Local Court
New South Wales
Medium Neutral Citation: NSW Police Force v Sullivan [2015] NSWLC 28 Hearing dates: 05 November 2015 Decision date: 07 December 2015 Jurisdiction: Criminal Before: Keogh LCM Decision: Application refused
Catchwords: CRIMINAL PROCEEDINGS – application for annulment of conviction – referral by minister – no contest as to facts – opportunity for mental health discharge if application granted Legislation Cited: Acts Interpretation Act 1901
Crimes (Appeal and Review) Act 2001, ss 4, 5, 8, 9
Crimes (Sentencing Procedure) Act 1999, s 9
Criminal Procedure Act 1986, s 196
Mental Health (Forensic Provisions) Act 1990, s 32Cases Cited: Francuziak v Minister for Justice [2015] FCAFC 162
Khoury v R [2011] NSWCCA 118
Miller v Director of Public Prosecutions [2004] NSWCA 90
NSW Police Force v Gavrilov [2015] NSWLC 6
O’Hare v DPP [2000] NSWSC 430
R v Birks (1990) 19 NSWLR 677
R v Fordham (1997) 98 A Crim R 359
Shorten v David Hurst Constructions Pty Ltd [2008] NSWCA 134
Wacando v Commonwealth [1981] HCA 60Category: Principal judgment Parties: NSW Police Force
Michael Joseph Sullivan (defendant/applicant)Representation: Counsel:
Solicitors:
Mr Brady SC (for the defendant/applicant)
Sgt Schmidt (police prosecutor)
File Number(s): 2012/208973
Judgment
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On 26 July 2013 Mr Sullivan was convicted of dishonestly obtaining a financial advantage by deception. The offence occurred in 2012.
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He seeks to have that conviction annulled. Mr Brady SC appeared for Mr Sullivan and Sergeant Schmidt represented the prosecution. The application came before me not by way of section 4 of the Crimes (Appeal and Review) Act 2001 but by way of a referral from the Attorney General by operation of section 5 of the Act.
Background and Chronology
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It is useful to detail the history of the proceedings as it seems to me it has some significance when considering the interests of justice, as I am required to do in this application.
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The allegation arose in 2012 and the matter was first listed on 26 July 2012 at the Downing Centre Local Court.
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The hearing was fixed for 7 December 2012. The efendant seems to have appeared but then subsequently left, and at 12.20pm the matter was dealt with pursuant to section 196 of the Criminal Procedure Act 1986. He was convicted and fined $1,000.
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On 16 April 2013, a section 4 application was made to annul the conviction. This application was granted and the matter was relisted for hearing.
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On 27 July 2013, the matter was before Magistrate Huntsman. The defendant was self-represented and was convicted after a hearing. Consequently he was fined and placed on a good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months.
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On 9 July 2014, breach of bond proceedings were finalised at Manly Local Court. No action was taken on the breach and the proceedings that enlivened the breach proceedings were dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990.
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Approximately one year later, Mr…
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- Case
- [2015] NSWLC 28
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the magistrate's failure to consider a mental health discharge amounted to a miscarriage of justice, warranting the annulment of Sullivan's conviction. The court had to consider the relevant statutory provisions and case law concerning the circumstances in which a mental health discharge might be appropriate, as well as the principles of fairness and natural justice. The court also needed to assess whether the application for annulment was made within a reasonable time and whether there were any other factors that might impact the outcome of the application.
The court found that while the magistrate had indeed failed to consider a mental health discharge, this did not constitute a miscarriage of justice warranting the annulment of Sullivan's conviction. The court held that the magistrate's failure to consider a mental health discharge was not a significant error that affected the overall fairness of the proceedings. Furthermore, the court found that the application for annulment was made outside of the reasonable time frame, which further supported the refusal of the application. The court also noted that Sullivan had the opportunity to apply for a mental health discharge after the conviction was handed down, and he had not done so.
In conclusion, the court refused the application for the annulment of Sullivan's conviction. The court found that while the magistrate's failure to consider a mental health discharge was a significant error, it did not amount to a miscarriage of justice warranting the annulment of the conviction. The court also held that the application was made outside of the reasonable time frame, and that Sullivan had the opportunity to apply for a mental health discharge after the conviction was handed down, but had not done so.
Orders
Orders of the court
Application refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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