Citation: NSW Police Force v Sullivan [2015] NSWLC 28
Court: Local Court of NSW
Date: 7 December 2015
Judge: Magistrate J Keogh
Background
The defendant had been convicted in July 2013 of dishonestly obtaining a financial advantage by deception, following an earlier conviction in his absence that had itself been annulled. He was sentenced to a fine and a 12-month good behaviour bond. He later sought to appeal to the District Court but withdrew that appeal, with the Local Court orders confirmed.
In March 2015, the defendant applied to the Attorney General under section 5 of the Crimes (Appeal and Review) Act 2001 for referral of his case back to the Local Court for annulment of the conviction. The Attorney General's delegate, the Solicitor General, determined that a question or doubt existed as to the defendant's guilt and referred the matter accordingly.
The defendant's purpose in seeking annulment was not to contest the facts at a fresh hearing. Rather, his legal representative indicated that, if the conviction were annulled, the defendant intended not to contest the evidence and instead sought an opportunity to have the discretion under section 32 of the Mental Health (Forensic Provisions) Act 1990 applied. That provision allows a court to divert a defendant to mental health treatment rather than proceed to a finding of guilt.
Legal Issues
- Whether the court had power under section 5 of the Crimes (Appeal and Review) Act 2001 to annul a conviction where the defendant was present at the original hearing (rather than absent, as is typical under section 4).
- Whether the defendant satisfied any of the three grounds in section 8 of the Act, and in particular whether it was in the interests of justice to grant the annulment.
- Whether the procedural history, including the defendant's withdrawal of his District Court appeal, was relevant to the interests of justice assessment.
Decision
The court first examined the legislative history of Part 2 of the Crimes (Appeal and Review) Act 2001. The provisions were originally inserted into the Justices Act 1902 in 1997 to create a less restrictive procedure for dealing with matters heard in a defendant's absence. The court noted that while section 4 expressly applies only to convictions obtained in the defendant's absence, section 5 (ministerial referral) contains no such precondition. As a result, the court accepted that it was at least open, in principle, for an annulment application under section 5 to be considered where the defendant had been present at the original hearing.
However, the court assessed the defendant's application against the three grounds in section 8. The defendant had been present at his hearing, had pursued a District Court appeal (albeit out of time), and had then withdrawn it. The court found that none of the first two grounds applied and that the defendant was necessarily relying on the interests of justice ground in section 8(c). That ground is not expressed to be limited to cases involving absence, but the court treated its application as requiring careful scrutiny on the particular facts.
The court found the circumstances fell well short of what the interests of justice required. The 12-month good behaviour bond had already expired by the time the application was heard. The purpose of the annulment was effectively to redo a process in circumstances where the defendant had been lawfully dealt with, had pursued and then abandoned an appeal, and where the bond had run its course. Granting the application in those circumstances, the court reasoned, risked bringing the justice system into disrepute.
The court also noted that the defendant had been aware of his mental health diagnosis when he withdrew his District Court appeal. Quoting principles from both Federal Court and High Court authority, the court observed that parties are generally bound by the conduct of their case, and that relying on a point not raised earlier requires exceptional circumstances. The court concluded that no exceptional circumstances existed here and declined to grant the annulment.
Orders Made
• The application for annulment is refused.
Key Takeaways
- Section 5 of the Crimes (Appeal and Review) Act 2001 contains no express precondition that the original conviction was obtained in the defendant's absence, unlike section 4. The Local Court accepted that a ministerial referral under section 5 may in principle arise even where the defendant was present at the original hearing.
- Under section 8 of the Act, a defendant who was present at the original hearing and who does not satisfy the accident, illness, or misadventure ground must establish that annulment is in the interests of justice. The court treated that as a demanding standard in those circumstances.
- The expiry of the original penalty (a 12-month bond) weighed against granting the annulment. Granting it would have enabled a fresh diversion process in relation to a sentence already fully served, which the court regarded as potentially bringing the justice system into disrepute.
- A defendant's conduct of prior proceedings is relevant to the interests of justice assessment. The withdrawal of an earlier District Court appeal, while aware of the relevant mental health diagnosis, undermined the basis for seeking annulment at a later stage.
- The decision confirms that interests of justice under section 8(c) is assessed on the specific facts of each case. The court declined to define in advance all scenarios that might satisfy it, but found that circumstances such as these did not meet the threshold.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 5, 8, 9
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9
- Criminal Procedure Act 1986 (NSW), s 196
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
- Acts Interpretation Act 1901 (Cth)
Cases:
- Francuziak v Minister for Justice [2015] FCAFC 162
- Khoury v R [2011] NSWCCA 118
- Miller v Director of Public Prosecutions [2004] NSWCA 90
- NSW Police Force v Gavrilov [2015] NSWLC 6
- O'Hare v DPP [2000] NSWSC 430
- R v Birks (1990) 19 NSWLR 677
- R v Fordham (1997) 98 A Crim R 359
- Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134
- Wacando v Commonwealth [1981] HCA 60