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District Court 16 October 2014

Willis v R

[2014] NSWDC 325

Assault & violenceDomestic & family violencePublic order & justice offences
CRIMINAL LAW ANNULMENT APPLICATION MEANING OF “HINDERED” WHETHER SELF INTERESTS OF JUSTICE

Citation: Willis v R [2014] NSWDC 325
Court: District Court of NSW
Date: 16 October 2014
Judge: Cogswell SC DCJ

Background

The appellant was charged with serious domestic violence offences, including assault occasioning actual bodily harm, stalking or intimidation, and being armed with intent to commit an indictable offence. He was arrested on 31 December 2013, spent approximately one week in custody, and was released on bail on 6 January 2014 with an intention to defend the charges at a hearing listed for 4 April 2014.

The appellant did not appear on the hearing date and was convicted in his absence. He attributed his failure to appear to a seriously disordered life caused by his addiction to the prohibited drug ice. He had lost the bail slip containing the court date, though he had otherwise been complying with his bail reporting conditions.

The appellant applied to the Local Court at Albury for annulment of the convictions entered in his absence. A magistrate refused that application, and the appellant then appealed to the District Court against the refusal.

  • Whether the appellant's failure to attend court, caused by drug addiction and a disordered lifestyle, constituted being "hindered by accident, illness, misadventure or other cause" within the meaning of s 8(2) of the Crimes (Appeal and Review) Act 2001 (NSW).
  • Whether, even if the statutory threshold was not met, the interests of justice nevertheless required the annulment application to be granted.
  • The proper meaning of the word "hindered" in s 8(2), particularly whether it requires that attendance be impossible or merely made more difficult.

Decision

Cogswell SC DCJ allowed the appeal and overturned the Local Court's refusal to annul the convictions. The District Court accepted the appellant's explanation that his drug addiction had caused the circumstances leading to his non-appearance, and found that this was sufficient to satisfy the statutory requirement, even though the situation was of the appellant's own making.

On the meaning of "hindered," the District Court adopted the interpretation articulated in Boulghourgian v Ryde City Council, drawing on Court of Appeal authority to the effect that the word means something less than "prevented." A hindrance need only make the relevant action more difficult to an appreciable extent, rather than wholly impossible. On that basis, self-induced drug intoxication and the broader disarray it created were capable of constituting a hindrance by way of illness, misadventure, or "other cause" under s 8(2).

The Court acknowledged that the DPP's representative raised a legitimate question about whether self-induced addiction should qualify under the statutory categories, but ultimately resolved that question in the appellant's favour. The Court added that, regardless of the "hindrance" analysis, it would independently have concluded that the interests of justice warranted granting the annulment application in the circumstances of this case.

Orders Made

  • The appeal was granted under s 16K of the Crimes (Appeal and Review) Act 2001 (NSW).
  • The matter was remitted to the Local Court.

Key Takeaways

  • The District Court held that the word "hindered" in s 8(2) of the Crimes (Appeal and Review) Act 2001 does not require that attendance at court be rendered impossible. It is enough that the relevant cause made attendance appreciably more difficult.
  • Self-induced addiction to a prohibited drug, and the life disruption flowing from that addiction, can constitute a hindrance by way of "illness, misadventure or other cause" under s 8(2), even where the accused bears personal responsibility for that state.
  • Under s 8(2), the Local Court must grant an annulment application where either the hindrance ground or the interests of justice ground is satisfied. Both grounds operated independently on the facts of this case.
  • A conviction entered in absence will not inevitably stand simply because the accused's failure to appear was their own fault. The legislative intention, as confirmed by the Court of Appeal and applied here, is to ensure accused persons who wish to defend charges are permitted to do so.
  • The two statutory grounds in s 8(2) are alternatives: satisfaction of either the "hindered" limb or the "interests of justice" limb is sufficient to require the annulment to be granted.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 8(2), 16K

Cases:
- Boulghourgian v Ryde City Council (2008) 8 DCLR (NSW) 314