Higgins v The King

[2025] NSWDC 256

District Court

New South Wales

Medium Neutral Citation:

Higgins v R [2025] NSWDC 256

Hearing dates:

14 July 2025

Date of orders:

14 July 2025

Decision date:

14 July 2025

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraphs [58]–[59].

Catchwords:

CRIME – appeals and reviews – appeal against refusal to annul convictions entered in Local Court – accused person is deliberately disruptive in proceeding – the judicial officer determined that he was not ‘present’ and proceeded to hear the matter in his absence

CRIME – interpretation – whether accused person ‘present’ – Criminal Procedure Act1986, s 196

Legislation Cited:

Crimes (Appeal and Review) Act2001 (NSW), ss 4, 8, 11A, 16A

Criminal Procedure Act1986 (NSW), ss 192–196

Local Court Act 2007 (NSW), s 24

Cases Cited:

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

Texts Cited:

D Rolph, Contempt (2023, The Federation Press)

Category:

Principal judgment

Parties:

Mr Christopher Edwin Higgins (Appellant)
Transport for NSW (Respondent)

Representation:

In person (Appellant)
Mr J Kennedy (solicitor) (Respondent)

File Number(s):

2023/00200976; 2023/00209350

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 January 2025

Before:

Towney LCM

File Number(s):

2023/00200976; 2023/00209350

Reasons for judgment

(The is a revised version of reasons given ex tempore on 14 July 2025.)

Background

1. Mr Christopher Edwin Higgins, the appellant, was convicted and fined in the Downing Centre Local Court in respect of two instances of speeding, occurring on 5 April 2023 and 14 April 2023, contrary to r 20 of the Road Rules 2014 (NSW). In each instance, the charge featured the appellant driving at less than 10 km/h over the speed limit.

2. On 29 April 2024, the proceeding was dealt with in the appellant’s absence and the appellant was convicted and fined $330 for both offences. The Magistrate exercised power under s 196 of the Criminal Procedure Act 1986 (NSW). On 2 July 2024, an annulment application brought by the appellant in respect of the convictions entered on 29 April 2024 was heard before Local Court Magistrate Towney. The appellant was permitted to bring this application under s 4 of the Crimes (Appeal and Review) Act2001 (NSW) (the ‘CAR Act’). The appellant provided the Court with a medical certificate and the prosecution neither consented to nor opposed the annulment of the convictions entered on 29 April 2024. The appellant was invited to enter a plea of guilty or not guilty. Following his non-responsive answer, the matter continued for a period before it was adjourned, part-heard, to 30 July 2024. The appellant was notified that if he did not appear on that date, the matters would be determined in his absence.

3. On 30 July 2024, the matters were before Local Court Magistrate Denes. That day, the appellant appeared not to acknowledge his name, and refused to acknowledge the Court’s jurisdiction over him. In the course of the appellant’s verbal interruptions, and over the appellant’s objection to jurisdiction, a legal representative for Transport for NSW tendered documents and the Magistrate convicted the appellant and fined him the sum of $500 for both offences. After he was convicted, her Honour organised for the sheriff to assist for the appellant to be removed from the Court, clearly over the appellant’s verbal objection.

4. On 14 October 2024, the matter was before the Local Court for mention. Leave was sought to annul the convictions on 30 July 2024 and a transcript was ordered of what occurred on that date.

5. On 20 January 2025, the matter was before the Local Court again, before Local Court Magistrate Towney for the hearing of the appellant’s annulment application of his convictions on 30 July 2024. This, as the learned Magistrate recognised, was a second annulment application, following the one that the appellant had successfully brought on 2 July 2024. Since this was a second annulment application in relation to the same matter, the appellant required the Court’s leave: s 4(3) of the CAR Act. The Magistrate determined that it was not in the interests of justice to grant the annulment application. In his submissions today, Mr Kennedy, the solicitor appearing on behalf of Transport for NSW noted that Magistrate Towney did not appear to make an order granting leave of s 4(3). In argument, I suggested that her Honour appeared to treat the application for leave concurrently with the merits of the appeal. Since her Honour dismissed the application, it was unnecessary to make an order granting leave.

6. The appellant is now before this Court and appeals the Magistrate’s decision on 20 January 2025 to refuse his annulment application.

