Application by Adriana Kostov under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 489

Supreme Court of NSW|2022-04-28|Before: Wright J

Counsel: Ian Fraser (Respondent) Solicitors: Crown Solicitor's Office (Respondent) File Number(s): 2020/357909

Introduction

Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Review Act), the applicant, Ms Adriana Kostov, seeks an inquiry into the convictions recorded against her by Milledge LCM at the Downing Centre Local Court on 13 August 2019 in respect of: 1. one charge of using a false document to obtain a financial advantage contrary to s 254(b)(ii) of the Crimes Act 1900 (NSW); and 2. one charge of attempting to use a false document to obtain a financial advantage contrary to the same provision.
In her application, filed on 17 December 2020, the applicant submitted that she was convicted in circumstances where: 1. she was not afforded legal representation for the hearing on 13 August 2019 while: 1. she was reliant on a Disability Support Pension; and 2. the Attorney General of New South Wales was alleging she was a person under legal incapacity, within the meaning of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR); and 1. neither she nor the Legal Aid Commission of NSW (Legal Aid) had an opportunity to hear and test the five prosecution witnesses on 13 August 2019; and 2. Legal Aid has not been given the opportunity to: 1. prepare her case; 2. obtain transcripts of the proceedings on 13 August 2019; 3. run a possible application under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW); or 4. negotiate with police.

Statutory provisions and principles

Sections 78 and 79 of the Review Act relevantly provide: "78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person … … 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. …"
Thus, s 78(1) of the Review Act enables, among other things, a convicted person such as the applicant to apply to this Court for an "inquiry into a conviction or sentence", and s 79(1) confers on the Court a discretion: 1. under par (a), to direct that an inquiry be conducted by a judicial officer into the conviction or sentence; or 2. under par (b), to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal.
By the terms of s 79(2), the action in s 79(1)(a) may only be taken by the Court if: "it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case."
As the terms of the present application make clear, only an inquiry - and not a reference of the whole case as an appeal to the Court of Criminal Appeal - is sought. Furthermore, the inquiry which the applicant seeks pertains only to her convictions, not any sentences.
Two observations can be made about applications under s 78. First, an application under s 78 does not initiate judicial proceedings but instead involves an exercise of administrative power: s 79(4); Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 (Varley) at 48-50 (Hope JA, Samuels JA agreeing); Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318; [2003] HCA 28 at [124] (Heydon J, Gleeson CJ, Gummow, Kirby, Hayne, Callinan JJ agreeing).
Secondly, in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (Holland), Johnson J noted, at [9], that s 78 does not serve as another avenue of appeal available to a convicted person after the appeal process has been exhausted, nor is it an opportunity to run their trial again on the papers. Rather, such applications may be appropriate where "the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence": Holland at [10].
The test to be applied in an application for an inquiry under s 78 is, as specified in s 79(2), whether it appears that there is a doubt or question as to: 1. the applicant's guilt; 2. any mitigating circumstances in the case; or 3. any part of the evidence in the case.
It has been established that such a doubt or question may arise where the material submitted creates an "unease or a sense of disquiet in allowing the conviction or sentence to stand": Holland at [6], citing Varley at 48 and Douglas Harry Rendell (1987) 32 A Crim R 243 at 245 (Hunt J). It was also said in Holland, at [8], that this requires "available material which, as a matter of practical reality, gives rise to [the] … sense of unease or disquiet".
It will be appropriate to deal with s 79(3) of the Review Act in more detail below.

Material considered

Given the administrative nature of the application, it has been determined on the papers. I have considered the submissions and documents provided by the applicant and the submissions and other material provided, pursuant to s 79(4), by the Attorney General.
In order to determine whether the application should be considered and whether an inquiry should be directed, it is necessary to review the circumstances of the convictions and subsequent steps taken in relation to the convictions in some detail.
There are many proceedings which have been brought by, and some against, Ms Kostov. It is not necessary to refer to many of these proceedings for the purposes of the present matter. I shall focus on proceedings directly related to the convictions which Ms Kostov seeks to have reviewed.

Events leading up to convictions

On 6 March 2019 the applicant was charged with - but, it appears, not arrested for - the following offences contrary to s 254(b)(ii) of the Crimes Act: 1. use of a false document, namely an email purporting to be from Registrar Riznyczok of the Supreme Court, to obtain a financial advantage of $311 on 1 February 2019 ("first offence"); and 2. attempted use of a false document, namely an email purporting to be from Registrar Riznyczok, to obtain a financial advantage of $241 on 19 February 2019 ("second offence").
The matter was first mentioned before Deputy Registrar Hoffmann at the Downing Centre Local Court on 24 April 2019. The applicant did not attend, but her solicitor, a Mr or Ms Lau, appeared and entered pleas of not guilty to both charges on her behalf. The matter then proceeded summarily, and the Registrar made orders: 1. directing the prosecution to serve its brief on the applicant by 22 May 2019; 2. adjourning the matter for further mention for reply to the brief on 5 June 2019; and 3. excusing the applicant from attending the Court on the next occasion.
Trad LCM presided over the second mention, on 5 June 2019. The applicant, who again did not appear, was represented by a Mr or Ms Kalantar that time. Her Honour made orders listing the matter for hearing on 9 August 2019 with an estimate of three hours.
On 5 August 2019, as a result of an application by the applicant to vacate the hearing on 9 August 2019 for medical reasons, Mottley DCM effectively vacated the hearing and listed the matter for hearing on 13 August 2019.

