MILLER v DIRECTOR OF PUBLIC PROSECUTIONS

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 10604/02 FILE NUMBER(S) : LOWER COURT Dowd J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40193/03 CL 10604/02

SHELLER JA BEAZLEY JA YOUNG CJ in EQ

MILLER v DIRECTOR OF PUBLIC PROSECUTIONS The appellant was charged pursuant to ss300(1) and 300(2) of the Crimes Act 1900 in late 1996 or early 1997. On 10 December 2001, the appellant failed to appear and was convicted in his absence. On 17 December 2001, the appellant made an application under s100D of the Justices Act 1902 for an annulment of the conviction on the grounds that, as provided for by s100K(2), he "was otherwise hindered by . . . illness . . . or other cause from taking action in relation to the relevant proceedings." The application was conducted before Ms Syme DCM and evidence was adduced by the appellant as to his medical condition, a medical attendance on 10 December 2001 and his unfitness to attend court on that day. Doctor Bartipan, the appellant's family doctor, gave evidence in this regard. On 13 February 2002, Ms Syme dismissed the application on the grounds that the medical evidence before the court was not sufficient to satisfy s100K(2)(b). By summons filed on 18 February 2002, the appellant appealed the decision of Ms Syme pursuant to s104(1) and (4) of the Justices Act. The appeal was heard by Dowd J on 22 and 23 April 2002. His Honour gave judgment on 20 February 2003, dismissing the appeal on the basis that the Magistrate had carefully considered the evidence and made a simple finding of fact in terms of the requirements of s100K. On 12 June 2003, the appellant obtained leave to appeal to this Court.

The appellant's grounds of appeal were extensive and included that the trial Judge failed to deal with the appellant's argument, misunderstood the nature of the appellant's case and the evidence, erred in relation to his interpretation of the test for the purposes of s100K(2)(b) and failed to provide any or any adequate reasons for his decision.

Held: per Sheller JA, Beazley JA and Young CJ in EQ agreeing:

1. The learned Magistrate appears to have ignored the uncontroverted evidence of Dr Bartipan that he attended upon the appellant on 10 December 2001 and formed a view that he was unfit to attend court on that day. Further, her Worship appears to have also ignored the appellant's evidence, again unchallenged, that he was extremely unwell on 10 December 2001. The Magistrate was of the opinion that because the plaintiff was well enough to take action in relation to the proceedings and contact his solicitor to arrange for an adjournment, "he simply chose not to attend court that day." This finding was not open to the Magistrate on the evidence.

2. The use of the word "hindered" in s100K(2)(b) is instructive. It does not only mean "prevented" but also "impeded" or "obstructed." Likewise the phrase "from taking action in relation to relevant proceedings" is clearly part of a scheme to avoid the obvious injustice to a defendant who is unable, properly, to defend the case against him or her, on the day he or she is convicted, because of accident, illness, misadventure or other cause.

3. Delay in the delivery of judgment makes it even more necessary than usual for a judge to err on the side of thoroughness in the exposition of his or her reasoning process.

Moylan v The Nutrasweet Company & Ors (2000) NSWCA 337 R v Maxwell (unreported) NSWCCA 23 December 1998 4. It was not a sufficient statement of reasons by Dowd J, particularly given the ten month delay in delivering judgment, that the Magistrate had carefully considered the evidence. Even less was it appropriate for his Honour to say that the plaintiff's evidence having been rejected, her Worship simply made a decision that she had not been satisfied by the plaintiff, as the section required her to do so. 5. There was unchallenged evidence which should have been accepted, that the appellant was by reason of illness unable to attend the court on 10 December 2001 and, accordingly, was hindered from taking action, namely defending, the relevant proceedings. Accordingly, the Local Court was bound by s100K(2)(b) to grant the appellant's application to annul the conviction of 10 December 2001. Per Young CJ in EQ: 6. Subsection 2(b) and (c) of s100K should be widely construed. The legislature has chosen wide vague words with the intention that if the defendant is hindered by misadventure or otherwise from doing some act or thing in relation to the proceedings not limited to attending court, then a magistrate would have jurisdiction under the section to annul the conviction or sentence.