The hearing on 20 January 2025

Argument before the Court

7. Mr Kennedy appeared for Transport for NSW. Mr Kennedy had not appeared in the hearing on 30 July 2024. The appellant again represented himself. It is apparent that Magistrate Towney did not have before her a transcript of what occurred on 30 July 2025 (20/1/25, T 4.3). The Magistrate noted that an order had been made for the transcript, presumably, of the hearing on 30 July 2024. Efforts were made to obtain a transcript throughout the day. There was a suggestion that the Court monitor’s attempt to apply for a transcript was ineffective. The Magistrate indicated her intention to proceed without it (20/1/05, T 5.4).

8. The learned Magistrate queried whether the appellant had actually appeared on 30 July 2024: a note that the Magistrate referred to appeared to record that he had not appeared. At a point when Mr Kennedy indicated that this was a second annulment application, and that the applicant would require leave to bring it, the appellant said he was “seeking leave” (20/1/25, T 3.29).

9. The appellant explained that he did appear on 30 July 2024 and that he spoke. The Magistrate indicated that she did not have the benefit of a transcript of what occurred on 30 July 2024. It was pointed out to the appellant that this appeared to be a second annulment application. The appellant stated that he was “there at the time of the alleged court proceeding, and I was ignored and a ruling was made before my very eyes”. At another point, the Magistrate asked the appellant what he wanted and the appellant said that he was “seeking an annulment” (20/1/05, T 5.24).

10. The Magistrate recited the procedural history (20/1/25, T 6-7). The Magistrate invited the appellant to make submissions addressing s 8 of the CAR Act.

11. The applicant complained about being forcibly removed, or ‘manhandled’ by persons who he said ‘claimed’ to be sheriff’s officers (20/1/25, T 7.14). He explained that after he got home, he had emailed the Court, requesting proof of the authority of the persons to remove him. He reiterated that it was a miscarriage of justice that he was removed and physically hindered from the Court but not allowed speak (T 8.10). The appellant provided the Magistrate with a hard copy of a decision of the Supreme Court of Western Australia, being Kelly v Fiander [2023] WASC 187 (Vandongen J) and especially referred to paragraph 43. To place the observations in context, Vandongen J was dealing with a submission where the accused person in that case, who had earlier been described as an ‘adherent of pseudolaw’ ([10]) had actually appeared in Court, since if she did, it was not open to the Magistrate to purport to decide the case in his absence and convict him under the statutory scheme. At [43], Vandongen J observed that:

“… if the magistrate did in fact decide that the appellant had not appeared because she was not before the court then I am of the view that it would be well open to conclude that there has been a miscarriage of justice. The appellant would have been unfairly deprived of a trial according to law, .. in which the prosecution would otherwise have been required to prove that she was guilty of the offences charged, by admissible evidence and to the criminal standard of proof.”

12. At T 12, the following exchange occurred:

“HER HONOUR:    Mr Higgins, what you’re asking me to do is to grant an annulment application on the basis that you were here, but you were removed by security, is that correct?

APPLICANT:   That’s correct.”

13. In a later exchange, the appellant accepted that he was in Court on 30 July 2024 when the matter had been determined by the Court (T 12.36–12.44). Specifically, he admitted that he was “present” (T 12.36).

14. Later, when the Magistrate asked the appellant whether there was anything else he wanted her Honour to take into account, the appellant submitted that that it was in the best interests of justice that before deciding on whether to grant the annulment application, the Magistrate consult the transcripts He sought an adjournment to enable that to occur (T 13.33).

15. The appellant also invited the prosecutor to call him as a witness to ‘clear things up’. There followed the following telling exchange:

“HER HONOUR:    You’re saying you were here when the order was made, is that correct?

APPLICANT:   Yes, I was. I appeared.

HER HONOUR:      Well, there’s a difference you appeared and you were here when the order was made. Or had you already been removed?

APPLICANT:   I made an effort to appear.

HER HONOUR:      Do you –

APPLICANT:   As, but as I said, we can’t actually make any, we can’t make any – as the prosecutor’s already said, we can’t make any assertions, because the transcripts aren’t here to consider.”

Reasons for decision

16. After citing the procedural history, the Magistrate noted that she did not have the transcript of the hearing in the Local Court on 30 July 2024. Her Honour noted that the Court could not determine whether the appellant was in the Courtroom or not at the time the order was made. Her Honour interpreted the appellant’s last submission as conveying his position that he was not in the room when the order was made as he had said that he was “attempting to be here”.

17. The Magistrate noted that the Court had to consider the matters in s 4(3), and also s 8(2) of the CAR Act. Her Honour identified as the particular question that she needed to consider was whether he was hindered by accident, illness, misadventure or another cause from taking action or, having regard to the circumstances it was in the interests of justice to grant the adjournment.

