NSW Police Force v Sullivan

Section 5 of the Crimes (Appeal and Review) Act

1. Section 5 is in these terms: Applications to Minister (1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Minister by any person. (1A) An application under this section may be made at any time after the relevant conviction or sentence is made or imposed. (2) If satisfied that a question or doubt exists: (a) as to the defendant's guilt, or (b) as to the defendant's liability for a penalty, the Minister may refer the application to the Local Court sitting at the place at which the original Local Court proceedings were held.
2. The Attorney General by his delegate, the Solicitor General, determined that a question of doubt had arisen as to the guilt of Mr Sullivan and so referred the matter to this Court.
3. Although the matter was referred because of the Minister's determination that there was doubt as to Mr Sullivan's guilt, the defendant presses the application on the basis that there is a question as to his liability for a penalty.
4. Section 4 of the Act is regularly utilised in the Local Court. It is enlivened when a defendant has been convicted or sentenced in his or her absence but only if the application is made within 2 years of the date of the conviction or order.
5. An application pursuant to section 5 does not have a time limitation in when it can be brought. It can be made at any time, including any time after the two year period stipulated in section 4, if the Minister so determines. Section 5 makes no mention of the pre-condition contained in section 4, that the conviction or sentence to be reviewed occurred in the absence of the defendant.
6. Whether the application comes before the court by operation of section 4 or section 5, the matters the court is to consider on the application are governed by section 8. That section provides that an application must be granted if the court is satisfied that: (a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or (b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or (c) that, having regard to the circumstances of the case, it is in the interests of justice to do so.
7. Mr Sullivan was present in court when his matter was heard; he then pursued his avenue of appeal to the District Court albeit out of time, but subsequently withdrew it; by a process of elimination, he therefore now appears to be arguing that it is in the interests of justice that his conviction be annulled.

History of Part 2 of the Crimes (Appeal and Review) Act

1. Sections 4, 5 and 8 are now contained in Part 2 of the Crimes (Appeal and Review) Act 2001. The provisions in this Part were originally inserted into the Justices Act 1902 in 1997. Their purpose was to allow a less restrictive procedure for matters to be dealt with when the defendant failed to appear, in particular the amendments allowed for a matter to be determined without an ex parte hearing which had previously been the case. Previously when a defendant had entered a plea of not guilty and then failed to appear, a hearing was required with witnesses both civilian and police in attendance to give their evidence even though the defendant was not in attendance. The resultant cost to the community in terms of court time, witness time and the removal of police officers from their policing duties was noted by the then Attorney General, the Hon J. W. Shaw, in the second reading speech of the amending bill.
2. The amendments permitted the Local Court to consider the charges brought against the defendant "on the papers" without the requirement for oral evidence.
3. Along with this less restrictive arrangement in circumstances where the defendant did not appear, the previous avenues for review of a sentence or conviction obtained in these circumstances were amended so that they were also less restrictive. Whereas previously they provided for a review of the conviction or sentence only when the defendant could satisfy the court that he or she had not received the summons or Court Attendance Notice or was otherwise unaware of the Court hearing, the amendments widened the avenues of review to those that are currently provided for by section 8.
4. Mr Shaw commented in the second reading speech (Parliamentary Debates, Justices Amendment (Procedure) Bill 1997, Legislative Council, 19 November 1997, p 2004) that: The new provisions provide for an order of the local Court to be annulled in situations where a person was not aware of the court proceedings before they were completed; the defendant was hindered by accident, misadventure, illness or other reason from taking action in relation to the proceedings; or where there is any other just cause why the order should be annulled. He went on to comment that the bill demonstrated the government's commitment to building a more efficient court system which reflects the needs of the community it serves.
5. The Court of Appeal in Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134 considered whether it was appropriate to construe a specific provision by reference to a statement of its intended operation, contained within the second reading speech of the Minister in respect of a bill. The Court held that extrinsic material may be considered if it can illuminate the meaning of statutory language (at [20]).
6. At [13], the Court referred to the principle as expressed by Mason J in Wacando v Commonwealth [1981] HCA 60, in which his Honour said at [20]: In construing s. 1 it is permissible to have regard to the mischief to which the Act was directed. Generally speaking, reference cannot be made to what is said in Parliament for the purpose of interpreting a statute. But in my opinion there are grounds for making an exception for the case where a bill is introduced to remedy a mischief. Then, to have regard to the purpose for which the legislation was enacted as stated by the Minister in charge of the bill would conform to the rule that extrinsic material is admissible to show the mischief which the statute is designed to remedy.
7. His Honour Justice Young in Miller v Director of Public Prosecutions [2004] NSWCA 90 considered section 4 and section 9 of the Crimes (Appeal and Review) Act, and said at [30] that: 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.
8. Accordingly this would suggest that to widen the section's application beyond circumstances where the defendant was not present, to include circumstances where he was present and had a hearing on the merits, would appear to go beyond the purpose of the amendments.

