AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 20 February 2003

Damon Charles MILLER v DPP

[2003] NSWSC 66

Fraud & dishonesty
INTERLOCUTORY DECISION.

Citation: Damon Charles MILLER v DPP [2003] NSWSC 66
Court: Supreme Court of New South Wales, Common Law Division
Date: 20 February 2003
Judge(s): Dowd J

Background

The appellant had been convicted in his absence by a Local Court magistrate on 10 December 2001 on charges relating to making and using a false instrument. A barrister appeared on that day but withdrew after an unsuccessful application for an adjournment, and the matter proceeded to conviction without the appellant present.

The appellant subsequently applied to a different magistrate (Syme LCM) to annul the conviction under section 100D of the Justices Act 1902. He argued that he had been hindered by illness from participating in the proceedings, relying in part on a medical certificate indicating he was unfit for work for three months from September 2001. His evidence about the unavailability of his preferred barrister was also raised. Syme LCM dismissed the annulment application, finding the appellant's evidence lacked credibility and that the statutory requirements for annulment had not been met.

The appellant then brought proceedings in the Supreme Court seeking leave to appeal that refusal. The appeal raised questions about the proper characterisation of the magistrate's order and whether her Worship had erred in applying section 100K of the Act.

  • Whether the magistrate's refusal to annul the conviction was an interlocutory or a final order, which determined which appeal pathway applied under section 104 of the Justices Act 1902
  • Whether the magistrate had misconstrued the phrase "hindered from taking action in relation to the relevant proceedings" under section 100K(2)(b)
  • Whether the magistrate had taken into account irrelevant considerations in assessing the appellant's evidence
  • Whether the decision was so unreasonable that no magistrate in her position could have made it

Decision

Dowd J first addressed whether the refusal to annul constituted an interlocutory or final order. His Honour held that a refusal to annul a conviction is final in its effect, not interlocutory, because it leaves the existing conviction in place. The characterisation turns on the practical effect of the order: had the annulment been granted, that would have been interlocutory; refusal is final. The appeal therefore had to be brought under section 104(1) of the Act, which governs appeals against final orders.

On the substantive grounds of appeal, Dowd J found no error in the approach taken by Syme LCM. The magistrate had carefully examined all the evidence, including the medical certificate, the circumstances of the hearing, and the evidence concerning the appellant's preferred barrister. Her Worship made a clear finding that the appellant's evidence lacked credibility, describing it as contradicted by his own witnesses and not appearing to be true.

Because the appellant's evidence was rejected, the magistrate was simply not satisfied that he had been hindered by illness or misadventure, as required under section 100K(2)(b), nor that there was other just cause under section 100K(2)(c). Dowd J concluded that no error was established in the magistrate's reasoning, that the decision was open on the evidence, and that no ground under section 104(1) had been made out.

Orders Made

  • Appeal dismissed
  • Summons dismissed
  • Plaintiff to pay the defendant's costs of the proceedings

Key Takeaways

  • A magistrate's refusal to annul an ex parte conviction under the Justices Act 1902 is a final order, not an interlocutory one, because its practical effect is to maintain the existing conviction. This determines which appeal provision applies.
  • Under section 100K(2)(b) and (c), the applicant bears the burden of satisfying the court that they were hindered by illness or other cause, or that there is just cause for annulment. A failure to satisfy that burden on credibility grounds is sufficient to refuse the application.
  • No error of law was established where the magistrate made careful factual findings about the credibility of the applicant's evidence, considered all relevant matters, and applied the statutory test correctly.
  • The test for unreasonableness in appellate review of a magistrate's discretionary decision draws on principles from House v R (1936) 55 CLR 499 and Avon Downs v FCT (1949) 78 CLR 353. A decision will not be disturbed merely because an appellate court might have reached a different conclusion.
  • In dismissing the appeal, the Supreme Court confirmed that leave to appeal against an interlocutory order under section 104(4) was not the operative pathway where the order under review was properly characterised as final.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5F
- Justices Act 1902 (NSW), ss 100D, 100K, 104

Cases
- Avon Downs v FCT (1949) 78 CLR 353
- House v R (1936) 55 CLR 499
- Licul v Corney (1976) 180 CLR 213
- R v Bozatsis and Spanakakis (1997) 97 A Crim R 296