Liana Bobolas and Elena Bobolas appear in these proceedings by way of appeals from decisions of magistrates in the Local Court respectively made against each of them. In both cases applications to annul convictions which had been recorded against each of them following ex parte hearings at Waverley Local Court were refused. It is appropriate, notwithstanding that there are individual considerations in each case, to deal with the matters together.
It is necessary to outline the background to these proceedings. Liana and Elena Bobolas both reside at 19 Boonara Avenue, Bondi. Their mother Mrs Mary Bobolas is the registered proprietor of that property. Liana and Elena are sisters. The state of the property and the accumulation of substantial quantities of rubbish, waste and other items around the house on the property has been the subject of extensive litigation between Waverley Council and various of the occupants including the two applicants and their mother since at least 2005.
There has been considerable media attention and publicity about the state of the property and the circumstances surrounding what I would describe as regular litigation brought by the council against the occupants. A summary of some of the proceedings is set out in the judgment of Pain J in the New South Wales Land and Environment Court on 27 August 2018: see Waverley Council v Bobolas [2018] NSWLEC 116 at [55] to [60].
It suffices to observe in summary that Waverley Council have sought and obtained orders from the Land and Environment Court on occasion permitting it to exercise relevant functions under the Local Government Act and in particular to carry out work orders for the clean‑up of the property. The extensive litigation has on occasion proceeded to the Court of Appeal in the Supreme Court of New South Wales.
In April 2015 Sheahan J issued orders whereby the Council was authorised to enter the property in order to commence the removal of waste and other items as part of a clean‑up: see Waverley Council v Bobolas (No 2) [2015] NSWLEC 66. An appeal was lodged against the orders of Sheahan J which was heard in the Land and Environment Court on 13 July 2015. On that occasion Waverley Council conceded that it would not seek to enforce some of the orders which had been made by Sheahan J, in particular those orders that related to vegetation and the removal of certain specified items.
A partial stay was therefore in place by consent. However the particular powers relating to the entitlement of the Council to enter the premises and remove waste and rubbish appear to have remained in force: see Bobolas v Waverley Council [2015] NSWCA 204 per Basten JA.
On 20 April 2015 employees of and contractors to Waverley Council, in the company of New South Wales Police Officers, sought to execute and enforce the orders of the Land and Environment Court that had been issued by Sheahan J with respect to the proposed clean‑up of the property surrounding the premises.
The specific terms of the orders by the Land and Environment Court restrained the occupants from interfering in the removal activity and/or going within 10 metres "of any operating machinery and truck on or in the vicinity of the premises". In the course of the execution of the order by Waverley Council through its employees and contractors, police are said to have entered the premises and given instructions to Liana Bobolas to remove herself from what police described as "a location within 10 metres" of a council truck.
The police facts sheet asserts that Liana Bobolas refused to comply with the request from police to move from where she was standing. It would appear that she claimed that she was not within 10 metres of "machinery" and that she had been advised by Waverley Council that they would not be removing any items from the veranda. It would appear, in the way the facts are drafted, that she was standing on the veranda at the time.
Police then arrested Liana Bobolas for an alleged breach of the Court order. She was physically removed from the premises, cautioned and placed into the rear of a caged police truck. According to the police facts it is stated that all of these events were recorded by video. Liana Bobolas was then conveyed to Waverley Police Station. She was there charged with an offence of wilfully obstructing Waverley Council from removing rubbish in the exercise of a function under the Local Government Act 1993.
The offence was particularised as having occurred between 7.35am and 7.40am. I should note that later that morning Elena Bobolas appeared in person in the Supreme Court of New South Wales before the Presiden, Justice Beasley, in an application to set aside part of the orders that had been made by Basten JA on 13 July 2015. In the proceedings before Beazley P (Bobolas v Waverley Council [2015] NSWCA 216), an adjournment application was initially sought because of the fact that Liana Bobolas had been arrested and that Mrs Mary Bobolas had been obliged to remain at the premises in order to witness what was occurring.
That adjournment application made by Elena Bobolas was refused by President Beazley. Beazley J was not satisfied that the notice of motion which had been filed demonstrated any grounds for setting aside the orders of Basten JA. While Elena Bobolas was physically appearing in the Court of Appeal, it would appear that Liana Bobolas had remained in custody at Waverley Police Station, having been arrested in the circumstances that I have earlier described.
The police formally granted her bail but sought to impose conditions on that grant of bail which had the effect of inserting the terms of the orders from the Land and Environment Court as conditions for the grant of bail. Liana Bobolas refused to sign the bail forms containing those conditions. She appeared from custody in court in front of Magistrate Huber in the Local Court at Waverley in the course of that morning.
The transcript of those proceedings has been tendered before me. I should note in passing that the reference on the heading to that transcript to an offence identified by the reference 212772 and the description in the transcript heading "Resist officer in execution of duty" has clearly been inserted by transcription services in error. That particular offence did not exist on 20 July 2015 and indeed was not the subject of charge until the following day.
Magistrate Huber in due course and after being satisfied that the offence which was charged before her, namely an offence under s 660 of the Local Government Act was a fine only offence, in due course dispensed with bail. She adjourned the matter until 12 August and noted the Court file that it was for mention only. In such circumstances where bail was dispensed with, it would appear likely that no written notice of the date was given to Liana Bobolas.
After being released without the necessity of bail, Liana Bobolas then returned to the premises at Bondi. A police facts sheet states that after she arrived that afternoon she stood on a neighbour's driveway together with her mother, Mrs Mary Bobolas. The police facts state that Liana then began verbally abusing police, council staff and the contracted cleaning crews claiming that the Court order was invalid and that she intended to enter the rear yard of the premises.
A short while later Elena Bobolas also arrived at the premises, at around 2.15pm, according to the account in the police facts, Liana Bobolas and other family members were making attempts to enter the back yard of their premises. All three of the Bobolas family members, namely the two sisters and their mother, are said to have been at the front gate arguing with police and council workers.
According to the police account, Liana Bobolas jumped the front fence and proceeded down the driveway towards the back yard where workers were operating shovels and items of machinery. At around 2.30pm Liana was again arrested and conveyed to Waverley Police Station in a police caged vehicle. According to the police facts a discretionary decision was then made by police because the council intended to complete operations for the day at 3pm and consequently it was perceived that nothing further would happen if she returned to the home.
Liana in those circumstances was said to have been issued with a field court attendance notice for a second offence of wilfully obstructing Waverley Council in the exercise of their functions under the Local Government Act.
The following morning 21 July 2015 council employees and contractors again accompanied by New South Wales Police attended the premises at 19 Boonara Avenue, Bondi. It was intended to continue to execute the orders of the Land and Environment Court with respect to cleaning up the property. At about 7.20am Liana was in the rear garden when employees or contractors started to commence the clean‑up duties at that location. According to the police account Liana Bobolas was warned by an officer that she was breaching the 10-metre exclusion provision in the orders by Sheahan J by remaining on the property.
