is further compounded when the evidence to be given is of a purely formal nature such as the ownership of a vehicle. The avenues of review currently available to defendants dealt with in the Local Court are considered too restrictive. The present legislation allows a review of a Local Court decision only when an offender is able to satisfy the court that he or she did not receive a summons or notice to attend court or was otherwise unaware of the court hearing. If that person knew that the court case was listed for a certain date but was prevented by accident or other reason from getting to the court, the only avenue of redress would be to appeal against the court's decision to the District Court. This is an unnecessary and costly use of judicial resources. The bill seeks to overcome these problems by reducing the number of unnecessary appearances before the Local Court and streamlining the procedures for determining a matter in the absence of the defendant. The amendments will also widen the grounds on which a review of a Local Court decision may be made." 20 Turning to the specific provisions the Minister, amongst other things, repeated the language of s100K(2) without comment. 21 From the Second Reading Speech, it is apparent that the amendment was directed, in part, to enable convictions to be made in ex parte proceedings for summary offences and on the basis of written evidence but also to widen the grounds for review of a Local Court decision. The particular mischief was that of a person who knew that the court case was listed for a particular date but was prevented "by accident or other reason from getting to the court". [Emphasis added] … 24 Under the earlier provision of s100A(3), if the summons or attendance notice did not come to the notice of the defendant or the defendant was not aware of an adjourned date the magistrate "may order" that the conviction be annulled. By contrast s100K(2) in the new Part 4A, by adopting the language "must grant" an application for an annulment, requires the Local Court to grant the application if the conditions are satisfied. If the narrow construction that the magistrate preferred be given to the words "from taking action in relation to the relevant proceedings" is correct, such relief could be refused in the case of an applicant on the way to court who is badly injured in a motor vehicle accident and fails to ring his or her solicitor from the hospital to ask for an adjournment, because no doubt it could be argued that the accident had not hindered the defendant from taking that action. In my opinion, the phrase must be given a different construction. It is clearly part of a scheme to avoid the obvious injustice to a defendant who is unable, properly, to defend the case against him, on the day he is convicted in his or her absence, because of an accident, illness or misadventure or other cause. 25 The use of the word "hindered" is instructive. It does not only mean "prevented" but also "impeded" or "obstructed". There are no doubt many ways in which this can happen and it is not desirable, even if possible, to catalogue them here. The basis for the application is that the conviction was made in the absence of the defendant. It seems to me quite obvious that if the appellant was prevented from coming to court on 10 December 2001 because of illness, that falls well within the ambit of the expression "hindered by illness from taking action in relation to the proceedings". It is not to my mind, significant or any answer to such a claim that the appellant was well enough to telephone his solicitor or to write a letter. To conclude otherwise, defeats the intention of the legislation. … 31 BEAZLEY JA: I agree with Sheller JA and the additional remarks by Young CJ in Eq. 32 YOUNG CJ in EQ: I have read the draft judgment of Sheller JA and I entirely agree with it. However, I believe that I should add some remarks of my own because as a result of the argument on this appeal it seems to me that there would be merit in the appropriate authorities considering whether Part 4A of the Justices Act 1902, which has now been re-enacted as Part 2 of the Crimes (Local Courts Appeal and Review) Act 2001, needs to be considered as to whether it has the effect the legislature would intend it to have. 33 Up until Act No 28 of 1967, there was no redress available to a person who had been convicted in what was then a Court of Petty Sessions if that person had not become aware of that conviction within the 28 day period in which there could be a rehearing in the District Court. The only avenue of redress was to petition the Governor for a pardon which, in an appropriate case, the Governor would graciously give, though usually with an order for retrial. 34 The initial amendments had their problems (cf the Commentary in (1971) Petty Sessions Review Vol 2 p 643). Further, it was held in McLachlan v Pilgrim (1980) 5 Petty Sessions Review 2182 per Yeldham J that the then sections 100A and 100B were the only ways of annulling a magistrate's conviction. 35 There were a number of minor amendments up until 1997 when the Part was recast by the Justices Amendment (Procedure) Act 1997 No 107. 36 As Sheller JA has pointed out, the Second Reading Speech gives the clear impression that the aim of the amendments was to liberalise the circumstances in which convictions before magistrates where the accused had not appeared could be annulled. 37 Under the 1967 legislation, the Act covered a series of discrete situations including where the accused was not aware of the adjourned hearing date. 38 However, under s 100K(2)(a), the defendant can apply if he or she was not aware of the relevant proceedings until after their completion, but cases where there was some problem with communication of the adjourned date or a date was wrongly written down in somebody's diary ceased to be matters explicitly mentioned in the statute. 39 This must lead to the view that the general paragraphs of subsection (2)(b) and (c) of s 100K(2) or s 8(2) of the 2001 Act should be widely construed. Thus in (b) the word "misadventure" should be read widely. [Emphasis added] 40 Further, it is significant that the word "hindered" is used. Although Martin J said in Hogben v Chandler [1940] VLR 285, 288, that "hindered" "is a somewhat vague term", it nonetheless clearly means something less than prevention, namely making something more or less difficult but not impossible (per Lord Atkinson Tennants (Lancashire) Ltd v Wilson (CS) & Co Ltd [1917] AC 495, 518). Alternatively, as Lord Dunedin put in the same case, the word has "the general sense of in any way affecting to an appreciable extent" the activity in question, a statement which was approved by Mason J in the High Court in Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32, 45. [Emphasis added] 41 The words "taking action in relation to the relevant proceedings" are odd. Counsel have been unable to assist us as to any comparable legislation from which they may have been derived. Again, it would seem that the legislature has chosen wide vague words with the intention that if the defendant is hindered by misadventure or otherwise from doing some act or thing in relation to the proceedings not limited to attending court, then a magistrate would have jurisdiction under the section to annul the conviction or sentence." [Emphasis added] 4. Observations While the Court determined the matter under ss100K (2) (b) (or s8 (2) (b)), Justice Young, with whom Beazley JA agreed as to his additional comments, clearly expressed in the emphasised words that ss8 (2) (b) and (c) dealt with the reasons and circumstances relating to a defendant's failure to appear. That is consistent with the mischief at which the relevant 1997 amendments were directed, namely streamlining how the court would deal with the matter without needing to call witnesses and expanding the excuse for non-attendance: Miller v DPP at [21]. 5. Current Legislation So far as is presently relevant the 2001 Act provides (with the court's observations at the foot of each extract): " Part 2 Local Court review of Local Court decisions 4 Applications to Local Court (1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the same Local Court: (a) by the defendant, or (b) by the prosecutor, but may be made by the defendant only if the defendant was not in appearance before the Local Court when the conviction or sentence was made or imposed. (2) An application under this section must be made: (a) within 2 years after the relevant conviction or sentence is made or imposed, or (b) if an application has been made to the Minister under section 5 within that 2-year period, within 2 years after the application under section 5 has been disposed of under this Part." 6. Observations It is immediately and readily apparent that s4, when read in conjunction with ss8 (1) and (2), draws a distinction between an application by the prosecutor and the defendant. There is no limitation regarding the grounds upon which the prosecutor may make an annulment application. On the other hand, the defendant may only make an application in the circumstance of non-appearance upon the grounds in s8 (2). "5 Applications to Minister (1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the Minister by any person. (1A) An application under this section may be made at any time after the relevant conviction or sentence is made or imposed. (2) If satisfied that a question or doubt exists: (a) as to the defendant's guilt, or (b) as to the defendant's liability for a penalty, the Minister may refer the application to the original Local Court." 7. Observations The Minister's referral power expressly refers to "a question or doubt exists…as to the defendant's guilt, or…liability for a penalty." The words "guilt…liability" do not appear in s8 (2) and particularly (c).