Crimes Act 1900 Crimes (Local Courts Appeal and Review) Act 2001 Justices (Amendment) Procedure Act 1997 Justices Act 1902

Cases cited: Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32 Hogben v Chandler [1940] VLR 285 McLachlan v Pilgrim (1980) 5 Petty Sessions Review 2182 Moylan v The Nutrasweet Company & Ors (2000) NSWCA 337 R v Maxwell (unreported) NSWCCA 23 December 1998 Tennants (Lancashire) Ltd v Wilson (CS) & Co Ltd [1917] AC 495 ORDERS 1. Appeal allowed; 2. Set aside the orders made by Dowd J on 20 February 2003; 3. In lieu thereof order: 1. Appeal allowed; 2. Set aside the order made by Acting Chief Magistrate Syme of 13 February 2002; 3. In lieu thereof grant the appellant's application to annul the conviction entered by Magistrate Lulham on 10 December 2001 in relation to charges against the appellant; 4. Remit the proceedings to the Local Court to be dealt with according to law. 4. The respondent to pay the costs of this appeal and the costs of the proceedings before Dowd J.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40193/03 CL 10604/02

SHELLER JA BEAZLEY JA YOUNG CJ in EQ

Thursday, 1 April 2004 MILLER v DIRECTOR OF PUBLIC PROSECUTIONS Judgment 1 SHELLER JA: By summons filed in the Common Law Division, Administrative Law List, the appellant, Damon Charles Miller, appealed pursuant to s104(1) and (4) of the Justices Act 1902 from a decision of Deputy Chief Magistrate Syme, made in the Local Court on 13 February 2001. The appellant sought, in substitution for the decision appealed against, an order pursuant to s100D of the Justices Act to the effect that an ex parte conviction entered against him by another magistrate, Mr Lulham LCM, on 10 December 2001 in the Local Court, be set aside. 2 Section 104(1) of the Justices Act provides as follows: "(1) Appeals by defendants A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds (a) a ground that involves a question of law alone, (b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme court, (c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence. This subsection does not apply in respect of an order that is made in relation to committal proceedings or an interlocutory order." 3 No doubt, as a matter of caution, in case the magistrate's order was regarded as interlocutory, the appellant also relied on s104(4) which provides: "(4) Appeals in relation to interlocutory orders A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court." 4 Even though the subject of the appeal was an order refusing to annul a conviction pursuant to s100D of the Justices Act, the appellant was treated as a person against whom a conviction had been made by a magistrate in summary proceedings. No objection was taken to this course and Dowd J's conclusion that the decision of the magistrate was a final decision is not challenged.

