R v Ange

REPRESENTATION: Mr Foord, Counsel (Applicant) Mr Craddock, Senior Counsel, instructed by Crown Solicitors (Respondent)

ORDERS: The conviction is annulled and a fresh hearing date will be set.

1 The applicant Mimi Ange was charged and convicted of ten offences relating to possession of illegal pornographic films. She was not present at court on the date of her conviction. She has made an application for an annulment of those convictions, and this is opposed. 2 The respondent, a police officer, is represented in this matter by the New South Wales Crown Solicitors Office, instructing Mr Craddock SC. What would ordinarily be a simple and straightforward application has become somewhat of a legal feast, with counsel debating the fine points of hearsay evidence, witnesses including a solicitor and accountant cross examined and lengthy analysis of s8 of the Crimes (Local Courts Appeals and Review) Act 2001: 8 Circumstances in which applications to be granted (1) A Local Court must grant an application for annulment made by the prosecutor if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so. (2) A Local Court must grant an application for annulment made by the defendant if it is satisfied: (a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or (b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or (c) that, having regard to the circumstances of the case, it is in the interests of justice to do so.

3 Mimi Ange relies on each of (b) and (c), however for reasons that will become clear it is only necessary to consider (c). Thus the issue is whether I am satisfied on balance that, having regard to the circumstances of the case, it is in the interests of justice to grant the application.

Review of the Law 4 There are competing interests of justice in this context - it is generally in the interests of justice that there be finality of criminal matters before the court, and that where a defendant is convicted in their absence, having been given an opportunity to attend, that in the ordinary course of events they cannot get "a second bite at the cherry" without good reason. On the other hand, it is inevitable for a variety of reasons that such a conviction ought be annulled where there are good reasons so that a defendant has the opportunity to put the prosecution to proof of the case, be heard on penalty or otherwise defend the matter. It is the fundamental duty of the court to hear the matters brought before it, and to have each party present their case as an integral part of that hearing. It is also fundamental that the court should not lightly allow a conviction, with all the consequences and public opprobrium that can bring, unless they have had appropriate opportunity to present their case.

5 The history of one of the predecessors to s8 was considered by Young CJ in EQ in Miller v Director of Public Prosecutions [2004] NSWCA 90 at 32 and I have emphasized a portion in bold. 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. 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. 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. There were a number of minor amendments up until 1997 when the Part was recast by the Justices Amendment (Procedure) Act 1997 No 107. As Sheller JA has pointed out, the Second Reading Speech gives the clear impression that the aim of the amendments was to liberalize the circumstances in which convictions before magistrates where the accused had not appeared could be annulled. Under the 1967 legislation, the Act covered a series of discrete situations including where the accused was not aware of the adjourned hearing date. However, under s100K (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. 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. 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.

6 There has been no detailed consideration of s8(2)(c) since its introduction, but in my view there are a number of factors that the court ought consider in balancing the interests of justice. Although not directly comparative, some assistance can be obtained from civil law. In Akari v Sole [2008] NSWSC 59 Hall J at 29 restated in cogent terms the law relating to the exercise of the discretion to set aside default judgment: Accordingly, in general terms, the relevant matters to be addressed on an application to set aside a default judgment include the issues of delay, and explanation for any delay or default which occasioned the entry of default judgment, whether a defence on the merits has been established and the question of whether any prejudice would be occasioned to the plaintiff by the making of an order setting aside the judgment.

7 In the context of s8(2)(c), it seems to me that the following factors may be of relevance in determining an application: prejudice to the prosecution, explanation for non-attendance, the availability of any defence and the seriousness of the matter or the penalty. This is of course not an exclusive list. 8 Firstly, to deal with prejudice. One can imagine that there are criminal cases where there is a very real prejudice in allowing the conviction to be annulled - for example where evidence has been destroyed following conviction. A further example is where there is a victim to a violent crime who, primed for the turmoil of giving evidence, is unlikely to want to give evidence again. A further example could be when there is a significant period between the conviction and the annulment application so that witnesses memories have faded, identification will be more difficult, witnesses have now left the jurisdiction, have died or otherwise have become unavailable. On the other hand, where none of these factors are present, the prejudice to the prosecution cannot be said to be great.