According to police Liana commenced to walk down the driveway towards the front of the house away from police. As a result she was placed under arrest. She allegedly grabbed on to a metal security bar on one of the windows of the house and refused to release her grip. She was subsequently physically pulled away from the bars by police and escorted from the premises. She is said to have continued to resist the police. She was placed in the rear of a caged police vehicle.
The events with which she was subsequently charged are particularised as having occurred between 7.20 and 7.30am. At or around approximately the same time, Elena Bobolas was at the front of the premises where police claim she was obstructing a Waverley Council vehicle from being able to be utilised by the workers. The police facts state that she failed to comply with directions to move from her location and as a consequence was also arrested for being in breach of the 10-metre exclusion space around machinery and trucks.
She was similarly placed into the rear of the caged police vehicle. The particulars of the police charge sheet identify that offence as occurring between 7.30am and 8am on 21 July 2015. I should observe in passing that in the course of the proceedings before me I permitted each of the applicants to give their version of events from the Bar table. It suffices for present purposes to observe that each of them gives a version which is at odds factually with the account described by police on 21 July 2015.
The two sisters were then conveyed by police in the caged vehicle to Waverley Police Station. According to each of Liana and Elena, the police drove deliberately in a physically violent fashion causing Liana in particular to suffer some claimed injuries as a consequence of allegedly being thrown around the rear caged area of the vehicle whilst it was being driven from Bondi to Waverley Police Station.
I should indicate clearly that I neither accept nor reject that account which may in any event have no legal significance with respect to the current proceedings.
At Waverley Police Station Liana was charged with a third count of wilfully obstructing the council in the exercise of their functions and also with an offence of resisting a police officer in the execution of his duty contrary to s 58 of the Crimes Act 1900.
I should observe that whilst the offences under the Local Government Act are properly described as fine-only offences, an offence under s 58 of the Crimes Act carries a maximum penalty of five years if prosecuted on indictment or has a jurisdictional limit of two years imprisonment if prosecuted summarily.
Elena Bobolas was charged with the wilful obstruction of Waverley Council employees in the exercise of their function under the Local Government Act which as for the three similar offences charged against Liana constituted an offence contrary to s 660 of the Local Government Act 1993.
The police facts with respect to Liana on 21 July 2015 indicate that she was charged at Waverley Police Station, introduced to the custody manager and her rights under pt 9 of the Law Enforcement (Powers and Responsibilities) Act (LEPRA) were explained. She was described as argumentative and refusing to co‑operate with police directions. The police facts indicate an intention by police to ask the Court to make an order pursuant to s 134 of LEPRA requiring the defendant to present to Waverley Police Station within 24 hours to enable her photograph and fingerprints to be taken.
The facts do not reveal the provision of any document regarding the matters being listed at Waverley Court for first return on 12 August 2015. Elena Bobolas on the face of documents included in the Crown tender bundle was provided with a court attendance notice by a constable at Waverley Police Station. According to the statements which were subsequently tendered in the course of these and related proceedings, that particular constable, Constable Richards, had attempted to hand a copy of the court attendance notice to Elena at Waverley Police Station.
The two statements attesting to that asserted set of circumstances were made on 31 October 2017 and 2 November 2017, clearly more than two years after the events. In the second statement dated 2 November 2017 the constable set out direct speech in which she said that she had orally advised Elena Bobolas of the date for the matters to be in Court, namely 12 August 2015.
I should note in passing that the oral conversation deposed to in that statement, and later the subject of proceedings which I will refer to, indicated that Elena was required to attend Court at 9.30am on 12 August 2015. The annexed copy of the court attendance notice states the required time of attendance being 9am. The copy of the court attendance notice which was in due course tendered during the application for annulment appears to be on its face a copy of the service copy of the court attendance notice.
According to the statements of the constable, the paperwork including the court attendance notice that she had attempted to hand over at Waverley Police Station was subsequently delivered to the home address at Boonara Avenue, Bondi where it was said by the constable to have been left in the mailbox. In these circumstances I am unaware as to any explanation for the service copy of the documents still being in police possession.
I also note the assertion in the proceedings before me by each of the Bobolas sisters, which appears to not be in dispute by the Crown, that as a matter of fact as at 2015 there was no mailbox or letterbox at the premises, it having been previously damaged and subsequently removed following activities by the council.
On 12 August 2018 three matters were before the Court with respect to Liana Bobolas. Two related to the separate incidents alleging wilfully obstructing council employees in the exercise of their function under the Local Government Act in the morning and then in the afternoon of 20 July, while one matter 2015/00212772 had two sequences relating to the events of wilfully obstructing an officer of the council and also resisting arrest by police on 21 July 2015.
Consequently while there were three file numbers, there were four charges before the Court. Liana Bobolas did not appear. The presiding magistrate on 12 August, Magistrate Farnan, queried whether breaches of the order from the Land and Environment Court were in fact a contempt of that Court and whether or not it separately constituted an offence under the Local Government Act.
I take this to be a reference to the explanation which she advanced before me, namely, that at the time she was arrested, she was offering to take medication which she had in her handbag, to physically give to her sister, Liana, who had asked for it in the course of the interaction with police on the morning of 21 July 2017. Two additional circumstances were identified. Namely, (b), but I did not do what I was charged with and (c), I have a right to be heard.
The applications by both of the appellants were listed to be heard on 13 September 2017. Each of the appellants appeared in person before Magistrate Stapleton on that occasion. Elena Bobolas sought an adjournment of the hearing in order to allow her to obtain medical evidence and also to obtain documentary evidence that there were in fact, Supreme Court proceedings on 12 August 2015, when she had first failed to appear in the Local Court.
The presiding magistrate questioned why the paperwork and supporting evidence had not been obtained in the two years since the conviction was recorded. The magistrate further pointed out that even if there had been a Supreme Court attendance on 12 August, the proceedings had been adjourned to 26 August 2015 and that Ms Elena Bobolas had still not appeared. Elena said that she was very ill at that time and that she wished to obtain medical documentation to corroborate that fact.
The magistrate indicated that in light of the statement of service by a police constable, it would not be readily available to argue that service of the court attendance notice had not occurred. Following an exchange of explanation with Elena Bobolas at the Bar table, she was called forward to give evidence on affirmation. Elena gave evidence that both she and her sister were physically at the Supreme Court on 12 August 2015 and that after the proceedings, her sister, Liana, was feeling very ill. She gave evidence that the two of them stayed in one of the conference rooms in the Supreme Court until Liana had recovered sufficiently for them to leave.
Elena explained that she had not sent a message to the Local Court because she must have been unaware of the date. She gave a detailed account of an exchange with the constable on 21 July 2015 whilst she was in custody, in which she explained she was hit with a small piece of paper which she did not take, did not look at and was not advised as to its contents. The magistrate observed that the gesturing with fingers by Elena indicated the approximate size of a court attendance notice. With respect to the sending of a letter by court staff to her home, Elena gave evidence that she had no recollection of any such letter and advanced the possibility of mail having perhaps been stolen by one of the neighbours, against whom an apprehended violence order had been obtained.