5 The appeal was heard by Dowd J on 22 and 23 April 2002. His Honour gave judgment on 20 February 2003 dismissing the appeal and ordering the appellant to pay the defendant, Director of Public Prosecution's costs of the proceedings. From that decision, the appellant obtained leave to appeal to this Court on 12 June 2003. 6 The salient facts can be stated shortly. The appellant was charged pursuant to s300(1) and s300(2) respectively of the Crimes Act 1900 in late 1996 or early 1997 with making a false instrument between 4 July 1994 and 16 November 1994 and with using a false instrument on 16 November 1994. The proceedings had a chequered history and were prolonged as the result of lengthy dispute about the admissibility of a critical document. Debate about that question resulted in an appeal to this Court which was finally struck out as incompetent on 5 March 2001. 7 On 10 December 2001, the prosecution hearing was resumed before Mr Lulham LCM. The appellant failed to appear and was convicted in his absence. The matter was stood over for sentence on 17 December 2001. On 17 December 2001, the appellant made an application under s100D of the Justices Act for an annulment of the conviction. The application was conducted before Ms Syme DCM on 21 December 2001, 24 January 2002, 7 February 2002 and 13 February 2002. On that last date, Ms Syme dismissed the application and stood the matter over for sentence on 18 February 2002. On 18 February 2002 the summons, to which I have already referred, was filed. 8 Section 100D of the Justices Act, so far as presently relevant, provides as follows: " Applications for annulment (1) An application may be made by or on behalf of a person for the annulment of any of the following: (a) a conviction or an order (other than an interlocutory order) made in respect of the person by a Magistrate that was made in the absence of the person," 9 Section 100K of the Justices Act provides: " Grounds for granting applications (1) A Local Court must grant an application if the applicant is the informant and if it is satisfied that there is just cause why the application should be granted. (2) A Local Court must grant an application if the applicant is a person other than the informant and if it is satisfied that: (a) the defendant was not aware of the relevant proceedings until the proceedings were completed or the sentence was imposed or the other action was taken, or (b) the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the relevant proceedings, or (c) having regard to the circumstances of the case, there is other just cause why the application should be granted." 10 The question for determination in this appeal is whether on 10 December 2001 the appellant "was otherwise hindered by … illness … or other cause from taking action in relation to the relevant proceedings." Neither Ms Syme DCM nor Dowd J were persuaded he was. 11 The evidence before Ms Syme DCM included an affidavit of 17 December 2001 by the appellant which contained the following paragraphs: "14 The matter was referred back to the Local Court for hearing on 10 December 2001 by his "Worship Mr Brian Lulham. Prior to this time I had given instructions to Mr Clive Evatt of senior counsel to appear in the matter. However, in a conversation with staff of Mr Evatt on Tuesday, 11 December 2001 words or words to the following effect were said to me: 'Mr Evatt needed to have an urgent hip replacement operation and could not attend to your matter'. 15 Additionally, on 10 December 2001 I experienced ill health in which I required an urgent change in medication I was taking for a heart condition and a liver problem which prevented me from attending the Local Court that day. 16 At about 8.30 am I contacted the office of my former instructing solicitors in the matter, Carroll & Associates of 7/77 Castlereagh Street, Sydney and sent a letter by courier to Mr Michael Carroll from that office, which requested inter alia, that he arrange for an employed solicitor of his office to attend the Local Court and seek an adjournment of the matter. Annexed to this affidavit and marked 'A' is a photocopy of the letter sent to Mr Carroll, dated 10 December 2001. 17 Mr Daniel Vuletich, an employed solicitor of the firm of Carroll & Associates attended the Local Court on my behalf on 10 December 2001 and requested an adjournment which was refused. The magistrate then proceeded to hear the matter in my absence and enter a conviction. To date, I have not been able to give my evidence in the matter. Annexed to this affidavit and marked 'B' is a photocopy of a medical certificate tendered to the court on 10 December 2001 by Mr Vuletich. 18 Upon discovering that Mr Evatt could not attend court for me, I sought a grant of legal aid in the matter as I have expended in excess of $200,000.00 in legal fees to date and cannot fund legal representation at present. The legal aid application was not finalised at the time in which Mr Vuletich attended court for me. Annexed to this affidavit and marked 'C' is a photocopy of the front page of the legal aid application which was lodged on 7 December 2001. 19 After being treated by my physician, Dr Bartipan, he issued me with a medical certificate on 10 December 2001. Annexed to this affidavit and marked 'D' is a photocopy of that medical certificate." 12 The medical certificate, a copy of which was marked 'B' was dated 18 September 2001 and dealt with work fitness for the period from 14 September 2001 to 14 December 2001. It was a certificate on a Centrelink form. The second medical certificate, marked 'D' was dated 10 December 2001 and included under the heading "Diagnosis (1) CHF [chronic heart failure] - Hypertension (difficult) (2) Depression." Again the form was a Centrelink form which included the doctor's opinion as to the period during which the appellant was unfit for work, in this case from 17 November 2001 to 19 February 2002. 