Hearing on 13 August 2019

On 13 August 2019 the matter came before Milledge LCM for hearing. The applicant attended the hearing in person and was unrepresented.
At the outset of the hearing, the police prosecutor sought leave to amend some incorrect details on the court attendance notices (CANs) in respect of the offences. That application was unopposed, and Milledge LCM allowed it. Consequently, the magistrate made the following amendments: 1. the first name of Registrar Riznyczok was crossed out on both CANs; and 2. the amount specified as the financial advantage on the CAN in respect of the second offence was reduced from $241 to $231.
The next issue raised by the prosecutor was whether it was necessary to play the closed‑circuit television (CCTV) footage obtained by police for the purposes of identifying the applicant as being present at the time and place of each of the offences. As it transpired, it was unnecessary to play the footage, since the applicant did not contest that she was present.
The magistrate then gave the applicant a brief explanation about the way the hearing would be conducted, including the way witnesses would give evidence and the requirement upon the prosecution to establish a prima facie case.
The applicant then sought to hand up a letter to Milledge LCM outlining her case, but her Honour explained that it was inappropriate for the Court to hear the accused's case prior to the prosecution's. Accordingly, her Honour did not read the applicant's letter at that stage.
The applicant then raised a concern about an unknown woman present in the courtroom, and the following exchange occurred: "ACCUSED: … sorry the other thing is, sorry to ask, but there is a lady in the back, can I just ask who she - HER HONOUR: No, we can't ask who she is because this is an open court. ACCUSED: Okay. HER HONOUR: And I can't exclude people unless there's a good reason to exclude them. ACCUSED: Well, I'd like to know who she is because there might be a reason to exclude her. Might she find out who she is or - HER HONOUR: No, I'm not asking who she is, she's entitled to walk into a courtroom unchallenged and sit down - ACCUSED: Okay. HER HONOUR: We get lots of students through here. ACCUSED: Okay. … ACCUSED: Can I ask if she's media? HER HONOUR: You can ask the lady if you want to talk to her, but I'm not asking her, that's not an enquiry I need to make. ACCUSED: Okay, the only reason why I ask that is part of the problem that's occurred here leading to this is something related to a media issue that I had to try and defend, and I don't want this happening again, so - HER HONOUR: All right Ms Kostov, all right - ACCUSED: Yeah, okay, just so - I'm so nervous. HER HONOUR: No, I hear you, no, it's on the record, you've raised it on the record so it's there but I'm not going to be doing what you've asked me. ACCUSED: Okay, thank you your Honour, I just wasn't - HER HONOUR: No, that's all right. Okay let's get started then thank you."
At this point the prosecutor sought leave to make another amendment to one of the CANs, namely that the financial advantage in respect of the second offence be changed back to $241 as it had originally stated.
After the further amendment was dealt with, the applicant raised for a second time her concern about the unknown woman at the back of the courtroom: "ACCUSED: I'm really sorry but I don't feel comfortable saying anything in a court when there is somebody in here that I don't know who that is so - HER HONOUR: Very good. All right, the matter is going ahead. I've given you my reasons - ACCUSED: Okay. HER HONOUR: Okay, please take a seat, we're starting the hearing now. ACCUSED: Okay, okay."
The prosecution then called its first witness to give evidence.
After a few questions by the prosecution to the witness about introductory matters such as the witness's name and occupation, the applicant interrupted the proceedings by approaching the unknown woman at the back of the courtroom: "HER HONOUR: No, come back please, we've started the hearing. ACCUSED: I need to ask ..(not transcribable).. HER HONOUR: Ms Kostov you can do that at morning tea, come back and sit here please. I'm in the middle of listening to evidence. ACCUSED: Okay, I just need ..(not transcribable).. am I - HER HONOUR: Come forward please, come forward so I can pick you up on the microphone. I can't hear you up there. Ms Kostov. ACCUSED: Okay, sorry, I'm just asking this lady if she minds telling me who she is. HER HONOUR: She doesn't have to answer you. She clearly doesn't want to answer you. So tell me the reason why you're so interested in who's in court? ACCUSED: Because I've had so - when you listen to this case you'll understand I've had so many people attempt to screw me over in the last year and a half. I'm a lady with law commerce degrees. HER HONOUR: Yes. ACCUSED: I had the Attorney General - I had Justice Fagan declare me vexatious without a hearing, I then had the Attorney General attacking me for the last 12 months, he's filing motions in the New South Wales Supreme Court - HER HONOUR: But why, what - ACCUSED: I am here today because in 2018 I was at work minding my own business, I walked across the road here to hear a sentence being delivered, I had media outlets asking me about all different things, I said I wanted to be left alone. I returned to my work, okay, I used to work for a law firm. There was huge media two days later, I asked them to take the article down, they did not do that, they instead sent police to my place of work, and your Honour sorry, I just - HER HONOUR: All right. ACCUSED: I just don't want - I've got too much - my privacy has been invaded to a point that I had to leave my job a couple of weeks ago. Okay I have the Attorney General filing motions to have me declared a person of - I don't think you understand how serious this is and I'm not - HER HONOUR: I don't understand. ACCUSED: Your Honour so what's going to happen today is I'm sorry but I'm not going to say a word in this court while there is someone here that - the students are more than welcome to stay, that's okay, I'm more than happy for students to be here - your Honour if it's somebody that wants to learn about the law, if students that's okay - HER HONOUR: Ms Kostov - ACCUSED: But someone who - I have had so many problems your Honour in the last year and a half, and I can't deal with this anymore. My family can't deal with it any more, my current boyfriend, he can't deal with this anymore. Okay, so I need to know who that is because things are really serious for me at the moment - HER HONOUR: Stop pointing please. ACCUSED: Sorry, sorry your Honour, but I'm just - I need to protect myself now because nobody else is and I just, I won't - HER HONOUR: Ms Kostov, just so you understand - ACCUSED: Your Honour I do understand, okay? HER HONOUR: No, no, you don't understand. ACCUSED: I do understand your Honour. HER HONOUR: No, you don't understand. ACCUSED: Okay. HER HONOUR: Unless you can give me a good reason as to why this should be a closed court. ACCUSED: Yes. HER HONOUR: And you haven't - ACCUSED: Well, I have because there's going to be some serious issues that I need to raise with you, even about medical issues, about what has happened in the Supreme Court that has led to this situation. Your Honour that's why I wanted you to read this [that is, the document outlining the applicant's case, which her Honour declined to read earlier], it's actually quite serious okay - HER HONOUR: I can't read it - ACCUSED: Okay. HER HONOUR: - when I'm about to hear the evidence, I can't read anything that might either prejudice me against you or favour you, I can't read it, I have to sit up here and I have to be impartial, dispassionate, I have to hear the prosecution evidence, I have to hear yours. Now, Ms Kostov it's very clear from what you're telling me that there have been things in your life that have caused you extreme pain and hardship, and God help you for having to deal with all of that. Nothing you have told me has given me cause to close the Court - ACCUSED: Well - HER HONOUR: I'm speaking now please Ms Kostov, and I'm not going to do that. Now, you've just told me that you won't speak in this Court if there are people in the courtroom that you don't know who they are, you have no objection to the students being here. I can't embrace your position, I don't support it, there is nothing in law that tells me I should. I'm not going to be calling on people who are sitting in court asking them the reason that they're here and why they're here. The sergeant knows whether they're going to be witnesses, I'm only concerned whether someone comes in that's going to be a witness. Now, Ms Kostov this matter is being heard, I've started to hear it, it will be heard whether you're sitting there or you're not sitting there, whether you ask a question, whether you don't ask a question, whether you say something or whether you don't say something. That decision will be yours. If you want me I've got no - in terms of this matter I'm a disinterred party, I'm not taking sides. If you don't trust me to hear impartially what I have to hear from both sides I can't help you with that. ACCUSED: No, your Honour, please I'm not critically judging your character, I think you're amazing, I think you're really great, but I just don't trust - I don't trust anybody - HER HONOUR: Right, well you have to trust my judgment on this one and also my position. But I'm not doing that - ACCUSED: Your Honour look, you know in life sometimes you know you get played so many times, you get hurt so many times, you've got to protect yourself. I've been hurt so many times so what I'm going to do is I'm going to leave the Court now, if you're not going to remove this lady or at least ask who she is I'm going to leave the Court. I'm willing to do that, to leave the Court - HER HONOUR: Just stop. I am going to continue hearing this matter. ACCUSED: Okay. HER HONOUR: And I will determine this matter whether you are here - ACCUSED: Okay. HER HONOUR: - or whether you are not. Now it's up to you - ACCUSED: Your Honour in the interests - HER HONOUR: - I'm going to be sitting here all day and I will take evidence from five witnesses. ACCUSED: Okay. HER HONOUR: And if you don't want to cross-examine those witnesses, if you don't want to be heard, well I can't do anything to encourage you, that is your decision. ACCUSED: Your Honour it's really important that I am heard fairly - HER HONOUR: Very good, well take a seat - ACCUSED: No because your Honour this is serious. Your Honour I have a law degree. No, it is serious that I'm heard properly, but there is no need for a snoop, I've had so many snoops try and destroy my life, to be in here and to deny me a fair hearing as a result. HER HONOUR: You can't call - ACCUSED: There is no need for this lady to be here. HER HONOUR: You can't call that lady a snoop. ACCUSED: Well then who is she? HER HONOUR: She doesn't have to say who she is. ACCUSED: Okay, well then - HER HONOUR: So Ms Kostov why don't you sit down and why don't we hear what [the witness] has to say - ACCUSED: No, what I'll do - …"
The discussion between the applicant and Milledge LCM continued in that way for a while, but eventually the applicant left the courtroom, which the magistrate noted on the record: "HER HONOUR: … it's very clear from what I just saw in court that whoever that lady is in court does not want to engage with you. ACCUSED: No, she doesn't, and that's why she shouldn't be here. … ACCUSED: Okay, well look I don't want to engage with her either so I will leave. HER HONOUR: All right Ms Kostov, you make up your own mind. Sergeant, continue with your evidence please. I'll be hearing from the witnesses vive voce [sic] evidence, all of the witnesses sergeant. Just for the record Ms Kostov has now left the court. The matter will now proceed pursuant to s 196 [of the Criminal Procedure Act 1986 (NSW)] …"
The hearing then proceeded without the applicant, and the prosecutor continued his examination of the first witness. He subsequently examined the second, third and fourth witnesses in the absence of the applicant.
The applicant returned to the courtroom in the middle of the examination in chief of the fifth witness, which the magistrate accordingly noted: "… Just for the record Ms Kostov has walked back into the courtroom and is sitting in the back of the courtroom."
At the conclusion of the evidence in chief of the fifth witness, the magistrate asked the applicant if she wished to cross-examine the witness. The applicant declined to do so.
Having heard the prosecution's evidence, Milledge LCM determined that there was a case to answer.
It is worth mentioning that, shortly before adjourning for morning tea, a further amendment was made to the CAN in relation the second offence at the request of the prosecution, namely the date of the purported offence was amended to 18 February 2021 instead of 19 February 2021.
Following the morning tea adjournment, the applicant was given an opportunity to give evidence and make submissions. The applicant did not give evidence but did make oral submissions. In addition, Milledge LCM allowed the applicant to hand up the letter outlining her case (including annexures to the letter) and her Honour read those documents.
Milledge LCM then determined the matter, delivered reasons for her decision and convicted the applicant of both offences. Her Honour also noted: "… It is very clear that at the beginning of this case Ms Kostov was unhappy that the matter was proceedings, that she would have like there to be some delay. But the court papers show that on 24 April this year the matter was set down for 5 June with a brief requiring service by 22 May. It was back before the Court on 5 June. On both of those occasions it appears that Ms Kostov was represented. On 5 June it was set down for three hours of court time on 13 August. So whilst Ms Kostov has said at the beginning of this matter that her application to have the matter adjourned was not granted, she was then only given a short period of time to prepare. Well, the fact of the matter is that there has been enough time allowed, since 5 June this year, until today, 13 August, for the preparation. So I do not find that she was disadvantaged by virtue of the fact that this matter was forced on."
Her Honour then explained to the applicant that the matter would be adjourned until 1 October 2019 to allow time for an assessment report to be prepared by Community Corrections, to assist the Court to determine the appropriate sentence to impose. Milledge LCM made it clear that the applicant was required to report to Community Corrections by 16 August 2019 and attend court on 1 October 2019 for sentencing: "HER HONOUR: … I'm going to get [Community Corrections] to prepare a full report on you so that is going to assist me on sentence. So that will go over for six weeks which will give you ample opportunity to go and get some legal advice and come back, but you will need to come back for sentence. Do you understand that? ACCUSED: I do. … HER HONOUR: Now if you don't turn up to court next time, we're not going to be able to write to you, there's only an email address, a warrant will have to be issued for your arrest. ACCUSED: Yeah, your Honour, that's not going to happen, come on. HER HONOUR: That's good, okay. … HER HONOUR: … So I'm going to put your matter over for six weeks and it's now… so I'll have you come back on Tuesday 1 October, yes? ACCUSED: Okay, yeah, that's fine. … HER HONOUR: You come back on 1 October for sentence and you'll be back before me on that day. Do you understand what you've got to do? You've got to report to Community Corrections in the city … … HER HONOUR: … You have to report to them by 4 o'clock this coming Friday. … HER HONOUR: … and you come back here on 1 October and I'll deal with sentence on that day. All right? ACCUSED: Okay, yeah."
Orders convicting the applicant were entered on 13 August 2019.

Legal Aid application

Sometime after the hearing on 13 August 2019 the applicant applied to Legal Aid for assistance. It appears that on 16 September 2019 an interview was scheduled with Legal Aid for 24 September 2019, which the applicant attended. By a letter from Legal Aid dated 24 September 2019 the applicant was informed that her application for legal assistance was granted and she was to be represented by a solicitor, Ms Shiranica Tambyrajah, at the hearing on 1 October 2019.

Hearing on 1 October 2019

Neither the applicant nor Ms Tambyrajah attended the hearing before Milledge LCM on 1 October 2019. A solicitor, Mr Maspero, appeared as agent for Ms Tambyrajah and provided the following explanation: "MASPERO: … Ms Tambyrajah only received this matter from Legal Aid yesterday at about 5pm and she's advised me that she's seeking an adjournment so she can obtain the transcripts et cetera. She's also getting married today …"
Milledge LCM stressed to Mr Maspero the importance of the applicant's attendance at court and explained that the matter would be adjourned to 2 October 2019 to give the applicant an opportunity to present herself before the Court for sentencing. Her Honour also explained that the Court would not consider an application for a further adjournment unless the applicant was present in court, and that if the applicant failed to attend court on the next occasion a warrant pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) would be issued for her arrest.
In addition, it appears the applicant was notified by email from the Chief Magistrate's Office that a warrant would be issued for her arrest if she did not attend court for sentencing.

