Rukavina v Director of Public Prosecutions

[2008] NSWDC 214

CITATION:	Rukavina v Director of Public Prosecutions [2008] NSWDC 214
HEARING DATE(S):	4 August 2008 15 August 2008 20 August 2008
JUDGMENT DATE:	4 September 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Bennett SC DCJ
DECISION:	1. Appeal allowed. 2. Set aside the order of Magistrate Beattie on 4 June 2008. 3. Remit the proceedings to the Local Court to be dealt with according to law.
CATCHWORDS:	ANNULMENT OF CONVICTION – appellant convicted in absentia – appeal from decision of Local Court Magistrate not to annul conviction – s 4 Crimes (Appeal and Review) Act 2001 – s 8 circumstances – whether genuine mistake as to court date satisfies s 8(2)(b) – whether strength of the Crown case a relevant consideration – appeal allowed – decision refusing annulment set aside – matter remitted to Local Court for determination in accordance with s 9
LEGISLATION CITED:	Bail Act 1978 Crimes Act 1900 Drug Misuse and Trafficking Act 1985 Justices Act 1902
CASES CITED:	Miller v Director of Public Prosecutions [2004] NSWCA 90
PARTIES:	Ivan Rukavina The Director of Public Prosecutions
FILE NUMBER(S):	2008/00011497
SOLICITORS:	Galland Elder Lulham (Appellant) The Director of Public Prosecutions (Respondant)

- 1 -

JUDGMENT

Introduction

1 Ivan Rukavina appeals from the decision of a magistrate in the Local Court, Goulburn on 4 June 2008 refusing to annul a conviction suffered in his absence for an offence contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 charged in the following terms,

‘Cultivates, or knowingly takes part in the cultivation of, a prohibited plant (cannabis)
At 12:32 am on 01/09/2007 at Gundagai.
did [sic] cultivate a prohibited plant, to wit, 89 cannabis plants.’

2 He was also charged pursuant to s 23(1)(c) of the same Act with possession of the cannabis the subject of cultivation charge, with possession of cannabis contrary to s 10 of the Act in respect of other cannabis said to have been found in his possession at the same time, and with failing to appear in response to bail contrary to s 51(1) of the Bail Act 1978.

3 There is nothing before the court regarding the outcome of the proceedings in the Local Court relevant to these further charges. The sole issue for determination is in respect of the decision rejecting the appellant’s application to have annulled the conviction upon the charge of cultivation entered in his absence.

4 The Crown tendered a bundle of documents including the court attendance notices, some of the records of the orders made in the proceedings before the magistrates who dealt with this matter in the Local Court, summaries of facts prepared by the police, and the appellant’s antecedents, which I have not read since they have no relevance to the decision required of me. There is also an extract of the appellant’s evidence in the Local Court on 4 June 2008 when he was asking to have the conviction annulled.

5 I pause to note that the history of these proceedings has not been easily accessed. A summary of what has occurred was not provided, and the court has been required to work through the all of the documents tendered to develop an understanding of how the appellant comes to find himself in his present predicament. Even when the magistrate refused the annulment there was confusion to which I shall refer, requiring this court to carefully read every document produced to it to ensure accuracy and that all relevant considerations are brought to bear.

The Facts Alleged

6 The prosecution alleged that about 12:32 am on Saturday, 1 September 2007 the appellant was required to stop by police for a breath test when he was seen to drive a van erratically south along the Hume Highway, 5 kilometres north of Gundagai.

7 Whilst speaking with the appellant, his passenger alighted from the front of the vehicle and began to walk off in a manner that raised suspicion in the mind of one of the police officers. He followed, and when he reached the van and shone his torch into the van’s interior saw a number of cannabis plants.

8 The vehicle was searched and found to contain 89 potted cannabis plants between 3 cm and 60 cm in height. There were also 5 bags of cow manure, a 5 kilogram bag of fertilizer, 11 rolls of chicken wire, used and new, 2 coils of wire, a bundle of used wire, numerous wood stakes, 2 spades, 2 rakes, a garden hoe, 2 hammers, a tomahawk, a watering can, pliers, and a plastic garbage tin.

9 Later at the police station the appellant took part in an electronically recorded interview in which he admitted having borrowed the van a few days before to move the cannabis plants from where he was growing them in bushland in pots from seeds given to him by a New Zealand man. He had been tending them from about May 2007, but in August purchased roles of fencing and stakes for a structure to protect them from foraging animals. He was intending relocate them to another location near Jindabyne where he could call in and check them when travelling between Melbourne and Sydney. He was in the process of doing so when apprehended.