13 The doctor who gave these certificates was required to attend and give evidence on behalf of the appellant on 13 February 2002. He gave this evidence in chief: "Q. Dr Bartipan, could you tell the Court your full name, please? A. Milan Bartipan. Q. And are you a legally qualified medical practitioner? A. Yes, I am. Q. And do you carry on your practice at Henderson Road, Alexandria? A. I do. Q. And Mr Damon Miller whom I think you may recognise in Court, is he one of your patients? A. Yes, he is. Q. I want to take you to a report which you prepared on 23 January 2002 in response to a letter from the solicitors, Carroll & Associates. Would you just look at these documents which I show you. Firstly, do you identify a copy of the letter from Carroll & Associates, solicitors, to yourself and your response? A. Yes, I do. Q. When Mr Miller attended upon you on 10 December 2001 did you conduct a physical examination of him? A. Yes, I did. Q. And as a result of your physical examination and in the light of your previous knowledge and history of Mr Miller as a patient did you form the view that he was unfit to attend a court appearance that day? A. Yes, I did. Q. And on the assumption that the court proceedings were listed for hearing on 10, 11 and 12 December do you have a view based upon your medical examination of Mr Miller on 10 December as to whether or not he had the physical capacity to attend court for those days? A. He didn't have the physical capacity, no. Q. And in terms of the advisability of his attending court in the light of his clinical examination and previous history did you regard it as inadvisable medically for him to attend on 10 December? A. Yeah, I think that it was inadvisable." 14 Dr Bartipan's opinion, that as a result of the physical examination on 10 December 2001 the appellant was unfit to attend a court appearance on that day, that the appellant did not have the physical capacity to attend court on 10, 11 and 12 December and that it was inadvisable for the appellant to attend court in light of the doctor's clinical examination and previous history on 10 December, was never challenged in the course of the cross-examination which followed on behalf of the respondent. 15 According to the letter the appellant wrote to Mr Michael Carroll, on 10 December 2001, asking for assistance that day by way of representation in the Downing Centre Local Court, the appellant was unable to get the assistance from the barrister whom he said he had consulted in June 2001. "Additionally, I am being treated for liver dysfunction and a heart condition with a continuing course of medication and enclose a medical certificate issued by my doctor." That medical certificate was the document "B" to his affidavit of 17 December 2001. 16 On 21 December 2001 the appellant gave evidence as follows: "Q. Could I just ask you some very brief questions relating to your medical condition. Have you had a medical condition of a particular type for some years? A. Yes, I have. Q. And what is that medical condition? A. I've had several medical conditions. One was originally a liver dysfunction which has been fairly well treated for the moment. I have had a heart condition called tachycardia and extremely high blood pressure which has various side effects and I have been treated with continuing course of medication over some time. Q. After you'd spoken to Mr Evatt's staff on 6 December did something happen in relation to your medical condition. A. Yes, it did. Q. What was that? A. I became extremely unwell on the evening of Sunday 9 December and on the morning of Monday 10 December. Q, And did you then on 10 December attend upon a medical practitioner? A. Yes, I did, Q. And is that you family doctor? A. Yes, it is. Q. And was that ten minutes before or after you'd written a letter to Mr Carroll of 10 December? A. It was after I had written a letter to Mr Carroll." 17 The appellant's evidence that he became extremely unwell on the evening of Sunday, 9 December and on the morning of Monday, 10 December was not challenged in cross-examination. 18 The meaning of the expression "otherwise hindered by … illness … or other cause from taking action in relation to the relevant proceedings", is not clear. Section 100K is in a new Part 4A of the Justices Act "Review of decisions by Local Courts" which replaced Part 4A "Annulment of convictions" in 1997: Justices (Amendment) Procedure Act 1997 No 107 (Schedule 1). Before that replacement, s100A(3) enabled a Justice to make an order that a conviction be annulled where the Justice was "satisfied that a defendant was unable to appear at the hearing of the proceedings by virtue of which the conviction was made or the penalty was imposed: (a) because the summons or attendance notice issued in respect of the proceedings did not come to the notice of the defendant; or (b) where the hearing of the information was adjourned, because the defendant was not aware of the adjourned date." 19 In the Second Reading Speech introducing the Justices amendment (Procedure) Bill, the Minister said: "This bill provides for amendments to be made to the Justices Act 1902 to enable defendants in proceedings for summary offences to notify the court of their plea in writing, convictions to be made in ex parte proceedings, and such convictions to be reached on the basis of written evidence. The bill also contains provisions to widen avenues for seeking a review of a decision made by the Local Court and to make it clear that certain documents constitute an information. The Local Court determines the vast majority of criminal matters dealt with by the court system. In 1996, 219,641 defendants were dealt with by Local Courts throughout New South Wales. The Justices Act 1902 provides the machinery for listing