Elena also gave evidence that she had no recollection of any letter advising her of the fact of the fine and court costs after the event. In the course of further questioning by the presiding magistrate, she also denied receiving any correspondence from the State Debt Recovery Office, who, it was suggested to her, would likely have taken recovery action in relation to the fine. Similarly, a suggestion that perhaps the Justice Department and their Sheriffs, might have come around to the house or sent correspondence, was also denied by Elena. Elena Bobolas indicated, in the course of her evidence, that she only became aware of the fact of the conviction and the orders against her, when she was attending upon registry staff at Waverley Court on an unrelated matter. She indicated that the unrelated matter was the obtaining of application forms to seek annulment of a conviction on behalf of a friend who she refused and declined to name.
There is little doubt on a perusal of the transcript of the proceedings that the magistrate likely viewed these circumstances, as she would undoubtedly have been entitled to, with a degree of scepticis. In light of an explanation that it would be a breach of their friend's privacy to disclose the name, the learned magistrate responded "Then I have not much belief that such friend exists".
With respect to the need for an adjournment to obtain medical evidence, the magistrate ultimately came to the view that she would grant an adjournment and that cross‑examination by the prosecutor of the witness would stand over until the next date. The application was accordingly adjourned until 24 October 2017.
The learned magistrate then proceeded to deal with the application by Liana. Liana also indicated that she wished an adjournment. The basis of her application was to seek legal representation. She explained that she had not been able to organise it previously because she had an illness that necessitated her staying in hospital, as well as her involvement in other ongoing litigation. Liana explained to the magistrate that she intended to apply for legal aid. She was then called forward to the witness box to give evidence in the proceedings.
Like her sister, she gave evidence that on 12 August 2015 she had been physically in attendance at the Supreme Court. She said that in addition to being in the Supreme Court, she was physically ill that day and physically unwell to go anywhere else after those proceedings completed. Similar to the evidence given by Elena, she said that she had to stay in one of the meeting rooms in the Supreme Court until she felt well enough to return home. She reaffirmed that she intended to plead not guilty because she had not done anything wrong.
She told the magistrate that she had become aware of the conviction and fine against her in effect accidently, when she had been at Waverley Courthouse for other matters. She claimed to have sent a letter to Waverley Courthouse in an endeavour to find out what had happened on 12 August 2015, but had received no response. She described the emotional turmoil of the battle to save the family home from being sold at auction to pay costs owing to Waverley Council.
Magistrate Stapleton then adjourned the application for annulment by Liana Bobolas to the same date as that to which she had adjourned Elena's proceedings, namely 24 October 2017. Liana Bobolas indicated an intention to make an application for the magistrate to disqualify herself on the basis of bias, having previously been the presiding magistrate in civil proceedings involving Liana Bobolas. Directions were made regarding the filing of documentary evidence in advance of the hearing date.
On 24 October 2017 the matters came before Magistrate Stapleton part-heard. The transcript of proceedings indicates that the matters were mentioned at 10.30am and then again at 2.20pm, and that neither of the applicants was present. A message however was received at the Court that the sisters had both been to the doctor and that they would not be able to present at Court until some time between 2pm and 3pm.
The matter was stood in the list and re‑mentioned at approximately 3pm. Each of the Bobolases then appeared. An application made by the Liana Bobolas for Magistrate Stapleton to disqualify herself was refused. The application then proceeded.
A medical certificate for Elena Bobolas, dated 21 August 2015 was tendered. The medical certificate, which was heavily redacted, revealed that an unidentified doctor had certified Elena as suffering from migraine and being unfit to attend TAFE up to and including 19 August 2015. The certificate, which clearly on its face had been backdated, was explained as a consequence of Elena being too unwell to attend the doctor until 21 August 2015. Elena explained that she had an unredacted copy of the report, but would not reveal the contents to the prosecutor as a consequence of what she said was prior interference with medical files.
In the proceedings before me on this appeal, the explanation was advanced from the Bar table that both sisters had experience of being photographed and harassed when attending medical appointments, when the name and address of their medical practitioner had become known.
A copy of the Court list before the Registrar in the Supreme Court from 12 August 2015 was tendered before Magistrate Stapleton. That document indicated that proceedings relating to Liana Bobolas against Waverley Council had indeed been listed in court 12D at Queen's Square in the Supreme Court on that date. The matter had been listed for directions.
In addition to the earlier medical certificate, a more recent medical certificate verifying an inability to be fit for work on 24 October 2017 was tendered, presumably in order to explain the late attendance on that day and also to corroborate the genuine nature of the fact that there had indeed been a medical attendance that day. That was the very day, of course, on which the application was being heard at 3pm when the sisters finally arrived at Court.
On the application brought by Liana Bobolas for annulment of her convictions, a very similarly redacted medical certificate, also dated 21 August 2015, was tendered. The certificate for Liana stated that she was suffering from neck pain and would be unfit for TAFE up to and including 19 August 2015. The Supreme Court Directions list was again tendered in the case for Liana, as well as a medical certificate for that present day; namely 24 October 2017.
At p 10 of the transcript of proceedings from 24 October, an exchange between the Bench and the Bar table is recorded. The magistrate's query was directed to Ms Elena Bobolas from line 10, but the transcript purports to evidence answers from Liana Bobolas. In my view the transcript is likely in error in its ascription as to the speaker on that page. The contention that a court attendance notice had not been served was from Elena Bobolas and not, as the transcript indicates, by Liana.
There was then somewhat of a debate about whether putting a document beside a person in custody was or was not sufficient to amount to service. In due course the prosecutor sought an adjournment so that he could call the relevant police constable. Elena Bobolas purported to put the prosecutor on notice that she wanted the video of that day on which she was supposedly served at the police station. She was advised to deal with the matter through the registry. She was told to stop speaking at one stage by the magistrate and rebuked for using the word "lie" in the courtroom.
The presiding magistrate also ordered a copy of the transcript of 20 July 2015 on the basis that the transcript would make it clear as to whether Liana Bobolas was aware of the adjourned date of 12 August.
Both applications were then adjourned for further hearing until 29 January 2018. On 29 January 2018 the matter again came before Magistrate Stapleton part-heard. The magistrate did not appear to have a transcript of the proceedings from 24 October 2017.
Liana Bobolas on this occasion renewed her application for the magistrate to disqualify herself for bias. The basis of that application that was advanced was said to be a demonstration of actual bias in civil proceedings that had been heard by Magistrate Stapleton involving Liana Bobolas on 19 June 2015. In the absence of any specific evidence, the magistrate declined to disqualify herself on the basis of mere assertions from the Bar table.
