Citation: NSW Police v Joel Peterson [2019] NSWLC 3
Court: Local Court of New South Wales
Date: 1 May 2019
Judge(s): Magistrate Donnelly
Background
The applicant sought to annul four sets of convictions recorded in his absence at Mt Druitt Local Court on three separate dates in March and April 2019. The application was made under ss 4 and 6 of the Crimes (Appeal and Review) Act 2001 (NSW) and was filed on his behalf by a representative from the Aboriginal Legal Service.
The four charge sets had been listed on different days. Two were listed for reply following brief service, and two were listed for defended hearings or trials. In each instance, the applicant did not appear and convictions were recorded in his absence.
In support of the annulment application, the applicant relied on an amended affidavit that was neither sworn nor affirmed. The applicant did not give oral evidence at the hearing, and was not cross-examined. Following submissions from both parties, Magistrate Donnelly refused all four annulment applications and gave reasons the following day.
Legal Issues
- Whether the applicant had established, on the balance of probabilities, any of the grounds under s 8(2) of the Crimes (Appeal and Review) Act 2001 sufficient to require the court to grant the annulment
- Whether the applicant was "hindered by accident, illness, misadventure or other cause" from attending the proceedings (s 8(2)(b))
- Whether it was in the interests of justice to grant the annulment, having regard to all the circumstances (s 8(2)(c))
- What evidentiary standard and onus applies to annulment applications under s 8(2)
- What weight, if any, should be given to an unsworn affidavit in such proceedings
Decision
Magistrate Donnelly refused all four annulment applications, identifying the nature and quality of the evidence as the primary reason. The amended affidavit was not sworn or affirmed and therefore did not meet the definition of an affidavit under s 21 of the Interpretation Act 1987 (NSW). The applicant did not give oral evidence, could not be cross-examined, and no supporting documentation was provided.
The affidavit made general references to a hospitalisation for a dog bite in "early mid March," work commitments, a house move, and a concerning neighbour. However, no specific dates were given, no supporting records were tendered, and the relevance of several matters to the s 8(2) grounds was not established. Given that three separate court dates across multiple charge sets were in issue, the absence of any date-specific explanation was significant.
Magistrate Donnelly acknowledged that the applicant's desire to contest the charges could be a relevant consideration under the "interests of justice" limb in s 8(2)(c). However, the court noted that where four sets of serious charges are involved, the interests of justice must account for both the defendant and the wider community interest. The bare fact of working full-time, without more, was held insufficient to ground an annulment.
Two District Court decisions raised by the applicant's representative were distinguished. In one, the applicant was unrepresented with very limited English; in the other, the applicant had produced medical certificates and given oral evidence. Neither compared favourably with the evidentiary position before the court. The District Court subsequently dismissed an appeal against this decision.
Orders Made
- Annulment of convictions for charge sets H69890363, H704015958, H70679041, and H69362813 refused
- Duty report ordered for each set of charges for sentencing purposes
Key Takeaways
- Under s 8(2) of the Crimes (Appeal and Review) Act 2001, the Local Court must grant an annulment application if the applicant satisfies the court of any one of the three prescribed grounds. However, the applicant bears the onus of affirmatively satisfying the court on the balance of probabilities.
- An unsworn document does not qualify as an affidavit under s 21 of the Interpretation Act 1987 (NSW). A court is not required to accept evidence merely because it is tendered; it may accept or reject it.
- Where an annulment application relates to multiple charge sets dealt with on different dates, general or date-free explanations are unlikely to satisfy the court that the defendant was hindered from attending on each occasion.
- Being busy with full-time work and "losing track" of court dates, without supporting documentation or further explanation, was found insufficient to establish hindrance by accident, illness, misadventure, or other cause under s 8(2)(b).
- The interests of justice under s 8(2)(c) are not assessed solely from the defendant's perspective. The court confirmed it must also weigh community interests, particularly where multiple serious charges are involved.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 6, 7, 8
- Interpretation Act 1987 (NSW), s 21
Cases:
- Boensch v Commission of Fines Administration [2017] NSWCA 13
- Boulghourgian v Ryde City Council [2008] NSWDC 310
- Manny v Australian Securities and Investment Commission [2017] NSWCA 44
- Miller v DPP (2004) 145 A Crim R 95; [2004] NSWCA 90
- Rukavina v Director of Public Prosecutions [2008] NSWDC 214
- Streater v Commissioner of Fines Administration [2015] NSWSC 1516
- Willis v R [2014] NSWDC 325