and determining offences punishable summarily in the Local Court. The current procedures result in many time-consuming, costly and generally unnecessary appearances before the Local Court. Currently each defendant entering a plea in answer to an information laid against him or her must appear before the court either in person or by counsel. This personal appearance is required despite the fact that a defendant who wishes to plead guilty may agree with the facts of the case and wishes only to put to the court, if anything, matters in mitigation for the offence or on the penalty to be imposed. For those pleading not guilty, the defendant is required to appear in person before the court on at least two occasions. The first of those appearances will be limited to arranging a suitable date for the hearing of the case, while the second appearance is required for the actual determination. The initial appearance of the defendant usually lasts no more than a few minutes. Currently, the Justices Act allows a magistrate to hear and determine a matter in the absence of a defendant. However, the Act does not enable a defendant to be convicted without the informant and other witnesses being called to give oral evidence to the court. This means that witnesses, both civilian and police, are called to court to give evidence in a case where everyone is present except the defendant. The resultant cost to the community in terms of lost working hours and the removal of police officers from policing duties can amount to many hundreds of thousands of dollars each year. Many witnesses and victims of crime called to give evidence, who are often under a great deal of stress, are left wondering why they have to be at court when the defendant does not. This is further compounded when the evidence to be given is of a purely formal nature such as the ownership of a vehicle. The avenues of review currently available to defendants dealt with in the Local Court are considered too restrictive. The present legislation allows a review of a Local Court decision only when an offender is able to satisfy the court that he or she did not receive a summons or notice to attend court or was otherwise unaware of the court hearing. If that person knew that the court case was listed for a certain date but was prevented by accident or other reason from getting to the court, the only avenue of redress would be to appeal against the court's decision to the District Court. This is an unnecessary and costly use of judicial resources. The bill seeks to overcome these problems by reducing the number of unnecessary appearances before the Local Court and streamlining the procedures for determining a matter in the absence of the defendant. The amendments will also widen the grounds on which a review of a Local Court decision may be made." 20 Turning to the specific provisions the Minister, amongst other things, repeated the language of s100K(2) without comment. 21 From the Second Reading Speech, it is apparent that the amendment was directed, in part, to enable convictions to be made in ex parte proceedings for summary offences and on the basis of written evidence but also to widen the grounds for review of a Local Court decision. The particular mischief was that of a person who knew that the court case was listed for a particular date but was prevented "by accident or other reason from getting to the court". 22 In her reasons for judgment Ms Syme DCM said: "Dr Bartipan gave evidence in court today that Mr Miller did not advise him on 10 December that he required a medical certificate to excuse him from a court attendance. Dr Bartipan gave evidence that he may have mentioned it in passing but it was not something that caused Dr Bartipan any particular concern on that day and it was not something that he was asked to give advice on. He was asked in court to give retrospective advice with respect to that and that is also included on his medical certificate. He says he was diagnosed with heart failure and therefore he was not fit to attend the court procedure. I note in that regard that the diagnosis of chronic heart failure and hypertension was given on 8 June 2001. Mr Miller has been well able to attend and has indeed attended court procedures in person and unrepresented on two occasions since that diagnosis and they are 19 June 2001 at which time the matter was set down for hearing. There is no record of Mr Miller presenting to the Court any plea or any evidence of any difficulty on his part at being able to attend future court procedures notwithstanding that diagnosis. He further attended on 19 April 2001. I do note that he did not need to attend on Dr Bartipan in between those two attendances and prior to attending at court. From the medical evidence of Dr Bartipan it appears that Dr Bartipan has clearly contradicted the evidence put before the Court by Mr Miller. Mr Miller categorises his condition as being urgent and as being acute. Dr Bartipan characterises Mr Miller's condition as being chronic and one for which he apparently has not been taking medical advice and one for which there is a strong suspicion he has not been taking medication. On the evidence before the Court it appears that if there was any worsening in Mr Miller's condition noted by Dr Bartipan on 10 December 2001 that worsening which was in peripheral leg swelling only is most likely on the evidence of Dr Bartipan to be due to Mr Miller failing or refusing to follow medical advice and failing or refusing to take medication as prescribed. In those circumstances I cannot be satisfied that the defendant was hindered by illness or other cause from taking action in relation to the relevant proceedings. I have already set out, that Mr Miller was certainly well enough to take certain action in relation to the proceedings. He simply chose not to