Proceedings in the Local Court

10 The appellant was arrested on 1 September 2007. The court attendance notices refer to the matters being listed in the Local Court, Goulburn on 2 June 2008 but this was after the first appearances, and the eventual non-appearance of the appellant leading to the conviction in his absence.

11 According to the Bail Court Attendance Coversheet the appellant appeared at the Local Court, Bankstown on 21 January 2008. It appears from comments by the magistrate made in the course of the application before her that the matters had been adjourned from Gundagai to meet the convenience of the appellant, to save him the journey to that centre for the sole purpose of responding to the service of the brief of evidence prepared by the police.

12 From that date the proceedings were adjourned to the court at Gundagai for hearing on 5 May 2008 with bail to continue. The appellant failed to appear on that date, was convicted in his absence, and a warrant issued.

13 According the police facts dealing with the failure to appear, the appellant attended the Local Court at Bankstown, aware that he had failed to appear as required. He was arrested upon the authority of the warrant, and when asked why he failed to appear is alleged to have said,

‘I thought my Court date was on the 6th of May 2008, not the 5th of May 2008.’

14 On 4 June 2008 he sought to annul the conviction in the Local Court Goulburn, without success. The proceedings on sentence were adjourned thereafter for pre-sentence assessments, and in the interim the appellant appealed the rejection of his application for annulment.

15 His application for the annulment, filed on 4 June 2008, advanced the following grounds,

‘1. That the order made by the court was made in my absence.
2. That I was unaware of the original Local Court proceeding until after they were completed.
3. I was hindered from attending due to accident, illness, misadventure or other circumstances: I suffer memory loss please see attached doctors certificate.
4. It is in the interests of justice to annul the order having regard to the following circumstances: I wish to plead not guilty and defend this matter.’

16 Attached were two certificates from Dr. M. Pukanic of Bankstown. The first of these, dated 8 May 2008 represents that the appellant was seen by the doctor on that date and that,

‘The patient suffers from the effects of head injury/headaches, poor memory,’

The second, dated 13 August 2008 represents that the doctor saw the appellant on that date and,

‘The patient suffers from sypts [sic] of a head injury, injury to his cervical & … depression and … memory loss.’

17 The gaps in this quoted passage are because I simply cannot decipher what was written at those places on the certificate. Moreover, the date appearing on this certificate postdates the application to which it is attached, assuming that I have read the date correctly.

18 As formulated, the grounds advanced suffer from having drawn upon the wording of the legislation providing for these processes, without attending to the particular reasons in this case why the relief ought to have been granted. The result is that on their face they lack consistency. The evidence adduced on the application could not be said to support the proposition that the accused was unaware of the original Local Court proceedings until after they were completed. Nor could it be said upon the evidence that the appellant was hindered because of memory loss. If his evidence were to be accepted, impairment to his memory was not the reason for not attending court. He simply misinformed himself as to the date upon which he was to appear.

19 The appellant told the court that he always had it in his head that he was to attend court on 6 May, not 5 May. He said that he had lost his bail sheet. He said that on the day that he was supposed to attend court a police officer named ‘Barker’ called him to ask whether he was coming to court. This appears to be a spelling error in the transcription of the evidence. One of the arresting police is in fact named ‘Parker’. The appellant told the policeman that he was not due to attend court until the following day, and when told that he was due on that day he asked if the matter could be adjourned until tomorrow. He alleged that the policeman said that he had no authority to do that.

20 Thereafter the transcript is somewhat difficulty to understand, but it appears that he was representing that he made telephone contact with the court at Gundagai in an attempt to put things right, but was told that the warrant had already issued. He said that the person to whom he spoke told him that he should go to the police, and that the warrant might not yet be on the computer system.

21 He then explained to the court that he had been waiting for three months to see a doctor with whom he had an appointment, had an examination at TAFE, and that he contacted the police about five or six days later when he was arrested. He explained in terms that he was allowed bail with security from an acceptable person. The bail documents tendered in fact show this to be the case.

22 He said that in 2001 he fell from a ladder and suffered an injury, which has left him with impaired memory. He said that he always intended to attend court to defend the charges.