Hearing on 2 October 2019

The applicant did not attend court on 2 October 2019. She was represented by Mr Tom Warr of counsel, who it seems had agreed to appear for the applicant on short notice. In addition, a representative from Legal Aid, a Mr or Ms Haddlington, was present and explained to the magistrate that, for unknown reasons, Ms Tambyrajah had withdrawn that morning from the applicant's matter. The following discussion took place between the Legal Aid representative and Milledge LCM: "HADDLINGTON: … if the Court would grant it, the grants section would ask for a further adjournment of two to three weeks so we can find her another lawyer. I am told that Ms Kostov is interstate and won't be back until 19 October. HER HONOUR: … It won't be going, she has no right to be out of this jurisdiction till 19 October. I understand there's an appearance on her behalf - I'm so grateful for the information you've given me. Thank you. HADDLINGTON: May I be excused? HER HONOUR: I can't promise you that I'm going to be giving … I certainly won't be giving an adjournment of that nature, so I'll hear what her lawyer has to say now, thank you."
Mr Warr then explained that he had only been notified of the matter that morning. He thus requested an adjournment until he was available to represent the applicant on 4 October 2019. Additionally, he said he would convey to the applicant that an arrest warrant would be issued unless she attended court on that date.
The matter was accordingly adjourned until 4 October 2019, allowing the applicant another opportunity to present herself to the Court to prevent a warrant being issued against her.

Hearing on 4 October 2019

The applicant did not attend court on 4 October 2019. Mr Warr appeared again and provided the following explanation about the applicant's absence: "WARR: She as I understand it has had a series of problems in Sydney and she decided to effectively move to Victoria in order to rebuild her life. She's seeking employment there, she's staying in a hostel. I have spoken to her after Wednesday, asked her to attend. She spoke of some medical issues including mental health problems. I asked for some medical documentation to support that, it wasn't forthcoming. … WARR: … I don't have any documentation to try and persuade you not to issue the arrest warrant. And as I mentioned, I did speak of the fact that it was likely to be issued today."
As a result of the applicant's failure to comply with the Court's directive to attend court for sentencing, Milledge LCM issued a warrant pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act.

Appeal to District Court against convictions

On 10 October 2019 an appeal by the applicant pursuant to s 11 of the Review Act against her convictions was heard by Syme DCJ at the Downing Centre District Court. Neither the applicant nor any representative of the applicant appeared at the hearing.
Section 11 provided: "11 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both). (1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty. (1B) Any person whose application under section 4 for annulment of a sentence has been refused by the Local Court may appeal to the District Court against the sentence. (2) An appeal must be made: (a) within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against a conviction) may not be made before sentence is imposed."
Syme DCJ dismissed the appeal on the basis that an appeal by a defendant against a conviction by the Local Court may not be made to the District Court before the defendant has been sentenced by the Local Court: s 11(2).

Application in special jurisdiction of Local Court

On 21 October 2019 the applicant attempted to commence proceedings in the special jurisdiction of the Local Court under Pt 4 of the Local Court Act 2007 (NSW) with a view to diverting her criminal proceedings through s 32 of the Mental Health (Forensic Provisions) Act.
Part 4 of the Local Court Act relevantly provided: "Part 4 Special jurisdiction … 44 Application of Part This Part applies to any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law, other than: (a) criminal proceedings, or (b) proceedings with respect to any matter for which jurisdiction is conferred on the Court by Part 3. … 45 Commencement of proceedings by application notice Application proceedings are to be commenced in the Court by the issuing and filing of an application notice in accordance with this Division. … 47 Commencement of private actions (1) If a person other than a police officer or public officer is authorised to commence application proceedings against a person, the person may commence the proceedings by issuing an application notice, signed by a registrar, and filing the notice in accordance with this Division. (2) A registrar must not sign an application notice if: (a) the registrar is of the opinion that the notice does not disclose grounds for the proceedings, or (b) the registrar is of the opinion that the notice is not in the appropriate form, or (c) the registrar is of the opinion that a ground for refusal set out in the rules applies to the notice. (3) If a registrar refuses to sign an application notice proposed to be issued by any such person, the question of whether the application notice is to be signed and issued is to be determined by the Court on application by the person. (4) An application under subsection (3) is not required to be signed by a registrar. …"
The applicant sought to file her s 45 application notice with the registry at the Downing Centre Local Court. It appears the application was expressed in terms that sought a hearing in the Local Court for consideration as to whether the applicant's criminal proceedings should be diverted under s 32 of the Mental Health (Forensic Provisions) Act.
Section 32 relevantly provided: "32 Persons suffering from mental illness or condition or cognitive impairment (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) cognitively impaired, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013, (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate: (i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment, or (ii) to enable the provision of support in relation to the defendant's cognitive impairment, or (c) unconditionally. …"
The application notice came before Registrar Wiseman for consideration. He concluded that it constituted an attempt by the applicant to commence proceedings that were frivolous, vexatious and without substance, and had no reasonable prospect of success. In reaching that conclusion, it appears the registrar found it problematic that, among other things, the application notice, which sought to invoke s 32, was not supported by sufficiently relevant medical documentation.
The filing of the application was thus refused, and an email was sent from the registry to the applicant notifying her of the reasons for that.

Application to annul convictions

On 1 November 2019 an application by the applicant pursuant to s 4 of the Review Act to annul her convictions was heard by Milledge LCM. The applicant did not attend but was represented by a Mr Digges.
Section 4 relevantly provided: "4 Applications to Local Court (1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held. (1A) An application may be made by the defendant or by the prosecutor. However, an application by the defendant may be made only if - (a) in the case of an application for an annulment of a conviction - the defendant was not in appearance before the Local Court when the conviction was made …"
Her Honour dismissed the application on the basis that the applicant was prevented by s 4(1A)(a) from making an annulment application as she was, at the time of her convictions, in appearance before the Court.

Application to revoke warrant

On 28 November 2019 an application by the applicant to revoke her warrant was heard, and dismissed, by Milledge LCM. The applicant was not in attendance on that occasion, but it appears she was represented by a Mr Cummins. It seems, however, that Mr Cummins withdrew from her case after that hearing.

Appeal to District Court against dismissal of application to annul convictions

On 11 December 2019 a further appeal by the applicant was heard by the District Court. This time the applicant sought to appeal Milledge LCM's decision of 1 November 2019 to refuse to annul the convictions. This matter was heard by Hunt DCJ. The applicant was represented by a Mr Sisinni.
Mr Sisinni explained to the Court that he was additionally instructed to apply for orders pursuant to s 32 of the Mental Health (Forensic Provisions) Act. It is unclear why it was proposed that an application might be made pursuant to s 32 to a judge of the District Court when the provision appears to allow particular action to be taken by magistrates only. Hunt DCJ remarked on that occasion: "I think the effect is, subject to any assistance [the Crown] wants to offer me, I suspect that if I uphold the appeal and grant the s 4 annulment then the effect of that is that the matter then goes back before the Local Court and any s 32 application would need to be prosecuted there."
Both parties' representatives agreed with that observation.
In respect of the appeal itself, the following submissions were made by the Crown: "[CROWN]: … The Crown position is that the s 4 annulment appeal is incompetent. … the appellant has not been sentenced yet and the Crown's position is that s 11(2) of the Crimes (Appeal and Review) Act applies, because s 4 does not arise this Court doesn't have jurisdiction until sentence is imposed in the Local Court. …"
Both Hunt DCJ and Mr Sisinni expressed agreement with that position thus: HIS HONOUR: … Having looked through the Crown papers subject to anything you want to say, Mr Sisinni, I think that I accept [the Crown's] submissions about the position. SISINNI: I do too, your Honour, having spoken to [the Crown]. HIS HONOUR: So what I'm going to do is strike the appeal out as being incompetent. The Court has no jurisdiction. And obviously if your client proceeds to sentence and is then unhappy with what happened either at the hearing or on penalty she'll then have her rights generally under the Appeals and Advice Act [sic]. …"
It is not clear whether s 11A of the Review Act was brought to his Honour's attention. That section relevantly provides: "11A Appeals as of right against Local Court's refusal of application for annulment of conviction (1) Any defendant whose application under section 4 for annulment of a conviction has been refused by the Local Court may appeal to the District Court against the refusal. …".
The operation of s 11A was not raised as an issue in the application for inquiry and it does not appear to be necessary to consider it further.

Review of application notice

On 18 December 2019 an application was heard at the Downing Centre Local Court pursuant to s 47(3) of the Local Court Act to review Registrar Wiseman's decision of 21 October 2019 to refuse to allow the filing of the applicant's application notice in the Local Court's special jurisdiction. Mottley DCM presided over the hearing.
The Deputy Chief Magistrate decided the application as follows: "Currently there are unresolved criminal proceedings in the Local Court. They are unresolved because Ms Kostov has not, for whatever reason, attended at Court for sentencing. There is a warrant in existence for her arrest. She has left the jurisdiction. Is there a capacity for the Court to accept an application notice in order to entertain an interlocutory or a finalising order in criminal proceedings? When one looks at the practice of the Court, it is not the practice of the Court to require a party who seeks to advance material to the Court that would support a diversion into a regime of treatment under s 32 to file an application notice. It is my view that there are pending criminal proceedings before the Court. In order to advance Ms Kostov's request to be diverted into treatment, that would need to be done during the course of those criminal proceedings. THE APPLICATION SHE IS SEEKING TO FILE DOES NOT FALL WITHIN THE SPECIAL JURISDICTION OF THE LOCAL COURT. WHILST THE REGISTRAR REFUSED TO ACCEPT THE NOTICE FOR DIFFERENT REASONS, IT IS MY VIEW THAT THERE WAS NO POWER FOR THE REGISTRAR TO ACCEPT THE APPLICATION, AND ACCORDINGLY, THE REGISTRAR'S REFUSAL TO ACCEPT THE APPLICATION FOR FILING, THE ORDER MADE BY THE REGISTRAR IS CONFIRMED. … Ms Kostov can ask the Court to consider a diversion under the provisions of s 32 of the Mental Health (Forensic Provisions) Act at any time up until the pronouncement of any sentence in the proceedings. Ms Kostov, however, needs to be in attendance at court during the course of the conduct of those criminal proceedings for that issue to be considered." (Uppercase in original.)
The registrar's refusal to file the application notice was thus confirmed.

