Miller v DPP

Case [2004] NSWCA 90

NEW SOUTH WALES COURT OF APPEAL

CITATION:      MILLER v DIRECTOR OF PUBLIC PROSECUTIONS [2004]  NSWCA 90

FILE NUMBER(S):
40193/03

HEARING DATE(S):               15 March 2004

JUDGMENT DATE: 01/04/2004

PARTIES:
Damon Charles Miller - Appellant
Director of Public Prosecutions - Respondent

JUDGMENT OF:       Sheller JA Beazley JA Young CJ in Eq   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          10604/02

LOWER COURT JUDICIAL OFFICER:     Dowd J

COUNSEL:
D B McGovern SC/A J O'Brien - Appellant
R D Cogswell SC/J A Quilter - Respondent

SOLICITORS:
Appellant
S C Kavanagh - Respondent

CATCHWORDS:
Annulment of conviction - absence from court due to illness - meaning of s100K(2) Justices Act 1902 - failure to give reasons - delay in delivery of judgment

LEGISLATION CITED:
Crimes Act 1900
Crimes (Local Courts Appeal and Review) Act 2001
Justices (Amendment) Procedure Act 1997
Justices Act 1902

DECISION:
1  Appeal allowed
2  Set aside the orders made by Dowd J on 20 February 2003
3  In lieu thereof order:  1  Appeal allowed
2  Set aside the order made by Acting Chief Magistrate Syme of 13 February 2002
3  In lieu thereof grant the appellant's application to annul the conviction entered by Magistrate Lulham on 10 December 2001 in relation to charges against the appellant
4  Remit the proceedings to the Local Court to be dealt with according to law
4  The respondent to pay the costs of this appeal and the costs of the proceedings before Dowd J.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40193/03
CL 10604/02

SHELLER JA
BEAZLEY JA
YOUNG CJ in EQ

MILLER  v DIRECTOR OF PUBLIC PROSECUTIONS

The appellant was charged pursuant to ss300(1) and 300(2) of the Crimes Act 1900 in late 1996 or early 1997. On 10 December 2001, the appellant failed to appear and was convicted in his absence. On 17 December 2001, the appellant made an application under s100D of the Justices Act 1902 for an annulment of the conviction on the grounds that, as provided for by s100K(2), he “was otherwise hindered by . . . illness . . . or other cause from taking action in relation to the relevant proceedings.”

The application was conducted before Ms Syme DCM and evidence was adduced by the appellant as to his medical condition, a medical attendance on 10 December 2001 and his unfitness to attend court on that day. Doctor Bartipan, the appellant’s family doctor, gave evidence in this regard. On 13 February 2002, Ms Syme dismissed the application on the grounds that the medical evidence before the court was not sufficient to satisfy s100K(2)(b).

By summons filed on 18 February 2002, the appellant appealed the decision of Ms Syme pursuant to s104(1) and (4) of the Justices Act. The appeal was heard by Dowd J on 22 and 23 April 2002. His Honour gave judgment on 20 February 2003, dismissing the appeal on the basis that the Magistrate had carefully considered the evidence and made a simple…

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Miller v DPP [2004] NSWCA 90
Case
[2004] NSWCA 90
Decision Date

CaseChat Overview and Summary

The case of *Miller v DPP* concerned an appeal against an annulment of a conviction. The appellant, Mr Miller, sought to annul a conviction entered against him in the Local Court on 10 December 2001. His application was dismissed by Magistrate Syme on 13 February 2002. Mr Miller then appealed this decision to Dowd J, who also dismissed his appeal on 20 February 2003. The matter proceeded to a further appeal before the Supreme Court of New South Wales.

The primary legal issue before the Supreme Court was the interpretation and application of section 100K(2) of the *Justices Act 1902* (NSW). This section deals with the annulment of convictions where an accused was absent from court due to illness or other just cause. Specifically, the court had to consider whether the Magistrate had erred in her findings regarding the appellant's credibility and whether she was satisfied that the appellant was hindered from attending court or that there was other just cause for his absence, as required by the section. The court also considered the delay in the delivery of judgment by Dowd J and its implications for the exposition of reasoning.