23 Before cross-examination there was a discussion between the prosecutor and the bench. The prosecutor was confused about the history of the proceedings, and the magistrate confessed to an imperfect memory of what had passed, but did recall that after the brief of evidence was served the matter was adjourned closer to the appellant’s home because of her Honour’s perception that it would resolve into a plea of guilty. It is not clear whether this assessment was upon any representations by or on behalf of the appellant in court, or upon the strength of the case indicated in the police facts. Her Honour referred to the hearing of the matter being appointed to Gundagai from Bankstown, which is consistent with the endorsements on the Bail Court Attendance Coversheets.

24 In response to cross-examination the appellant said he was not sure whether he was represented when he appeared at Bankstown. He acknowledged that a friend had provided security for his bail, but not at Bankstown court. He acknowledged that he surrendered himself to Bankstown late in the afternoon and was represented in court by someone from legal aid. He was not sure whether he was told that the matter was being returned to Gundagai.

25 When asked about whether he told the Legal Aid lawyer that he wanted to defend the proceedings, the appellant said that he probably did, but was unsure for they spoke for only a couple of minutes. At this point her Honour interjected with the remark that the appellant had been to Bankstown twice, and that she thought he had gone there on ‘the warrant’, back in January. Her Honour must have been mistaken. Although he was arrested at Bankstown, it could not have been in January for his failure to appear was not until May 2008 according to the documents.

26 He agreed that he had been given bail documents for his appearance in Gundagai in May 2008, but said that he lost them. He repeated that at all times he had it in mind that the hearing was to be on the 6 May 2008. He agreed that he ought to have contacted the court to make sure of the date, and apologised for not doing so, and maintained that he was not attempting to avoid the court. He denied that he was hoping that the problem would just go away.

27 He was taken through the facts alleged by the police and agreed with what was alleged, but said that what he told them was not the truth, and that he confessed as he did because he thought that was what they wanted to hear and so that they would release him. He denied that what was found belonged to him. He denied cultivating the plants. A late objection was made to the questions eliciting these responses, whereupon her Honour asked the prosecutor whether the strength of the prosecution case was a matter upon which it relied in support of the argument that the application should be rejected. The prosecutor said that it was, and her Honour suggested that enough questions had been put. It would appear from that exchange that her Honour took the view that the case was strong. This was included as a reason for rejecting the application. I am of the opinion that this was an error.

28 The prosecutor then offered the appellant’s record of antecedents to show that he had no other matters pending that might have confused him. I do not see how this was relevant in the circumstances. The appellant had not raised any such contention. Correctly, in my view, her Honour confirmed that there was no such suggestion and did not receive the antecedents.

29 In her ex tempore reasons for refusing the application her Honour observed,

‘… the applicant relies on the following grounds that it was an ex parte order and he [was] unaware of the proceedings until it was complete, he was [hindered] because he … suffers memory loss, forgot the date and further in the interests of justice he wishes to plead not guilty and defend the charge.’

30 It should be noted that the punctuation in this passage has been adopted from the transcript prepared by the appellant’s representatives from the tape recording of her Honour’s remarks. Her Honour has not had the opportunity to revise her remarks, and there is no doubt some scope for error of interpretation when deciding how the type written text ought to have been punctuated, which in turn might not do justice to her Honour’s precise thoughts and expressions. I have kept this in mind when weighing the reasons for her Honour’s decision.

31 Her Honour summarised the events leading to the appellant’s failure to appear, and then said,

‘[Bankstown court] then fixed the 5th of May for hearing at Gundagai and the Defendant was given his bail continuance notice with that date on it. He now tells us that he lost that notice and that he mixed dates up and thought it was for the 6th May and not the 5th of May. He is unable to say why he didn’t ring either Bankstown or Gundagai Court to confirm the right date and to say, look I’ve lost my notice, um he was on bail for serious matters. I am told he has and I accept that he has no prior failure to appear at Court and this was a genuine mistake on his part and in terms of interest of justice that weight should be given to the seriousness of the charge and the maximum penalty being a lengthy gaol sentence. At the same time I note in the matters that are raised in his application in terms in the interest of justice on the matters that were aired in cross examination before me it seems the prosecution on the cultivate charge in issue is a strong one given the allegations and admissions made during the electronically recorded interview the Police and the items that were located in the van, the vehicle driven by the applicant. The matter was as I said, was fixed for hearing, time was taken up at Gundagai to hear this particular matter. Witnesses had come to Court from Tumut in order to give evidence in the matter. When I weigh all of those things up I am not prepared to grant the annulment in this matter. There was a clear Court date and the defendant had the notice to meet that Court date and I am not satisfied that he did, so I refuse the application for annulment.’

