Boulghourgian, John v Ryde City Council

[2008] NSWDC 310

CITATION:	BOULGHOURGIAN, John v Ryde City Council [2008] NSWDC 310
HEARING DATE(S):	27 November 2008
JUDGMENT DATE:	19 December 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	1. Grant application for leave to appeal from decision to refuse application for annulment. 2. Allow the appeal. 3. Set aside the order of Magistrate Betts on 11 August 2008. 4. Grant the application for the annulment of the conviction of 20 June 2008 for the offence of Disobey No Stopping Sign. 5. Remit the proceedings to the Local Court to be dealt with according to law.
CATCHWORDS:	CRIMINAL LAW – procedure – s 11A Crimes (Appeal and Review) Act – appeal from decision of Magistrate not to annul conviction – s 13(1)(a1) – leave required – s 8 – circumstances where annulment must be granted – meaning of “hindered” – confusion as to dates
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Justices Act 1902
CASES CITED:	Miller v DPP [2004] NSWCA 90
PARTIES:	John Boulghourgian (Appellant) - In person Ryde City Council (Respondent) - No appearance
FILE NUMBER(S):	2008/00016179

IN THE DISTRICT COURT
OF NEW SOUTH WALES

Bennett SC DCJ

19 December 2008

2008/00016179 BOULGHOURGIAN, John v Ryde City Council

JUDGMENT

Introduction

1 John Boulghourgian seeks relief in the District Court after decisions adverse to him in the Local Court made in the course of his prosecution for a parking offence when a vehicle, of which he claims to have no knowledge, was detected in a position where the stopping of a motor vehicle was proscribed. He was convicted in his absence, and was denied his application for the annulment of that conviction.

2 On 19 September 2008 Mr Boulghourgian filed a Notice of Appeal by way of the usual form upon the grounds that the penalty imposed was too severe, and an Application for Leave to Appeal, attaching a copy of the Notice of Appeal. Leave would be required if this could proceed as a severity appeal because more than twenty-eight days had passed since the decision of the magistrate.

3 The appeal so expressed was misconceived. The remedy available to Mr Boulghourgian at this point in the proceedings is to seek leave to appeal from the decision not to grant his annulment.

4 Mr Boulghourgian is unrepresented, English is not his first language, and the complexity of the legislation providing for these processes was no doubt a barrier to his understanding of how to proceed after he received notice of the outcome in the Local Court.

5 I allowed Mr Boulghourgian to proceed upon the basis that his application is for leave to appeal from the decision not to grant the annulment of the conviction in the Local Court.

6 It is appropriate that I rehearse the history of this matter beginning with the alleged offence upon which the proceedings were commenced. This history is drawn from the court file tendered in the hearing of the application for leave to appeal and marked Exhibit A, and the appellant’s evidence.

The Alleged Offence

7 It was alleged by an employee of the Ryde City Council that a Toyota Camry sedan, white in colour, and bearing registration plates WHH-854 was left parked and unattended adjacent to a ‘NO STOPPING” parking sign in Morrison Road, Putney, between Charles Street and Delange Road, between 3:08pm and 3:09pm on Saturday, 4 August 2007.

8 It was alleged that the vehicle was photographed in that location. Included on the court file is a colour photograph of the vehicle against such a sign and adjacent to a waste bin bearing the word PUTNEY, but there is nothing to indicate on that document the date or the time at which the photograph was exposed.

9 The Electronic Penalty Notice issued included the following in a box labelled with the word, “Notes:”

UNATTENDED VEHICLE – WHH 854 STOOD IN A SIGN POSTED NO STOPPING AREA DRIVER WINDOW WAS OPEN NO ONE IN VEHICLE CANCELLED REGO Issue Method: Posted, Signs: No Stopping

10 The appellant was shown the photograph of the vehicle when giving evidence. He said that he had not ever seen that vehicle and knew nothing of it.

11 A Penalty Notice Summary on the court file records the date of the offence, 4 August 2007, a reminder date of 18 December 2007 which I infer is the date upon which there was a payment reminder issued, the name John Boulghourgian, and the address 14 Torrens Place, Cherrybrook 2126. The appellant said in his evidence that this was his name and address.

