Park v State Debt Recovery Office (NSW)

[2015] NSWDC 391

District Court

New South Wales

Medium Neutral Citation:	Park v State Debt Recovery Office (NSW) [2015] NSWDC 391
Hearing dates:	18 November 2015
Date of orders:	18 November 2015
Decision date:	18 November 2015
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW – Appeal and Review – Appeal against Local Court refusal to annul 5 penalty enforcement notices issued by SDRO – Appellant successfully applied to SDRO to set aside the notices and proceed to hearing – Appellant did not attend hearing date – Appellant acknowledged the notice of hearing was properly addressed and he would have received it within a week of their issue date – Appellant read notices cursorily – No evidence of any circumstance in the case which in the interests of justice require that the original convictions be set aside
Legislation Cited:	Crimes (Appeal and Review) Act 2001
Category:	Principal judgment
Parties:	Nathan John Park (Appellant) State Debt Recovery Office (NSW) (Respondent)
Representation:	In person (Appellant) Solicitor for the State Debt Recovery Office (NSW) (Respondent)
File Number(s):	2014/278044
Publication restriction:	No
Decision under appeal	Court or tribunal: Downing Centre Local Court Date of Decision: 21 April 2015 Before: O’Brien DCM File Number(s): 2014/278044

Judgment

1. HIS HONOUR: This is an appeal against a refusal by Deputy Chief Magistrate O’Brien on 21 April 2015 to grant an annulment order pursuant to s 4 of the Crimes (Appeal and Review) Act 2001.

2. In essence the case for the prosecution was that between 11 June 2011 and 16 January 2012 the appellant was issued with 5 penalty infringement notices for either failing to produce a train ticket when requested to do so or travelling without a ticket on trains. The 5 penalty notices were unpaid. The State Debt Recovery Office (SDRO) commenced enforcement proceedings and issued penalty enforcement notices. When the appellant found out about the issuing of the penalty enforcement notices he sought to have those notices set aside.

3. On 2 September 2014 the SDRO acceded to the appellant’s application and set aside the penalty notices. On the same day, in respect of each notice, the SDRO wrote to the appellant at an address in Merrylands, a letter advising him of the annulment of the enforcement order and that there was listed for hearing in the Downing Centre Local Court on Tuesday 4 November 2014 at 9.15am a charge relevant to each penalty notice. After advising of the place and date of listing the notice then provides a “note” in the following terms:

“On the day of mention, you will need to enter a plea. Please read the attached ‘Notice of Pleading’ in preparation for court attendance. If you are unsure how to plead, or intend to plead not guilty, you should seek legal assistance. If pleading not guilty, a further date will be set for you to attend court to present your case and witnesses, when evidence will be presented by the issuing authority. Depending on the number and complexity of matters to be determined on the day of listing, your matter may be decided at any time during the day. If you are unable to attend on this day, you should contact the Court to determine your options. The Magistrate will decide whether to hear the matter then or on another day.”

The notice then directs the appellant to contact the Downing Centre Local Court if he had any further questions.

4. The appellant today admitted that he received this notice in respect of each of the five penalty notices. He accepted that he would have received them within a week of their being dated, that is, he would have received them in mid-September 2014. He accepted that they were addressed to him at his proper address. The appellant read them but cursorily, and took no notice of the content. He went to Victoria on or about 24 October 2014 to celebrate Halloween. He returned to New South Wales on Saturday 1 November 2014, he was then preparing to celebrate his birthday on 10 November 2014. He did not attend the Local Court on 4 November 2014 because he had not properly read the documents which had been sent to him. He had not made any note of the date. He had not properly read the letters to understand that he was required to attend at court.

5. He told Deputy Chief Magistrate O’Brien the same matters and his Honour refused the application. The appellant now appeals to me against the refusal of the Deputy Chief Magistrate to grant his application. No evidence has been put before me that satisfies any of the requirements of s 8 of the Crimes (Appeal and Review) Act 2001. For example there is no evidence that the defendant was not aware of the original Local Court proceedings. He was aware of them but mistook what was happening. There was no evidence that he was hindered by accident, illness, or misadventure, or other cause, from taking action in relation to the original Local Court proceedings. There is no evidence of any circumstance in the case which the interests of justice require that the original convictions be set aside.

6. I have carefully looked at the documentation before me and the reasons proffered by the appellant but, quite frankly, I am unable to discern any arguable case that the defendant might be able to put before the Court as to why the original convictions ought be set aside. This is not a case where there is overwhelming evidence of innocence or the like. There are some arguments which might persuade a tribunal of fact of the appellant’s having some reasonable doubt as to his guilt but it would appear to me that arguments proffered from the Bar table by the appellant could easily be met by evidence that could be called from five different railway inspectors and records of the Roads and Traffic Authority, as it then was.

7. Furthermore the appellant had almost two months’ notice of the matters being listed in the Local Court, he again a cursory reading to the documentation when he received it, and he appeared to do nothing thereafter to protect is own interests.

8. Courts cannot operate if people ignore documentation sent to them by, or on behalf of, the Court advising them of a listing of a matter for hearing. In my view there is no evidence that properly establishes any of the matters contained in s 8(2)(c) of the Act. I therefore dismiss this application. I therefore dismiss the appeal against the decision made by the Deputy Chief Magistrate on 4 November 2014.

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Decision last updated: 23 May 2016