Mr Sullivan's circumstances

1. Mr Sullivan's matter was determined after a hearing at which witnesses, both civilian and police, attended and were cross examined. Mr Sullivan was present at the hearing. Although he was unrepresented the transcript reveals that he appeared to be an articulate advocate for his cause. His particular circumstances, including that he worked in the banking and finance sector and had no previous criminal history, but not including that he suffered from any mental condition because that was not yet known, were put before the magistrate. These relevant matters together with the circumstances of the offence were considered by the magistrate before she passed sentence.
2. This application comes about because some time after his conviction he was diagnosed with major depression and anxiety as well as an alcohol abuse disorder by a psychologist, Mr Watson Munro. Mr Watson Munro provided his diagnosis in July 2014 and later opined that, on the information provided to him by the defendant with no corroborative evidence, that the defendant was suffering from a depressive illness not only at the time of the hearing in 2013 but also at the time of his criminal conduct in 2012. He said in his report of 24 February 2015 that in those circumstances and in the context of his experience as a psychologist, it was "highly probable that a section 32 disposition may well have been imposed had the appropriate evidence been produced at the time and had he been legally represented" (at p 3).
3. Mr Sullivan asserted in his representations to the Minister that subsequent opportunities to appeal the decision of the Local Court were missed due to his suffering from an undiagnosed depressive illness. He did not provide any further explanation for this assertion, however it is noted that he subsequently lodged an appeal to the District Court. This appeal was well out of time and required leave to be granted for it to be considered. It is not clear if leave was granted but court records on JusticeLink reveal that leave was granted to withdraw the appeal. The inference available is that leave to appeal was granted. Unfortunately this cannot be confirmed as the District Court file cannot be located.
4. It is also noted that on an earlier occasion when the proceedings were still before the Local Court, Mr Sullivan had pursued a section 4 application in April 2013 against the conviction recorded in his absence when he failed to appear in December 2012.
5. Mr Sullivan also went on to say that: Given the balancing act performed by the Magistrate whether to apply the Criminal Act or the Mental Health Act, if additional evidence was available to the magistrate relating to my illness at the time of sentencing, the decision may have erred on helping through the mental Health Act rather than punishment via the Crimes Act.
6. I take this to mean that Mr Sullivan is of the belief that the magistrate, if she had had the information about his mental condition before her, would have exercised her discretion to divert him from the criminal justice system to receive appropriate treatment for his condition rather than deal with him according to law in the way that she did.
7. Under section 32 of the Mental Health (Forensic Provisions) Act, if it appears to the magistrate at the commencement or at any time during the course of the proceedings that a person is suffering from a mental condition or developmental disability, the magistrate has the discretion to divert the person into treatment. However, that discretion was not enlivened at either the commencement or at any time during the course of the proceedings before the magistrate dealing with the matter because there was no information before the magistrate of any mental condition or developmental disability.
8. There was no evidence on which to exercise the discretion under section 32 and Mr Sullivan was dealt with according to law.
9. The one year bond that was imposed, according to law, has now expired.
10. Mr Sullivan has, I accept, conscientiously adhered to a treatment plan devised by his psychologist at the time of his diagnosis and his mental condition has much improved. However, he notes in his representations to the Minister, and it is often the case, that "the conviction carries with it not only the stigma associated with bad character which weighs heavily" on himself and his partner, but also impedes him "legally, socially and economically". It is in these circumstances that Mr Sullivan seeks to satisfy the Court that "it is in the interests of justice" to annul his conviction and allow the Court to consider dealing with him pursuant to section 32 of the Mental Health (Forensic Provisions) Act rather than in according to law.

The interests of justice

1. Superior courts have had many occasions to consider the meaning of the phrase "the interests of justice" and have generally held that it should be construed widely and that it is a "phrase… which comprehends many factors".
2. In the context of the calling of witnesses in a committal hearing in the case of O'Hare v DPP [2000] NSWSC 430 his Honour Justice O'Keefe said at [49]: … there will be a myriad of factual circumstances to which the phrase may be applied… they involve considerations relating not only to the interest of the defendant in the committal proceedings but also to those of the complainant and perhaps others as well.
3. Magistrate Buscombe in the case of NSW Police Force v Gavrilov [2015] NSWLC 6 made similar observations in relation to the same provisions I am considering in this matter.
4. In Gavrilov, the defendant had been charged with a domestic violence offence, and Magistrate Buscombe commented that the phrase "interests of justice" should be construed widely and is not only concerned with the interest of an accused. His Honour said at [45]: There are the interests of the complainant and the prosecution to consider, as well as the interest of the community generally having the allegation of domestic violence heard at the earliest opportunity. Delays in the hearing of cases can impact adversely on all interested parties to the proceedings.