attend court that day. With respect to the submission by Mr McGovern that in order to reject Dr Bartipan's medical opinion that Mr Miller was unfit to attend court that day I would have to either reject his medical evidence or have other medical evidence put before the Court upon which to make such a finding. I disagree with that. I have analysed the evidence given by Dr Bartipan and in Dr Bartipan's evidence in court he makes clear himself that his medical certificates were given in relation to Centrelink advice only, not with respect to court proceedings, that on his attendance of 10 December 2001 Mr Miller was not presenting with any unusual symptoms at all, that Mr Miller did not require urgent medical attention and even though he may have referred him to RPH there is no evidence before the Court by Mr Miller that he did attend RPH. One would have assumed that in making this application before the Court Mr Miller has put before the court all evidence of his medical condition on that day. If that is the case and I assume that is the case then the medical evidence put before the Court is not sufficient to satisfy ground (b) in my view." 23 I have set this out at length because the learned magistrate seems to have ignored the uncontroverted evidence of Dr Bartipan that he attended upon the appellant on 10 December 2001, conducted a physical examination of him and formed the view that he was unfit to attend a court appearance that day. Further, her Worship seems to have ignored the appellant's evidence, again unchallenged, that he was extremely unwell on the evening of Sunday, 9 December and on the morning of Monday, 10 December 2001. The learned magistrate was of the opinion, which the respondent sought to support, that the requirements of s100K(2)(b) were not met because the appellant was well enough to take action in relation to the relevant proceedings. He was well enough to contact his solicitor and ask the solicitor to arrange for an adjournment. The magistrate said "He simply chose not to attend court that day." That was never suggested to the appellant in cross-examination and was a finding not open to the magistrate on the evidence. 24 Under the earlier provision of s100A(3), if the summons or attendance notice did not come to the notice of the defendant or the defendant was not aware of an adjourned date the magistrate "may order" that the conviction be annulled. By contrast s100K(2) in the new Part 4A, by adopting the language "must grant" an application for an annulment, requires the Local Court to grant the application if the conditions are satisfied. If the narrow construction that the magistrate preferred be given to the words "from taking action in relation to the relevant proceedings" is correct, such relief could be refused in the case of an applicant on the way to court who is badly injured in a motor vehicle accident and fails to ring his or her solicitor from the hospital to ask for an adjournment, because no doubt it could be argued that the accident had not hindered the defendant from taking that action. In my opinion, the phrase must be given a different construction. It is clearly part of a scheme to avoid the obvious injustice to a defendant who is unable, properly, to defend the case against him, on the day he is convicted in his or her absence, because of an accident, illness or misadventure or other cause. 25 The use of the word "hindered" is instructive. It does not only mean "prevented" but also "impeded" or "obstructed". There are no doubt many ways in which this can happen and it is not desirable, even if possible, to catalogue them here. The basis for the application is that the conviction was made in the absence of the defendant. It seems to me quite obvious that if the appellant was prevented from coming to court on 10 December 2001 because of illness, that falls well within the ambit of the expression "hindered by illness from taking action in relation to the proceedings". It is not to my mind, significant or any answer to such a claim that the appellant was well enough to telephone his solicitor or to write a letter. To conclude otherwise, defeats the intention of the legislation. 26 Dowd J delivered his judgment ten months after the hearing date. In Moylan v The Nutrasweet Company & Ors (2000) NSWCA 337 in a judgment with which Beazley and Giles JJA agreed, I referred to the decision of the Court of Criminal Appeal in R v Maxwell (unreported) 23 December 1998 where that court reiterated that delay in delivery of judgment makes it even more necessary than usual for the judge to err on the side of thoroughness in the exposition of his reasoning process. Dowd J, after referring to the plaintiff's submissions to him, particularly the submission that the relevant proceedings for the purpose of s100K(2)(a) and (b) were the events which occurred on 10 December 2001, a submission with which his Honour said he agreed, and to the submission that the medical evidence as to the unfitness of the plaintiff was not challenged or contradicted, said: " The Magistrate's decision 25 An examination of her Worship's decision shows that the question of the plaintiff's credit was central to a consideration of either sub-paragraph (b) and (c) of s100K. An examination of Dr Bartipan's evidence shows that it is not necessary to reject that evidence to evaluate the evidence of the plaintiff. In the several matters enumerated by her Worship in her reasons for her judgment, it is clear that from a medical point of view her Worship's finding was that the medical evidence of Dr Bartipan substantially related only to peripheral leg swelling which was probably as a result of the plaintiff failing to take medical advice or medication as prescribed. 