Citation: McKenzie, Cecil James v R [2010] NSWDC 78
Court: District Court of New South Wales
Date: 11 May 2010
Judge(s): Bennett SC DCJ
Background
The appellant was a truck driver who was convicted in his absence in the Local Court on four charges brought by the Roads and Traffic Authority, including driving while licence suspended and logbook offences. He had missed the relevant court date and subsequently made a first application for annulment of those convictions, which was granted. He then entered a guilty plea and was sentenced, but later made a second application to annul the convictions on the basis that the first annulment process had miscarried.
The matter came to the District Court initially framed as an appeal against conviction. Because more than three months had elapsed between the Magistrate's decisions and the filing of the notices of appeal, the court allowed amendment of those notices so that the proceedings were reconstituted as an appeal against the Local Court's refusal of the second annulment application under section 4 of the Crimes (Appeal and Review) Act 2001.
The central problem that emerged was the absence of any evidence that the Magistrate had followed the required statutory steps before dealing with the second annulment application, or had made any determination on it at all.
Legal Issues
- Whether the Magistrate had first granted leave, as required by section 4(3) of the Crimes (Appeal and Review) Act 2001, before considering the second annulment application (leave being required where a prior annulment application had already been made).
- Whether the Magistrate had actually considered and determined the second annulment application.
- Whether, in those circumstances, the District Court had jurisdiction to hear the appeal.
Decision
Bennett SC DCJ found that the material before the District Court was insufficient to establish that either of the necessary preconditions for the court's appellate jurisdiction had been satisfied. There was no evidence that the Magistrate had considered whether to grant leave for a second annulment application, as required by section 4(3) of the Act. Nor was there any evidence that the Magistrate had actually determined the application itself.
Without a determination by the Magistrate, including a preliminary decision on leave, there was simply nothing that could found an appeal to the District Court. The court noted that under sections 11A and 16A of the Act, the District Court's role on a successful appeal from a refusal of an annulment application is limited to remitting the matter to the Local Court. The District Court has no power to grant an annulment itself.
His Honour acknowledged the evident policy merit in the scheme allowing conviction in the absence of an accused, paired with safeguards permitting redress when misadventure causes a missed appearance. However, he emphasised that those statutory provisions must be properly applied and cannot be bypassed for the sake of expediency.
Orders Made
- The matters were returned to the Local Court for Mr McKenzie to pursue his available remedies there.
Key Takeaways
- The District Court's appellate jurisdiction under the Crimes (Appeal and Review) Act 2001 does not arise unless the Magistrate has first made a determination, including the necessary preliminary decision on leave under section 4(3), in respect of a second annulment application.
- Under sections 11A and 16A of the Act, the District Court cannot itself grant an annulment; if an appeal against refusal succeeds, the proceedings must be remitted to the Local Court.
- Where there is no evidence of the Local Court proceedings or of any determination by the Magistrate, the appellate court lacks the factual foundation to exercise jurisdiction.
- A second annulment application cannot proceed in the Local Court, let alone be appealed, without the Magistrate first granting leave as the statutory precondition under section 4(3).
- In dismissing the appeal for want of jurisdiction, the District Court directed the parties back to the Local Court so the required statutory steps could be taken in the correct forum.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 4(3), 9, 11, 11A, 13, 16A, 62
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Justices Act 1902 (NSW)
Cases
- DPP v Goben [1999] NSWSC 696
- Miller v DPP [2004] NSWCA 90