The Supreme Court allowed the appeal, setting aside the orders of Dowd J and the Acting Chief Magistrate. The Court found that the Magistrate's reasons for dismissing the annulment application, particularly her findings on the appellant's credibility, were central to her decision. The Magistrate had rejected the appellant's evidence, finding it to be in extreme doubt and contradicted by other witnesses. She concluded that she was not satisfied that the appellant was hindered or that there was other just cause for his absence. However, the Supreme Court noted that Dowd J's judgment was delivered ten months after the hearing, and in such circumstances, a thorough exposition of reasoning is essential. The Court ultimately remitted the proceedings to the Local Court to be dealt with according to law, ordering the respondent to pay the costs of the appeal and the proceedings before Dowd J.

Orders

Orders of the court

1 Appeal allowed

2 Set aside the orders made by Dowd J on 20 February 2003

3 In lieu thereof order: 1 Appeal allowed

2 Set aside the order made by Acting Chief Magistrate Syme of 13 February 2002

3 In lieu thereof grant the appellant's application to annul the conviction entered by Magistrate Lulham on 10 December 2001 in relation to charges against the appellant

4 Remit the proceedings to the Local Court to be dealt with according to law

4 The respondent to pay the costs of this appeal and the costs of the proceedings before Dowd J.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

YOUNG CJ
Dowd J delivered his judgment ten months after the hearing date. In Moylan v The Nutrasweet Company & Ors (2000) NSWCA 337 in a judgment with which Beazley and Giles JJA agreed, I referred to the decision of the Court of Criminal Appeal in R v Maxwell (unreported) 23 December 1998 where that court reiterated that delay in delivery of judgment makes it even more necessary than usual for the judge to err on the side of thoroughness in the exposition of his reasoning process. Dowd J, after referring to the plaintiff’s submissions to him, particularly the submission that the relevant proceedings for the purpose of s100K(2)(a) and (b) were the events which occurred on 10 December 2001, a submission with which his Honour said he agreed, and to the submission that the medical evidence as to the unfitness of the plaintiff was not challenged or contradicted, said:“The Magistrate’s decision25An examination of her Worship’s decision shows that the question of the plaintiff’s credit was central to a consideration of either sub-paragraph (b) and (c) of s100K. An examination of Dr Bartipan’s evidence shows that it is not necessary to reject that evidence to evaluate the evidence of the plaintiff. In the several matters enumerated by her Worship in her reasons for her judgment, it is clear that from a medical point of view her Worship’s finding was that the medical evidence of Dr Bartipan substantially related only to peripheral leg swelling which was probably as a result of the plaintiff failing to take medical advice or medication as prescribed.26Ultimately the reasons carefully set out by her Worship in relation to each of the matters raised by the plaintiff and the question of the plaintiff’s medical state, as well as the issue as to whether Mr Clive Evatt was to appear or not, that her Worship found as set out on page 19 of the judgment that the statement by the plaintiff about Mr Evatt’s availability cannot stand with the evidence of Mr Rollinson the barrister who gave evidence about Mr Evatt’s availability.27Her Worship found in her judgment on page 19 in relation to the plaintiff’s evidence:‘Mr Miller’s evidence before the Court must be in extreme doubt and I certainly cannot accept it. It does not appear to be true. It is contradicted in many areas by his own witnesses.’28Her Worship simply made a finding of fact on the evidence which grounded the ultimate finding under s100K(2)(b) and (c) of the Act that she was not satisfied that the plaintiff was hindered and was not satisfied that there was other just cause why the application should be granted. These findings examining the issue of credibility and the reasons upon which that credibility decision is based show that her Worship carefully considered the evidence before her and made a simple finding of fact in terms of the requirements of s100K.29The plaintiff’s evidence having been rejected, her Worship simply made a decision that she had not been satisfied by the plaintiff, as the section required her to do.30It is not necessary to decide whether this appeal involves a question of law alone or mixed law and fact. There is no basis on the finding by her Worship to interfere or overturn her decision. It is clear from the thorough examination of the reasons for judgment for the order that her Worship made that there is no argument that the order cannot be supported.31In my view, on any basis, the appeal from the decision of Syme LCM on 13 February 2002 should be dismissed on the basis that no error has been shown by her Worship and it is not necessary to determine the question of whether there is any issue that a ground of appeal involves a question of mixed law and fact, as no ground under s104(1) has been made out by the plaintiff.”

Ratio Decidendi

Legal Principle Established

Established by: YOUNG CJ

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