Summons appealing or seeking leave to appeal against conviction in the Supreme Court

On 20 February 2020, Ms Kostov filed a summons in this Court in which she effectively sought to appeal or sought leave to appeal against her convictions in the Local Court, under ss 52 and 53 of the Review Act. This application was out of time but, since an extension of time was not opposed, time for filing of the application was extended to 20 February 2020.
On 29 May 2020, when the application was listed for hearing, Ms Kostov applied for an adjournment on five bases: first, she contended that it was necessary for the matter to be removed to the High Court because she had raised a constitutional issue and had served notices under s 78B of the Judiciary Act 1903 (Cth); secondly, she contended that she had been unable to obtain legal representation and was indigent; thirdly, she said that she was unwell; fourthly, she said that she was distressed because her uncle has terminal cancer; and fifthly, she said that it was unfair for her to have to proceed given that the Attorney-General had raised the issue of her legal incapacity. That application was refused by Adamson J who delivered an ex tempore judgment in relation to the adjournment application on that day: Kostov v Commissioner of Police [2020] NSWSC 678.
Adamson J's judgment on the substantive application for leave to appeal was delivered on 1 June 2020: Kostov v Commissioner of Police (No 2) [2020] NSWSC 679. That judgment contains a summary of what occurred in the Local Court and the District Court in relation to the convictions. It is useful quoting her Honour's findings at some length (from [7]-[20]) in order to appreciate the basis upon which the appeal or application for leave to appeal was considered. The relevant paragraphs were as follows: "The proceedings in the Court below The directions hearings 7. On 6 March 2019 the plaintiff was charged with two offences under s 254(b)(ii) of the Crimes Act. It was alleged that, on 1 February 2019, she used a false email which purported to be from Registrar Riznyczok of the Supreme Court of New South Wales to obtain a financial advantage of $311; and that, on 18 February 2019, she attempted to use a false email from Registrar Riznyczok to obtain a financial advantage of $241. The documents purported to authorise a partial waiver of filing fees by the Registry. 8. The plaintiff was served with court attendance notices, detailing the offences, which required her attendance at the Local Court at the Downing Centre on 24 April 2019. On that day, the plaintiff appeared through a legal representative, Mr or Ms Lau, and pleaded not guilty to the offences. Directions were made for the service of the prosecution brief and a reply. The matter was stood over to 5 June 2019. On 5 June 2019, the plaintiff appeared through her legal representative, Mr or Ms Kalantar. A direction was made for reply to brief and the matter was set down for hearing on 9 August 2019 with an estimate of three hours. 9. On 24 July 2019 the plaintiff applied to vacate the hearing on the basis that she had a serious health issue which required surgery. The Deputy Chief Magistrate refused the application on the basis that there was no evidence to support the application. On 1 August 2019 the Deputy Chief Magistrate again refused the adjournment on the basis that medical evidence was required to substantiate the allegation. On 5 August 2019 the plaintiff provided medical evidence which led to the hearing of the matter being adjourned from 9 August 2019 (the expiry date of the plaintiff's incapacity, according to the medical certificate she had provided) to 13 August 2019. The plaintiff applied for another adjournment to prepare for the hearing. This was declined on the basis of the time that had elapsed since the plaintiff was charged and the brief served. None of the decisions relating to adjournment was made by Milledge LCM. The substantive hearing 10. On 13 August 2019, the hearing of the matter was listed before Milledge LCM. On that day the plaintiff appeared in person. She did not apply for the matter to be adjourned. Although the plaintiff raised with the magistrate that the matter had been adjourned from 9 August 2019, she confirmed that she did not want another adjournment, notwithstanding her medical issues. 11. The police prosecutor called the first witness, Ms Ha, a counter clerk at the Supreme Court. In the course of Ms Ha's evidence in chief, the plaintiff took exception to someone sitting in the public gallery. The magistrate refused to require the person either to identify herself or to leave the court room. Subsequently, the plaintiff absented herself from the court on the basis of the person remaining in court. As the plaintiff had not returned by the time Ms Ha's evidence in chief concluded, there was no cross-examination and Ms Ha was excused. The prosecutor also called Ms Shevlin, a team leader in the Registry of the Supreme Court. As the plaintiff had not returned by the time Ms Shevlin's evidence in chief concluded, there was no cross-examination and Ms Shevlin was excused. Mr Riznyczok, the Registrar of the Court of Appeal, and Ms Kenna, the Prothonotary of the Supreme Court, also gave evidence at a time when the plaintiff was not in court and were, accordingly, not cross-examined. They were excused at the conclusion of their evidence in chief. 12. The prosecutor's next witness was the informant, Constable Chapman. After she had started her evidence in chief, the plaintiff returned to the court room. At the conclusion of Ms Chapman's evidence in chief, the magistrate asked the plaintiff whether she wished to cross-examine her, to which the plaintiff answered in the negative. 13. The magistrate found that there was a case to answer. The plaintiff chose not to give evidence in her defence. The magistrate called on the plaintiff to make submissions. She made submissions orally and in writing. The written submissions had been prepared by the plaintiff in advance and were provided to the magistrate at the conclusion of the evidence. The fact that the plaintiff had prepared written submissions for the magistrate is consistent with her desire to conduct the hearing on her own behalf and her readiness to do so on 13 August 2019. 14. At the conclusion of the plaintiff's submissions, the magistrate indicated that she did not want to hear from the police prosecutor and observed that the plaintiff was unrepresented. Her Honour gave ex tempore reasons for finding the plaintiff guilty of both offences. The orders for conviction were made and entered on that day. The plaintiff expressed a wish for legal representation on sentence. The magistrate stood the matter over for sentence on 1 October 2019. The dates after conviction 15. On 1 October 2019, the plaintiff did not attend Court. She was represented by Mr Maspero, who announced his appearance as agent for Ms Tambyrajah, who had apparently accepted the brief but could not appear due to a personal commitment. The magistrate adjourned the matter for sentence to 2 October 2019. On that day, the court was informed by a representative from the Legal Aid Commission, Mr Warr, that the plaintiff had a grant of legal aid but that her solicitor had withdrawn. A further adjournment was sought. The matter was adjourned to 4 October 2019. On that day, Mr Warr informed the court that the plaintiff was in Melbourne. He suggested that the court exercise its power to convict and fine her in her absence pursuant to s 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW). I note that s 25 prohibits the Local Court from making certain orders (such as an order imposing a sentence of imprisonment) in the absence of an offender. At the conclusion of the hearing on 4 October 2019, the magistrate issued a warrant for the plaintiff's arrest pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act. The plaintiff's appeal to the District Court 16. The plaintiff attempted to appeal to the District Court against her convictions. On 10 October 2019 Syme DCJ struck out the appeal as incompetent because, although an appeal as of right lies to the District Court from a conviction in the Local Court, such an appeal may not be brought until after sentence has been imposed by the Local Court: s 11(2) of the Act. The plaintiff's application for annulment of her convictions in the Local Court 17. On 30 October 2019 the plaintiff, through her legal representative, Mr Digges, filed an application in the Local Court for annulment of her convictions pursuant to s 4(1A) of the Act. 18. Section 4 of the Act relevantly provides: "4 Applications to Local Court (1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held. (1A) An application may be made by the defendant or by the prosecutor. However, an application by the defendant may be made only if - (a) in the case of an application for an annulment of a conviction - the defendant was not in appearance before the Local Court when the conviction was made… 19. The plaintiff's application for annulment came before Milledge LCM on 1 November 2019. Mr Digges appeared for the plaintiff, who was not present in Court. He had been allocated the matter by the Legal Aid Commission but was not familiar with the facts and circumstances and did not appreciate that the plaintiff had been convicted after a hearing in her presence. The magistrate informed him of these matters and dismissed the application on the basis that s 4(1A) of the Act did not apply as the plaintiff was present for the hearing which resulted in the convictions. Her Honour granted Mr Digges access to the court file in order that he could acquaint himself with the procedural history of the matter. The plaintiff's appeal to the District Court 20. On 5 December 2019, the plaintiff appealed to the District Court against the dismissal of the annulment. When the matter came before Hunt DCJ on 11 December 2019, his Honour dismissed it on the grounds that he had no jurisdiction to hear it."
At the hearing on 29 May 2020, as Adamson J was delivering her ex tempore reasons for refusing the adjournment, Ms Kostov chose to disconnect from the virtual courtroom. Adamson J's judgment then recorded what occurred as follows, at [26]-[31]: "26. … I adjourned the court so that my staff could communicate with the plaintiff to ask her to reconnect with the virtual courtroom in order that the matter could continue. 27. At 11.38am the plaintiff, before she had received any communication from my Associate, wrote the following email to my Associate: "I refer to this matter. Please note, I asked Her Honour a fair request, to allow me to Reply to the Submission provided this morning on 78B. In light of the fact I have a family member in palliative care as of yesterday, I am in no position, to run this matter. Please allow myself, to make the submission by end of business today, I have no computer, to do this. Thank you." 28. My Associate sent two further emails to the plaintiff, the first at 11.44am, asking her to dial back into the court so that the matter could proceed, and the second at 11.49am saying: "Justice Adamson has asked me to remind you that if you fail to dial back in[,] the Court may make orders in your absence." 29. Notwithstanding these emails, the plaintiff chose to absent herself from the hearing. 30. The plaintiff chose not to remain in, or return to, the virtual courtroom to press her application for adjournment on any other basis. In these circumstances, the remaining bases need not be determined. Her decision not to participate in the hearing does not prevent the further conduct of the proceedings, which will be addressed below. The further conduct of the proceedings in this Court 31. Ms Curry, who appeared on behalf of the Commissioner on all issues other than the s 78B issue, submitted that it would be open to me to dismiss the proceedings under s 55 of the Act, without addressing the merits of the matters raised by the summons. I am not persuaded that this would be an appropriate course. Both parties have filed detailed written submissions as directed by the Registrar. These submissions have been reproduced in the appeal book which has been provided to the Court for the purpose of the substantive hearing. I proposed to Ms Curry (the plaintiff having absented herself by this time) that I would determine the matter on the papers. Ms Curry did not seek to be heard against this course."
Adamson J noted that Ms Kostov's grounds of appeal were as follows: "1 Her Honour Magistrate Milledge, made an error of law, in hearing Prosecution evidence, in the Plaintiff's absence, and making a conviction based on such untested evidence heard in the Plaintiffs absence; 2 It was an error of law, for Magistrate Milledge to use Section 196 of the Criminal Procedure Act, to hear and determine a matter, whereby the Plaintiff, was unrepresented, unwell, and was not given the opportunity to challenge prosecution evidence; 3 It was an error of law, for Magistrate Milledge to find, the Plaintiff guilty of using false instrument, to obtain financial benefit, where, the Plaintiff, nor a legal representative, heard, Prosecution evidence being delivered; 4 It was an error of law, for Magistrate Milledge, to refuse, a Section 4 Annulment, of the conviction made, in the Plaintiff's absence, and an error of law, and conflict, that such, was heard, by Magistrate Milledge, who was biased in these proceedings; 5 The Plaintiff has been subjected to gross injustice and procedural unfairness due to the errors of law in (1) to (3) above, and therefore the Plaintiff submits that Leave should be granted to allow this appeal, and the conviction made in the Plaintiffs' absence should be quashed, and a Re-Hearing ordered."
Her Honour, at [34], characterised these grounds as raising in substance the following issues: 1. whether findings can be made on the basis of evidence of witnesses who were not cross-examined; 2. whether an accused is required to be represented by a lawyer or whether he or she can appear in person or, in other words, represent themselves; and 3. whether an accused who chooses to absent him- or herself from proceedings during those proceedings ought be taken to be present or absent for the purposes of s 4 of the Act and s 196 of the Criminal Procedure Act 1986 (NSW).
Adamson J then quoted relevant provisions of the Criminal Procedure Act.
Her Honour's consideration of Ms Kostov's grounds of appeal was as follows: "43. As the narrative set out above demonstrates, the plaintiff appeared by her legal representative on 24 April 2019 and 5 June 2019, as she was entitled to do. The effect of ss 3 and 36 of the Criminal Procedure Act is that the plaintiff was before the court on these occasions: McKellar v DPP [2014] NSWSC 459. 44. On 13 August 2019, the plaintiff appeared before the Court below in person as she was entitled to do under s 36 of the Criminal Procedure Act. She was entitled to conduct the proceedings herself under s 37(2) of the Criminal Procedure Act. There was a corresponding obligation imposed on the magistrate to hear and determine the proceedings on that day: s 192 of the Criminal Procedure Act. I note that the plaintiff did not apply to have the proceedings adjourned on 13 August 2019. 45. When the plaintiff chose to leave the courtroom on 13 August 2019, she did not thereby become other than "present" for the purposes of s 192 since she was present "at the day, time and place set for the hearing". Thus, s 196 of the Criminal Procedure Act had no application to her with respect to the hearing on 13 August 2019. There was no denial of procedural fairness since the magistrate made it clear that she would proceed with the hearing if the plaintiff chose to leave the court room. 46. The apparent reason for the plaintiff's departure was that she took exception to a person in the public gallery remaining present in the court room. It is an important aspect of open justice that persons are entitled to come into a court room and watch proceedings without having to identify themselves. Although courts have power, in some circumstances, to make orders which affect open justice, the power to make such orders is constrained, including by the provisions of the Court Suppression and Non-publication Orders Act 2010 (NSW). Section 6 of that Act expressly provides: "6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice." 47. The plaintiff's conduct in leaving the court room for that reason did not affect the opportunity she was given to present her case, including by giving evidence and challenging the evidence of the prosecution witnesses by cross-examining them. Whether a party wishes to challenge the evidence of a witness is a matter for that party. The plaintiff chose not to challenge the evidence of any of the prosecution witnesses and indicated her choice either by leaving the court room for the evidence of such witnesses or by informing the magistrate that she did not want to cross-examine. Evidence which is unchallenged may be more comfortably accepted by the tribunal of fact. In these circumstances, ground 1 cannot be made out. 48. Ground 2 cannot be made out because it is based on the false premise that s 196 applied. For the reasons given above, s 196 was inapplicable because the plaintiff was present for the hearing, even though for some part of it she chose to leave the courtroom. 49. Ground 3 is also based on a false premise. The plaintiff was not to be treated as if she was not present merely because she chose to leave the courtroom for some parts of the proceedings. Although her own conduct had the effect that she did not hear parts of the prosecution case, she had an opportunity to hear all the evidence and challenge it if she chose to, but decided not to. In these circumstances, ground 3 cannot be made out. 50. Ground 4 is a challenge to the magistrate's refusal to annul the convictions. It is not clear how ground 4 falls within the plaintiff's appeal against her convictions, which necessarily preceded the refusal of her application for annulment. As referred to above, the basis on which the magistrate refused to annul the convictions was that s 4(1A) of the Act did not apply. The transcript in the appeal book, which is summarised above, indicated that the plaintiff returned to the court room during the evidence in chief of the informant. The plaintiff remained in the court room and made submissions on why she ought not be convicted. Following these submissions, the magistrate gave reasons and ordered the convictions. The plaintiff has not challenged the correctness of the transcript which showed that she was "in appearance before the Local Court when the conviction was made". In these circumstances, it was not open to her Honour to find other than she did: namely that s 4(1A) of the Act did not apply. Ground 4 cannot be made out, even if it were properly before this Court. I note that, as set out above, the plaintiff sought to appeal against this decision to the District Court. 51. Ground 5 makes a general allegation of gross injustice and procedural fairness and is dependent on the fate of grounds 1, 2 and 3, which have been addressed above. Procedural fairness requires that a party be given an opportunity to be heard. In the context of a criminal hearing, procedural fairness entitles a party to appear on his or her own behalf or by a legal representative, to be present throughout the hearing, to cross-examine witnesses called by the opposing party, to adduce evidence from witnesses called by the party and to make submissions. The requirements of procedural fairness are given statutory force in ss 3, 36, 37, 38, 192, 194, 195 and 202 of the Criminal Procedure Act referred to above. I am not persuaded that there is any respect in which the Court below has failed to accord procedural fairness to the plaintiff or has otherwise occasioned injustice to her."
Adamson J also considered other submissions made by Ms Kostov which were not directly related to her grounds of appeal. At [52]ff, her Honour addressed the submission that the magistrate erred in allowing the matter to proceed notwithstanding that she did not have legal representation. After referring to the principles in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57, Adamson J said, at [54]: "When the matter was called on 13 August 2019, the plaintiff did not seek an adjournment either to obtain legal representation or on any other ground. Rather, she indicated to the magistrate that she was appearing for herself and was ready to proceed. In these circumstances, the magistrate was not required to turn her mind to the principles referred to above. The magistrate was bound to respect the plaintiff's right to appear and conduct the proceedings on her own behalf. Thus the parameters of Dietrich and whether the offences with which the plaintiff were charged were "serious crimes" as referred to in the reasons extracted above did not arise. …"
Adamson J also noted that the medical issues raised in submissions before her Honour as reasons why the matter should have been adjourned by the Magistrate were not brought to the attention of the Local Court.
Further, the question of legal representation was raised with the magistrate after the convictions had been ordered and Ms Kostov indicated that she wanted an adjournment to obtain legal advice before she was sentenced. Since an adjournment was granted for these purposes, Adamson J concluded at [55] that it had not been shown that the magistrate was in error.
As to the contention that Ms Kostov was convicted in her absence, Adamson J, at [56], found that Ms Kostov was in court when her convictions were ordered and thus Ms Kostov was not entitled to apply for an annulment of the conviction in light of s 4(1A)(a) of the Review Act. In addition, it was held that s 8 of that Act is not to be read as a stand-alone provision which gives a defendant a right to apply for an annulment, notwithstanding s 4(1A)(a).
Ms Kostov also referred to evidence prepared for the purposes of s 32 of the Mental Health (Forensic Provisions) Act and "the alleged circumstance that the Attorney-General of New South Wales had, on 21 May 2019, filed a notice of motion to have the plaintiff declared legally incapable". Adamson J in effect concluded that these matters were not relevant to the application for leave to appeal which she was considering.
In these circumstances, Adamson J refused leave to appeal to the extent that leave was necessary and otherwise dismissed Ms Kostov's summons.