However, there is one issue that could bear upon the interpretation of s8 (2) (c). Prior to the embodiment in the 2001 Act of the current provision, s100G introduced by the 1997 amendment provided as follows: "(1) The Minister may refer any of the following matters to the Local Court, if an application is made by any person to the Minister: (a) a conviction or an order (other than an interlocutory order) made against the person by a Magistrate, (b) A sentence imposed on a person by a Magistrate in the absence of the person. (2) The Minister must not refer a matter unless the Minister is satisfied that a question or doubt has arisen as to the guilt of the person or the person's liability for a penalty. … (4) A matter referred to a Local Court by the Minister is to be treated as an application for the purposes of this part.' The reference in sub-s (4) to "an application for the purposes of this part." was to deem the referral as if it were an annulment application (s100H of the 1997 Amendment), but did not say whether it was to be regarded as an application by the prosecutor or defendant. Further, an application to the Minister could then and still now be made by any person. There is no similar deeming provision in s5 of the 2001 Act. It simply refers to a referral by the Minister but is now silent as to how the Local Court is to deal with it. If it provided similarly to s100H, it arguably could fall under s8 (1) and it would seem that the court could have regard to a triable issue. The referral power by the Minister was introduced by the Justices Amendment Act 1967 because " the problems that confront the Minister of Justice in dealing with the very many applications for annulment of penalty that follow administrative error somewhere along the line…This new procedure will permit many applications for annulment to be taken from the Minister and returned to the court where the conviction or penalty was imposed." Second Reading Speech 16 March 1967 Mr. Maddison, Minister of Justice. Up until the 1997 amendment the only direct annulment application that could be made to the court was where the applicant was "unaware" of the hearing date. Otherwise, the applicant was required to make an application to the Minister and, dependant upon him, to refer the question of guilt to the Local Court: see McLachlan v Pilgrim & Anor (1980) 5 Petty Sessions Review 2182 per Yeldham J at 2191; Miller v DPP per Young CJ at Eq at [34].

