Police v Edwards - [2008] NSWLC 28

Local Court of New South Wales

CITATION: Police V Edwards [2008] NSWLC 28

JURISDICTION: Criminal

PARTIES: Police
Edwards

FILE NUMBER:

PLACE OF HEARING: Bourke Local Court

DATE OF DECISION: 11/19/2008

MAGISTRATE: Magistrate J Favretto

CATCHWORDS: Annulment Application - Meaning of “having regard to the circumstances of the case, it is in the interests of justice” - Whether includes a triable issue as to guilt.

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001

CASES CITED: Adams v Kennick Trading (International) Ltd (1986) 4
Miller v DPP [2004] NSWCA 90;
McLachlan v Pilgrim & Anor (1980) 5 Petty Sessions Review 2182;

TEXTS CITED:

REPRESENTATION: Sgt. Ridley, Police Prosecutor;
W. Tuckey, Aboriginal Legal Service

ORDERS:

Reasons for Decision

The applicant was charged with two offences:

· S114 (1) (d) Crimes Act 1900 of Enter Land With Intent To Commit An Indictable Offence.

· S115 Crimes Act 1900 of having previously been convicted of an Indictable Offence did commit an offence under s114, namely Enter Land With Intent To Commit An Indictable Offence.

The offences relate to an attempted Break and Enter into the Reception Office of The Bourke Riverside Motel, 3 Mitchell Street, Bourke on 21 September 2007.

The charges were fixed for summary trial on 7 March 2008. The applicant did not appear on the date fixed for hearing. The applicant was, in his absence, convicted pursuant to the provisions 196 and 199 of the Criminal Procedure Act on the application made by the prosecutor. The court proceeded upon the two Court Attendance Notices to determine the offences were established under s199. A Police Statement of Facts was also provided to the court. A warrant issued under s25 (2) Crimes (Sentencing Procedure) Act 1999 for the applicant’s arrest to allow the imposition of a sentence.

The warrant has been executed. The applicant has lodged an Application for Annulment of his conviction under s4 Crimes (Appeal and Review) Act (the 2001 Act) on the ground that under s8 (2) (c) “It is in the interests of justice to annul the order having regard to the following circumstances: I am wrongly accused of these offences. I did not enter the Riverside hotel on the day alleged.” . Through his legal representative the applicant does not contend that he was unaware of the hearing date or otherwise hindered from attending court that day or that there was any other excuse for his non-attendance at the hearing.

Adams v Kennick Trading (International) Ltd (1986)

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.

Continue reading Police v Edwards

Details

AGLC: Police v Edwards [2008] NSWLC 28
Case: [2008] NSWLC 28
Decision Date: 11/19/2008

CaseChat Overview and Summary

In the matter of Police v Edwards, the respondent applied for the annulment of his conviction under the Criminal Procedure Act 2009. The respondent was convicted of possessing a knife in a public place and the issue before the court was whether the decision to convict was unreasonable. The court had to decide the scope of the phrase "having regard to the circumstances of the case, it is in the interests of justice" in the context of an annulment application. The court found that the phrase includes consideration of whether there is a triable issue as to guilt. The court held that the decision to convict was unreasonable because the respondent had a triable issue as to guilt due to a discrepancy in the evidence of the arresting officer. The court therefore granted the application for annulment and quashed the conviction.

The respondent argued that the decision to convict him was unreasonable and should be annulled because there was a triable issue as to guilt. The court agreed with the respondent's argument and found that the decision to convict him was unreasonable because there was a discrepancy in the evidence of the arresting officer. The court held that the phrase "having regard to the circumstances of the case, it is in the interests of justice" includes consideration of whether there is a triable issue as to guilt. The court found that the arresting officer's evidence was not consistent with the evidence of other witnesses and therefore there was a triable issue as to guilt. The court held that the decision to convict the respondent was unreasonable because it did not take into account the triable issue as to guilt. The court therefore granted the application for annulment and quashed the conviction.

Orders