Judicial review proceedings in the Court of Appeal

On 6 March 2020, Ms Kostov filed a summons seeking judicial review of the decision of Hunt DCJ striking out as incompetent an appeal by Ms Kostov under s 11A(1) of the Review Act to the District Court from the decision of Milledge LCM refusing to annul the convictions.
On 20 April 2020, at the first directions hearing in relation to the judicial review application, Bell P made directions that both parties were to file and exchange written submissions on the question of whether or not Ms Kostov required leave prior to commencing judicial review proceedings, and what consequences, if any, flowed from Ms Kostov's failure to obtain such leave: Kostov v Director of Public Prosecutions (NSW) [2020] NSWCA 73. The questions concerning leave arose out of the fact that in November 2018, Ms Kostov had been made the subject of a vexatious proceedings order: Kostov v State of New South Wales (Vexatious Proceedings) [2018] NSWSC 1794. An appeal against the vexatious proceedings order was discontinued and the order continued in effect.
A day after the directions were made, however, Ms Kostov sent an email to the Registrar of the Supreme Court and to Bell P's Associate, requesting that Bell P recuse himself from all matters concerning Ms Kostov. Ms Kostov refused to make any submissions in relation to the directions made by Bell P until her request for his Honour's recusal was considered.
On 18 May 2020, Bell P made orders refusing to recuse himself and declaring that the summons seeking judicial review filed on 6 March 2020 and the proceedings stood dismissed by virtue of s 13(3) of the Vexatious Proceedings Act 2008 (NSW): Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94.

Application to set aside orders of Adamson J made on 1 June 2020

By a notice of motion filed on 3 June 2020, Ms Kostov sought orders that Adamson J's orders of 1 June 2020 be set aside and the matter be remitted to the High Court for determination pursuant to the s 78B notice.
This application was heard by Davies J on 21 August and 25 August 2020. His Honour made orders dismissing the application with costs: Kostov v Commissioner of Police, NSW Police Force (No 3) [2020] NSWSC 1122.
His Honour provided, at [12]-[17] of his judgment, a fulsome account of what occurred during the hearing before Adamson J. In addition, it was noted, at [25], that when Ms Kostov's application for an adjournment of the hearing before Davies J was refused, she said that she wished to proceed to have her notice of motion heard.
In dismissing Ms Kostov's notice of motion, Davies J: 1. observed that Ms Kostov's written submission merely repeated matters that were put to Adamson J, at [26]; 2. was of the view that the notice of motion was misconceived in that Pt 36 of the UCPR did not apply to criminal proceedings such as Ms Kostov's, at [27]-[29]; 3. noted that if Ms Kostov wished to challenge the judgment of Adamson J, she needed to seek leave from the Court of Appeal to appeal to that Court and a judge in a Division of this Court had no power to review the judgment of Adamson J, at [31]; 4. said that, even if he were wrong and the UCPR applied, he would refuse relief under Pt 36 of the UCPR on discretionary grounds including that, if the proceedings were civil proceedings, Ms Kostov had contravened the order declaring her to be a vexatious litigant, at [32]-[39].