The current legislative provisions still draw a distinction between an application to the court and an application to the Minister (in keeping with the legislative history) for determination whether it should be referred to the court on the question of guilt or liability, albeit the current provisions do not say how the Local Court is to do deal with a referral. The question, which arises, is, whether this is a legislative oversight or it was intended that s8 (2) (c) enable the court to consider the referral on the basis of guilt or innocence. The court need not determine that issue because even if s8 (2) (c) does so pick up the reference from the Minister (which the court does not accept given the legislative history of this particular provision) it can only operate upon an application to the Minister which can be made by any person. That only the applicant can lodge an application under s8 (2) (c) is also significant. It would be incongruous to interpret s8 (2) (c) as enabling a direct application to the court on the question of guilt or liability when s5 operates as a filter by the exercise of the Minister's Executive discretion as to whether it should be so referred.

Further, if the Minister properly exercises the Executive discretion and declines to refer the application there would be no avenue of appeal. However, if the applicant's contention were correct then he could lodge a simultaneous or later application to the Local Court and, in the event of a refusal of the application, appeal to the District Court: see ss11-12 of the 2001 Act. Surely, this could not have been the intention of Parliament.

If this court is correct in this interpretation then the anomaly of the Local Court's power to deal with a Minister's reference should be the subject of legislative review. " 7 Procedure for dealing with applications (1) A Local Court may deal with an application for annulment in the presence or absence of the parties and in open court or in private." 8. Observations If the applicant's contention were accepted, s7 (1) would enable the court to deal with the application in private without hearing from the parties. It would be incongruous that an application of such a nature could be so dealt without hearing from the parties. It need not be but the court may do so. There is nothing in the 2001 Act that would stop either the applicant or the prosecutor calling evidence including witnesses, on a triable issue of guilt or liability. That is contrary to the legislative history, particularly the mischief that was sought to be alleviated by the ex-parte procedure now embodied under s199 of the Criminal Procedure Act, which does not require the prosecution to call evidence. Further, the current procedure under s200 enables the court to require further evidence, including the calling of witnesses, if the court is not satisfied that a court attendance notice is not sufficient to establish the offence. " 8 Circumstances in which applications to be granted (1) A Local Court must grant an application for annulment made by the prosecutor if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so. (2) A Local Court must grant an application for annulment made by the defendant if it is satisfied: (a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or (b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or (c) that, having regard to the circumstances of the case, it is in the interests of justice to do so." 9. Observations The court adopts the observations in paragraphs 3-8 of these reasons. Again, it is instructive to note that an application by the prosecutor under sub-s (1) is not limited to the grounds set out in sub-s (2) (although there is a commonality in the words "in the circumstances of the case"). Unlike s5 there is no reference to the words " guilt" or "liability". Given the mischief intended to be corrected by the 1997 amendment one would have expected that the words " guilt" or "liability" would appear in sub-s (2) (c) if that was intended. Further, if that were intended, why the need for s5 at all?