18. On the basis of the evidence, her Honour determined that he was not hindered by accident, illness or misadventure. Her Honour referred to the decision from the Supreme Court of Western Australia referred to.

19. Secondly, her Honour determined that it was not in the interests of justice to grant a second annulment application. She reasoned that the penalties were low, the proceeding had been going on for almost two years.

Nature and relevant principles of and concerning appeals to this Court from decisions to refuse annulment applications

20. The appellant appeals, as of right, under s 11A(4) of the CAR Act. By s 16A(1) the Court is empowered to dismiss or grant the application, but if it grants it, the matter is remitted to the Local Court (s 16A(3)).

21. This is not an appeal against a conviction, but an appeal against a refusal to grant an annulment application. The Court’s approach is analogous to appeals against a conviction. There are some basic elements to that approach. The appeal is by way of rehearing, although the Court is empowered to consider fresh evidence. The task of a Judge of this Court is to step into the shoes, as it were, of the Local Court Magistrate. It must ascertain whether there is any error in the decision to refuse the annulment application, whether that is error by law, of fact, or in the exercise of a discretion. The Court is not prevented from having recourse to the reasons of the Magistrate. I would also further add that, similar to the approach taken to appeals against convictions, on an appeal of this kind, the District Court should not be expected to conduct a free-standing review of all the evidence but will be guided by the approach taken by the parties, especially the appellant, on appeals.

The issues

22. As noted, at issue in the Local Court on 20 January 2025 were the following issues.

23. First, whether leave should be granted so as to permit the appellant to bring a second annulment application in relation to the same matter. I would interpolate that it appears to me that there is every reason to suppose that the Local Court would entertain an application for leave concurrently with adjudicating on the merits of a second annulment application; which is what occurred in this case when the matter was heard on 20 January 2025. As Transport for NSW submitted, the matters relevant to the question of whether leave should be granted under s 4(3) were equally relevant to the criteria in s 8(2)(c) of the CAR Act.

24. Second, when addressing the merits of the second annulment application, the Local Court had to decide whether:

1. the defendant was not aware of the original Local Court proceedings until after the proceeding was completed; or

2. the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings; or

3. having regard to the circumstances of the case, it was in the interests of justice to grant the annulment.

25. In this context, the ‘original Local Court proceedings’ is a reference to the hearing on 30 July 2024.

26. If the Local Court is satisfied of any of the criteria in s 8(2), it must grant the application. In the case of the District Court, as indicated, if this Court is satisfied of the criteria, it is obliged to remit the matter to the Local Court. In short, if any of the conditions are satisfied, there is no further discretion to be exercised. Of course, there is a clear discretionary evaluation to be carried out in the third of the criteria, being s 8(2)(c).

27. As to the second criteria in s 8(2)(b), there is some exposition of the matters in the Court of Appeal’s decision in Miller v DPP [2024] NSWCA 90, which looked at a predecessor statutory provision. In particular:

1. the word ‘hindered’ is not limited to ‘prevented’ but extends to being ‘impeded’ or ‘obstructed’

2. The mischief of the expression ‘from taking action in relation to the original Local Court proceeding’ is to prevent the obvious injustice to a defendant who is unable properly to defend the case against him’, because of any of the matters listed, i.e. accident, illness, misadventure or other cause;

3. the conditions in s 8(2)(b) and (c) were to be widely construed.

Grounds of appeal and submissions

28. The appellant did not prepare written submissions so as to enable this Court to efficiently and expeditiously understand the basis or bases for his appeal.

29. However, in his notice of appeal (received in the Court on or about 17 February 2025), the appellant spoke of a denial of procedural fairness, in two respects, being first:

1. the non-availability of transcripts of earlier hearings as at 20 January 2025, so that they consequently could not be considered before the Magistrate’s decision to refuse the annulment application; and

2. refusal of the appellant’s request to give testimonial evidence in which he apparently sought to say things about his forced removal from the court room.

30. Transport for NSW addressed each of the criteria in s 8(2). Specifically, it contends that:

1. the appellant was aware of and did attend the Local Court on 30 July 2024

2. none of the matters in s 8(2)(b) applied and endorsed the Magistrate’s findings;

3. the key question is whether in all of the circumstances, it was in the interests of justice to grant the annulment.