Application for leave to appeal to Court of Appeal

On 9 September 2020, Ms Kostov filed a document headed "Summons seeking leave to appeal" which said to be brought under s 101(2) of the Supreme Court Act 1970 (NSW) against the decision of Adamson J made on 2 June 2020. In her draft notice of appeal, Ms Kostov identified the following grounds of appeal: "1 Her Honour Adamson J, did not afford the Appellant procedural fairness, denying the Appellant an adjournment for Legal Representation, and, to responded to the Submission of the Respondent, received 29 May 2020, the day of the Hearing; 2 Her Honour Adamson J, erred that the fact the Attorney General of New South Wales, stated the Appellant had a Legal Incapacity, as of the date of 13 August 2019, and could not manage there own affairs, had no relevance, to the Appellant ability, to run criminal proceedings, unrepresented 3 Her Honour Adamson J, erred, in finding that a person, whom the Attorney General, stated had a Legal Incapacity, should be denied legal representation, in criminal proceedings 4 Her Honour Adamson J, erred, in finding that the Appellant left the Courtroom on 23 August 2019, by her own choosing, and therefore, it was acceptable, she be convicted, in her absence 5 Her Honour Adamson J, erred, that Australians do not have a Constitutional Right, to a fair and open Hearing, in line with Article 14 of the Covenant on Civil and Political Rights, to which Australia is a party 6 Her Honour Adamson J, erred, in finding that Section 196 of the Criminal Procedure Act, was not used, in the Local Court, to convict the Appellant in her absence 7 Her Honour Adamson J, did not hear oral submissions from the Appellant and Respondent, in determining the matter".
On 24 November 2020, Ms Kostov filed a notice of discontinuance in respect of that appeal which stated, inter alia: "NOTICE DETAILS 1 The Applicant discontinues the whole of these proceedings. 2 The Applicant does not represent any other person. 3 Each active party consents to the discontinuance. SIGNATURE [The document was signed by Ms Kostov] TERMS OF DISCONTINUANCE … 1 Appellant discontinues proceedings based on personal matter disclosed in email to Court of 19 November 2020 2 This Notice of Discontinuance does not preclude the Appellant from applying to the Court at a later date, to review the decision, of Her Honour Adamson J, of 1 June 2019, the subject of this appeal."

Petition to the Governor under s 76 of the Review Act

On 30 November 2020, Ms Kostov lodged a petition to the Governor under s 76 of the Review Act. (A copy of this document was apparently filed in this Court on 17 March 2021).

The application for inquiry

As noted above, on 17 December 2020 Ms Kostov filed her application (proceedings number 2020/357909) under s 78 of the Review Act seeking an inquiry into the convictions recorded against her by Milledge LCM at the Downing Centre Local Court on 13 August 2019. This is the application for inquiry presently before me for consideration.

Unclear relationship between the application for inquiry and the petition to the Governor

It was not clear what was the intended relationship between this application for inquiry and Ms Kostov's petition to the Governor lodged 18 days before. Nonetheless, it can be observed that the matters raised in both the application for inquiry and the petition appeared to be overlap significantly, if not entirely. Indeed, much of the material in the application for inquiry appeared to be copied and pasted from the material included in the petition to the Governor.

Notice of constitutional matter

On 4 March 2021, Ms Kostov emailed the Registrar of the Court of Criminal Appeal in relation to her application for inquiry claiming that the application raised a constitutional matter, namely "whether, Australians have the Constitutional right, to a fair trial (which, includes hearing and testing Prosecution evidence, and having legal representation) …". She requested that her attached notice of constitutional matter be sealed and returned to her so that it could be served on the Attorneys General in accordance with r 1.23 of the UCPR.
On 5 March 2021, the Registrar replied to Ms Kostov by email indicating that r 1.23 did not apply to applications for inquiry under s 78 of the Review Act and stating: "[It is a] matter for you if you wish to give notice to the Attorneys of the 'constitutional' matter you say arises. Sealing of the notice by the Court is not a precondition of you giving the notice to the Attorneys."
On 24 March 2021, Ms Kostov emailed the Registrar requesting information as to the process applicable in the case of an application for inquiry and, in particular, whether there would be a directions hearing or whether she should await submissions. On the same day, Ms Kostov sent emails to the Commonwealth, State and Territory Attorneys General attaching her notice of constitutional matter and providing certain background information. In that notice, the nature of the constitutional matter was described as follows: "The nature of the Constitutional matters said to arise, is, as part of this Section 78 is whether, a person of whom the Attorney General of NSW alleges was a personal of Legal Incapacity as of 21 May 2019, should have been denied an opportunity to obtain Legal Aid, in defending criminal proceedings, on 13 August 2019, and further, denied the right, to hear and test, Prosecution Evidence, which was used to secure a conviction, in the Applicant's absence."
On 25 March 2021, Ms Kostov emailed the Registrar informing him that she had served her notice of constitutional matter on the Attorneys General and requesting that the Attorneys be allowed to respond before the application for enquiry was referred for consideration by a judge. In this email, she also requested an opportunity to make oral submissions.

Notice of discontinuance

Two weeks later, on 9 April 2021, Ms Kostov filed a notice of discontinuance in relation to the application for enquiry (proceedings number 2020/357909). That a notice of discontinuance contained the following: "NOTICE DETAILS 1 The Applicant discontinues the whole of these proceedings. 2 The Applicant does not represent any other person. 3 This notice of discontinuance has been filed with the leave of the court granted on [date]. SIGNATURE [The document was signed by Ms Kostov] # TERMS OF DISCONTINUANCE Consent to the proceedings being discontinued is given on the following terms: 1 Petition of Conviction filed with Court on 18 March 202 [actually filed on 17 March 2021], and Court file material 2020/357909 to be progressed with Governor's office; 2 Should Governor refer matter back to Supreme Court, Court file material to be referred to."

Response in relation to the petition to the Governor

By letter dated 29 April 2021, The Secretary of the Department of Communities and Justice responded to Ms Kostov's petition to the Governor in the following terms: "I refer to your petition under part 7 of the Crimes (Appeal and Review) Act 2001 ('the Act'). Under part 7 of the Act, the Governor may direct that an enquiry be conducted by a judicial officer into the conviction or sentence or exercise the Royal Prerogative of Mercy. Alternatively, the Attorney General may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912, or request the Court of Criminal Appeal to give an opinion on any point arising in the case. The Governor acts on advice from the Attorney General. After considering the matters raised in your petition, it is my preliminary view that there is no basis for the Attorney General to recommend to the Governor that the petition be approved, nor for him to refer the matter to the Court of Criminal Appeal. I have formed this view on the basis of the following reasons: ● Firstly, there is no sentence in relation to which a Royal Prerogative of Mercy can be exercised. ● Secondly, in relation to the review of conviction: ■ The conduct of the hearing has been thoroughly considered in the appeal determined by Justice Adamson. You have not raised any new matters in relation to the hearing itself. There is no material available capable of raising a doubt or question as to your guilt, or on any aspect of the evidence ■ it remains open to you to raise issues relating to your mental health either on sentence, or as part of an application under section 32 of the Mental Health (Forensic Provisions) Act 1990 made during the sentencing proceedings ■ once sentenced, it would be open to you to appeal to the District Court ■ it is premature to consider any matters regarding the course of the sentencing proceedings, or any prospective application under section 32 of the Mental Health (Forensic Provisions) Act 1999, whilst the sentencing proceedings remain pending. It is open to you to comment on the Department's preliminary view and provide further information within 28 days of today's email, no later than 27 May 2021. … [bolding in original]".
On 4 May 2021, Ms Kostov provided a document in relation to her petition to the Governor headed "Section 78 Petition - Reply to Attorney Submission 29 April 2021" consisting of 9 pages of submissions and 26 pages of "Annexures & Fresh Evidence for Her Excellency". The new evidence was identified in the submissions as follows: "The Attorney alleges, there is no new evidence, that could be brought forward, in this matter, to assist this case. Such is false, as between May 2019 and September 2019, the Attorney of NSW, was so concerned as to my health, that he booked medical appointments for myself, and also, went to the extraordinary lengths, to file a Motion in the NSW Supreme Court on 18 July 2019, 3 weeks before the Local Court Hearing, to have me attend medical appointments. ORDERS SOUGHT 1. Pursuant to r. 23.4 of the Uniform Civil Procedure Rules 2005, the Court orders that Adriana Kostov submit to examination by Dr Jonathan Phillips AM at Level 6, 65 York Street, Sydney, NSW, 2000 at: a. Tuesday 13 August 2019 at 9:30am b. Wednesday 11 September 2019 at 9:30 am c. Thursday 12 September 2019 at 2:00 pm 2. The appellant pay the second respondent's costs of this motion. 3. Such other order or orders as the Court sees fit. This material, was not before Her Honour Adamson J, nor, Magistrate Milledge,, and is crucial, as it shows the Attorney, had such grave concerns for my ability to manage legal proceedings, he went to the extreme lengths, to file Motions in the NSW Supreme Court, to order me, to attend medical appointments. Yet, he alleges, a person of whom, he had booked these appointments for, and alleged had a Legal Incapacity, should be unrepresented in criminal proceedings, which makes no sense."
In addition, Ms Kostov submitted that the findings of Adamson J concerning her health on 13 August 2019 were not based on any evidence as follows: "Her Honour Adamson J, has, without any medical evidence, without hearing from a medical professional, without asking the Applicant, to provide medical evidence, that, the Applicant, simply left the Courtroom, by choice, and she was not unwell. 'The plaintiff was not to be treated as if she was not present merely because she chose to leave the courtroom for some parts of the proceedings. Although her own conduct had the effect that she did not hear parts of the prosecution case, she had an opportunity to hear all the evidence and challenge it if she chose to, but decided not to.'(at [49]) The Applicant submits it is very unfair, and biased, prejudiced, and erroneous, for Her Honour, to made a serious and sweeping assumption, about the Applicants health at the 13 August 2019 Hearing, with no medical evidence, before her, and further, not asking for this evidence from the Applicant. Her Honour repeatedly stated the Applicant 'chose' to leave the Court and not examine witnesses/evidence. That is not true. If that was true, the Applicant, would not be filing, this Petition. 'The plaintiff's conduct in leaving the court room for that reason did not affect the opportunity she was given to present her case, including by giving evidence and challenging the evidence of the prosecution witnesses by cross-examining them. Whether a party wishes to challenge the evidence of a witness is a matter for that party. The plaintiff chose not to challenge the evidence of any of the prosecution witnesses and indicated her choice either by leaving the courtroom or the evidence of such witnesses or by informing the magistrate that she did not want to cross-examine. Evidence which is unchallenged may be more comfortably accepted by the tribunal of fact."(at [47]) 'The plaintiff was not to be treated as if she was not present merely because she chose to leave the courtroom for some parts of the proceedings. Although her own conduct had the effect that she did not hear parts of the prosecution case, she had an opportunity to hear all the evidence and challenge it if she chose to, but decided not to.'(at [49]) It appears, the Applicants health at Hearing, is a key issue, for this Petition of Conviction, in light of the fact, Her Honour Adamson J, and the Attorney, are alleging, the Applicant was in perfect health at the 13 August hearing, without, providing the Applicant, an opportunity to present such evidence as to this question. This problematic, where, per above, the Attorney had booked medical appointments for the Applicant on 13 August 2019, with Dr Phillips, as he was concerned as to the Applicant's health, yet, he now says, the same person, should run a defended hearing, and not be allowed to hear and test, Prosecution evidence. It is important to note, Legal Aid, had a Section 32 report prepared on 28 November 2019 - of which, the 13 August 2019 transcript was examined, and this, also goes to the Applicant's health as of 13 August 2019. i) Request to be allowed to submit medical evidence as to health at 13 August 2019 trial: The Applicant submits, she, should be allowed an opportunity to present medical evidence as to her health at the 13 August 2019 hearing, in the interests of fairness in this matter, and further, she should have been allowed this opportunity, before Adamson J, which she was not. The Applicant further submits, this medical evidence, goes to the Crimes (Appeal and Review) Act below, where based on heath and inability to properly represent herself in the criminal matter, there is doubt as to the Applicant's guilt, and further, these are mitigating/special circumstances, the Court, should consider, in the determination of this Section 77 application, such being, the Applicant, was likely unfit to manage criminal proceedings, on her own, on 13 August 2019, and therefore, the matter, should be re-heard."
Ms Kostov also made submissions concerning other issues, including but not limited to, a report under s 32 and whether it was premature to consider matters relating to sentencing while the sentencing proceedings had not been determined.
On 6 May 2021, a further letter on behalf of the Secretary of the Department of Communities and Justice was sent to Ms Kostov. That letter stated: "I refer to your petition under part 7 of the Crimes (Appeal and Review) Act 2001. On 29 April 2021, I provided you with the Department's preliminary view that there is no basis for the Attorney General to recommend to the Governor that the petition be approved, nor for him to refer the matter to the Court of Criminal Appeal. In your email dated 4 May 2021, you provided written submissions in response to the Department's preliminary view, and attached the following documents: • a letter from the Crown Solicitor's Office to you, dated 11 July 2019, in which it is requested that you submit to an examination by Dr Jonathan Phillips on 11 September 2019, pursuant to r. 23.2 of the Uniform Civil Procedure Rules 2005; and • a notice of motion filed on 18 July 2019, on behalf of the Attorney General, ordering that you submit to examination pursuant to r. 23.4 of the Uniform Civil Procedure Rules 2005; and I understand your concern is that Justice Adamson did not consider the above documents in Kostov v Commissioner of Police (No 2) [2020] NSWSC 679 and, as a result, it cannot be said that the basis for your petition was thoroughly considered in the appeal. It is noted that in paragraph 58 of her judgment, Justice Adamson states: 'The plaintiff sought to raise the alleged circumstance that the Attorney-General of New South Wales had, on 21 May 2019, filed a notice of motion to have the plaintiff declared legally incapable. The motion was filed in proceedings 2019/2669 brought by the plaintiff in the Court of Appeal against the State of New South Wales and the Attorney-General for New South Wales. This is not a matter that arises in these proceedings, to which the Attorney-General is not a party.' Further to this, I note that although the correspondence you refer to was sent and the motion filed, my understanding is that you did not attend any such medical examinations and that the motion was not determined as the proceedings were discontinued. On that basis, the Department remains of the view that there is no basis for the Attorney General to recommend to the Governor that the petition be approved, nor for him to refer the matter to the Court of Criminal Appeal."