9 Secondly, to deal with an explanation for non-attendance, there will be cases where it is obvious that the defendant themselves are blameless. Often the hearing date is set down when the defendant is not present, and human nature dictates that the defendant can be told the wrong date. Courts tend to be relatively sympathetic to s8 applications where lawyers fall on their sword and take the blame for a miscommunication. Less blameless are the defendants who simply forgot, or change address without notification. 10 An example of the latter is in Rakavina v DPP [2008] NSW DC 214 per Bennett DCJ. In that case the applicant had not attended court because he mistook the date for another, and had lost his bail adjournment notice. He supplied medical certificates on the application to the effect that he suffered from poor memory as a result of an injury. He conceded that he ought to have telephoned the court to check the dates. The court quoted from Miller v DPP and concluded that whilst the legislation had been amended since, that ss4 - 8 "have not reversed or introduced limitations to that liberalization". The court found that an error resulting in a genuine belief constituted a hindrance by misadventure and thus the Local Court ought to have granted the annulment as sought. At paragraph 63 the court found: "However, as the Court of Appeal has made abundantly clear, the legislation was not intended to produce injustice. Those accused who wish to defend the charges brought against them must be permitted to do so. The strength of the Crown Case was an irrelevant consideration to the question whether the annulment ought to have been granted. Even those facing what might be an overwhelming case are entitled to have the prosecution prove the charges brought. That said, there might in some cases be scope for the consideration of the strength of the Crown case when assessing the credibility and reliability of the evidence of an applicant…."

11 This segues neatly into the issue of potential defence on which there is no clear position from the District Court. There are cases where it is clear that the defendant has no real defence to the case at all. Cases involving drink driving, absolute liability cases and speed camera offences are examples of this where it is difficult to imagine that the defendant has any arguable defence, and the prospect of time wasting looms large. On the other hand, there are cases where the defence is clearly outlined in the application, and is not only arguable, but seemingly strong. As was said in Gino Robert Cassaniti v Director of Public Prosecutions [2008] NSWDC 2 (25 January 2008) per Nicholson DCJ at 17 "in circumstances where the applicants chances of non-conviction in the Local Court on these two charges had no prospects of success there would be little point in annulling the convictions"

12 In the latter case involving a taxation offence, the court found that whilst many other factors weighed in favour of the applicant, that as the offence was absolute, there were simply no prospects of success in defending the matter, and thus did not annul the convictions. 13 As to penalty, in many cases it will be difficult to assess - a person without a criminal record may view any conviction as serious. Demerit points are crucial to some defendants' ability to earn a living. Certainly where a large fine has been imposed to the extent that the consequences could be crippling, that will tend to support an application for annulment, especially where the person has no prior convictions.