Liana Bobolas made a further submission predicated upon apprehended bias. The magistrate similarly did not recuse herself. Liana Bobolas said that if more evidence was needed, she was happy to get into the witness box and give it. The magistrate indicated, "I'm not calling for you to give evidence, it's a matter for you to decide whether anything further has to be said."
The transcript then indicates that Liana did not say anything further and the question of cross‑examination of Liana by the prosecutor, which would appear to have been specifically adjourned from the earlier hearing dates, appears not to have been pursued. The prosecutor was, however, asked if he wished to cross-examine Elena, and the prosecutor responded in the affirmative.
In the course of cross‑examination Elena Bobolas denied that Constable Amy Richards had informed her of the necessity to attend Waverley Court at 9.30am on 12 August 2015. She denied having been handed a piece of paper and repeated her claim of having been assaulted with a piece of paper which she had been hit with.
Elena said that the officer, without telling her what it was, said "I don't care if you take it or not." Elena said that the Constable was yelling and screaming at her. She said that when she was released from police custody she was not given any paperwork nor was she asked to sign anything. At the conclusion of the cross-examination Elena said that she had more evidence to give. The learned magistrate said "No, Madam there's nothing left to say, it's cross-examination, it's not a case for re-examination, not a case for any further evidence, please take a seat on the black chair."
Constable Amy Richards was then called and her two statements from 21 October 2017 and 2 November 2017 were then tendered. In the course of cross-examination of the Constable on collateral issues which might touch upon her credit and the accuracy of her recollections which were set out in statements made more than two years after the events, it was suggested to Constable Richards that when they arrived at the police station an ambulance had needed to be called. It would appear that this related to the asserted injuries that are said to have been sustained to the neck of Liana. The officer could not recall whether an ambulance had or had not been called. Similarly she could not recall whether Elena's sister was in the back of the caged vehicle at the same time. The learned magistrate rejected this line of questioning.
A query from Liana Bobolas that if the witness could not remember what happened on the day how reliable could she be was indicated by the presiding magistrate to be a matter ultimately for submission. However the line of cross-examination said to go to credit was rejected. The Constable was then cross-examined about whether the attempted service took place in the dock or the foyer area of the police station. The Constable indicated that the attempted service had happened in both locations. With respect to the proposition that the copy of the field court attendance notice had been left in the foyer by Elena Bobolas the Constable's evidence was that she subsequently picked it up from the foyer and later drove out and placed it in a mail box at the property some days later. She was asked in the course of cross-examination to describe the mail box and the Constable indicated that she was not able to.
With respect to the alleged oral conversation in which the Constable asserted that she had orally explained the court date for attendance, she was cross-examined about the fact that such an asserted conversation was not included in her original statement but had later been added into the second and subsequent statement in November 2017. She was asked why she had not included it in the first statement. She was not able to offer any explanation.
At the conclusion of the oral evidence and at the close of the case for the prosecutor there were a series of exchanges between the Bench and the Bar table. Elena Bobolas wished to call what was described as fresh evidence, to refute the proposition that anything could have been put by the Constable into a mailbox. She wished to give evidence that there was no mail box at the address. The magistrate indicated that Elena, in the course of cross‑examination had not put to the witness the specific proposition that there was no mail box there and that she was required, presumably under the obligations to put matters that are going to be the subject of contradiction, to have put such a proposition to the witness.
It goes without saying that despite what might have been learned in the countless court appearances that Elena Bobolas has been involved in over many years, she is not a practising lawyer. Be that as it may, the learned magistrate then engaged in a querulous exchange with Elena about evidence that she had given previously about the neighbour who was said to be stealing mail. A clear inference in the exchange was that mail might have been being stolen from a letterbox or mailbox. Elena Bobolas sought to explain that she had an arrangement with the postman to leave mail at the premises but there was physically no mailbox. I note of course that that is a similar explanation that has been advanced in the proceedings before me and no doubt based on instructions appears not to really be in dispute.
Be that as it may, the prosecutor in the proceedings in the Local Court then indicated that he was relying on personal service at the police station and not in the follow-up physical service attested to by the Constable who had driven to the property allegedly to leave the court attendance notice in fact in the mailbox. The learned magistrate then told Elena Bobolas that the prosecutor by that submission had "taken it out of the argument." An application for Ms Bobolas to give actual evidence about the absence of the mailbox was in those circumstances rejected. The transcript records the magistrate saying:
"In the circumstance where it was not put to the witness that there was no mailbox on the property and the witness had said that she definitely put it there, in response, that will lead to a rejection of the application to call evidence in reply."
An application by Elena Bobolas to call Liana Bobolas in her case on the question of what could be heard in the alleged conversation at the police station in the dock area at the time that service was meant to have been effected, Liana being said to be within earshot, was similarly rejected. Elena Bobolas then made a further application to herself go into the witness box and give evidence and that application was again refused. In the course of exchanges with the bench there were further applications by Liana Bobolas to give evidence orally in her own case and to give corroborative evidence in her sister's case. All of these applications were rejected.
The learned magistrate made a number of observations regarding the relevance of the delay in waiting almost two years before bringing the s 4 application for annulment. At p 45 in the transcript of 29 January her Honour said: "I think that the relevance of delay is that as to why no action was taken pursuant to the s 4 in the two year period."
She also said that was an exchange with Elena Bobolas. In subsequent discussion with Liana Bobolas at p 52 the magistrate was dealing with the same issue and Liana Bobolas said "The Act doesn't mention anything about delay, it's not part of the Act." There referring to the two year period within which an application for annulment is to be brought. Her Honour responded:
"No but it seems to me that you have to establish when it came to your attention and if it came to your attention early and you did nothing about it then that would seem to me something that I would have to consider because of the delay in taking action."
In due course, the prosecutor on behalf of the council made a specific submission that the delay in filing the s 4 application was in fact relevant on the question of a consideration of the interests of justice. The prosecutor is noted at p 54 of the transcript as saying it had taken two and a half years for the matter to come on. Her Honour said: "That is where you say the delay is relevant"? The prosecutor said:
"Yes your Honour can take that into account, whether it is in the interests of justice granting the adjournment and setting a new hearing date which would take place three years after this incident had occurred."
The prosecutor went on to say that the fact that it was a fine-only offence and not a serious matter which was going to involve gaol time was also a relevant factor on a consideration of the interests of justice.
The prosecutor relied upon observations set out by Barrett J in the Equity Division of the Supreme Court of New South Wales in Magjarraj v Asteron Life Limited [2009] NSWSC 1433. Those were civil proceedings in which an explanation of an inability to attend had been supported by a medical certificate certifying that the particular applicant, namely, Magjarraj, was receiving medical treatment for a medical condition and was unfit for court hearing for the week of 14 December. The particular portion of his Honour's judgment in those proceedings focused on some observations of Barrett J in supporting a proposition that no weight should be given to the medical certificates which had been tendered the Bobolas sisters respectively. In Magjarraj his Honour Barrett J said this, at [22] - [23]:
"All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition" culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of a person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings the statements fail the most fundamental test for the reception of expert evidence. Bald, unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything. Doctors probably do not realise that they are engaging in exercise in futility when they issue such certificates and expect courts to treat them as evidence, if, indeed, that is what the doctors do expect. These are matters about which professional organisations within the medical profession really ought to consider informing their members".