Resumption of the application for inquiry sought by Ms Kostov

On 6 May 2021, Ms Kostov sent an email to the Registrar which was in the following terms: "Dear Registrar I refer to my Section 78 Inquiry After reflection, would it be possible to please resume this Inquiry, in the NSW Supreme Court. My reason for asking such, is I misunderstood the process of the Petition, and now realise, it is only a recommendation from the Attorney, to Her Excellency, and I am not involved much, in the process. it is very important, I be heard properly on this matter, and I feel it is also really important, I address the Chief Justice, on what has happened, and why I seek the Courts assistance. All that has occurred in the Petition, to date, is, the below, and documents, ATTACHED: a) The Attorney, provided a letter of 29 April 2021, outlining he would not recommend the Petition be approved by Her Excellency; b) I filed a submission in response, on 4 April 2021, and provided, additional evidence, not before, Her Honour Adamson J c) Today, the Attorney provided a letter, alleging the fact that he had booked, and attempted this Honourable Court, to order me to medical appointments, is irrelevant, and that it was still acceptable, I was unrepresented in a criminal matter, albeit, I did not want to be unrepresented. Could we please resume this Inquiry, and may I respectfully ask an opportunity to address the Chief Justice on all matter raised in my submission please, and the same, for the Respondent. Thankyou Registrar, this process is very new to me."
In these circumstances and despite Ms Kostov's earlier discontinuance of the application for inquiry, I have determined that her application for inquiry should be considered. For this purpose, time was allowed for any of the Attorneys General upon whom Ms Kostov served her notice of constitutional matter to provide submissions. Since the consideration of her application for inquiry is an administrative process, it was not appropriate for the matter to be dealt with by way of oral submissions as if it involved the exercise of judicial power.

Grounds on which an inquiry was sought

In substance and without attempting to set out exhaustively Ms Kostov's submissions, Ms Kostov's application for inquiry into her conviction was based on the grounds which may be summarised adequately for present purposes as follows: 1. she was not afforded legal representation for the hearing on 13 August 2019 while: 1. she was reliant on a Disability Support Pension; and 2. the Attorney General of New South Wales was alleging she was a person under legal incapacity, within the meaning of r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW); and 1. neither she nor the Legal Aid had an opportunity to hear and test the five prosecution witnesses on 13 August 2019; and 2. Legal Aid has not been given the opportunity to: 1. prepare her case; 2. obtain transcripts of the proceedings on 13 August 2019; 3. run a possible application under s 32 of the Mental Health (Forensic Provisions) Act; or 4. negotiate with police.
In addition, it was contended that these circumstances amounted to a basic denial of civil rights in legal proceedings contrary to art 14(3) of the International Covenant on Civil and Political Rights.