12 A Court Attendance Notice was raised, appointing the matter to the Ryde Local Court at 9.30am on 11 April 2008. The Statement of Service endorsed on the document records that a copy of the document was posted to the appellant at his home address on 29 February 2008 at 4.30pm.

13 From the file the appellant was shown a “Written Notice of Pleading” in which his name and address is recorded, and bearing signature and the date 12.3.08, with a Local Court date stamp showing that the document was received on that day. This form of document is used in the procedure pursuant to s 182 of the Criminal Procedure Act 1986 whereby a person accused may give notice of their intention to the defend the charge against them.

14 The appellant acknowledged that he lodged that document, and that he wrote on the back of the document,

I don’t own the vehicle WHH 854 don’t know the vehicle at all. I was at home in Cherrybrook and collect my child from school everyday at 3.00pm.

The appellant adopted the truth and accuracy of that representation in his evidence.

15 By letter of 17 April 2008 from the Local Court, Ryde the appellant was informed that the hearing of this charge was adjourned from 11 April 2008 until 12.00 midday on 20 June 2008, and that his attendance at court was required. He was informed that the matter may be determined in his absence and that he should ensure his appearance or if unable to attend, contact the court beforehand.

16 The appellant said in his evidence that he failed to attend at that time because he mixed up the dates. He always had it in his mind, he said, that he was to appear on 22 June 2008, not the 20 June 2008. He said that this confusion came about because of a number of matters that have been brought against him for parking and driving offences in which this vehicle was used. He said that someone has been using his name and address falsely, and that as a result, he has been the subject of proceedings in the Local Court, Parramatta brought by the Parramatta City Council for parking offences, and the New South Wales Police or the Roads and Traffic Authority for traffic offences. In his efforts to have his name cleared, and resolve the confusion created by this fraudulent use of his identify, he failed to note accurately the date he was to appear on this occasion.

17 On 20 June 2008 he was convicted in his absence, fined $250.00, and ordered to pay court costs of $70.00.

18 On 22 June 2008 he looked at the letter notifying him of the hearing date and realised his error. He went to the court and asked at the counter if he could have another chance to defend the charge. He said that the staff member attending him assisted with the preparation of a document for this purpose.

19 There is on file an Application to the Local Court pursuant to s 40 of the Local Courts Act 1982. Handwritten at the top of the front page are the words,

(Dummy file)

and at the foot of the page,

dummy Applic
Can’t locate Original Applic

20 The appellant acknowledged that to the best of his recollection this was the type of document that was completed. He agreed that the orders sought as expressed were correctly stated. They were,

1. That the following order made by the Local Court be annulled:
Parties: Police v John Boulghourgian
Date of Order: 20/6/08
Place of Order: Ryde Local Court
Type of case or offences: disobey no stopping sign

21 He also agreed that the grounds for his application in this document were as recorded by the member of staff at the court. They were,

1. That the order made by the court was made in my absence.
2. It is in the interests of just to annul the order having regard to the following circumstances: I have numerous matters before courts in regards to these issues and I got my dates confused. I have numerous (sic)

22 The appellant said that he signed the completed application and left it at the court, and that the staff member said, “We will let you know”.

23 He was told that the application would have to be approved, but was not told and did not understand that he would be required to return to court for the determination of the application.

24 The document records that the application was filed on 26 June 2008. It also records that the application would be dealt with on the 11 July 2008 at the Ryde Local Court.

25 The matters pending in the Local Court at Parramatta for parking offences, brought by the Parramatta City Council, were removed to the Ryde Local Court to be dealt with on the same day with this allegation. The appellant said that he attended court as required at 9.00am on that day, and there met a solicitor appearing on behalf of Parramatta City Council. Those offences were committed using the same Toyota motor vehicle, and once again some other person is alleged to have falsely used the appellant’s identity. The appellant said that the solicitor told him that his prosecution for the Parramatta offences was being discontinued, and the court was so informed. The appellant said that he appeared before Magistrate Betts when this representation was offered.

26 The appellant said that once this occurred, he was of the belief that all matters were in hand, and that he could leave. He accordingly left court and went home. The matter involving Ryde City Council was in fact not called on until later in the day, after he left, and in his absence Magistrate Betts refused his application for annulment.