On 15 February 2018 Magistrate Stapleton delivered her reasons for refusing both applications. At 11.55am that morning the transcript reveals that neither of the applicants had appeared before the Court. The presiding magistrate observed that she had the ability to dismiss the applications in light of the non-appearance, but that she proposed to give reasons, having deliberated on the matter. An affidavit had, in fact, apparently been filed in Court the day before, that is 14 February 2018, alleging bias on the part of the magistrate by Elena Bobolas, and also endeavouring to present additional material refuting the statement of Police Constable Richards about having put the documents in the letterbox. Magistrate Stapleton formed a view that the prosecution were now not relying upon that act of service and accordingly the matter would not be relevant. She also expressed a view that the issue did not, in her opinion, affect the credit of the constable in any event.
The magistrate first dealt with the application by Liana Bobolas. She noted that the box relating to a lack of awareness of the original proceedings had not been ticked. She considered the question of the meaning of the word "hindered" and referred to the burden of proof. The magistrate made a positive finding that at the appearance on 20 July 2015 in respect of the first arrest, the matter had been adjourned to Waverley Local Court and concluded that there was no reason that indicated that the applicant Liana did not understand that the case would be back at Waverley Local Court on 12 August. That date, of course, coincided with the return date of the court attendance notices.
The magistrate dealt with the evidence of Liana Bobolas about her appearance in the Supreme Court on 12 August and appeared to accept the fact that she was too ill to handle appearing in the Local Court on that day after her appearance in the Supreme Court. The magistrate accepted that the applicant had been to the Court of Appeal on 12 August and that she remained at the Supreme Court, feeling very unwell after that appearance.
The magistrate, however, focused some attention on the fact that there had been no communication with Waverley Courthouse on 12 August 2015, or earlier, advising of the fact of the Supreme Court appearance and seeking an adjournment. The magistrate referred to the fact that Liana described in evidence why she had done nothing in the two years following 12 August 2015, but concluded that she had not established on the balance of probabilities that she was hindered from attending. The magistrate made reference to the fact that the medical evidence did not explain trauma extending for the lengthy period prior to filing the present application before her.
I should note in passing that I have some difficulty in understanding what the delay in filing the s 4 application had to do with the issues as to whether or not Liana Bobolas had been hindered from attending on 12 August.
The magistrate considered that the reasoning of Magistrate Favretto in The Police v Edwards (2008) NSWLC 28, a decision of his Honour delivered at Bourke Local Court on 19 November 2008, was of persuasive force and that a consideration of the interests of justice did not, therefore, include a consideration of whether or not there was a triable issue in relation to the considerations required under s 8 of the Crimes Appeal and Review Act. It would appear, from a perusal of her Honour's reasons, that she came to the view that the delay in filing the s 4 application contributed to a conclusion that the interests of justice did not warrant the convictions being annulled.
With respect to the application by Elina the magistrate made reference to the same legal authorities that she had in determining the case of Liana.
With respect to the question of service of the court attendance notice the learned magistrate analysed the evidence and she concluded that the applicant Elina Bobolas was not a reliable witness. She accepted the evidence of Constable Richards, in the additional statement, regarding having made an oral explanation of the nature of the adjourned date and the contents of the court attendance notice and found that the circumstances of placing the court attendance notice provided sufficient evidence of the requirements of personal service. However, notwithstanding her findings on that basis she also dealt with alleged additional service of the delivery of the court attendance notice by the constable into the mailbox. The magistrate expounded in her reasons that she could have no confidence in the applicant's proposition that there was no mailbox at the time, and that was part of the reason she refused to delay the proceedings by allowing additional evidence to be called in reply.
The magistrate further placed weight on the lack of that proposition being put directly in cross-examination to the constable. The magistrate made adverse findings against Elina with respect to the explanation that she advanced as to how she had become aware of the conviction and fine, and did not believe the circumstances that were explained regarding advice coming from the court staff.
With respect to the adjourned date of 26 August the magistrate did not accept that a letter from the court registry advising of that adjourned date had not been received. I should note again in passing, as I did earlier, that there did not appear to be any positive evidence of the fact of such a letter actually being sent, albeit that the magistrate may have presumed that her directions would have been complied with.
The learned magistrate accordingly rejected the proposition that the defendant was not aware of the proceedings until after they were completed. The magistrate also rejected that there was any hindering within the requisite description of what could constitute hindering, namely, accident, illness, misadventure or other, in the attendance not having taken place on 12 August. I take it as a direct inference that the magistrate, despite having focused her determination on 12 August, was making a similar finding with respect to 26 August 2015.
On the question of the interests of justice the magistrate again relied upon the decision of Magistrate Favretto in Police v Edwards and determined that whether or not there was a triable issue was not a matter for any consideration.
The applications having been refused on 15 February 2018 each of the applicants had an appeal, as of right, against the refusal of the application for annulment of conviction pursuant to s 11A of the Crimes Appeal and Review Act 2001. An appeal under that section must be made within 28 days after the Local Court notifies a defendant of its refusal of the application. Given that neither of the applicants was present in Court when the presiding magistrate refused the applications for annulment there is no evidence before me as to when or how it was that the Local Court notified each of the defendants of the refusal of their applications.
However, Notices of Appeal were in fact filed on 15 March 2018, which was of course the 28th day following the decision. Accordingly, this Court is appropriately vested with jurisdiction to determine the appeals.
In relation to the question of whether or not a person was unable to attend, and indeed did not attend as a result of not knowing that the matter was on, or because of illness, misadventure, or otherwise, there is some guidance given to the factual determinations in other cases regarding the application of those expressions contained in the statute and the proper application of principle to their interpretation.
I do not in the circumstances of this application seek to set out a full history giving rise to the present s 4 of the Crimes Appeal and Review Act and the provisions in s 8 of that Act relating to applications for annulment. It suffices to observe that in circumstances where persons do not appear and it is appropriate for determinations to proceed in their absence following recommendations of the Law Reform Commission, circumstances permitting the annulment of ex parte convictions were enlarged by a number of legislative amendments.
In Miller v DPP [2004] NSWCA 90, the Court of Appeal, comprising Sheller, Beazley JJ and Young CJ in Eq, dealt with an appeal from Dowd J who had refused to intervene in a determination by a magistrate who had initially declined to annul a conviction. The full details of that case do not, for present purposes, require elucidation. It is sufficient to note that Sheller J at [25] focused on the use of the word "hindered." His Honour said:
"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."
There had been substantial delay in that decision by Dowd J, and that too was a factor taken into account.