Determination

1. I was not referred to any case law by either party that could assist me in my determination but it seems to me that there may be some analogy drawn to the principles applicable to the consideration of fresh evidence.
2. The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals (Khoury v R [2011] NSWCCA 118 at [104]).
3. Her Honour Justice Simpson discussed this issue in Khoury v R [2011] NSWCCA 118 and said: 105 The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide: (1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance; (2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied. …. 110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the ion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177. …. 118 One question which has arisen, but not, so far as I am aware, finally decided, concerns the proper identification of the evidence that is said to have been unavailable, or not presented, at the time of sentencing. That was expressed by Basten JA in Einfeld in the following way: (in relation to psychological/psychiatric evidence) "45 Whether the relevant 'event or circumstance' is the psychological condition, or the diagnosis, is one of the matters which has not been definitively resolved. There are fine distinctions to be drawn, in a practical way, between susceptibility to and suffering from a particular condition, different degrees of a known condition and the development of a syndrome (such as AIDS) from an infection (with HIV). ... 50 ... there is a fine line between a psychiatric condition which existed at the relevant time and a diagnosis which occurred subsequently" 119 In Fordham, Howie AJ (as he then was) referred to a psychological report that had been prepared after sentencing. He held, accordingly, that the report was either fresh or new evidence (and admissible only if proper grounds were established). 120 For myself, I would question the too ready acceptance that a psychological report post dating sentencing, is, because it is prepared after sentencing, fresh or new evidence. The substance of the evidence is not the existence of the report, but the history and opinions expressed in the report concerning the applicant's psychological condition. That may or may not be something of which the offender was (or his legal representative were) aware at the time of sentencing, but it is almost certainly evidence that, in the ordinary course, could with reasonable diligence have been obtained prior to sentencing. [emphasis in original]
4. It is not difficult to envisage a number of scenarios where, but for the existence of section 5, justice would not be served simply because the defendant was out of time to pursue an annulment by operation of section 4. For example, a defendant could have left the jurisdiction without being aware of the court date or may have left the jurisdiction involuntarily. Alternatively a defendant may have been hospitalised and remained so either in relation to a serious mental illness or physical illness and the review date may have lapsed.
5. However, it is difficult to envisage how the interests of justice are served by allowing an annulment in circumstances where: 1. there has been a hearing on the merits in the presence of the defendant; 2. there has been some considerable delay without any real explanation for the failure to seek advice about the availability of any review or for the withdrawal of the District Court appeal; and 3. an apparent justification is offered for the application before the court on this occasion on the basis that the defendant was denied the benefit of the exercise of a discretion that exists under s 32 of the Mental Health (Forensic Provisions) Act, in circumstances where that discretion could not have been exercised by the magistrate at the time of Mr Sullivan's hearing (in other words, when that discretion could not be enlivened and did not exist at the time for the magistrate who dealt with his matter).
6. In summary, what are the interests of justice that are served when there has been no denial of natural justice or denial of procedural fairness and the exercise of a discretion being sought (if in fact the defendant adheres to the indication given that there would be no challenge to the evidence before the court) is in fact a redundant exercise because the defendant has not only been dealt with according to law but that lawful penalty, a 12 month bond, has now expired? Indeed it would seem to me that it may bring the justice system into disrepute.
7. In Francuziak v Minister for Justice [2015] FCAFC 162, a recent determination by the Federal Court in relation to an extradition, it was said that: It ill befits an appellant to seek to argue that a hearing has miscarried by reason of a failure on the part of a primary Judge to discharge a duty imposed on the Court where the appellant remains silent during the course of the hearing; awaits the decision of the Court; and (being dissatisfied with the result) then seeks to rely upon the alleged breach of duty for the first time on appeal. Moreover, as the High Court said in Metwally v University of Wollongong (1985) 59 ALJR 481 at 483: It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
8. Admittedly in this case the contention is that the defendant did not deliberately or inadvertently fail to put his case because he himself was not aware of what he could put. However, it must be noted that he was aware of his diagnosis when he withdrew his appeal at the District Court.
9. Be that as it may, even if it were accepted that there may be circumstances where a defendant was present at his or her hearing and may then be able to satisfy the court that it is in the interests of justice to annul a conviction or sentence, I suggest that would require exceptional circumstances. These circumstances are not exceptional.
10. It is not this Court's function to define in advance a possible scenario that may come within section 8; rather the court must determine the matter on the circumstances of this particular case.
11. In the circumstances of this case I am not satisfied that it is in the interests of justice that the application be granted. Magistrate J Keogh Downing Centre Local Court 7 December 2015

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