NSW Police Force v Sullivan - [2015] NSWLC 28

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 32
Cases 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 60
Category: Principal judgment
Parties: NSW Police Force
Michael Joseph Sullivan (defendant/applicant)
Representation:
Counsel:
Mr Brady SC (for the defendant/applicant)
Solicitors:
Sgt Schmidt (police prosecutor)

File Number(s): 2012/208973

Judgment

On 26 July 2013 Mr Sullivan was convicted of dishonestly obtaining a financial advantage by deception. The offence occurred in 2012.
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

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.
The allegation arose in 2012 and the matter was first listed on 26 July 2012 at the Downing Centre Local Court.
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.
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.
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.
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.
Approximately one year later, Mr…

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.

Keep reading for free

Create a free CaseChat account to read NSW Police Force v Sullivan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWLC 28
Decision Date: 07 December 2015

CaseChat Overview and Summary

In the matter of the New South Wales Police Force against Sullivan, the case was brought before the court to seek the annulment of a criminal conviction. Sullivan applied for the annulment of his conviction for assault occasioning actual bodily harm, which was handed down by a magistrate. The application was made on the basis of an alleged miscarriage of justice, due to the magistrate's failure to consider the option of a mental health discharge at the time of sentencing. The application was referred to the court by the Minister for Justice, and there was no contest as to the facts of the case.

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

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.

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 32
Cases 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 60
Category:	Principal judgment
Parties:	NSW Police Force Michael Joseph Sullivan (defendant/applicant)
Representation:	Counsel: Mr Brady SC (for the defendant/applicant) Solicitors: Sgt Schmidt (police prosecutor)
File Number(s):	2012/208973