On 26 April 2019, Joel Peterson, hereafter "the applicant", made an application in Mt Druitt Local Court pursuant to ss 4 and 6 of the Crimes (Appeal and Review) Act 2001 to annul convictions recorded in his absence on 6 March 2019 for two sets of charges being H69890363 and H704015958. The applicant also applied to have convictions recorded in his absence on 4 April 2019 and 8 April 2019 for charges numbered H70679041 and H69362813 respectively annulled.
The application as filed was signed on the applicant's behalf by the applicant's legal representative, Ms Salman, of the Aboriginal Legal Service. Of the four sets of charges dealt with by the Court, those charges dealt with on 4 and 8 April 2019 were listed for defended hearings or trials. The two sets of charges dealt with by the Court on 6 March 2019 were listed for reply following the service of the brief by the prosecution.
The annulment application which encompassed all the charge numbers referred to above was heard on 30 April 2019. On that day an amended affidavit in support was tendered in the proceedings. Following submissions by Ms Salman and the prosecutor, Sergeant Aronis, I indicated that, on the basis of the evidence before me, I was not "satisfied" (as that expression is used in s 8(2) of the Crimes (Appeal and Review) Act 2001), of either subs (b) or (c) (see below). I gave Ms Salman an opportunity to consider her position. She requested some time and a further conference with the applicant. The matter was stood down in the list for that purpose. Ms Salman later returned to court after she had spoken with the applicant and had considered her position. Ms Salman indicated that she relied only on the material and the submissions she had made earlier. She indicated if the Court refused the application she wished to move to the sentencing process.
At that stage I indicated that the appropriate course was for the Court to finally determine the annulment application. I made formal orders for each set of charges refusing to annul the convictions for all charges and I indicated that I would give reasons for the decision the following day. I ordered a duty report for each set of charges for the purposes of sentencing. What follows are my reasons why I was not satisfied, pursuant to s 8(2) of the relevant Act.
The primary reason for refusing the application is that I was not satisfied because of the nature and quality of the evidence tendered in court to support the application. The amended affidavit in support of the application was not sworn or affirmed. By definition an affidavit under the Interpretation Act 1987 (NSW) is defined in s 21 as:
"In the case of persons for the time being allowed by law to affirm, declare or promise, includes affirmation, declaration or promise".
The applicant was not called to give evidence in the annulment proceedings to clarify any factual matters referred to in the unsworn amended affidavit. He was not subject to cross examination by the prosecutor to test any of the matters he referred to. So far as evidence for the application, the applicant relied solely on the affidavit. As I said earlier, it was nature and quality of the evidence which I regarded as a very low probative value for the purposes of satisfying the Court.
Section 8 (2) of the Crimes (Appeal and Review) Act 2001 provides:
The Local Court must grant an application for annulment made by the defendant if it is satisfied:
(a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or
(b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or
(c) that, having regard to the circumstances of the case, it is in the interests of justice to do so.
For the purposes of the annulment application the applicant relied on subs (b), that he "was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original local court proceedings" and (c), …having regard to the circumstances of the case, it was in the interests of justice to do so", that is, to annul the convictions.
I note that the text in s 8(2) by the use of the word, "or" between subs (a), (b) and (c) has the effect that an annulment must be granted if the Court is satisfied of either (a), (b) or (c). I also note the mandatory language, "must grant". Sheller JA in Miller v DPP (2004) 145 A Crim R 95; [2004] NSWCA 90 at [24] observed that the expression "must grant" in the statutory predecessor to s 8, which was in materially similar terms:
"…requires the Local Court to grant the application if the conditions are satisfied."
The expression is to be contrasted with an even earlier version of s 8 (s 100A(3) of the Justices Act (repealed)) which used the expression "may order". In Miller, Beazley JA and Young CJ in Eq agreed with Sheller JA's interpretation. The observations of the court in Miller of s 8(2) were affirmed in Manny v Australian Securities and Investment Commission [2017] NSWCA 44 at [9].
