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District Court 9 May 2008

Alessi, John Carlo v DPP

[2008] NSWDC 146

Assault & violenceDomestic & family violence
CRIMINAL LAW APPLICATION FOR ANNULMENT OF CONVICTION FAILURE TO RETURN TO COURT BONA FIDE SEEKING TO DEFEND CHARGE ANNULMENT GRANTED REMITTED TO LOCAL COURT

Citation: Alessi, John Carlo v DPP [2008] NSWDC 146
Court: District Court of New South Wales
Date: 9 May 2008
Judge(s): Nicholson SC DCJ

Background

The appellant faced two charges in the Wyong Local Court: knowingly contravening an apprehended domestic violence order and assault, both arising from events on 26 June 2007. The matter had proceeded as a defended hearing, with witness evidence taken on 26 February 2008 before being adjourned to 18 March 2008.

On 18 March 2008, the appellant's solicitor was unexpectedly required to appear in the District Court in Newcastle on the same day. A systems failure in the solicitor's office meant his absence was not communicated to the Wyong Local Court until around 11:00 am. The appellant appeared before the magistrate unrepresented, sought an adjournment on two grounds: the absence of his solicitor and a pending application for a triple-0 recording.

The magistrate allowed the appellant time to step outside and telephone his solicitor. When the appellant did not return after approximately 30 minutes, and after multiple searches of the building proved unsuccessful, the magistrate proceeded to hear the matter in the absence of both the appellant and his solicitor. The appellant was convicted. His subsequent application to the Local Court for annulment of that conviction was refused, prompting this appeal to the District Court.

  • Whether the conviction entered in the appellant's absence should be annulled under s 4 of the Crimes (Appeal and Review) Act 2001
  • Whether the appellant was bona fide in his intention to defend the charges
  • Whether events beyond the appellant's control had prevented him from presenting his defence
  • Whether the District Court, on appeal under s 11A of the Crimes (Appeal and Review) Act 2001, should grant the annulment application and remit the matter to the Local Court

Decision

Nicholson SC DCJ acknowledged some uncertainty about why the appellant remained absent for as long as 30 minutes after being directed to make a phone call. The court noted it had not heard the appellant's own evidence on that point, and accepted he may have been stressed and unlikely to have felt comfortable running his own case.

Despite that uncertainty, the court was satisfied that the appellant had genuinely intended to defend the charges and was bona fide in that intent. Events beyond his control, principally the absence of his solicitor due to conflicting court obligations and an office communication failure, had materially affected his ability to conduct his defence.

The court observed that the fundamental question, whether the appellant was genuinely seeking to defend the matter and was capable of answering the charges, appeared to have been overlooked at the Local Court annulment application stage. Nicholson SC DCJ concluded that the administration of justice was best served by permitting the defence to proceed.

The Crown ultimately did not oppose the application, though the court indicated it would have granted it regardless. The court noted the statutory framework under s 11A confers an appeal as of right, without any requirement to seek leave, which itself reflects a legislative intention that bona fide defendants have the opportunity to defend charges. The court also noted that not more than one such appeal may be made under that section.

Orders Made

  • Application granted
  • Conviction annulled
  • Matter remitted to the Local Court at Wyong pursuant to s 16A of the Crimes (Appeal and Review) Act 2001

Key Takeaways

  • A conviction entered in an accused's absence can be annulled under s 4 of the Crimes (Appeal and Review) Act 2001 where the accused was not present before the Local Court when the conviction was made.
  • The District Court confirmed that the central question on an annulment application is whether the accused was bona fide in seeking to defend the matter and whether the defence was capable of answering the charges.
  • Under s 11A of the Crimes (Appeal and Review) Act 2001, an appeal to the District Court against the refusal of an annulment application is available as of right, with no requirement to seek leave, provided the appeal is brought within 28 days. Only one such appeal may be made.
  • Where an annulment is granted and the matter is remitted to the Local Court under s 16A, the Local Court must notify all interested parties and deal with the matter afresh under s 9. In this case, the parties agreed to tender transcripts of evidence already given by two witnesses, addressing the Crown's concern about requiring those witnesses to re-attend.
  • Procedural disruption caused by a solicitor's conflicting court obligations and an internal office communication failure can constitute circumstances beyond an accused's control relevant to the bona fides of an annulment application, even where the precise movements of the accused during the adjournment remain unclear.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 9, 11A, 16A

Cases cited: None cited in the judgment.