R v Ange

[2008] NSWLC 26

Local Court of New South Wales

CITATION:	R v Ange [2008] NSWLC 26
JURISDICTION:	Criminal
PARTIES:	Police ANGE, Mimi
FILE NUMBER:
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:
MAGISTRATE:	Magistrate D Heilpern
CATCHWORDS:	CRIMINAL LAW – Application for annulment of conviction – defendant not present at conviction
LEGISLATION CITED:	Crimes (Local Courts Appeals and Review) Act 2001
CASES CITED:	Akari v Sole [2008] NSWSC 59 Gino Robert Cassaniti v Director of Public Prosecutions [2008] NSWDC 2 Miller v Director of Public Prosecutions [2004] NSWCA 90 Rakavina v DPP [2008] NSW DC 214
TEXTS CITED:
REPRESENTATION:	Mr Foord, Counsel (Applicant) Mr Craddock, Senior Counsel, instructed by Crown Solicitors (Respondent)
ORDERS:	The conviction is annulled and a fresh hearing date will be set.

1    The applicant Mimi Ange was charged and convicted of ten offences relating to possession of illegal pornographic films. She was not present at court on the date of her conviction. She has made an application for an annulment of those convictions, and this is opposed.

2    The respondent, a police officer, is represented in this matter by the New South Wales Crown Solicitors Office, instructing Mr Craddock SC. What would ordinarily be a simple and straightforward application has become somewhat of a legal feast, with counsel debating the fine points of hearsay evidence, witnesses including a solicitor and accountant cross examined and lengthy analysis of s8 of the Crimes (Local Courts Appeals and Review) Act 2001:

8 Circumstances in which applications to be granted


(1) A Local Court must grant an application for annulment made by the prosecutor if it is satisfied that, having regard to the circumstances of the case, there is just cause for doing so.


(2) A Local Court must grant an application for annulment made by the defendant if it is satisfied:


(a) that the defendant was not aware of the original Local Court proceedings until after the proceedings were completed, or


(b) that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or


(c) that, having regard to the circumstances of the case, it is in the interests of justice to do so.

3    Mimi Ange relies on each of (b) and (c), however for reasons that will become clear it is only necessary to consider (c). Thus the issue is whether I am satisfied on balance that, having regard to the circumstances of the case, it is in the interests of justice to grant the application.

Review of the Law

4    There are competing interests of justice in this context - it is generally in the interests of justice that there be finality of criminal matters before the court, and that where a defendant is convicted in their absence, having been given an opportunity to attend, that in the ordinary course of events they cannot get “a second bite at the cherry” without good reason. On the other hand, it is inevitable for a variety of…