31. On this ‘key question’, Transport for NSW submitted that, for the purposes of s 196 of the Criminal Procedure Act, on 30 July 2024, the Local Court Magistrate appropriately treated the appellant as not being ‘present’ as well as proceeding to hear and determine the matter in his ‘absence’. Transport for NSW relied on the following matters to support such approach: the appellant did not provide an unconditional appearance; he did not approach the microphone when asked; he did not appropriately engage with the Magistrate when the latter sought to confirm his appearance; he generally did not engage in any meaningful way whilst the matter was being determined and, thereafter, the Magistrate was justified in ordering the sheriffs to accompany the appellant from the Court.

32. Generally, Transport for NSW submitted that it would not accord with the purpose of s 196 of the Criminal Procedure Act to treat an accused person as being ‘present’ in a purely physical sense if the person, in effect, was not also ‘meaningfully’ or, perhaps, functionally present as well. The provision, it was said, facilitates the efficient conduct of the Court’s business and extends to the situation where an accused person, although physically present, is actually frustrating the Court from conducting a hearing. Transport for NSW submitted that by his conduct, the appellant evinced a belief that NSW laws did not apply to him. Transport for NSW submits that it was this approach which the Magistrate applied on 30 July 2024; and this was how the Magistrate approached her task on 20 January 2025; notwithstanding the absence of a transcript of what occurred on the earlier date.

33. About this, Transport for NSW addressed the decision of the Supreme Court of Western Australia. About this decision, Transport for NSW submitted, first, that the decision did not bind the Magistrate at the hearing on 20 January 2025. Secondly, it was distinguishable on the facts: in that case, it was determined that under the Western Australian legislation, it was wrong to say that a person was absent when the accused person was in attendance but had refused to divulge her correct name. In this case, there never was any doubt that the person who appeared and addressed the Court on 30 July 2024 was Mr Higgins.

34. Otherwise, Transport for NSW effectively relied upon the Magistrate’s reasoning on the s 8(2)(c) condition; supplemented by the additional reason for denying the appellant leave was that he was casting a burden on the Local Court by continuing to deny the operation of NSW laws upon him.

Consideration

35. Taking the matters in s 8(2)(a) of the CAR Act in turn, first, no doubt attends Magistrate Towney’s view that the appellant attended the Local Court on 30 July 2024, having had prior notice of it. As will be shown that presents some tension with the requirements in s 196 of the Criminal Procedure Act.

36. As to the matter in s 8(2)(b), this Court has the advantage that Magistrate Towney did not have on 20 January 2025, being that it has a copy of the transcript of the hearing on 30 July 2024. This transcript amounted to fresh evidence. It is apparent that although the appellant initially responded in some way at the mention of his name, this was only to contest the Local Court’s jurisdiction, by reference to matters that were irrelevant to the task the Magistrate was embarked upon. He was also defiant, indicating a refusal to approach the bar table where practitioners and self-represented litigants state their cases. The Magistrate took the formal step of having the matter announced outside of court three times by the Court officer. The transcript indicates some reaction on the part of the appellant, although that was not clear, even on the face of the transcript. At any rate, the Magistrate decided to proceed under s 196 of the Criminal Procedure Act, heard evidence notwithstanding continuing disruption by the appellant before expressing satisfaction that the offences were made out. The Magistrate convicted and fined the appellant. The Magistrate excused the legal representative for Transport for NSW. Thereafter the Magistrate called upon the Sheriff to ‘excuse’ the appellant who, the Magistrate noted, did not answer to the name and who the Magistrate declared had no standing in the Court.

35. It is troubling that Magistrate Towney received different explanations from the appellant as to the extent of his participation, or, in the language of the relevant text, ‘taking action’ in relation to the proceeding on 30 July 2024. On one plausible view, he was disingenuously suggesting that he had been removed from the Court before being able to state his case. The transcript indicates that the position was to the contrary. Allowance should, however, be made to the appellant that as at 20 January 2025 neither he nor Transport for NSW actually had the transcript of what occurred on 30 July 2024. The fact of the matter, however, is that it was wrong for the appellant to convey to Magistrate Towney that he was forcibly removed, or manhandled before he had the opportunity to make submissions and state a case on his behalf.

36. This brings me to s 8(2)(c). I accept that if an appellant can demonstrate a denial of procedural fairness as to what occurred on 20 January 2025, then that would be sufficient in itself to engage the condition, and have the matter remitted back to the Local Court. As pointed out, by his notice of appeal, the appellant points to Magistrate Towney denying his request for an adjournment, pending receipt of the transcript of 30 July 2024 and the Court’s unwillingness to have the appellant give testimonial evidence as to what occurred on that date. In both instances, the thrust of the appellant’s point is that he was denied the opportunity to prove that he had been forcibly removed by sheriffs without having had fair opportunity to defend himself.