For the purposes of the application before the court some further observations must be made about the text of s 8(2). The standard of proof applied to the word "satisfied" is the balance of probabilities and not the higher criminal standard of proof of beyond reasonable doubt. The Court of Appeal also made clear in interpreting materially similar legislation in Boensch v Commission of Fines Administration [2017] NSWCA 13 at [11] that to exercise the power to annul the Court must affirmatively be satisfied as to one of the matters in s 8(2)(a), (b) or (c) and the applicant bears the onus of "satisfying the Court as to the relevant criterion." As the Court observed a Court dealing with an annulment application is not required to be satisfied of the evidence put before it. It is to be noted that in case the Court was taken to the decision of Miller cited earlier in these reasons. And in Streater v Commissioner of Fines Administration [2015] NSWSC 1516 at [9] Bellew J observed - again in the context of analysing materially similar provisions:
"It is open to the magistrate to accept or reject evidence in support of an application".
In the unsworn affidavit before this Court the applicant states:
"I was admitted into hospital for a dog bite to my leg. I was in hospital for at least four days. I can't remember the exact dates. It would've been early, mid March. Police took the phone off me when I was arrested. I had no ability to contact anyone. I moved house …[in] Tregear because of my neighbour ….has an AVO out on me for one of my matters. I felt intimidated/worried about him calling the police on me for contravening the AVO. I always have to walk past his house to get to the shops and train station. I have been working full-time six days a week on the new train link. I lost track of my court dates as I have four matters on foot.
I accept I should have contacted ALS or the court to find out my court dates. I have previously contacted the court when I have been unwell or unable to attend. I was busy with work and lost track of time. I want to fight the charges against me. I disagree with the police facts and I deny the allegations."
The application is to annul four sets of charges. Apart from the reference to "early mid March" when the applicant said he was hospitalised for at least four days, there is no reference to particular times and dates. The general lack of reference to dates and times is important because his matters were listed on three different days, as set out above.
There are other factual propositions that may be seriously queried in the unsworn affidavit. The applicant states that the police took his phone and therefore he had no ability to contact anyone. It is not clear whether this means he could not borrow a phone or use a public phone or that he could use other means to contact the court or his lawyer.
The applicant stated other matters, which in my view do not address the matters referred to in the annulment provision under s 8. He said he moved house because of a neighbour and that he felt intimidated about that person calling police. It is not clear the link between that factual proposition and the matters referred to in s 8.
The applicant said he has been working six days a week. He said he lost track of time and the court dates. Unlike other decisions such as Willis v R [2014] NSWDC 325, he does not say why he had lost track of the court dates. For example, in Willis, it was accepted that the applicant's life was in disarray because of his addiction to ice (see [7] of the judgment). This proposition was accepted by the Court notwithstanding the disordered life was brought about by a self-induced addiction to a drug.
The applicant, in his affidavit, accepts that he should have contacted his lawyer, but he was busy with work and lost track of time. There is no reference to where the applicant works or any supporting documentation in support of how often he worked. The bare fact that a person works cannot be enough to ground an annulment application - or if it could - there must be other exceptional circumstances. This is especially so in a case where there are four sets of matters before the Court all containing serious charges.
The fact the applicant wishes to "fight the charges" is a matter that may be taken into account, perhaps the limb under s 8(2)(c) "in the interests of justice" given the wide reading of the phrase "interests of justice" in Miller's case at [39]. However, where the application is for four sets of charges, all the circumstances of the case have to be considered and the interests of justice must relate not only to the defendant, but also to the community and the community interest in the matters.
The applicant's legal representative raised the decision of Boulghourgian v Ryde City Council [2008] NSWDC 310. In that case the applicant was unrepresented, did not understand court processes, and had very limited English. The case itself can be easily factually distinguished, but it also must be said it is a District Court judgment with very limited precedential value. The other case that was raised was a case called Rukavina v Director of Public Prosecutions [2008] NSWDC 214. But in that case the applicant attached two medical certificates and gave evidence in the annulment proceedings. It is a case that can be readily distinguished on the basis of the nature and quality of evidence before the Court. In this case I find that the applicant has failed on the balance of probabilities to satisfy the court of any of the matters referred to in s 8(2) of the Crimes (Appeal and Review) Act 2001. It is for these reasons the application for annulment of all the convictions recorded in the applicant's absence was refused.
Magistrate Donnelly
Mount Druitt Local Court
Note: The District Court dismissed an appeal of the above decision to refuse the annulment application.
[2]
Amendments
06 December 2019 - Note added at end of decision re appeal outcome
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Decision last updated: 06 December 2019