NSW Police v Le Platrier - [2014] NSWLC 10

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 2005
Cases 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 25
Category: 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…

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.

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Details

Case: [2014] NSWLC 10
Decision Date: 14 March 2014

CaseChat Overview and Summary

The NSW Court of Criminal Appeal was presented with a case where the appellant, Le Platrier, sought to challenge the validity of his criminal conviction. The central issue was whether the annulment of his conviction under section 4 of the Crimes (Appeal and Review) Act 2001 operates in a retrospective or prospective manner. The court was required to determine the extent to which the annulment provision applied to cases where the appellant had already served his sentence.

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

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 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 2005
Cases 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 25
Category:	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