Young CJ in Eq undertook an analysis of the relevant section at that time and said at para [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."
His Honour went on to analyse the some of the circumstances and said at [39]:
"This must lead to the view that the general paragraphs of the relevant subsections of the Act should be widely construed."
In the circumstances of that case, his Honour was of the opinion that the word "misadventure" should be read widely.
I should note in relation to the submission that seemed to find some favour with the presiding magistrate that the factual background in Miller was that Mr Miller had been charged with offences that were said to have occurred in 1994. He was charged pursuant to relevant sections of the Crimes Act in late 1996 or early 1997 and the proceedings in the local court had been dealt with by Magistrate Lulham in December 2001.
The application for annulment had become before the then Acting Deputy Senior Magistrate, now her Honour Syme J, who refused the application and dismissed it in January and February 2002. The proceedings, of course, were in the Court of Appeal in 2004, which was some ten years after the commission of the offences. Notwithstanding those circumstances, the applicant was, notwithstanding that delay, successful and the matter was remitted.
The consideration of the question of the medical reason for non‑attendance is complicated by the fact that the medical certificates which were tendered are not clear as to date, they are not clear as to the nature of the diagnosis, and they are, of course, redacted, so that the author of them is not able to be called for cross-examination or otherwise. They were, however, received by the magistrate. They were not intended, in my view, to provide a complete answer, but were corroborative of the assertions given in evidence by each of the sisters that they had suffered from ongoing medical problems. They would not on their own be sufficient to establish, in my view, the requisite circumstances of that having hindered, or certainly not impeded completely, the attendance. They were part of an overall attempt to explain the absence of each of the defendants, and as I say, on their own, they would, in my view, likely not be sufficient.
The circumstances touching upon service are a little more difficult to resolve readily. In the case of Elena Bobolas, there are, in my view, some serious questions as to whether or not she was on notice of 12 August, and there are some considerable questions touching likely on the credibility of the constable, including the circumstance that the second statement was made after the proceedings on 24 October 2017.
She was not cross-examined by an experienced practitioner but in an enthusiastic way by an unrepresented litigant, and the failure to positively put a proposition in accordance with requisite rules of advocacy ought not, in my view, have necessarily rendered a consideration of that issue fatally, or at least not rendered it incapable of proper consideration.
If in fact it be the objective circumstance that there was no mail box at the premises in July 2015 and August 2015, it certainly would appear to me, prima facie, that that was at least an issue relevant to be considered on the question of credibility, as was the proposition that an oral conversation written down in a statement two and a half years after the events, approximately, had not otherwise surfaced and there was no explanation for its failure to be included in the first statement.
It may be that there were police notebook entries or other entries corroborating that fact. I simply have no idea, nor do I express any concluded view about it other than there was, as it seems to me, a legitimate issue for consideration as to whether there had indeed been notification of the date of 12 August.
If it was the case that there had been effective and compliant service at the police station, which there might have been, a question about which I do not propose to ultimately resolve, it is difficult to conceive why a decision would be made to then convey the court attendance notice, allegedly, to the house to be placed into the mailbox. That action, accepting that it occurred, would seem to have been an attempt at complying with the necessity of advice of the date of the adjournment rather than simply being otiose and unnecessary action because service had been properly effected.
I am conscious, of course, that service can be effected in circumstances where somebody has endeavoured to decline to accept service. Not insignificantly, in Waverley Council v Bobolas [2018] NSWLEC 116 in the judgment of Pain J to which I have earlier referred, her Honour, dealing with the question of the service of orders at [66] said this:
"Receipt of the orders by the respondents", they of course being the Bobolases, "does not have to be proved by the council to establish that service was effected. Provided the requirements are complied with service of an order is considered to have been effected per Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 at [126], where judge of appeal McColl JA (Simpson JA and Sackville AJA agreeing) stated that proof of non-receipt is not proof of non-delivery or proof of non-service if there is evidence of service in a permitted manner. I find that the council has established that the orders were properly issued and served on the respondents."
The circumstances of attempting service in a civil matter may be viewed, perchance, through slightly different eyes than the notification of a date for a matter to be returned at court in a criminal matter. There was in my view a genuine question for resolution for the magistrate as to whether the applicant Elena was aware of the date of 12 August. That, however, does not conclude the matter. On 12 August it was, for the reasons that I have already indicated, adjourned to 26 August because the magistrate on 12 August remained not satisfied of the adequacy of service because of the absence of a witness's signature. Magistrate Stapleton came to a different conclusion in the hearing of the application for annulment.
Ultimately, the question seems to me to have been whether or not notification of the date of 26 August had been brought to Ms Elena Bobolas's attention. She gave evidence that she had never received notification of any letter advising her of that date. The evidence discloses that there was a direction by a magistrate on 12 August that the registry issue such a notice. There was no evidence that such a notice was in fact issued, which was tendered in any of the proceedings that I have been able to peruse, and in those circumstances it appears to me there is a serious question, on the balance of probabilities, as to whether or not Elena Bobolas did know of the date of 26 August.
In relation to consideration of the general requirements, the circumstances of the case and the interests of justice being a very broad basis introduced by Parliament into s 8, the learned magistrate rejected any consideration or placing any weight on the triable issue on the basis that of the decision by Magistrate Favretto in Police v Edwards.
It will suffice for present purposes and given the lateness of the hour to note that Magistrate Favretto in a carefully reasoned decision in Bourke concluded that a consideration of whether or not Mr Edwards was in fact not guilty of entering land with intent to commit an indictable offence and an attempted break and enter in one of the motels in Mitchell Street in Bourke did not include an examination of the alleged wrongful accusation against him and his assertion that he did not enter the Riverside Hotel on the day alleged.
Whether or not a consideration of the triable issue might have required the examination of, for example, the strength of an alibi that he could not have committed the offence or not, is not revealed in the analysis by his Honour. Ultimately the determination was that the imperative words in s 8 (2)(c), namely, that having regard to the circumstances of the case it is in the interest of justice to do so, that is, to grant an application for annulment, required focus on the phrase "the circumstances of the case" rather than the interests of justice as the operative imperative words. After analysing the definition of "circumstance" his Honour came to the view that when one has regard to the various defined meanings the contextual meaning of the words circumstances of the case clearly referred specifically to the non-appearance of the applicant. For those reasons his Honour came to the view that the question which he effectively posed, as if posing a stated case to himself, namely, whether the words having regard to the "circumstances" of the case "in the interests of justice" to do so included the consideration of whether there was a triable issue as to the applicant's guilt but that question should be answered in the negative
That decision of a Local Court magistrate is at odds with a number of determinations in the District Court in New South Wales. In Gino Cassiniti v Director of Public Prosecutions (2008) NSWDC 2, a judgment of his Honour, Judge Nicholson SC as his Honour was back in January of 2008, involved a consideration of whether or not the District Court should annul on an appeal a conviction and remit the determination of the prosecution to the Local Court. In the circumstances of that particular case a deal of the merits of the case had indeed been explored for reasons which are presently not relevant. His Honour, Judge Nicholson, said at [17]:
"This Court must now determine whether to annul the conviction and remit the matter to the Local Court. Matters impacting upon the exercise of discretion in permitting the applicant to amend his initiating paper work and pursue his contest against the refusal to annul the conviction include whether notice of the charges was properly served, the applicant's explanation and/or motive for non-participation in the Local Court proceedings, particularly the application for annulment, the nature and level of seriousness of the charges, the interests of justice in determining the issues between the parties on their real merits and the interests of natural justice in affording an opportunity to the applicant to be heard now that he seeks to be heard."