26 Ultimately the reasons carefully set out by her Worship in relation to each of the matters raised by the plaintiff and the question of the plaintiff's medical state, as well as the issue as to whether Mr Clive Evatt was to appear or not, that her Worship found as set out on page 19 of the judgment that the statement by the plaintiff about Mr Evatt's availability cannot stand with the evidence of Mr Rollinson the barrister who gave evidence about Mr Evatt's availability. 27 Her Worship found in her judgment on page 19 in relation to the plaintiff's evidence: 'Mr Miller's evidence before the Court must be in extreme doubt and I certainly cannot accept it. It does not appear to be true. It is contradicted in many areas by his own witnesses.' 28 Her Worship simply made a finding of fact on the evidence which grounded the ultimate finding under s100K(2)(b) and (c) of the Act that she was not satisfied that the plaintiff was hindered and was not satisfied that there was other just cause why the application should be granted. These findings examining the issue of credibility and the reasons upon which that credibility decision is based show that her Worship carefully considered the evidence before her and made a simple finding of fact in terms of the requirements of s100K. 29 The plaintiff's evidence having been rejected, her Worship simply made a decision that she had not been satisfied by the plaintiff, as the section required her to do. 30 It is not necessary to decide whether this appeal involves a question of law alone or mixed law and fact. There is no basis on the finding by her Worship to interfere or overturn her decision. It is clear from the thorough examination of the reasons for judgment for the order that her Worship made that there is no argument that the order cannot be supported. 31 In my view, on any basis, the appeal from the decision of Syme LCM on 13 February 2002 should be dismissed on the basis that no error has been shown by her Worship and it is not necessary to determine the question of whether there is any issue that a ground of appeal involves a question of mixed law and fact, as no ground under s104(1) has been made out by the plaintiff." 27 I comment as follows. First, on the basis which was accepted by his Honour, correctly, that the relevant proceedings were the events which occurred on 10 December 2001, it was not correct to say that the question of the plaintiff's credit was central to a consideration of either sub-para (b) or (c) of s100K. Next, his Honour failed to deal with the submission he recorded, that the medical evidence as to the unfitness of the appellant on that day was not challenged or contradicted. The availability or otherwise of the barrister named was entirely irrelevant to this issue. Further, it was no sufficient statement of reasons, particularly bearing in mind the ten month delay in delivering judgment, that the Magistrate carefully considered the evidence. Even less was it appropriate to say that the plaintiff's evidence had been rejected, and that being so, that the Magistrate simply made a decision that she had not been satisfied by the plaintiff as the section required her to do. 28 The appellant's grounds of appeal were extensive. Amongst them were: "(b) His Honour failed to deal with the appellant's argument and failed to make necessary findings in relation to those arguments. (ii) (sic) His Honour erred in law in failing to provide any or any adequate or proper reasons. (iii) His Honour misunderstood the nature of the appellant's case and the evidence given before Syme SM and misunderstood the law in relation to the appellant's application. (iv) His Honour should have held that the decision of Syme SM was erroneous and that the appellant's application for annulment of conviction should have been granted on the basis that the appellant was hindered by illness from taking action in relation to the proceedings. (v) His Honour should have held that Syme SM had misapplied the applicable statutory test in coming to the conclusion that the appellant was not hindered by illness in taking action in relation to the proceedings. (vi) His Honour should have held that the applicable statutory test for determining whether or not the Court should have been satisfied that the appellant was hindered by illness from taking action in relation to the proceedings and thus being entitled to an annulment of his conviction was whether the appellant's capacity to attend Court on 10 December 2001 was [affected] by reason of illness. (vii) His Honour should have held that the unchallenged evidence of the appellant and his expert witness and treating doctor necessarily led to a conclusion that the appellant was suffering from a physical incapacity to attend court on 10 December 2001 such as to satisfy the requirements for an annulment of his conviction." 29 For the reasons I have already given all these grounds are made good. In my opinion, there was unchallenged evidence which should have been accepted, that the appellant was by reason of illness unable to attend the court on 10 December 2001 and accordingly was hindered by illness from taking action, namely defending, the relevant proceedings. Accordingly, on the annulment application, the Local Court was bound by s100K(2)(b) to grant the appellant's application to annul the conviction of 10 December 2001. 30 I propose the following orders: 1. Appeal allowed; 2. Set aside the orders made by Dowd J on 20 February 2003; 3. In lieu thereof order: 1. Appeal allowed; 2. Set aside the order made by Acting Chief Magistrate Syme of 13 February 2002; 3. In lieu thereof grant the appellant's application to annul the conviction entered by Magistrate Lulham on 10 December 2001 in relation to charges against the appellant; 4. Remit the proceedings to the Local Court to be dealt with according to law. 4. The respondent to pay the costs of this appeal and the costs of the proceedings before Dowd J.

