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District Court 14 July 2025

Higgins v R

[2025] NSWDC 256

Traffic & driving
CRIME APPEALS AND REVIEWS INTERPRETATION WHETHER ACCUSED PERSON ‘PRESENT’ CRIMINAL PROCEDURE ACT 1986 , S 196

Citation: Higgins v R [2025] NSWDC 256
Court: District Court of NSW
Date: 14 July 2025
Judge: Abadee DCJ

Background

The appellant was convicted and fined in the Downing Centre Local Court for two minor speeding offences (both under 10 km/h over the limit). The original convictions were entered on 29 April 2024 in his absence, but a subsequent annulment application succeeded on 2 July 2024, giving him a fresh hearing.

That fresh hearing took place on 30 July 2024 before a different Magistrate. On that date, the appellant appeared in court but refused to acknowledge his name or the court's jurisdiction, verbally interrupted proceedings, and was ultimately removed by sheriff's officers. The Magistrate, apparently treating him as not meaningfully "present," proceeded under s 196 of the Criminal Procedure Act 1986 (NSW) to hear and determine the matter in his absence, convicting him and fining him $500 for both offences.

The appellant then brought a second annulment application. Because it was a second application relating to the same matter, leave was required under s 4(3) of the Crimes (Appeal and Review) Act 2001 (NSW). On 20 January 2025, Magistrate Towney refused the annulment. The appellant appealed that refusal to the District Court.

  • Whether the appellant was legally "present" at the 30 July 2024 hearing within the meaning of s 196 of the Criminal Procedure Act 1986 (NSW), such that the Magistrate could not validly proceed as if he were absent
  • Whether the procedural requirements in ss 192 to 196 of the Criminal Procedure Act (including stating the substance of the offence and inviting a plea) were complied with on 30 July 2024
  • Whether Magistrate Towney erred in refusing the annulment application on 20 January 2025, particularly in the absence of a transcript of the 30 July 2024 proceedings
  • Whether leave should have been granted under s 4(3) of the CAR Act to bring the second annulment application

Decision

Abadee DCJ found that the appellant was physically present in the courtroom on 30 July 2024. His deliberate disruption did not render him legally "absent" for the purposes of s 196. The statutory power to proceed in an accused person's absence arises only where that person is not present; it cannot be used to bypass the procedural protections that apply to a person who is actually in the courtroom, however uncooperative they may be.

The court identified an additional and significant procedural error: the Magistrate on 30 July 2024 did not follow the procedure required by s 192 of the Criminal Procedure Act, which obliges the court to state the substance of the offence and ask the accused person to enter a plea of guilty or not guilty. That procedure was not followed. These failures were errors of law.

Magistrate Towney did not have the benefit of a transcript of the 30 July 2024 hearing when she determined the annulment application on 20 January 2025. Abadee DCJ observed that, had the transcript been available, Towney M would have been better placed to identify the procedural non-compliance with s 196. The absence of the transcript meant the error was not identified and therefore not addressed, and the refusal of the annulment application could not stand.

Given these errors of law, Abadee DCJ was satisfied that it was in the interests of justice to annul the convictions under s 8(2)(c) of the CAR Act. Leave under s 4(3) was also granted. The court acknowledged that other discretionary factors weighed against the appellant, but held that those considerations could not overcome the fundamental procedural non-compliance.

Orders Made

  • Leave granted to the appellant under s 4(3) of the Crimes (Appeal and Review) Act 2001 (NSW)
  • Annulment of the convictions entered on 30 July 2024 granted under s 16A(1) of the Crimes (Appeal and Review) Act 2001 (NSW)
  • The matters remitted to the Local Court at the Downing Centre pursuant to s 16A(3)

Key Takeaways

  • Physical presence in a courtroom is the relevant test under s 196 of the Criminal Procedure Act 1986 (NSW): a person who is in the courtroom but deliberately disruptive is not "absent," and a Magistrate cannot invoke the statutory power to proceed in absentia simply because the accused refuses to cooperate.
  • Under s 192 of the Criminal Procedure Act, a Magistrate must state the substance of the offence and ask the accused to enter a plea before proceeding to determine a summary matter; failure to do so constitutes a procedural error of law, regardless of whether compliance would have changed the accused's conduct.
  • Where a second annulment application is brought under s 4(3) of the CAR Act, leave and the merits may be considered concurrently; if the application fails on the merits, no separate leave order is required.
  • The District Court noted that the unavailability of a transcript at the second annulment hearing left Magistrate Towney unable to identify the errors that ultimately determined the appeal, underscoring the significance of transcripts in contested annulment proceedings.
  • Strong discretionary factors against an accused person (including a pattern of procedurally obstructive conduct) do not, of themselves, override errors of law in the underlying conviction; the interests of justice under s 8(2)(c) of the CAR Act require those errors to be addressed.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 192, 193, 194, 195, 196
- Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 11A, 16A
- Local Court Act 2007 (NSW), s 24
- Road Rules 2014 (NSW), r 20

Cases:
- DPP v Horstman [2023] NSWSC 213
- Kelly v Fiander [2023] WASC 187
- McKellar v DPP (2014) 240 A Crim R 285
- Miller v DPP [2024] NSWCA 90
- R v Kirsten (a pseudonym) [2024] NSWDC 401