14 From the affidavits, other exhibits, and submissions in this matter there are a number of facts not in issue. The applicant was married to Con Ange in 1991. She had some involvement with his adult products shops until she had children, however that faded whereupon he ran the business alone. During that time she would sign papers from time to time, but trusted him regarding the contents. Thus Mimi Ange was the lessee of the premises in Penrith upon which the films were located, but had signed the original lease in about 1992. She had been to the premises about 12 or 13 years ago, but not since. 15 The charges relate to possession in 2005, and she separated from her husband in December 2007. The proceedings became delayed as search warrants were challenged in the Supreme Court (Ange v Kraus [2008] NSWSC 86). Mimi Ange and Con Ange instructed a lawyer, Mr Malcolm McDonald to represent them both, but her involvement in the case was minimal, and she did not attend at the Supreme Court. Representations were made to the prosecutor to withdraw the charges, based upon a defence of honest and reasonable mistake of fact. The offences were strict liability, but the written representations detail her lack of knowledge of possession of the items given her limited involvement in the business. 16 She did not attend on the date the matter was set down for hearing, although her lawyer, via an agent, did. He withdrew from appearing for the applicant, but not for her husband Con Ange. On behalf of Con Ange, an adjournment was sought and refused. Mimi Ange's matters were dealt with ex parte, she was convicted and fined the sum of $25,000. She has no prior convictions. 17 The films are still in existence, the crime is not one involving a victim, the principal witnesses are police officers, and no issue will be taken by the defence as to the nature of the material - that is those elements of the offence are conceded. 18 On the criteria listed above, it is clear that the applicant has satisfied the court that the penalty was significant, the charges were serious and she has an arguable defence. She instructed a solicitor, and once convictions had been entered promptly filed the present application. Apart from minimal delay and the need to prepare again for hearing, there is no prejudice to the prosecution should the matter be annulled. 19 Thus the only issue is whether she was notified of the hearing date. 20 The applicant in sworn testimony says that she was not aware of the hearing date, and that she had effectively lost track of the proceedings post separation, but was still relying on Con Ange and the lawyer to advise her of any requirements she had to meet. Her relationship with Con had broken down and there was an AVO involved, however he still did come to the house to collect the mail. She was not involved in the Supreme Court action in a direct sense - she did not give evidence or attend court. Under cross examination she could not remember items of communication said to be faxed by her relating to earlier mentions of the matters, and she denied key details of contact leading up to the hearing date. Indeed, it was clear from the accountant and the lawyer, both of whom were called to give evidence, that Con Ange was the contact person and the driver of the legal action and the business. The lawyer was unaware of the separation, and communication was generally care of the Penrith office operated by Con Ange. There is no direct evidence that the hearing date was ever brought to Mimi Ange's attention. There are file notes detailing attempted contact, but it is unclear as to how or to whom these were directed. At best, from the lawyer's file and evidence in the bill of costs, the solicitor's contact was limited to a conversation and a fax in May 2008. His staff, who were not called, may have attempted more. 21 The applicant is a witness with a very limited command of English who was assisted through her evidence by an interpreter. She was overwhelmed by the proceedings, and in my view did her best to answer questions honestly. She did not deny the matters put to her by Mr Craddock SC regarding contacts, however said that she could not remember some of them. Sometimes this answer can be indicative of dishonesty or convenience, however in this case, in my view, it was more likely to be a genuine difficulty in remembering. Clearly, she relied on her husband and her solicitor to manage the matters, and trusted that they would do so in her best interests. 22 On the other hand Mr Craddock SC argues that the courts ought to demand a requisite level of personal responsibility. The defendant knew that the proceedings were on foot, knew that there was a mention in May, and was insufficiently concerned about matters to follow them up properly. Mr Craddock SC contends that a defendant cannot simply close their eyes to the proceedings and hope that they will be handled. The respondent conceded that there was no direct evidence that she was contacted about the hearing date. 23 In my view, the standards suggested by Mr Craddock are not supported by any authority or the legislative intent. Certainly, in retrospect the applicant could have and should have done more, but the test is not to assess her blameworthiness in isolation. The applicant has received a huge fine, a criminal conviction for a serious matter in circumstances where there was a breakdown of communication in a lengthy criminal matter where she was not directly advised of the hearing date. Her lawyer was not even aware of the separation, let alone of her specific contact details. There is no significant prejudice to the prosecution and there is, at least, an arguable defence. The defendant previously had no criminal record, and gave honest if confused evidence on the application. 24 In those circumstances I am satisfied that having regard to the circumstances of the case, it is in the interests of justice to annul the conviction. It is thus unnecessary to consider s8(2)(b).

25 The conviction is annulled and a fresh hearing date will be set. 26 I will hear the parties on costs, but my preliminary view is that I agree with the submissions of the applicant that costs will be costs in the cause.

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