32 I have drawn from this passage the following facts upon which her Honour proceeded to reject the application:

1) The appellant was subject to bail to appear at Gundagai Court on 5 May 2008 when the charges were to be heard, and was provided with a bail notice which he lost at some point after it was given to him but before that date;
2) The appellant was therefore armed with notice of the hearing date allocated to the proceedings and where they would be conducted;
3) The appellant did not telephone either of Bankstown Court or Gundagai Court to confirm the correct day, or to inform the staff there of the loss of his bail notice;
4) The appellant was genuinely confused about the date, believing that he was to appear on 6 May 2008 rather than 5 May 2008;
5) The offence with which he was charged was serious, with the maximum penalty a lengthy gaol sentence;
6) The prosecution case was strong, including evidence of admissions recorded electronically, and plants and other paraphernalia found in the vehicle the appellant was driving; and
7) The proceedings were listed for hearing, with court time set aside and witnesses brought from Tumut ready to give evidence.

33 I have re-organised to some extent the sequence of the facts identified by her Honour, and proceed upon the premise that the passage is a summary of the facts that she found, including her ultimate statement that she was satisfied that there was a clear court date, the appellant had the notice to meet that court date, was not satisfied that he did, and refused the application for annulment.

34 I note that there was no reference in her Honour’s remarks to the evidence from the appellant regarding the telephone call from the police officer identified as ‘Barker’, and no reference to any evidence led to challenge the proposition that there was the conversation as described by the appellant. There was no analysis of the appellant’s evidence to assess the connection, if any, between his alleged memory impairment and his mistake about the date of the hearing.

35 Her Honour did not refer to the provisions pursuant to which the application for annulment was brought. Nor is there any indication that her Honour was assisted with authority, although I note that the reference in terms to the waste of resources and inconvenience to witnesses hints at some of the text from the second reading speech delivered when the legislation providing for the disposition of matters in this way was introduced in the parliament. The speech was quoted in the case of Miller v DPP [2004] NSWCA 90. It may be that her Honour had been taken to that decision, but it remains that there is no reference to that decision or the principles for which it stands in the remarks presented on the appeal.

The Determination of the Appeal

36 The provisions governing the conduct of the proceedings before her Honour, and now in this court, are found in the Crimes (Appeal and Review) Act 2001. They were introduced into this Act from the Justices Act 1902 where comparable provisions first provided the scheme for the ex parte disposal of charges for criminal offences.

37 Section 4 provides relevantly,

‘(1) An application for annulment of a conviction or sentence made or imposed by a Local Court may be made to the same Local Court:
(a) by the defendant, or
(b) …
but may be made by the defendant only if the defendant was not in appearance before the Local Court when the conviction or sentence was made or imposed.

(2) An application under this section must be made:
(a) within 2 years after the relevant conviction or sentence is made or imposed, or
(b) …
(3) …
(4) An application must be in writing, and must be lodged with a registrar of a Local Court.
(5) …’

38 The appellant was not in appearance before the Local Court on 5 May 2008 when the conviction was entered in his absence. His application for annulment was made within two years thereafter. The application was lodged in writing.

39 Section 8 provides,

‘(1) …
(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.’

40 Section 9 sets down the procedure to be followed when an order for annulment is made, and s 10 sets out the effect of an order of annulment.

41 Part 3 of the Act provides for appeals to the District Court from the Local Court.

42 Section 11A provides,

‘(1) Any defendant whose application under section 4 for annulment of a conviction or sentence has been refused by the Local Court may appeal to the District Court against the refusal.
(2) An appeal under this section must be made within 28 days after the Local Court notifies the defendant of its refusal of the application.
(3) …’

43 This appeal was lodged on 6 June 2008, after the decision rejecting the application on 4 June 2008.

44 Section 14 provides relevantly,

‘(1) An appeal under section … 11A is to be made by lodging a written notice of appeal with:
(a) the registrar of any Local Court, or
(b) the person in charge of the place where the appellant is in custody.
(2) A notice of appeal must state the general grounds of appeal.
(3) …
(4) …
(5) …’

45 Regrettably, when the matter was first mentioned during the sittings at Goulburn where the appeal was to be heard there was no compliance with the mandate that required the general grounds of appeal to be stated. The appeal was initiated by the form invariably used for conviction appeals, and in keeping with that document the grounds specified were simply that the appellant was not guilty. The deficiency was brought to the attention of the appellant’s lawyer and the matter stood down until later in the sittings so that a document complying with s 14 of the Act could be filed.

