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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWDC 310
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the matter of Boulghourgian v Ryde City Council, the applicant sought annulment of a conviction for Disobey No Stopping Sign, under s 11A of the Crimes (Appeal and Review) Act, from a decision of Magistrate Betts that refused such annulment. The applicant argued that the Magistrate erred in understanding the dates relevant to the offence and that this confusion hindered the administration of justice. The matter was brought before the Court of Appeal, which was required to determine whether the Magistrate's decision was correct, whether the applicant had leave to appeal, and if the annulment should be granted.

The central legal issue before the Court of Appeal was whether the Magistrate's confusion regarding the dates of the offence and the service of notice hindered the administration of justice to the extent that the conviction should be annulled. Additionally, the Court had to assess whether the applicant had satisfied the requirements for leave to appeal under s 8 of the Act, and whether the grounds for annulment as per s 13(1)(a1) were met. The Court of Appeal considered the statutory language and the context of the decision-making process, particularly focusing on the notion of "hindered" within the meaning of "administration of justice".

The Court of Appeal found that the Magistrate's confusion regarding the relevant dates did indeed hinder the administration of justice, as it led to an incorrect understanding of the facts. Consequently, the Court granted the application for leave to appeal and allowed the appeal, setting aside the Magistrate's order. The Court concluded that the applicant had demonstrated a substantial miscarriage of justice, warranting annulment of the conviction. The Court of Appeal remitted the matter to the Local Court for further proceedings in accordance with law.

The Court of Appeal's final orders were to grant the applicant leave to appeal, allow the appeal, set aside the Magistrate's order, annul the conviction, and remit the matter to the Local Court for further proceedings. This decision underscores the importance of accurate fact-finding and the impact of errors on the administration of justice.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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