27 The transcript of that hearing has been obtained and included on the court file. It occupies a little more than half a page. It appears that her Honour was focused upon her concern that the Parramatta Local Court had sent matters for disposal in her court. The brevity of the record permits its reproduction here:

HER HONOUR: Sergeant, matter 28, it’s an application for annulment, the defendant’s not here. There’s heaps of other matters which Parramatta in their wisdom, matter’s set down for hearing on 11 August, that’s the allegation disobey no stopping sign of 4 July, for some reason Parramatta has forwarded on two separate matters of speeding of 10 July and 18 July to list on 11 August to fix a hearing date, they’re not our matters, I’m not going to deal with them, they’re Castle Hill matters, they’re going to go back to Parramatta, for Parramatta to set a hearing date. But in any event there’s no appearance for Mr Goulghourgian (sic) in relation to the disobey no stopping sign.

THE APPLICATION IS REFUSED.

I will it (sic) on 11 August for mention only, but they will be going back to Parramatta if they are going to be matters defended. If he doesn’t show up, I’ll deal with them on that day. I’m not happy with Parramatta sending matters expecting them to go in the Ryde list.

28 The transcript does not indicate the time when this took place. It is not entirely clear whether her Honour was referring to proceedings brought against another or other accused, or whether she was referring to the traffic offences brought against Mr Boulghourgian and which, according to his evidence were resolved in the Local Court in the Downing Centre at a later time. I shall shortly refer to these. It is apparent however, from what is attributed to her Honour, that these were not the proceedings brought against Mr. Boulghourgian by Parramatta City Council, which, he said in evidence, were resolved shortly after court commencing sitting on that day.

29 It also appears that her Honour made an error when referring to the date of the alleged offence.

30 The next notice Mr Boulghourgian received was of the fine and court costs to which he was exposed following her Honour’s decision.

31 At the same time as these prosecutions, the appellant has been the subject of charges for traffic offences presented by the New South Wales Police and pending in the Local Court in the Downing Centre. He told me that those matters were listed for 15 December 2008, but the prosecution informed him that he was not required to attend, because the prosecution of those matters was being terminated.

32 The implication in the evidence given by Mr Boulghourgian is that the Parramatta City Council and the New South Wales Police or Roads and Traffic Authority have accepted the fraudulent use of his identity by the owner or custodian of this Toyota Camry, and have terminated their prosecutions.

33 This action has not been taken by the Ryde City Council which, for reasons that are not entirely clear to me, have failed to attend court at any time for the purposes of this appeal.

34 There is one other document in the court file to which I should refer. It is a handwritten document by the appellant addressed “To Whom It May Concern”, and which speaks generally about the dilemma he has following the suspension of his licence following proceedings, without identifying the specific prosecution to which he refers. The content is consistent with what he has presented to me on the application for leave to appeal, but I am unable to determine whether he is speaking of the matter with which I am dealing, or one or other of the offences that have been discontinued by the other authorities.

The Proceedings on Appeal

35 On 19 September 2008 the appellant lodged a Notice of Appeal to the District Court, in respect of the decision of Magistrate Betts on 11 July 2008. The grounds specified that the appeal related to the decision as to sentence because the penalty was too severe.

36 Mr Boulghourgian at this stage has no standing to bring an appeal upon the grounds that the penalty imposed was too severe. However, as I noted in the introduction to these remarks, there was also filed an Application for Leave to Appeal, in which grounds are specified that are not entirely clear, but which refer to the right of appeal from the decision not to grant the annulment. It appears that there was some blending of purposes, and in the circumstances I allowed Mr Boulghourgian to proceed with an application for leave to appeal from the decision not to grant the annulment. Leave was required because more than twenty eight days had elapsed from the decisions made, and the filing of his notice and application for leave in this court.

37 The Notice of Appeal specified Monday 13 October 2008 as the listing date.

38 The Application for Leave to Appeal includes grounds in the following terms,

The grounds upon which I rely are as follows:
When the annulment was not granted by Ryde Local Court. (sic) I was not aware that the fine was still pending, and that I had a right of appeal against the Magistrate’s decision not grant my annulment. (sic)
This being my first time in Court I am not familiar with the system.