46 When the matter was next called the lawyer presented a document bearing the date 12 August 2008 in which the grounds were specified as,

‘1. Her Honour erred in narrowly construing the words used in s. 11A of the Crimes (Appeal and Review) Act 2001.
2. It is in the interests of natural justice that I be allowed to defend the serious allegations against me.’

47 At that point I did not have her Honour’s reasons for her decision and suggested that they be obtained, and that further consideration be given to the grounds upon which the appeal was brought to comply with s 14 of the Act.

48 Thereafter, without objection from the Crown the electronic recording of her Honour’s remarks and a transcript prepared by the representatives of the appellant were provided, with a document in the following terms,

‘The general grounds of appeal are:
1. Under s 8(2)(b) of the Crimes (Appeal and Review) Act 2001, it was not open to Her Honour [sic] to refuse the annulment application after finding that the Appellant made a genuine mistake in failing to appear in court. In Miller v DPP [2004] NSWCA 90 Young CJ in Equity made it clear in paragraphs 38 and 39 that the term “misadventure” should be widely construed.
2. Her Honour erred in considering that the Prosecution case was a strong one.
3. Her Honour erred in considering that time had been taken up to hear the matter in Gundagai.
4. He r Honour erred in considering that witnesses had come from Tumut to give evidence in the matter.
5. On the evidence before Her Honour [sic], a finding ought have been made that the granting of the annulment was in the interests of justice.’

49 These might have been expressed differently, however the Crown took no point as to their form, and it cannot be said that they do not state exhaustively the general grounds of appeal available to the appellant.

50 I pause to note that the tape provided by the appellant’s lawyer did not produce her Honour’s remarks when I played it, and I have proceeded upon the assumption that the typewritten transcript accurately reflects what her Honour said, although as I noted earlier, there may be scope for differences of opinion as to how the text ought to be punctuated.

51 Miller v DPP ibid was concerned with a decision by a magistrate not to grant an annulment of a conviction entered in the appellant’s absence, upon findings that he simply chose not to attend court on the day appointed. The magistrate had evidence from a medical practitioner who spoke to the impaired health of the appellant and said that he was unfit to appear at court on the day when the proceedings were to resume. The doctor had examined the appellant that day and concluded that he was unfit to appear in court, and would continue to be unfit over the ensuing days. He said that his difficulty arose from the failure to follow advice regarding his cardiac care.

52 Regardless of this evidence, the magistrate took the view that the appellant was not hindered by illness or other cause from taking action in relation to the relevant proceedings. She noted that he could make contact with his solicitor in order to seek an adjournment, and simply chose not to attend court.

53 An appeal to the Supreme Court before Dowd J failed, but a further appeal to the Court of Appeal succeeded and the matter was remitted to the Local Court to be dealt with according to law. Their Honours held that the finding by the magistrate was not open to her on the evidence.

54 The court reviewed the relevant provisions of the Justices Act comparable to those with which the court is here dealing, and with regard to the second reading speech presented upon their introduction. Although the present legislation is not in identical terms to that under review in Miller v DPP, their Honours’ remarks are apposite. Sheller JA, with whom Beazley JA and Young CJ in Equity agreed, concluded that the use of the words ‘must grant an application for annulment’ required the Local Court to grant the application if the conditions specified were satisfied. Moreover, the phrase ‘from taking action in relation to the original Local Court proceedings’ was not to be construed narrowly. His Honour said at paragraphs [24] and [25],

‘[The phrase] is clearly part of a scheme to avoid the obvious injustice to a defendant who is unable, properly, to defend the case against him, on the day he is convicted in his or her absence, because of an accident, illness or misadventure or other cause.

The use of the word “hindered” is instructive. It does not only mean “prevented” but also “impeded” or “obstructed”. There are no doubt many ways in which this can happen and it is not desirable, even if possible, to catalogue them here. The basis for the application is that the conviction was made in the absence of the defendant. It seems to me quite obvious that if the appellant was prevented from coming to court on 10 December 2001 because of illness, that falls well within the ambit of the expression “hindered by illness from taking action in relation to the proceedings”. It is not to my mind, significant or any answer to such a claim that the appellant was well enough to telephone his solicitor or to write a letter. To conclude otherwise, defeats the intention of the legislation.’

55 Justice Young contributed further comment, noting that the second reading speech gave the clear impression that the aim of the amendments introduced was to liberalise the circumstances in which convictions before magistrates where the accused had not appeared could be annulled. In my opinion the further amendments made upon the introduction of this legislation into the Crimes (Appeal and Review) Act have not reversed or introduced limits to that liberalisation.

