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District Court 27 February 2019

R v Bobolas; R v Bobolas

[2019] NSWDC 955

Public order & justice offences
CRIME APPEAL AND REVIEW

Citation: R v Bobolas; R v Bobolas [2019] NSWDC 955
Court: District Court of New South Wales
Date: 27 February 2019
Judge(s): Sutherland SC DCJ

Background

Two sisters, the appellants, resided at a Bondi property that had been the subject of prolonged litigation with Waverley Council concerning the accumulation of rubbish and waste. In April and July 2015, council workers and police attended the property to execute Land and Environment Court clean-up orders. The sisters were arrested on separate occasions and charged with wilfully obstructing council employees in the exercise of functions under the Local Government Act 1993. One sister also faced a charge of resisting a police officer under s 58 of the Crimes Act 1900.

Neither sister appeared at the first return date of 12 August 2015 at Waverley Local Court. Convictions were recorded against each of them at ex parte hearings. Applications to annul those convictions under s 4 of the Crimes (Appeal and Review) Act 2001 were subsequently refused by Magistrate Stapleton on 15 February 2018. Each sister then appealed to the District Court as of right under s 11A of the same Act.

The central factual disputes concerned whether each sister had received adequate notice of the court dates and whether illness had prevented their attendance. The prosecution relied primarily on the evidence of a police constable who attested to having served a court attendance notice on one of the sisters at Waverley Police Station on 21 July 2015.

Legal Issues

  • Whether each appellant had been adequately notified of the court dates of 12 August 2015 and 26 August 2015, such that their non-appearance could be regarded as a failure hindered by accident, illness, misadventure or other sufficient cause under s 8 of the Crimes (Appeal and Review) Act 2001
  • Whether the interests of justice required the annulment of the convictions, including whether a consideration of a potential triable issue on the merits formed part of that assessment
  • Whether the magistrate below erred in relying on the decision in Police v Edwards (2008) NSWLC 28, which held that the existence of a triable issue was not relevant to the interests of justice under s 8(2)(c)

Decision

Issue 1: Service and notification of the court date of 12 August 2015

The District Court identified serious questions about whether the appellant Elena Bobolas had been given adequate notice of the 12 August return date (at [102]). The constable's evidence of oral notification appeared for the first time in a second statement made more than two years after the events, with no explanation for its absence from the first statement (at [104]). If, as appeared not to be in dispute, there was no mailbox at the property in July and August 2015, that circumstance was at least a relevant credibility issue (at [104]). The court concluded there was a legitimate issue for consideration as to whether that notification had in fact occurred (at [104]-[105]).

Issue 2: Notification of the adjourned date of 26 August 2015

On 12 August 2015, a magistrate had directed the registry to send notice of the adjourned date of 26 August to the parties. No evidence was tendered that such a notice was actually issued (at [110]). Elena Bobolas gave evidence that she received no such notification. The court found there was a serious question, on the balance of probabilities, as to whether she knew of the 26 August date (at [110]).

Issue 3: Whether illness constituted a relevant hindrance

The District Court accepted that Magistrate Stapleton had found Liana Bobolas attended the Supreme Court on 12 August 2015 and remained there feeling very unwell afterwards (at [80]). Medical certificates were tendered for both sisters, though they were heavily redacted and of limited probative force on their own. The court treated them as corroborative of broader evidence of ongoing health difficulties, rather than as conclusive proof of hindrance (at [101]).

Issue 4: The interests of justice and the role of a triable issue

The court expressed concern about the magistrate's reliance on Police v Edwards for the proposition that whether a triable issue existed was irrelevant to the interests of justice under s 8(2)(c) (at [137]). Sutherland SC DCJ noted that multiple District Court decisions, including Gino Cassiniti v DPP and Boulghaurgian v Ryde City Council, supported a broader reading that permitted some assessment of the merits (at [114]-[125], [137]-[138]). The court favoured an expansive view of the interests of justice that, in appropriate circumstances, includes some consideration of the merits of the case (at [138]). An additional potential triable issue arose as to whether the 10-metre exclusion provision in the Land and Environment Court orders was directed at occupational health and safety rather than at council functions under the Local Government Act, and whether a failure to comply with such a provision could support a conviction for obstructing council employees (at [133]-[135]).

Orders Made

  • The convictions of both appellants were set aside.
  • The matters were remitted for determination to the Local Court (Waverley Local Court, listed for 16 April 2019).

Key Takeaways

  • The District Court favoured an expansive interpretation of the "interests of justice" under s 8(2)(c) of the Crimes (Appeal and Review) Act 2001, holding that in appropriate circumstances that assessment may include some consideration of the merits of the case and any potential triable issue (at [138]).

  • A credibility finding adverse to an applicant for annulment may require closer scrutiny where the prosecution's key witness produced a materially different second statement more than two years after the events, without explanation for the omission in the first statement (at [102], [104]).

  • Where a magistrate directed the registry to issue a notice of an adjourned hearing date and no evidence was tendered that the notice was actually sent, a finding that the applicant was aware of that date was open to question (at [110]).

  • Under s 8 of the Crimes (Appeal and Review) Act 2001, the word "hindered" does not require that attendance was made impossible; the District Court confirmed, following Willis v R [2014] NSWDC 325, that the provision extends to circumstances that made attendance more difficult, interpreted broadly in light of the legislative intent to permit annulment in the interests of justice (at [127]-[128]).

  • A potentially justiciable question arose as to whether a Land and Environment Court order requiring occupants to remain 10 metres from operating machinery was an occupational health and safety measure rather than a protection of council functions, which could affect whether a failure to comply supported a charge of obstruction under s 660 of the Local Government Act 1993 (at [133]-[135]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
- Local Government Act 1993 (NSW)

Cases
- Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139
- Bobolas v Waverley Council [2015] NSWCA 204
- Bobolas v Waverley Council [2015] NSWCA 216
- Boulghaurgian v Ryde City Council
- Gino Cassiniti v Director of Public Prosecutions (2008) NSWDC 2
- Magjarraj v Asteron Life Limited [2009] NSWSC 1433
- Miller v DPP [2004] NSWCA 90
- Rukabina v DPP [2008] NSWDC 214
- The Police v Edwards (2008) NSWLC 28
- Waverley Council v Bobolas (No 2) [2015] NSWLEC 66
- Waverley Council v Bobolas [2018] NSWLEC 116
- Willis v R [2014] NSWDC 325