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District Court 17 March 2025

Mackay v DPP

[2025] NSWDC 66

Domestic & family violencePublic order & justice offences

Citation: Mackay v DPP [2025] NSWDC 66
Court: District Court of NSW
Date: 17 March 2025
Judge(s): Everson SC DCJ

Background

A provisional apprehended domestic violence order (ADVO) was made against the appellant in September 2020, naming her ex-husband and his new partner as persons in need of protection. The ADVO, which went through several iterations, prohibited the appellant from contacting those persons except through specified channels such as a lawyer or court-ordered arrangements.

The appellant was charged, convicted, and sentenced across multiple Local Court proceedings for eight separate contraventions of the ADVO between 2020 and 2022. The contraventions took the form of emails and text messages sent to the protected persons. Each contravention constituted an offence under section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), carrying a maximum penalty of two years imprisonment and/or a fine of $5,500.

The appellant did not attend various Local Court hearings and later applied to the Local Court to annul her convictions. Magistrate Gibson refused that application. The appellant then appealed to the District Court against that refusal, and also against the final ADVO itself.

Legal Issues

  • Whether the District Court had jurisdiction to entertain a second appeal under section 11A of the Crimes (Appeal and Review) Act 2001 (NSW) in respect of the same conviction
  • Whether the appellant was prevented by accident, illness, misadventure, or other cause from attending the original Local Court proceedings, such that annulment was warranted
  • Whether it was otherwise in the interests of justice to annul the convictions
  • Whether the appellant's argument that she was incorrectly named in the ADVO and related court documents had any legal merit
  • Whether the appeal against the final ADVO should be allowed

Decision

Jurisdiction: The District Court found it had no jurisdiction to entertain a second appeal under section 11A of the Crimes (Appeal and Review) Act 2001 (NSW) in respect of the same conviction, given that subsection 11A(3) expressly limits parties to one such appeal per conviction (at [11]).

Leave to appeal and fresh evidence: Despite the prosecution's objection, the Court granted the appellant leave to appeal and to adduce fresh evidence, given she was self-represented and the prosecution suffered no prejudice (at [16]).

Deliberate non-attendance: The Court found that the appellant was never confused about her obligation to attend court and had deliberately chosen not to do so. Her stated reasons for refusing to enter NSW to attend court were found to be without merit (at [24]). This finding aligned with Magistrate Gibson's earlier conclusion that she was not prevented by misadventure and that annulment was not in the interests of justice (at [13]).

Naming argument: The appellant contended that the ADVO and related documents identified her by a surname she no longer used, rendering them invalid. The Court rejected this argument, finding there was no room for doubt as to who was alleged to have committed the offences. A person's choice to use a different name does not affect their identity as the subject of criminal charges or an ADVO (at [23]). The Court also noted that in the majority of charges, the appellant had made full admissions to police, and the prosecution case was strong (at [25]).

No error by Magistrate Gibson: The Court could discern no factual, legal, or discretionary error in the Magistrate's refusal to annul the convictions and dismissed the appeal (at [26]-[27]). The appeal against the final ADVO was also dismissed, as nothing placed before the Court justified setting it aside (at [28]).

Orders Made

  • The appeal against the refusal to annul the convictions is dismissed.
  • The appeal against the current final ADVO is dismissed.

Key Takeaways

  • Under section 11A(3) of the Crimes (Appeal and Review) Act 2001 (NSW), no more than one appeal may be made in respect of any particular conviction; a second such appeal falls outside the District Court's jurisdiction (at [11]).

  • In dismissing the appeal, the District Court confirmed that the interests of justice test for annulment applications under the Crimes (Appeal and Review) Act extends beyond the applicant's personal interests to encompass the interests of witnesses, protected persons, and the community's interest in the finality of litigation (at [14]).

  • A defendant's deliberate choice to absent themselves from court proceedings, even where they were aware of the obligation to attend, will weigh heavily against a finding of misadventure or other cause justifying annulment (at [24]-[25]).

  • Where there is no genuine confusion as to who is alleged to have committed an offence, an argument that criminal liability is avoided because court documents use a different version of a person's name carries no legal weight (at [23]).

  • Prospects of success in any fresh Local Court hearing form a relevant consideration in annulment applications; where the prosecution case is strong and admissions have been made, this factor weighs against granting annulment (at [19], [25]).

Legislation and Cases Referenced

Legislation
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)

Cases
- R v Sweet [2021] QDC 216
- Rex v Jack Congo Murrell (1836) 1 Legge 72