Citation: NSW Police Force v Gavrilov [2015] NSWLC 6
Court: Local Court of NSW
Date: 29 May 2015
Judge(s): Buscombe LCM
Background
The applicant was charged in April 2014 with assault occasioning actual bodily harm and misuse of a carriage service, both arising from alleged domestic incidents. He failed to appear at his first mention date and was convicted in his absence under s 196 of the Criminal Procedure Act 1986 (NSW).
The applicant subsequently filed a formal application to annul that conviction under s 4 of the Crimes (Appeal and Review) Act 2001 (NSW). However, at a hearing on 12 August 2014, his Legal Aid solicitor informed the court that the applicant had instructed her to withdraw the annulment application. He was then sentenced on 16 September 2014 to a total term of 12 months' imprisonment (with a nine-month non-parole period) for the assault charge, and placed on a recognizance for the carriage service offence.
After lodging and then withdrawing a District Court appeal against sentence, the applicant filed a fresh annulment application in April 2015. That second application, brought more than a year after the original conviction, was the subject of this judgment.
Legal Issues
- Whether the first annulment application had been withdrawn on the applicant's own instructions, or whether the solicitor had acted without proper authority
- Whether it was in the interests of justice to grant a second annulment application under s 4 of the Crimes (Appeal and Review) Act 2001 (NSW), in circumstances where the first application had been abandoned while the applicant was legally represented
Decision
A central factual dispute concerned what had actually occurred on 12 August 2014. The court transcript attributed the withdrawal of the annulment application to the police prosecutor, which appeared anomalous. Buscombe LCM obtained and reviewed a sound recording of that hearing, finding clearly that the words in question were spoken by a female voice. Taking judicial notice of the fact that Sergeant Carlin (the named prosecutor) was male and regularly appeared at the Downing Centre, the Magistrate concluded that the words had been spoken by the Legal Aid solicitor, Ms Tighe, acting for the applicant.
The Magistrate also found, on the evidence before her, that the solicitor had withdrawn the first annulment application in accordance with the applicant's own instructions. The applicant did not give evidence suggesting otherwise, and the solicitor was not called to contradict that conclusion.
On the question of interests of justice, the Magistrate accepted that this phrase should be construed broadly and applied in a non-restrictive way, encompassing not only the accused's interests but also those of the complainant, the prosecution, and the broader community. In domestic violence matters, the community has a particular interest in timely resolution.
Buscombe LCM held that granting the annulment in these circumstances would bring the justice system into disrepute. The applicant had been legally represented at both the withdrawal of the first application and at sentencing, more than a year had passed since the original conviction, and the applicant had served a significant portion of his sentence. No sufficient basis existed to disturb what had been done with the benefit of legal representation.
Orders Made
• The application is refused.
Key Takeaways
- Under s 4 of the Crimes (Appeal and Review) Act 2001 (NSW), the "interests of justice" test is broad and non-restrictive, but it includes the interests of the complainant, the prosecution, and the wider community, not only those of the accused.
- Where an applicant was legally represented when a prior annulment application was withdrawn, and there is no credible evidence that the solicitor acted without instructions, a court may find that granting a subsequent annulment application would bring the justice system into disrepute.
- In domestic violence proceedings, the community's interest in having allegations heard promptly is a relevant factor weighing against late annulment applications.
- Sound recordings of court proceedings can be obtained and used to resolve factual disputes about what occurred at an earlier hearing, including whether statements were made by the applicant's legal representative or by the prosecutor.
- The Medical certificates attached to an annulment application must actually establish that the applicant was hindered from attending court; a certificate that merely records attendance for assessment, without identifying any illness or unfitness to appear, will not satisfy that requirement.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 10, 63
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25(2)
- Criminal Procedure Act 1986 (NSW), s 196
- Crimes Act 1914 (Cth), s 20(1)(a)
- Evidence Act 1995 (NSW), s 144
Cases:
- Boulghourgian v Ryde City Council (2008) 8 DCLR (NSW) 314
- Miller v DPP (2004) 145 A Crim R 95
- Police v Edwards [2008] NSWLC 28
- Rukavina v DPP [2008] NSWDC 214
- Willis v R [2014] NSWDC 325