31 BEAZLEY JA: I agree with Sheller JA and the additional remarks by Young CJ in Eq. 32 YOUNG CJ in EQ: I have read the draft judgment of Sheller JA and I entirely agree with it. However, I believe that I should add some remarks of my own because as a result of the argument on this appeal it seems to me that there would be merit in the appropriate authorities considering whether Part 4A of the Justices Act 1902, which has now been re-enacted as Part 2 of the Crimes (Local Courts Appeal and Review) Act 2001, needs to be considered as to whether it has the effect the legislature would intend it to have. 33 Up until Act No 28 of 1967, there was no redress available to a person who had been convicted in what was then a Court of Petty Sessions if that person had not become aware of that conviction within the 28 day period in which there could be a rehearing in the District Court. The only avenue of redress was to petition the Governor for a pardon which, in an appropriate case, the Governor would graciously give, though usually with an order for retrial. 34 The initial amendments had their problems (cf the Commentary in (1971) Petty Sessions Review Vol 2 p 643). Further, it was held in McLachlan v Pilgrim (1980) 5 Petty Sessions Review 2182 per Yeldham J that the then sections 100A and 100B were the only ways of annulling a magistrate's conviction. 35 There were a number of minor amendments up until 1997 when the Part was recast by the Justices Amendment (Procedure) Act 1997 No 107. 36 As Sheller JA has pointed out, the Second Reading Speech gives the clear impression that the aim of the amendments was to liberalise the circumstances in which convictions before magistrates where the accused had not appeared could be annulled. 37 Under the 1967 legislation, the Act covered a series of discrete situations including where the accused was not aware of the adjourned hearing date. 38 However, under s 100K(2)(a), the defendant can apply if he or she was not aware of the relevant proceedings until after their completion, but cases where there was some problem with communication of the adjourned date or a date was wrongly written down in somebody's diary ceased to be matters explicitly mentioned in the statute. 39 This must lead to the view that the general paragraphs of subsection (2)(b) and (c) of s 100K(2) or s 8(2) of the 2001 Act should be widely construed. Thus in (b) the word "misadventure" should be read widely. 40 Further, it is significant that the word "hindered" is used. Although Martin J said in Hogben v Chandler [1940] VLR 285, 288, that "hindered" "is a somewhat vague term", it nonetheless clearly means something less than prevention, namely making something more or less difficult but not impossible (per Lord Atkinson Tennants (Lancashire) Ltd v Wilson (CS) & Co Ltd [1917] AC 495, 518). Alternatively, as Lord Dunedin put in the same case, the word has "the general sense of in any way affecting to an appreciable extent" the activity in question, a statement which was approved by Mason J in the High Court in Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32, 45. 41 The words "taking action in relation to the relevant proceedings" are odd. Counsel have been unable to assist us as to any comparable legislation from which they may have been derived. Again, it would seem that the legislature has chosen wide vague words with the intention that if the defendant is hindered by misadventure or otherwise from doing some act or thing in relation to the proceedings not limited to attending court, then a magistrate would have jurisdiction under the section to annul the conviction or sentence.

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