39 There was no evidence from the appellant regarding this document, and I am unable to say who assisted him with it, or the extent to which he was given assistance, however I infer from the content and structure of this passage that the representations are those of the appellant, rather than a person with any measure of legal training. Although it is not necessary to decide, it is probable that the actual preparation of the document was by another person upon what was said to them by the appellant, and from the form of the document it is probable that the person who assisted him so attended him at the counter of the court.

40 According to the District Court file, the matter was mentioned on that day before his Honour Acting Judge Armitage. The appellant represented himself, and a solicitor represented the Ryde City Council.

41 This was not a matter taken over by the Director of Public Prosecutions as with prosecutions brought in the Local Court by the police.

42 His Honour stood the matter over for mention on 15 October 2008, when the matter came before me. The appellant was unrepresented once again, as he has been unrepresented throughout the proceedings before me. There was no appearance for Ryde City Council.

43 He outlined the nature of his appeal from which it became clear that his appeal against sentence was misconceived in the circumstances, and that his purpose was to have the opportunity to defend the charge, which first required a determination whether he should have leave to appeal from the decision in the Local Court not to grant the annulment of the conviction.

44 I adjourned the matter until 23 October 2008 so that the Ryde City Council might appear. They failed to do so. I again adjourned the matter to 30 October 2008 and directed that written notice of the next listing be given to Ryde City Council. On 24 October 2008 a Notice of Listing from the Registrar of the District Court, Parramatta informed the council of the following,

This matter is listed for Mention on 30 October 2008 at 10:00 AM , at PARRAMATTA.

If you do not appear at Court, this matter may be dealt with you your absence.

Note: Boulghourgian advised to acquire a transcript of proceedings in Ryde Local Court.

45 The Registrar received a letter from the Ryde City Council, bearing the date 22 October 2008, by facsimile transmission of that date, under the hand of a person representing himself as General Counsel. The letter said,

I am the solicitor for the prosecutor in the abovementioned proceedings.

I note that the proceedings are listed for appeal before the District Court tomorrow. The Council is unable to appear but has no objection to the Court disposing of the appeal.

As the appeal relates only to sentence, the Council would not have adduced any evidence other than that on the Court file (section 17, Crimes (Appeal and Review) Act 2001) and would consider it a matter for the Court what penalty to impose.

For the Court’s assistance, the Council notes that the maximum penalty for the subject offence (clause 167 of the Road Rules Act 2008) is $2,200 (20 penalty units).

For further enquiries please feel free to contact me on 9952 8080.

46 As I recall, the letter was not placed before me on 23 October 2008, but I saw it on 30 October 2008. I was also informed that the appellant was having difficulty obtaining the transcript of the proceedings before Magistrate Betts. I made orders that the Ryde City Council be contacted once more with the results of this mention, and that a transcript of the Local Court proceedings be taken out and placed on file. I stood the matter over for mention before me in the District Court, Sydney on 13 November 2008. I ordered that written notice of that listing be sent to the Ryde City Council.

47 The Registrar sent a Notice of Listing dated 4 November 2008 to Ryde City Council by the Registrar. On the same day the Registrar wrote to the Local Court informing them that the transcript was ordered, and asking them to attend to it as a matter of urgency.

48 A facsimile of that document was transmitted on the same day to Ryde City Council. The document made clear the nature of the proceedings before me. The letter includes the following,

On 11/7/08, the abovenamed appeared at your court in relation to a S 4 annulment application.
The presiding magistrate refused the application and the defendant subsequently lodged an appeal against that decision.

49 On 13 November 2008 the appellant appeared but Ryde City Council did not. The matter could not proceed on that day because of other work before the court, and was adjourned to 27 November 2008 when the appellant presented the evidence.

50 As I have noted, the appellant does not speak English as his first language, and he was unrepresented throughout these proceedings. Notwithstanding these limitations, he was able to conduct the application for leave to appeal appropriately when pointed towards each step required for the hearing of the matter. I informed him that it would be necessary to tender the court file if it was his wish for me to have evidence of the proceedings in the Local Court, and he did so. When I informed him that the findings of fact to be made relevant to his application depended upon evidence, including evidence that he might wish to give, he chose to enter the witness box, was sworn, and gave evidence. I interrupted him when irrelevant material was offered, and asked questions to ensure that I had a complete understanding of his memory of events, and the reasons for his application.