37. For reasons that are to come, it is unnecessary to address the appellant’s arguments about a denial of procedural fairness.

38. As to the balance of her Honour’s reasoning in relation to s 8(2)(c), her Honour considered the decision of the Western Australian Supreme Court. She did so because aside from the matters in s 8(2)(a) and (b) of the CAR Act, the Magistrate needed to consider whether what occurred on 30 July 2024 did involve a miscarriage of justice to the appellant, or that an error of law had been committed. This was a matter raised by Transport for NSW on 20 January 2025, by its invocation of s 196 of the Criminal Procedure Act, and was raised in the appellant’s presence: if there was a miscarriage of justice, that would be plainly pertinent, indeed in my view dispositive, to her Honour’s application of s 8(2)(c) (and also the question of leave under s 4).

39. Towney LCM was correct to say that the decision in Kelly v Fiander did not bind her and was also correct to say that that the statutory provision (s 55(2) of the Criminal Procedure Act 2004 (WA)) considered in that case was different to what she had to consider: whereas the Western Australian statutory provision concerned the question whether an accused person ‘appears’, s 196 of the Criminal Procedure Act (NSW) addresses the question whether an accused is ‘present’.

40. Nevertheless, it remained incumbent upon Magistrate Towney to consider s 196 of the Criminal Procedure Act and it is not altogether clear that she did. Her Honour did consider the question in s 8(2)(a) whether the appellant was aware of the proceeding, as well as the question raised by s 8(2)(b) of the CAR Act, but these were different questions as to whether or not he was ‘present’, for the purposes of s 196(1) of the Criminal Procedure Act.

41. Transport for NSW argues that the requirement of ‘presence’ imports more than just physical attendance. To take the example which the legal representative argued in the Local Court, a litigant in a criminal charge who sits in the back of a courtroom when their matter is called (either inside the courtroom, initially, by the local court judge or outside the courtroom by the Court officer), does nothing and refuses to identify himself or herself as a party, cannot complain if the Local Court judge determines that they are not ‘present’. By implication (at least) Transport for NSW argues that to be ‘present’ requires at least some level of functional engagement by the accused person with the Court. An obvious, perhaps the most obvious, manifestation of presence is when an accused person (or a legal representative on that person’s behalf) present themselves at the bar table before the Court and announce their name.

42. Transport for NSW did not provide authorities to support its construction, but it appears correct, as far as it goes. The difficulty perhaps is identifying what it means by functional (or ‘meaningful’) engagement.

43. The expression needs to be construed in the light of text, context and purposes of the legislation. Section 196 falls within Division 3 of Part 2 of Chapter 4 of the Criminal Procedure Act. Division 3 deals with hearings in the Magistrates Court. In particular, ss 193 and 194 posit two binary alternatives, where an offence is admitted and where an offence is not admitted. Similarly, ss 196 and 197 posit two alternatives, where an accused person is ‘not present’ and where the accused is ‘present’. This a sharp polarity.

44. Section 196(1) deploys the language of ‘presence’ and s 196(2) confers a conditional power upon the Local Court to proceed to hear and determine the matter in the ‘absence’ of the accused person. The conditions are partly specified in s 196(2) but also partly in s 196(3).

45. In DPP v Horstman [2023] NSWSC 213, ss 196 to 202 of the Criminal Procedure Act were construed, although more specifically, the focus was upon the operation of the provisions after it has been established that an accused person was absent. The judgment, with respect, based as it very much was in accordance with the text, indicated a level of strictness: if the stipulated procedures did not accord with the provisions, then there was an error.

46. In McKellar v DPP (2014) 240 A Crim R 285, Adamson J (as her Honour then was) determined that an accused person will be present if represented by a legal practitioner.

47. In this case, on 30 July 2024, the appellant did not, at least initially, acknowledge the connection between his name and his being an accused person. He did not do so when the matter was called outside the Court. For a time, he appeared to speak in terms as if he was a mere detached representative, but even then he did not try to suggest that he was a legal practitioner acting for Christopher Edwin Higgins. The effect of ss 3(1) and 36(1) of the Criminal Procedure Act is that generally, only legal practitioners may appear as representatives for an accused person.

48. The transcript indicates that soon after the matter was called the learned Magistrate invited Christopher Higgins to ‘come forward’. Without announcing his name, the appellant verbally responded, if only to assert that his appearance was ‘conditional’. Rather truculently, he appeared to defy the Magistrate’s invitation for him to come forward, but instead remained in the back of the Courtroom. He then appeared to launch into making statements that were irrelevant.

