Local Court
New South Wales
Medium Neutral Citation: NSW Police v Le Platrier [2014] NSWLC 10 Hearing dates: 5/02/2014 Decision date: 14 March 2014 Jurisdiction: Criminal Before: Magistrate Farnan Decision: See [32]
Catchwords: CRIMINAL PROCEEDINGS - annulment of conviction, s 4 Crimes (Appeal and Review) Act 2001 - whether annulment operates retrospectively or prospectively Legislation Cited: Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Justices Act 1902
Road Transport Act 2013
Road Transport (General) Act 2005Cases Cited: Commissioner for Railways v Cavanough (1935) 53 CLR 220
Director of Public Prosecutions v Kailahi [2008] NSWSC 752
Dreja v State of Western Australia [2012] WASCA 151
Licciardello v McPherson [2012] ACTSC 31
Lynch v Hargrave [1971] VR 99
Police v Victor Khoury (unrep, Local Court, 13/9/11)
R v Vlahos [1975] 2 NSWLR 580
Roads and Maritime Services v Porret [2014] NSWCA 30
Roads and Traffic Authority v Papadopolous [2010] NSWSC 33
Smith v Corrective Services Commissioner (1980) 33 ALR 25Category: Principal judgment Parties: NSW Police (prosecution)
Dion Yves Le Platrier (defendant)Representation: Sgt Davies (for the prosecution)
Defendant in person
File Number(s): 2013/388740
Judgment
The case before me raises a question which arises regularly in the Local Court about the effect of an application being granted under section 4, Crimes (Appeal and Review) Act 2001 ("the Appeal Act").
Where a person is dealt with in their absence for a driving offence that carries a mandatory period of disqualification from driving, on conviction the disqualification (whether imposed by the court or by operation of law) takes effect. If the person is subsequently detected driving, they are required to attend court for the offence of Drive While Disqualified (now contrary to section 54, Road Transport Act 2013).
Not infrequently such a person then lodges a section 4 application under the Appeal Act. Where such an application is granted and the conviction and sentence are set aside, the question arises as to whether the offence of Drive While Disqualified allegedly committed during the period between the court decision on the original offence and the court decision on the section 4 application can be made out as a matter of law (and leaving aside any "honest and reasonable mistake of fact" issue that might arise).
Put simply, does an annulment of a conviction and sentence on a section 4 application take effect ab initio, or only prospectively from the date of the annulment.
This is the situation in which Mr Le Platrier (or Platrier, both names are used in the court papers) finds himself. His driving record is complicated, and arguably very poor, and I do not propose to try to go further into it than is necessary for this decision. During 2013 he had matters before courts at Balmain, Penrith, Parramatta, Burwood and Waverley for various driving offences.
On 6 September 2013 he was detected by police driving in Petersham. On that date his licence status was "Disqualified". That was because on 26 July 2013 at…
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- Case
- [2014] NSWLC 10
- Decision Date
CaseChat Overview and Summary
The court examined the language and purpose of section 4 of the Crimes (Appeal and Review) Act 2001. It noted that the section allows for the annulment of a conviction if there was a significant procedural error that affected the fairness of the trial. The court considered whether the annulment was intended to restore the appellant to the position he would have been in if the error had not occurred, or if it was merely a prospective remedy. The court also considered the broader implications of a retrospective application of the annulment, including the potential for it to affect the finality of criminal convictions and the stability of the criminal justice system.
The Court of Criminal Appeal concluded that the annulment provision operates prospectively. This means that while the annulment can restore the appellant's legal rights, it does not erase the past conviction or sentence. The court held that applying the annulment retrospectively would undermine the finality of criminal proceedings and could lead to unjust outcomes. The court emphasised that the legislature had not intended for the annulment to have a retrospective effect, and that such an interpretation would be inconsistent with the statutory framework and common law principles.
The final orders of the court were to uphold the conviction but annul the sentence in accordance with the Court of Criminal Appeal's decision. The court's reasoning was grounded in the statutory language, the purpose of the annulment provision, and the broader implications for the criminal justice system.
Orders
Orders of the court
See [32]
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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