51 If the representatives of Ryde City Council had made the decision to appear in response to the correspondence sent to them this matter might well have been resolved well before now. I find their attitude to the court and their disregard of the obligations they have as litigants in matters such as this to be unsatisfactory.

The Decision Refusing the Annulment

52 The transcript of her Honour’s remarks imply that she was in some measure irritated by the decision to pass work to her court from the Parramatta Local Court, and that she was focused upon that issue when she decided to refuse the application for annulment. If it be the case that Mr Boulghourgian was at the court earlier in the day, when Parramatta City Council was represented by a solicitor to inform the court that proceedings brought against him by the council were being discontinued, it appears that she did not appreciate the significance that appearance might have had when it came to deal with this matter. It does not appear that her Honour made any attempt to review the court file, or make any examination of the documents that were before her relevant to this prosecution from which she might have gleaned whether Mr Boulghourgian was intending to pursue the matter, and she has given no indication of any thought that there might be an explanation for his absence at the time that this matter was called. The assistance to be gained from the police prosecutor would be minimal, since Ryde City Council was the authority responsible for the prosecution and there is no indication that there was any representative present to appear on behalf of the informant, or the council, to assist the court with the conduct of the matter.

53 Her Honour did not refer to the provisions pursuant to which the application for annulment was brought. Neither is there any indication that her Honour was assisted with authority, such as Miller v DPP [2004] NSWCA 90, wherein there is to be found appropriate guidance upon such an application. Of course the decision simply to refuse the application when Mr Boulghourgian was not present in court at the time the matter was mentioned, without any further consideration of why he might have been absent, obviated the need for her Honour to turn her mind to the principles relevant to the decision whether or not to grant the application.

54 It would have been preferable, with all due respect, if her Honour had taken time to review the file, and explore the possibility that Mr Boulghourgian was not present from some reason other than his disregard of the proceedings. I have no reason to reject his evidence about events earlier in the day at the court. Indeed I found him to be a reliable witness, and I accept his evidence about the appearance earlier in the day, after which, believing all matters there were resolved, he departed to go about his business.

The Determination of the Appeal

55 The legislation governing the conduct of the proceedings before her Honour, and now in this court, are found in the Crimes (Appeal and Review) Act 2001. They were introduced into this Act from the Justices Act 1902 where comparable provisions first provided the scheme for the ex parte disposal of charges for criminal offences.

56 Section 4 provides relevantly:

(1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the same Local Court:
(a) by the defendant, or
(b) …
but may be made by the defendant only if the defendant was not in appearance before the Local Court when the conviction or sentence was made or imposed.
(2) An application under this section must be made:
(a) within 2 years after the relevant conviction or sentence is made or imposed, or
(b) …
(3) …
(4) An application must be in writing, and must be lodged with a registrar of a Local Court.
(5) …

57 The appellant was not in appearance before the Local Court when the conviction was entered in his absence. His application for annulment was made within two years thereafter. The application was lodged in writing.

58 Section 8 provides, emphasis added,

(1) …
(2) A Local Court must grant an application for annulment made by the defendant if it is satisfied:
(a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or
(b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or
(c) that, having regard to the circumstances of the case, it is in the interests of justice to do so.

59 Section 9 sets down the procedure to be followed when an order for annulment is made, and s 10 sets out the effect of an order of annulment.

60 Part 3 of the Act provides for appeals to the District Court from the Local Court.

61 Section 11A provides,

(1) Any defendant whose application under section 4 for annulment of a conviction or sentence has been refused by the Local Court may appeal to the District Court against the refusal.
(2) An appeal under this section must be made within 28 days after the Local Court notifies the defendant of its refusal of the application.
(3) …

62 The application for leave to appeal, with a copy of the notice of appeal upon the grounds of severity attached, and the notice of appeal were lodged on 19 September 2008, after the decision rejecting the application on 11 August 2008, and outside of the 28 day period. Leave is therefore required; s 13(1)(a1).