I note in passing that Mr Cassiniti had not attended at any of the proceedings earlier.
"An important additional factor to be considered is the applicant's likelihood of success in any subsequent hearing of these two charges. In determining that issue it is important to note that this Court does not regard itself as the tribunal of fact on issues that may impact on a magistrate's view of evidence led by the parties in a fresh hearing. Evidence led in the Local Court would be a matter for it to assess. However, in circumstances where the applicant's chances of non-conviction in the Local Court on these two charges had no prospects of success there will be little point in annulling the convictions.
His Honour went on to indicate that the question of success for the applicant in the proceedings was one in the circumstances before him that he was impelled to decided adversely for reasons that he then set out at considerable length. His Honour concluded at [78]:
"It is plain from the finding I have made without reliance upon the applicant's credibility that I am of the view that he never had any prospects of raising a reasonable doubt in respect of either element of the offence in a challenge to the refusal to annul the convictions. In those circumstances he never had any prospects of not being convicted, an important matter for a court to consider when determining whether to annul a conviction."
It is manifestly clear that Nicholson DCJ took the view that the interests of justice in relation to the circumstances of the case did involve an assessment of the issues to be tried.
Bennett DCJ some months later, but still in 2008, also heard an appeal against a refusal of a magistrate to annul a conviction. In a decision of 4 September 2008, Rukabina v DPP [2008] NSWDC 214, his Honour, in considering whether or not a review of the strength of the prosecution case was a matter which could be relied upon in support of an argument that the application should be rejected, was in his Honour's view an error.
It may well be that there was a diametrically opposite view in the way in which it was applied in Rukabina to the determination that Nicholson DCJ had reached. His Honour in that particular case however did go on to analyse the decision in Miller v DPP and to give an extremely wide view to the concept of misadventure. It was clear in the factual circumstances before him that there had been some misadventure in the sense of misunderstanding and the concession made by the appellant that he ought to have telephoned the Court was of little if any significance.
There would appear in the circumstances of that case to have been a mistaken belief as to the date of the hearing. His Honour in those circumstances granted the application and sent the matter back. Part of the basis of what he had to say about the proceedings before the magistrate was that the analysis by the magistrate of the strength of the prosecution case which was not, if I may put it in colloquial terms, apparently a lay down misere but required a subjective assessment of the strength of the case was not an appropriate action by the magistrate.
However, later that same year in Boulghaurgian v Ryde City Council, a decision also of Bennett DCJ on 19 December 2008, found at [2008] NSWDC 310, his Honour, dealing with confusion as to dates and the meaning of the word "hindered" appears to my perusal of his Honour's reasoning to have been somewhat influenced by the fact that it certainly appeared that Mr Boulghaurgian may well have had a substantive, and indeed potentially conclusive, answer to the prosecution.
Mr Boulghaurgian had been prosecuted in relation to a motor vehicle which had been left parked and unattended adjacent to a no-stopping sign. That particular vehicle, according to evidence led in the District Court, would appear to have been registered in Mr Boulghaurgian's name and with his address but completely without his knowledge, at least on his version of events.
Prosecutions for offences relating to that vehicle had indeed been in the same Local Court as the Ryde City Council prosecutions but the prosecution for other offences maintained by Parramatta Council had apparently been withdrawn and discontinued, it would appear prima facie, as a result of their acceptance of the proposition that Mr Boulghaurgian did not have any direct connection with the vehicle, and that although it was registered in his name he was not the owner and had never had possession of the vehicle.
In the circumstances which then unfolded Mr Boulghaurgian left the Local Court, the Ryde City Council prosecution took place later that day, and he was convicted in his absence. An application to annul those proceedings was declined. There were questions as to the confusion of dates of attendance and the like, the fine detail of which I do not for present purposes seek to undertake.
In the circumstances of that case Bennett DCJ again cited the observations of Young J in Miller and referred to the liberalisation of the grounds upon which applications might be made for annulment. His Honour said at [79]: "The legislation was not intended to produce injustice, those accused who wished to defend the charges brought against them must be permitted to do so" and his Honour accordingly annulled the conviction and sent the matter back.
More recently in Willis v R [2014] NSWDC 325 Cogswell DCJ referred to Boulghaurgian and determined in the particular circumstances before him as to whether self‑induced drug intoxication, which led to the particular applicant not having gone to Court and having missed the hearing date because his life was in disarray and because of his addiction at the time to the prohibited drug ice. He had been given a bail slip which contained the date but had lost it. He had been regularly reporting as required to do by his bail conditions.
He, however, inadvertently overlooked the date of the hearing and did not turn up. When he realised in due course that he had missed the date he, to use the words of Cogswell DCJ, "left town". He was concerned about being arrested but was subsequently arrested following his failure to appear. Cogswell DCJ concluded that the word "hindered" meant something less than prevented and made something more or less difficult, but not impossible.
His Honour came to the view that self‑induced drug intoxication could well be regarded as an illness or a misadventure and certainly as an "other cause". His Honour was satisfied that although missing the Court appearance was culpable by Mr Willis in the sense that it was his own fault, his Honour was of the view that it fell within the broad liberalisation of the definitions conveyed in s 8. His Honour concluded that, having regard to the circumstances of the case, it was in the interests of justice to allow the application, it being clear on the material before him that there was, as it would seem, a justiciable issue.
I have given very careful consideration to the detail of these matters. There is a factor of some force in the submission touching upon the fact that what was at issue in three of the matters regarding Liana and the matter involving Elena related to the imposition of fines and the recording of a conviction. There is no doubt that they are fine only offences and do not involve any prospect of gaol.
The resisting arrest of course under s 58, a matter in respect of which with some emotion Liana made some observations from the Bar table before me, carries a conviction for an offence of some degree of seriousness in relation to how it might be viewed objectively and although the outcome was a fine and not the imposition of a sentence, that of course not being able to be done in the absence of the accused under s 196, it is one of the factors touching upon the circumstances of the case in line with the effluxion of time which now, of course, has me sitting in early 2019 regarding offences which were, on one version of events, video-recorded back in 2015.
Clearly if there is a video-recording of the matters in any contested hearing, that may well be a persuasive force in a determination of what did or did not occur.
