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3
District Court 4 September 2008

Rukavina v Director of Public Prosecutions

[2008] NSWDC 214

DrugsPublic order & justice offences
ANNULMENT OF CONVICTION APPELLANT CONVICTED IN ABSENTIA S 4 CRIMES (APPEAL AND REVIEW) ACT 2001 S 8 CIRCUMSTANCES APPEAL ALLOWED DECISION REFUSING ANNULMENT SET ASIDE

Citation: Rukavina v Director of Public Prosecutions [2008] NSWDC 214
Court: District Court of New South Wales
Date: 4 September 2008
Judge(s): Bennett SC DCJ

Background

The appellant was charged under the Drug Misuse and Trafficking Act 1985 with cultivating 89 cannabis plants, along with related possession and bail offences arising from a police stop on the Hume Highway near Gundagai in September 2007. His matters were adjourned from Gundagai to the Local Court at Goulburn for hearing on 5 May 2008, with bail to continue. He failed to appear on that date and was convicted in his absence, with a warrant issued for his arrest.

The appellant subsequently attended the Local Court at Bankstown, where he was arrested on the warrant. He told police he had believed his court date was 6 May, not 5 May, and that he had lost his bail sheet. He applied to the Local Court at Goulburn to annul the conviction under s 4 of the Crimes (Appeal and Review) Act 2001, but the magistrate refused the application.

The appellant then appealed that refusal to the District Court. The sole question before the District Court was whether the magistrate had erred in declining to annul the cultivation conviction.

  • Whether a genuine mistake about a court date satisfies the threshold under s 8(2)(b) of the Crimes (Appeal and Review) Act 2001, which requires the court to consider whether the applicant was "hindered" by "accident, illness, misadventure or other circumstances" from appearing.
  • Whether the strength of the Crown case is a relevant consideration when a Local Court magistrate is deciding whether to grant an annulment application.
  • Whether, once the threshold circumstances in s 8(2) are established, the Local Court retains a residual discretion to refuse annulment.

Decision

The District Court found that the magistrate had erred in the approach taken to the annulment application. The court held that a genuine mistake about the court date falls within the circumstances contemplated by s 8(2)(b) of the Crimes (Appeal and Review) Act 2001, specifically the reference to "other circumstances" that hindered the applicant from attending. On the evidence before the magistrate, the appellant's account of mistaking the date was credible and had not been displaced.

A significant aspect of the court's reasoning concerned the role of the Crown case in the annulment process. The District Court held that the strength of the prosecution case is not a relevant consideration at the annulment stage. The purpose of the annulment regime is to restore an accused person's right to be heard before a conviction is finalised, not to pre-judge the outcome of any contested hearing.

The court also addressed whether the Local Court retains a discretion to refuse annulment once the statutory circumstances in s 8(2) are made out. The District Court concluded that, where the threshold in s 8(2) is satisfied, the mandatory language of the provision required the court to grant the annulment sought. The magistrate's refusal therefore miscarried.

Because the District Court's role on this appeal was supervisory rather than substitutive, it did not itself grant the annulment. Instead, the matter was remitted to the Local Court to be dealt with afresh under s 9 of the Act, as if the annulment application had been granted at first instance, meaning any magistrate dealing with the matter must proceed as though no prior conviction or sentence had been imposed.

Orders Made

  • Appeal allowed.
  • The order of Magistrate Beattie made on 4 June 2008 refusing the annulment application was set aside.
  • The proceedings were remitted to the Local Court to be dealt with according to law.

Key Takeaways

  • Under s 8(2)(b) of the Crimes (Appeal and Review) Act 2001, a genuine mistake about a court date can constitute "other circumstances" that hindered an applicant from attending, satisfying the threshold for annulment of a conviction entered in absentia.
  • The strength of the Crown case is not a relevant consideration when a Local Court determines an annulment application; the annulment mechanism exists to restore the right to be heard, not to assess likely guilt.
  • Where the circumstances in s 8(2) are established, the mandatory statutory language requires the court to grant the annulment; there is no residual discretion to refuse on other grounds.
  • The District Court, on a successful appeal from a refusal to annul, does not itself substitute an annulment order but must remit the matter to the Local Court to be dealt with under s 9 of the Act as if the application had been granted below.
  • Once remitted, the Local Court must deal with the matter entirely afresh, with no prior conviction or sentence standing against the accused.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 9, 11A, 16A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 23(1)(a), 23(1)(c)
- Bail Act 1978 (NSW), s 51(1)
- Crimes Act 1900 (NSW)
- Justices Act 1902 (NSW)

Cases:
- Miller v Director of Public Prosecutions [2004] NSWCA 90