63 I shall grant leave to Mr Boulghourgian to appeal from the decision not to grant the annulment. As I have noted he is unrepresented, English is not his first language, and his lack of knowledge of the procedures that must be followed in these matters is understandable. His failure to lodge appropriate documents within the time constraints provided in this legislation should be assessed against these limitations.

64 Section 14 provides relevantly,

(1) An appeal under section … 11A is to be made by lodging a written notice of appeal with:
(a) the registrar of any Local Court, or
(b) the person in charge of the place where the appellant is in custody.
(2) A notice of appeal must state the general grounds of appeal.
(3) …
(4) …
(5) …

65 Regrettably, the document as presented is deficient in this regard if taken alone. However, when read against the evidence proffered by Mr Boulghourgian the grounds are made clear.

66 Briefly stated, they were that he is not guilty of the offence of which he has been convicted; he has been the victim of identity fraud by or at the instance of the person who did commit this and other offences of which he has been accused; the number of proceedings consequently brought against him confused him as to the date upon which this charge was to be heard; and thereafter, he believed the conviction to have been annulled when the proceedings brought by the Parramatta City Council were dealt with earlier in the day upon which the application for the annulment was in fact refused. In these circumstances, he was hindered by misadventure from taking action in relation to the original proceedings and, moreover, having regard to the circumstances of the case it is in the interests of justice that the conviction be annulled.

67 I find that the grounds expressed in the application for leave to appeal are sufficient to state the general grounds of appeal.

68 Miller v DPP was concerned with a decision by a magistrate not to grant an annulment of a conviction entered in the appellant’s absence, upon findings that he simply chose not to attend court on the day appointed. The magistrate had evidence from a medical practitioner who spoke to the impaired health of the appellant and said that he was unfit to appear at court on the day when the proceedings were to resume. The doctor had examined the appellant that day and concluded that he was unfit to appear in court, and would continue to be unfit over the ensuing days. He said that his difficulty arose from the failure to follow advice regarding his cardiac care.

69 Regardless of this evidence, the magistrate took the view that the appellant was not hindered by illness or other cause from taking action in relation to the relevant proceedings. She noted that he could make contact with his solicitor in order to seek an adjournment, and simply chose not to attend court.

70 An appeal to the Supreme Court before Dowd J failed, but a further appeal to the Court of Appeal succeeded and the matter was remitted to the Local Court to be dealt with according to law. Their Honours held that the finding by the magistrate was not open to her on the evidence.

71 The court reviewed the relevant provisions of the Justices Act comparable to those with which the court is here dealing, and with regard to the second reading speech presented upon their introduction. Although the present legislation is not in identical terms to that under review in Miller v DPP, their Honours’ remarks are apposite. Sheller JA, with whom Beazley JA and Young CJ in Equity agreed, concluded that the use of the words ‘must grant an application for annulment’ required the Local Court to grant the application if the conditions specified were satisfied. Moreover, the phrase ‘from taking action in relation to the original Local Court proceedings’ was not to be construed narrowly. His Honour said at paragraphs [24] and [25],

[The phrase] is clearly part of a scheme to avoid the obvious injustice to a defendant who is unable, properly, to defend the case against him, on the day he is convicted in his or her absence, because of an accident, illness or misadventure or other cause.

The use of the word “hindered” is instructive. It does not only mean “prevented” but also “impeded” or “obstructed”. There are no doubt many ways in which this can happen and it is not desirable, even if possible to catalogue them here. The basis for the application is that the conviction was made in the absence of the defendant. It seems to me quite obvious that if the appellant was prevented from coming to court on 10 December 2001 because of illness, that falls well within the ambit of the expression “hindered by illness from taking action in relation to the proceedings”. It is not to my mind, significant or any answer to such a claim that the appellant was well enough to telephone his solicitor or to write a letter. To conclude otherwise, defeats the intention of the legislation.

72 Justice Young contributed further comment, noting that the second reading speech gave the clear impression that the aim of the amendments introduced was to liberalise the circumstances in which convictions before magistrates where the accused had not appeared could be annulled. In my opinion the further amendments made upon the introduction of this legislation into the Crimes (Appeal and Review) Act have not reversed or introduced limits to that liberalisation.