I was also of a mind to give consideration, and indeed have given consideration, to an issue which I raised, at least arguendo, with Mr Laird who appears on behalf of the prosecution at the outset of these proceedings, namely, a question of whether or not the order of requiring the maintenance of 10-metres distance away from operating machinery and trucks in or on the vicinity of the premises was something which amounted to obstructing the council officers in carrying out their functions, that is the exercise of their functions under the Local Government Act.
There may be a justiciable issue in relation to whether or not the functions were under the Local Government Act, an aspect raised by the learned Magistrate and I certainly express no concluded view regarding that.
However, perusing the judgment of Justice Pain in the Land and Environment Court led me to a consideration of whether or not the orders of Justice Sheahan, to the extent that they were directed not at actions by the council but at the occupants of the premises requiring them to keep 10-metres away from operating machinery or trucks was likely to be in fact an occupational health and safety provision intended to not have a situation arise where somebody might be injured.
Whether or not a failure to comply with an order viewed as an occupational health and safety provision leads to a justifiable arrest and whether or not that amounts to an obstructing of officers in exercising functions under the Local Government Act, if indeed somebody was 9 metres from a truck, is a matter which requires, in my view, detailed consideration.
I have a degree of scepticism about some of the matters which have been raised by both Liana and Elena Bobolas, not least of which are the circumstances of the redacting and obtaining of the medical certificates. I express no concluded view about that.
I have somewhat reluctantly ultimately come to a view that it is in the interests of justice that these convictions be annulled. There are in my view issues which require determination and there are aspects of the way in which the matter was dealt with at first instance which cause, at least, some cause for concern, including the application of the determination by Magistrate Favretto in Edwards, whilst there are clearly determinations, at least in this Court, that might be viewed as different to the determination by Magistrate Favretto.
I do favour a more expansive view of the "interests of justice" based upon the circumstances of the case which, in my opinion do include, in appropriate circumstances, a consideration to some degree of the merits of the case.
In those circumstances the formal orders of the Court will be that the convictions are set aside and I remit the matters for determination to the Local Court.
Are there any other formal orders, Mr Laird, that are required?
LAIRD: No. I think they are the only orders that your Honour needs to make under the circumstances. I would be seeking one of these three dates, 27 March, 3 April or 16 April, if Ms Bobolas can indicate which of those three she is happy to have this matter remitted back to the Waverley Local Court and also give an undertaking that she will notify her sister of the date so referred.
HIS HONOUR: Indeed.
APPELLANT E BOBOLAS: Sorry, what were the dates again that you said?
LAIRD: 27 March, 3 April or 16 April at Waverley Local Court.
APPELLANT E BOBOLAS: Do you happen to know what days those are?
HIS HONOUR: I can't tell you. My associate will tell you. 27 March.
ASSOCIATE: That's a Wednesday. What were the days in April?
LAIRD: 3 April and 16 April.
ASSOCIATE: 3 April is a Wednesday and the 16th is a Tuesday.
APPELLANT E BOBOLAS: Have you got any day after that--
LAIRD: Those are the dates we have.
APPELLANT E BOBOLAS: Your Honour, I would prefer to take 16 April for caution because my sister is currently ill, and I'm not sure how long she'll be sick for, but Tuesday is not - Mondays and Fridays are better for us but I will endeavour to ensure someone is available for this.
HIS HONOUR: All right. 16 April is what, the Tuesday or the Wednesday?
APPELLANT E BOBOLAS: It's a Tuesday.
HIS HONOUR: A Tuesday. All right.The proceedings in the Local Court will be listed at Waverley Local Court on 16 April. I note that that is a date requested from the three offered by the prosecution elected for by Ms Elena Bobolas, and Ms Bobolas, will you undertake to advise your sister of that date?
APPELLANT E BOBOLAS: Is that meant to be the hearing date, your Honour, or?
LAIRD: It will be the first--
HIS HONOUR: It will be a date for appearance.
APPELLANT E BOBOLAS: Right.
HIS HONOUR: At which, if you do not appear, the Magistrate will be empowered pursuant to the provisions of s 196 to dispose of the matter.
APPELLANT E BOBOLAS: And if say for example my sister is still unwell I can attend and inform the Court.
HIS HONOUR: Your sister will be on the same date on the clear understanding that you will advise her of the date. I will in the circumstances, Mr Laird, endeavour to have the - I think the best way to do it is that:
I will direct the Court registry here to forward written notification to both defendants in writing--
Are you still living at the home at Bondi?
APPELLANT E BOBOLAS: Yes, your Honour.
HIS HONOUR: --to the premises at 19 Boonara Avenue at Bondi.
May I say this, Ms Bobolas, without in any way it being taken to be an overt criticism but nothing more than an observation, I have in the past several days, apart from sitting in court all day every day, read many of the judgments in relation to proceedings between Waverley Council and you, your sister and or your mother. I can candidly say that I lost count of the number of times that there were applications for adjournments or explanations for delay or in some instances non‑appearance.
The circumstances of the appeals about which you gave evidence having had no knowledge other than the accidental advice from somebody in the registry at Waverley Local Court, and the coincidence that the applications for annulment were filed one day short of the statutory limit for time and then the fact that despite not being at court on the date of the annulments being refused that applications to appeal as of right were filed on the last day that they could be are circumstances of coincidence which did not go unnoticed by me. I make no further comment than that.
You and your sister demonstrated in the exchanges with me here in court that you are both articulate and well-skilled in the nuances of the English language and by some of the exchanges, in other courts in particular, it is clear to me that you have a more detailed understanding of some of the nuances of the law than some practitioners. I want you to clearly understand that you are distinctly at risk of having ex‑parte convictions recorded in the event that you elect or choose not to attend, or that in the event of their being some justifiable reason for non‑attendance that you elect to make no communication with the Court.
To the extent that others might construe your abilities to 'play the system' if I can put it that way adversely you should take notice and take heed from the detail that I have given to these proceedings that you should attend to Waverley Court with all due attention to these proceedings. To the extent that you have legitimate arguments or legitimate complaints against actions of third parties or the police, you will have every opportunity to present your side of the story, just as the police will have every opportunity to present their side of the story and in the even that there is video it will either, I would have thought, conclusively assist you and your sister, or conclusively assist the prosecution. But to the extent that there might be a temptation to endeavour to delay further the proceedings please be counselled against it. All right. Thank you, Mr Laird for your assistance in the matter.
LAIRD: Thank you, your Honour. Save for the comments that your Honour has just made I was intending to invite your Honour to order a transcript of today's proceedings, necessarily the judgment will need to be taken down and placed with the papers to be returned to Waverley.
HIS HONOUR: That will be done. I will have the transcript ordered and I will do my best to revise it.
LAIRD: Not necessarily of your Honour's judgment but just of the remarks your Honour just made.
HIS HONOUR: The remarks. I will certainly have those taken out. All right. I will adjourn.
[2]
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Decision last updated: 28 September 2021