49. In my view, whatever else might be said about the appellant’s conduct, it did manifest his ‘presence’. He responded to the invocation of his name. He verbally addressed the Magistrate. If there was any doubt about that just before the Magistrate declared “No appearance at 10am, s 196”, the appellant, speaking impersonally, said “This is Christopher Edwin Higgins”. By that statement, he effectively dispelled any rational belief that Christopher Edwin Higgins was ‘absent’. Functionally, he did engage with the Court.

50. In my opinion, once the presence of an accused person is ascertained, it does not matter whether the accused person is thereafter disruptive of proceedings (as this appellant was), or is entirely passive. With all respect to Transport for NSW’s submission, it can be a slippery test if the criterion for s 196 hinges upon a metaphysical test of ‘meaningful’ engagement’. If a person is disruptive, there are potential remedies available to a judicial officer. In the Local Court for example, there is even a power to deal with contempt committed “in the face or hearing of the Court” (Local Court Act 2007 (NSW), s 24(1) (as to the meaning of that concept, see D Rolph, Contempt (2023, The Federation Press, Chapter 7)). Alternatively, short of the exercise of that power, if an accused person wishes to disrupt and sabotage hearings, that is a matter that might lead a Local Court Judge to limit the time for argument and even in exceptional circumstances, to remove the accused person from Court. An example of the exercise of the contempt power, which had followed the earlier removal of a self-represented litigant from the Court, even in a criminal trial, was the decision of Haesler SC DCJ in R v Kirsten (a pseudonym) [2024] NSWDC 401. My point, however, is that a judicial officer cannot treat an accused’s person’s disruptiveness as a basis for adopting a fiction – that he or she was not ‘present’ and then proceed under s 196 of the CAR Act.

51. Although Magistrate Towney was strictly correct to point to the non-binding authority of the decision of the Western Australian Supreme Court and the difference in wording, I remind myself that, as the Court of Appeal said in Miller, the criterion in s 8(2)(c) is not to be narrowly construed. In my view, there is little in substance that separates the meaning of the word ‘appears’ in the Western Australian provision and the word ‘presence’ in the New South Wales provision I am dealing with. It is a distinction without a difference. Similarly, an accused person’s presence is also synonymous with their ‘attendance’.

52. Since the appellant (as well as the prosecutor) was ‘present’, then the Local Court was required to follow the procedure set out in s 192, including an obligation upon the Magistrate do state the substance of the offence, and ask the accused person if he pleaded guilty or not guilty (s 192(2)). That procedure was not followed. This was another error.

53. It matters not, for present purposes, whether if the procedures were properly followed, the appellant would have acted any differently.

54. This non-compliance with the procedures on 30 July 2024 was not addressed by Magistrate Towney. In fairness to her Honour, and to repeat, she did not have the benefit, that I have had, of perusing the transcript. She was reliant upon the Court record (which was scant) and what the parties told her occurred on 30 July 2024. The appellant was there on 30 July 2024, but the legal representative for Transport for NSW who appeared on that date was not. Ironically, the appellant’s position that she should have adjourned to enable the transcript may have been vindicated, but not for the reason the appellant stated (which was to prove that he had been physically removed from Court before having had the opportunity to present his defence). If the transcript had been available, Magistrate Towney would have been in a better position than she was to address the concern that I have expressed about compliance with s 196 (and other procedures) in the Criminal Procedure Act on 30 July 2024.

55. The consequence of not addressing the problem, however, was that the non-compliance with an important procedural provision was not ascertained with the result that, in my view, an error of law occurred. That conclusion cannot be avoided by refence to other discretionary considerations of the kind her Honour validly referred to, and which Transport for NSW adopted in this appeal, no matter how strong they appeared against an annulment.

56. That being so, in my view, her Honour should have been satisfied that, for the purposes of s 8(2)(c) Crimes (Appeal and Review) Act, it was in the interests of justice to annul the convictions on 30 July 2024. Accordingly, for the avoidance of doubt, leave should also be granted to the appellant under s 4(3) of the same legislation.

57. In accordance with s 16A(1) of the Crimes (Appeal and Review) Act, the appellant’s application for annulment of his convictions on 30 July 2024 is granted. In accordance with s 16A(3), the matters are remitted to the Local Court at the Downing Centre.

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Decision last updated: 14 July 2025