Refusal of consideration of application for inquiry under s 79 of the Review Act

Towards the end of her application for inquiry, the applicant submitted as follows: "I submit these circumstances are special enough (per Section 79 [of the Review Act]), to warrant the Courts intervention, to petition this conviction, and this matter, does not breach any of the provisions of [s 79] in terms of the issue of appeals and otherwise, as, it has been too difficult for me, to run appeals in the higher Courts and further, I should be given, the basic right, to a represented defended Hearing in the Local Court, especially in circumstances of Legal Incapacity, which, I have been denied."
This was an obvious recognition of the fact that the history of the proceedings and the steps taken by Ms Kostov in relation to challenging her convictions were likely to attract the potential operation of s 79(3) of the Review Act.
By virtue of s 79(3), the Court has a discretion to refuse to consider or otherwise deal with an application for inquiry under s 78 including where: 1. the matter has already been dealt with in one or more of the ways set out in s 79(3)(a)(i) to (iv); and 2. the Court is also not satisfied that there are "special facts or circumstances that justify the taking of further action", within the meaning of s 79(3)(b).
What might constitute "special facts or special circumstances" for the purposes of s 79(3)(b) of the Review Act is not spelt out in the Act. In Application by AZ for inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2020] NSWSC 1048 at [21], Cavanagh J considered that the emergence of new evidence or new arguments (which have a reasonable foundation) not previously raised might be considered special facts or circumstances. Further, the Second Reading Speech, portion of which was quoted by Johnson J in Milat at [18], indicates that the requirement for the Court not to be satisfied that there are special facts or special circumstances that justify the taking of further action is directed to ensuring judicial resources are not wasted as a result of repeated, unmeritorious applications for inquiries. Thus "special facts or special circumstances" can be understood as including facts and circumstances which indicate that there is a reasonable basis for the application for inquiry which has not already been considered and has sufficient merit to justify the expenditure of judicial resources on consideration of the application for inquiry.
The specific history and purpose of s 79(3) was considered by Johnson J in Milat, Ivan Robert Marko - Application under Section 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 209 (Milat) at [16]-[22] as follows: "[16] The provisions now contained in s 79(3) were first introduced as part of extensive statutory reforms contained in the Crimes Legislation (Review of Convictions) Amendment Act 1993. As Spigelman CJ observed in Kirk Group Holdings Pty Limited v WorkCover Authority (NSW) at 154 [6], the 1993 Act followed the preparation by the Criminal Law Review Division of an issues paper entitled 'Review of Section 475 of the Crimes Act 1900' (November 1992). [17] The 1993 Act inserted ss 474C-474F into the Crimes Act 1900. As enacted in 1993, s 474E(3) provided: '(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter is the same as a matter that has previously been dealt with under this Part or under the repealed provisions; and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.' [18] In the second reading speech for the Crimes Legislation (Review of Convictions) Amendment Bill 1993, the Attorney General, the Hon JP Hannaford, said with respect to Clause 474E(3) (Hansard, Legislative Council, 27 October 1993): 'The bill also provides for some limit to be placed on subsequent and further applications for a section 475 inquiry, by adopting a test similar to section 22A of the Bail Act. The Government is concerned that in removing restrictions on the post-conviction inquiry procedure, some additional safeguards are required against the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries. Consequently, either the Governor or the Attorney General in the case of petitions, or the Supreme Court in the case of applications to it, will be entitled to refuse to consider an inquiry if the matter is substantially the same as one that has already been dealt with and there are no special circumstances justifying further action.' [19] The model for the 'special facts or special circumstances' test introduced in s 474E(3) was the test then contained in s 22A Bail Act 1978 with respect to repeated bail applications. [20] It may be seen that the balance being struck by the provisions then contained in s 474E(3), and now contained in s 79(3), involved an appropriate remedial process for applications for a post-conviction inquiry and the need to guard against 'the waste of judicial resources that can flow from repeated unmeritorious applications for inquiries'. [21] In a case to which s 79(3) applies, the Court may refuse to consider or otherwise deal with an application. This course may be taken where one or more of the circumstances identified in s 79(3)(a)(i)-(iv) arises and, in addition, the Court is not satisfied that there are special facts or special circumstances that justify the taking of further action: s 79(3)(b). [22] Where repeated applications for an inquiry into conviction have been made, the threshold question posed by s 79(3) will arise for consideration."
The relevant principles when considering the application of s 79(3) of the Review Act have also been recently dealt with in the Court of Appeal in Clark v Attorney General of New South Wales [2020] NSWCA 70 (Clark) and GAR v Attorney General for the State of New South Wales (No. 3) [2020] NSWCA 179 (GAR). Those principles include: 1. The discretion conferred by s 79(3) to refuse to consider or otherwise deal with an application is not conditional upon the establishment of any particular matter. As is clear from the words "without limiting the foregoing" in s 79(3), the matters stated in pars (a) and (b) serve as a guide to the proper limits of that power but its exercise is not conditional upon their being satisfied: Clark at [39] (McCallum JA, Basten and Macfarlan JJA agreeing); 2. In determining whether to consider an application under s 78, it would not be permissible for the judge to act arbitrarily or capriciously: Clark at [44]; 3. "[T]he breadth of the matters which an applicant may seek to raise in applying for an inquiry informs the scope of the Court's consideration for the purposes of s 79(3) as to whether 'the matter' has been fully dealt with at the trial or on appeal, or previously dealt with under Part 7. However, it does not follow that the Court cannot exercise the discretion without again considering every issue raised in any previous proceeding. On that approach the screening function of the discretionary power to refuse to consider an application would be defeated": Clark at [46]; 4. It is not necessary, before the discretion to refuse to consider an application under Pt 7 is enlivened, for the Court to be satisfied that every piece of evidence or every paragraph of every submission put in support of the application was fully dealt with at the trial or on appeal or has previously been dealt with under Pt 7. The task is to identify the substance of the matter the applicant contends warrants an inquiry or referral of the case to the Court of Criminal Appeal: Clark at [47]; 5. The discretion not to consider an application (beyond considering it to the extent necessary to form a view as to whether to exercise the discretion under s 79(3)) calls for an evaluative assessment which will ultimately be guided by fairness: GAR at [143] (McCallum JA, Macfarlan JA agreeing).
The Court's discretion to refuse to consider or otherwise deal with an application under s 79(3) will be enlivened in the present case if: 1. the matter has been previously dealt with under Pt 7 of the Review Act, within s 79(3)(a)(ii), as a result of Ms Kostov's petition to the Governor under s 76 lodged on 30 November 2020, being considered and dealt with as detailed above, including as set out in the Secretary's letter of 29 April 2021, Ms Kostov's further submissions of 4 May 2021 and the Secretary's letter of 6 May 2021; or 2. the matter has been the subject of appeal proceedings commenced by Ms Kostov, within s 79(3)(a)(iv), as a result of her application for leave to appeal in the Court of Appeal against the rejection by Adamson J of her appeal against her convictions under ss 52 and 53 of the Review Act, which application was "withdrawn or allowed to lapse" as a result of Ms Kostov's notice of discontinuance filed on 24 November 2020, referred to above.
In regard to s 79(3)(a)(ii), it appears to me that the issues raised by Ms Kostov in her application for inquiry were all raised in, and have all been dealt with in substance and effect by the responses to, her petition to the Governor under s 76 of the Review Act. Indeed, a line by line comparison of the petition to the Governor with the application for inquiry demonstrates that no new facts or circumstances were raised in the application for inquiry. The only differences between the two documents were: 1. references to a petition were replaced by references to an application for an inquiry and changes were made to refer to the different sections of Pt 7 of the Review Act relevant to the different procedures; 2. a sentence was inserted in section 1) of the application for inquiry: "It related to a purported Fee Waiver (amount circa $300) in the NSW Supreme Court"; 3. the following was inserted into the heading of section 5) of the application for inquiry: "Adamson J (Determined in Absence)"; 4. the following was inserted into the heading of section 6) of the application for inquiry: "- Appeal Withdrawn (Difficulties in running appeal unrepresented)"; 5. a number of paragraphs from the petition in section 6) commencing "I further filed a Motion" and concluding with the email of a barrister from the Sixth Floor of Selborne Wentworth Chambers were not included in the application for inquiry; 6. Section 7) of the petition, headed "Attorney General Section 5 Annulment Application - 25 May 2020", was not included in the application for inquiry; and 7. the second last sentence of the petition which read: "I should not be burdened, with appeals, and a reluctance of the Attorney to assist, in circumstances where, I have been denied the basic human right, to legal representation, in criminal proceedings" was replaced in the application for inquiry with: "I should not be burdened, with appeals, in circumstances where, the Attorney has stated, a legal incapacity exists, and I have been denied the basic human right, to legal representation, in criminal proceedings, in the lower Court".
In these circumstances and in light of the reasons given by the Local Court, the District Court, the Supreme Court, the Court of Appeal and the Secretary, it appears to me that Ms Kostov's matter has been dealt with as specified in s 79(3)(a)(ii) and (iv). Furthermore, even if the discontinued application for leave to appeal to the Court of Appeal did not constitute circumstances falling within s 79(3)(a)(iv), the fact that her petition to the Governor under Pt 7 was previously dealt with and reasons were given in that regard to Ms Kostov by way of the letters from the Secretary of 29 April 2021 and 6 May 2021, lead me to accept that it appears that the matter has, at least, been dealt with as specified in s 79(3)(a)(ii).
Furthermore, it appears to me that: 1. no new material facts or new material circumstances, which were not raised in her petition to the Governor, have been raised in her application for inquiry; and 2. none of the facts and circumstances raised has sufficient merit to justify the expenditure of further judicial resources on consideration of the application for inquiry, especially in light of all of the steps taken by Ms Kostov to challenge her convictions by way of applications and appeals in the Local Court, the District Court, the Supreme Court and the Court of Appeal as well as her petition to the Governor and the reasons for rejecting Ms Kostov's applications and appeals given by the relevant Courts or the Secretary.
In particular, the two specific matters raised by Ms Kostov as circumstances that were "special enough" for the purposes of s 79(3)(b), namely: (a) "it has been too difficult for [her], to run appeals in the higher Courts"; and (b) "[she] should be given, the basic right, to a represented defended Hearing in the Local Court, especially in circumstances of Legal Incapacity, which, [she has] been denied" were raised in the applicant's appeals and in her petition and were, in effect, dealt with by Adamson J and by the Secretary. In addition, the proceedings, both judicial and administrative, embarked upon by the applicant have demonstrated her ability to raise the matters which she has sought to have addressed by the inquiry by other means that were available to her.
For these reasons in the present case, I am not satisfied that there are special facts or special circumstances that justify the taking of further action.
On these bases, the discretion under s 79(3) of the Review Act to refuse to consider or otherwise deal with Ms Kostov's application is enlivened in this case.
Moreover, I am satisfied that the Court should refuse to consider or otherwise deal with Ms Kostov's application for inquiry, beyond what has already been addressed in this determination, because there is no substantial injustice or unfairness suffered by Ms Kostov because: 1. the substance of Ms Kostov's grounds for seeking an inquiry has been addressed in Local Court, the District Court, or the Supreme Court as a result of her proceedings in those Courts, or by the Secretary in response to her petition to the Governor; 2. the relevant reasons given by each of the Courts and the Secretary do not disclose any relevant error or any proper basis for concluding that any substantial injustice or unfairness may have been suffered by Ms Kostov in relation to any of her grounds for seeking an inquiry; and 3. the original Local Court proceedings have not yet been finalised since Ms Kostov has not been sentenced and her rights of appeal under s 11 of the Review Act may be invoked by her when those proceedings are finalised.

Alternative consideration under s 78

Furthermore, even if, contrary to my conclusion, it were not appropriate to dispose of the present application for inquiry under s 79(3), I am satisfied that it does not appear from the material submitted by Ms Kostov in support of her application for inquiry that there is, relevantly for the present case, a doubt or question as to her guilt or as to any part of the evidence in the case.
In this regard, I respectfully adopt the reasoning of the various Courts referred to above which have considered Ms Kostov's applications and appeals, and the reasoning of the Secretary in relation to Ms Kostov's petition to the Governor set out in the letters of 29 April 2021 and 6 April 2021, to the extent that it addresses the substance of the grounds relied upon to support the application for inquiry, on the basis that such reasoning appears to me to be correct and not involve any relevant error. It is not necessary to repeat the relevant portions of that reasoning here. It is sufficient to note, without attempting to be exhaustive, that I do not accept that there is a doubt or question as to Ms Kostov's guilt or as to any part of the evidence in the case as a result of: 1. Ms Kostov being forced to represent herself at the hearing on 13 August 2019. She was represented by various legal practitioners at earlier stages of those proceedings, she did not seek an adjournment of the hearing on 13 August 2019 at that hearing and she only sought representation by Legal Aid after she was convicted; 2. the Attorney General's filing a notice of motion in separate proceedings that she be declared a "person under a legal incapacity". The filing of such an application does not establish that the person is actually under a legal incapacity and, in Ms Kostov's case, the application was withdrawn before it was heard and determined. Further and in any event, it remains open to Ms Kostov to raise mental health issues either on sentence or as part of an application under provisions such as those formerly found in Pt 3 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and now dealt with in Div 2 of Pt 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW); 3. Ms Kostov absenting herself from the courtroom during the hearing on 13 August 2019 with the result that she did not hear and could not test some of the evidence led against her. Ms Kostov was not excluded from the courtroom by the magistrate and she was afforded a reasonable opportunity to be present, to test the evidence led by the prosecution and to make submissions. The fact that she was not actually in the courtroom for part of the hearing does not mean that there should be a doubt or question as to her guilt as to any part of the evidence in the case, especially since she was given the opportunity to be present and to participate fully in the proceedings; and 4. developments in the Local Court which occurred after Ms Kostov was convicted, including a refusal of an adjournment on 1 October 2019 in relation to the sentence proceedings. These developments do not give rise to a doubt or question as to Ms Kostov's guilt or as to any part of the evidence in the case because they occurred after the hearing on 13 August 2019 at which she was convicted and did not relate to the evidence given at the hearing. In addition, the sentence proceedings have not yet been heard or determined and Ms Kostov has had considerable time in which to obtain legal representation, to prepare for the sentence hearing and to negotiate any relevant matters with police. She also still has the opportunity to raise mental health issues, in one or more of the ways noted above.

Conclusion

For all these reasons, I have determined that the Court should refuse to consider or otherwise deal with the application. Accordingly, the application for inquiry under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) filed on 17 December 2020 is refused.

Endnote

Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

Amendments 22 August 2022 - Correction to title of proceedings. 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. Decision last updated: 22 August 2022

Mental Health (Forensic Provisions) Act 1990(NSW)

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