AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 11 September 2012

R v Parker

[2012] NSWDC 259

Public order & justice offences
CRIMINAL LAW ANNULMENT APPLICATION CONVICTION ENTERED IN ABSENCE MISADVENTURE

Citation: R v Parker [2012] NSWDC 259
Court: District Court of New South Wales
Date: 11 September 2012
Judge(s): Berman SC DCJ

Background

The defendant appeared at the Local Court on the day his matter was listed for hearing. He arrived at court but was in conference with the duty barrister when his name was called, and neither he nor the barrister heard the call. The magistrate, reasonably concluding the defendant had simply failed to appear, convicted him in his absence.

Following that conviction, the defendant made an application under s 4 of the Crimes (Appeal and Review) Act to have the conviction annulled. He then withdrew that application after the prosecutor indicated a custodial sentence was unlikely. When the matter proceeded to sentence, the defendant received a custodial term. He then made a second s 4 application.

That second application was dismissed by Deputy Chief Magistrate Mottley on 25 May 2012. The defendant appealed that dismissal to the District Court.

  • Whether the defendant satisfied the criterion in s 8(2)(b) of the Crimes (Appeal and Review) Act, namely that he was "hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings"
  • Whether the defendant's prior filing of a s 4 application meant he could no longer satisfy s 8(2)(b) because he had already "taken action" in relation to the original proceedings
  • Whether the Deputy Chief Magistrate applied the correct test when refusing the annulment application

Decision

The central question turned on the proper interpretation of s 8(2)(b). The Deputy Chief Magistrate had concluded that because the defendant had previously filed a s 4 application, he had already "taken action in relation to the original Local Court proceedings" and therefore could not satisfy s 8(2)(b). The court on appeal disagreed with that construction.

Berman SC DCJ held that filing a s 4 annulment application does not constitute "taking action in relation to the original Local Court proceedings" for the purposes of s 8(2)(b). To hold otherwise would automatically disqualify any defendant who had made such an application from ever relying on that subsection. The phrase "taking action in relation to the original Local Court proceedings" is properly interpreted as referring to defending the original proceedings or appearing at the original proceedings, such as on sentence.

Applying that interpretation, the defendant's failure to hear his name called because he was in conference with the duty barrister clearly constituted a misadventure that prevented him from entering the courtroom and defending the matter at the time. Events that occurred after the conviction was entered, including the withdrawal of the first s 4 application, were relevant only to the interests of justice question under s 8(2)(c), not to the misadventure question under s 8(2)(b).

The Deputy Chief Magistrate was found to have focused on the wrong issue when determining the application.

Orders Made

  • The appeal was granted.
  • The matter was remitted to the Local Court for hearing.

Key Takeaways

  • Under s 8(2)(b) of the Crimes (Appeal and Review) Act, the phrase "taking action in relation to the original Local Court proceedings" refers to defending or participating in those original proceedings, not to subsequently filing an annulment application under s 4.
  • A defendant who has previously filed and withdrawn a s 4 application is not automatically barred from satisfying s 8(2)(b) on a further annulment application.
  • The District Court found that failing to hear one's name called in court because of an innocent conference with a duty barrister constitutes a misadventure for the purposes of s 8(2)(b).
  • Post-conviction conduct, such as withdrawing a s 4 application after receiving sentencing advice, bears on the interests of justice under s 8(2)(c) but is not relevant to whether misadventure prevented the defendant from taking action in the original proceedings.
  • Mere disappointment with a sentence does not, on its own, justify annulling a conviction under the interests of justice criterion in s 8(2)(c), consistent with the Deputy Chief Magistrate's finding on that separate point.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act (NSW), ss 4, 8(2)(a), 8(2)(b), 8(2)(c)

Cases cited: No cases were cited in the judgment.