By the use of the word "or" in s8 (2) (a), (b) and (c), those grounds are clearly disjunctive. However, the grounds in s8 (2) (a) and (b) clearly relate to excuse for non-attendance. It would then follow that s8 (2) (c) is intended as a safety net for those excuses for non-attendance not falling within s8 (2) (a) or (b), given the evident intention of the 1997 amendment and the legislative history of the annulment provisions which clearly indicate an intention to deal with excuse for non-attendance. That is, s8 (2) deals with a class of excuse for non-attendance and not questions of guilt or liability per se. Thus the example given by Young CJ at Eq in Miller v DPP at [31] "but cases where there was some problem with communication of the adjourned date or a date was wrongly written down in somebody's diary ceased to be matters explicitly mentioned in the statute." would fall within s8 (2) (c) as it could hardly be said that excuse was one of " hindered by accident, illness, misadventure or other cause from taking action" within the meaning of s8 (2) (b). If the applicant's contention were correct why then the need for s8 (2) (a) and (b) as those excuses would always fall within s8 (2) (c).

This court can also give examples in its own experience of circumstances not falling within s8 (2) (a) or (b) but would fall within s8 (2) (c). In multi-Local Court complexes, hearing courts that have completed their hearings for the day often call for matters from the List Court to assist what is often a very busy List. Matters are then transferred from the List Court to other court. It has occurred that an accused has been present in or outside the List Court but has not heard that their matter has been transferred to that other court. On occasion, cognitive, cultural, linguistic or mental health deficits have impacted upon that accused's awareness that the matter has been transferred. When the accused fails to appear in the transferred court inevitably the matter proceeds by way of ex-parte procedure only to be later met with an annulment application. On occasions, accused with those deficits have lost their bail papers, court attendance notice listing advice or simply have mistaken the listed date and have failed to appear. Clearly, these would be circumstances to which only s8 (2) (c) would provide redress. The imperative words in s8 (2) (c) are not "in the interests of justice", rather "the circumstances of the case" . The Macquarie Dictionary defines "circumstance" as:

noun 1. a condition, with respect to time, place, manner, agent, etc., which accompanies, determines, or modifies a fact or event. 2. ( usually plural ) the existing condition or state of affairs surrounding and affecting an agent: forced by circumstances to do a thing. 3. an unessential accompaniment of any fact or event; a secondary or accessory matter; a minor detail. 4. ( plural ) the condition or state of a person with respect to material welfare: a family in reduced circumstances. 5. an incident or occurrence: his arrival was a fortunate circumstance. 6. detailed or circuitous narration; specification of particulars. 7. ceremonious accompaniment or display: pomp and circumstance. 8. (in functional grammar) the constituent of a clause which notes how, when, where, or why an action happens or happened; in I'll do it in the morning , in the morning is the circumstance. -- verb ( t ) ( circumstanced , circumstancing ) 9. to place in particular circumstances or relations. 10. Obsolete to furnish with details. 11. Obsolete to control or guide by circumstances. -- phrase 12. in (or under ) no circumstances , never; regardless of events. 13. in (or under ) the circumstances , because of the conditions; such being the case. [Middle English, from Latin circumstantia , plural, surrounding conditions] The Macquarie Dictionary also defines "case" as, amongst other meanings: "noun 1. an instance of the occurrence, existence, etc., of something."

When one has regard to the defined meanings above, the contextual meaning of the words "circumstances of the case" in s8 (2) (c) clearly relates to a fact or event, namely the non-appearance of the applicant. 10. With respect to the applicant's contention that it would be "perverse" if the applicant cannot seek an annulment application on the grounds of a triable issue as to guilt, the applicant still has a right to seek leave to appeal to the District Court (s12) but not in relation to the refusal of the annulment application under s11A on the grounds that he contends as he would not be entitled to do so. Further, the applicant has a right under Part 7 of the 2001 Act to seek a review of the conviction or sentence or the Governor's pardoning power. 11. Conclusion For the foregoing reasons the court answers the applicant's contention identified by the court as the question " Do the words in s8 (2) (c) " (c) that, having regard to the circumstances of the case, it is in the interests of justice to do so." include a consideration whether there is a triable issue as to the applicant's guilt?" in the negative. ORDER The application is refused. Magistrate Favretto Bourke Local Court 19 November 2008

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Police V Edwards [2008] NSWLC 28

Adams v Kennick Trading (International) Ltd (1986) 4 CASES CITED: Miller v DPP [2004] NSWCA 90; McLachlan v Pilgrim & Anor (1980) 5 Petty Sessions Review 2182;

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