73 His Honour rehearsed the history of these provisions through their various iterations, noting that they once expressly included a series of discrete situations where a defendant might have a conviction annulled. At paragraph [38] his Honour said,

Under s 100K(2)(a), the defendant can apply if he or she was not aware of the relevant proceedings until after their completion, but cases where there was some problem with communication of the adjourned date or a date was wrongly written down in somebody’s diary ceased to be matters explicitly mentioned in the statute.

74 Section 100K(2)(a) was expressed in the following way,

A Local Court must grant an application if the applicant is a person other than the informant and it if is satisfied that the defendant was not aware of the relevant proceedings until the proceedings were completed or the sentence imposed or the other action was taken,

75 His Honour continued at paragraph [39],

This must lead to the view that the general paragraphs of subs (2)(b) and (c) of s 100K(2) or s 8(2) of the 2001 Act should be widely construed. Thus in (b) the word “misadventure” should be read widely.

76 Section 100K(2)(b) and (c) of the Justices Act were the comparable, although not identical predecessors to sections 8(2)(b) and (c) of the Crimes (Appeal and Review) Act by which this scheme is continued. The differences between these provisions as expressed do not detract from his Honour’s statements.

77 His Honour continued with references to authority in support of the proposition that the word “hindered” meant something less than prevented, namely, making something more or less difficult but not impossible, or alternatively, affecting to an appreciable extent the activity in question. Of the phrase “taking action in relation to the relevant proceedings” his Honour said at paragraph [41],

… the legislature has chosen wide vague words with the intention that if the defendant is hindered by misadventure or otherwise from doing some act or thing in relation to the proceedings not limited to attending court, then a magistrate would have jurisdiction under the section to annul the conviction or sentence.

78 The merit of these provisions, which allow for the expeditious disposal of proceedings before magistrates where an accused person chooses not to appear cannot be questioned. Their implementation saves the cost and inconvenience that would otherwise be incurred by requiring the use of resources and the presence of witnesses to present evidence to prove offences, in respect of which an accused person may properly submit to a finding of guilt without the formalities that might otherwise be required.

79 However, as the Court of Appeal has made abundantly clear, the legislation was not intended to produce injustice. Those accused who wish to defend the charges brought against them must be permitted to do so.

80 Failure of an accused wishing to defend the charges against them to attend court, through mere oversight, should not result in a finding of guilt and conviction as a matter of course. Where an accused person has made an error, such as by losing the note of the date of the hearing, and whilst operating under the genuine but mistaken belief that his day in court was to be on a day other than the day upon which the matter was in fact to be heard, he or she has been hindered by misadventure or otherwise from doing an act in relation to the proceedings, namely, from attending on the appointed day.

The Decision

81 For these reasons I propose to allow the appeal.

82 Section 16A of the Crimes (Appeal and Review) Act provides,

(1) The District Court may determine an application under section 11A by dismissing the application or by granting it.
(2) Pending the determination of the application, the District Court may stay the execution of the sentence concerned subject to such terms and conditions as it thinks fit.
(3) If the District Court grants the application, the District Court must remit the matter to the Local Court.
(4) The Local Court is to deal under section 9 with any matter remitted to it under this section as if the application under section 4 in respect of the matter had been granted by the Local Court.

83 Although this provision refers to an application under section 11A, the term used in section 11A is “appeal”. It would appear that the intention of the legislation is that if the appellant is successful, this Court will grant the application for annulment.

84 This Court does not substitute its view of the facts relevant to whether the prosecution has or will be able to prove the guilt of the appellant beyond reasonable doubt. Once the decision is made to grant the annulment denied in the Local Court, the matter must be remitted to the Local Court to be dealt with under s 9 of the Crimes (Appeal and Review) Act as if the application for annulment had been granted in the Local Court. Thus, when the matter is returned to the Local Court any magistrate may deal with the matter, but must do so afresh and as if no conviction or sentence had been previously imposed.

1. Grant application for leave to appeal from decision to refuse application for annulment.
2. Allow the appeal.
3. Set aside the order of Magistrate Betts on 11 August 2008.
4. Grant the application for the annulment of the conviction of 20 June 2008 for the offence of Disobey No Stopping Sign
5. Remit the proceedings to the Local Court to be dealt with according to law.

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