56 His Honour rehearsed the history of these provisions through their various iterations, noting that they once expressly included a series of discrete situations where a defendant might have a conviction annulled. At paragraph [38] his Honour said,

‘Under s 100K(2)(a), the defendant can apply if he or she was not aware of the relevant proceedings until after their completion, but cases where there was some problem with communication of the adjourned date or a date was wrongly written down in somebody’s diary ceased to be matters explicitly mentioned in the statute.’

57 Relevantly, section 100K provides,

‘(1) …
(2) A Local Court must grant an application if the applicant is a person other than the informant and it if is satisfied that:
(a) the defendant was not aware of the relevant proceedings until the proceedings were completed or the sentence imposed or the other action was taken, or
(b) …’

58 His Honour continued at paragraph [39],

‘This must lead to the view that the general paragraphs of subs (2)(b) and (c) of s 100K(2) or s 8(2) of the 2001 Act should be widely construed. Thus in (b) the word “misadventure” should be read widely.’

59 Section 100K(2)(b) and (c) of the Justices Act were the comparable, although not identical predecessors to s 8(2)(b) and (c) of the Crimes (Appeal and Review) Act by which this scheme is continued. The differences between these provisions as expressed do not detract from his Honours statements.

60 His Honour continued with references to authority in support of the proposition that the word ‘hindered’ meant something less than prevented, namely, making something more or less difficult but not impossible, or alternatively, affecting to an appreciable extent the activity in question. Of the phrase ‘taking action in relation to the relevant proceedings’ his Honour said at paragraph [41],

‘… the legislature has chosen wide vague words with the intention that if the defendant is hindered by misadventure or otherwise from doing some act or thing in relation to the proceedings not limited to attending court, then a magistrate would have jurisdiction under the section to annul the conviction or sentence.’

61 I am of the view that her Honour in the present matter fell into error.

62 The merit of these provisions, which allow for the expeditious disposal of proceedings before magistrates where an accused person chooses not to appear cannot be questioned. Their implementation saves costs and inconvenience that would otherwise be incurred requiring the use of resources and the presence of witnesses to present evidence to prove offences, in respect of which an accused person may properly submit to a finding of guilt without the formalities that might otherwise be required.

63 However, as the Court of Appeal has made abundantly clear, the legislation was not intended to produce injustice. Those accused who wish to defend the charges brought against them must be permitted to do so. The strength of the Crown case was an irrelevant consideration to the question whether the annulment ought to have been granted. Even those facing what might be an overwhelming case are entitled to have the prosecution prove the charges brought. This said, there might in some cases be scope for the consideration of the strength of the Crown case when assessing the credibility and reliability of the evidence of an applicant as to why he or she did not attend court as required. I do not understand, however, that her Honour brought the perceived strength of the Crown case to account for this purpose. As I understand her Honour’s remarks, she found that the appellant was genuine in his assertions that he simply confused the dates.

64 The concession made by the appellant that he ought to have telephoned the court is of little, if any, significance in the circumstances. Had he been doubtful about the date upon which the hearing was to take place, and chose not to make an appropriate inquiry, the concession would have greater impact. However where he was genuinely of the view, albeit mistakenly, that the hearing was on a particular date, I do not see how it can be said that his failure to telephone one or more courts to confirm his belief should lead to the rejection of his application. His misplacement of the bail notice does no more than explain how he might have come to be mistaken.

65 Failure of an accused wishing to defend the charges against them to attend court, through mere oversight, should not result in a finding of guilt and conviction as a matter of course. Where an accused person has made an error, such as by losing the note of the date of the hearing, and whilst operating under the genuine but mistaken belief that his day in court was to be on the day following the day upon which the matter was in fact to be heard, he or she has been hindered by misadventure or otherwise from doing an act in relation to the proceedings, namely, from attending on the appointed day.

66 Upon the finding by her Honour that the appellant genuinely confused the dates, the mandate in s 8(2) of the Act required the court to grant the annulment sought.

The Decision

67 For these reasons I propose to allow the appeal.

68 Section 16A of the Crimes (Appeal and Review) Act provides,

‘(1) The District Court may determine an application under section 11A by dismissing the application or by granting it.
(2) Pending the determination of the application, the District Court may stay the execution of the sentence concerned subject to such terms and conditions as it thinks fit.
(3) If the District Court grants the application, the District Court must remit the matter to the Local Court.
(4) The Local Court is to deal under section 9 with any matter remitted to it under this section as if the application under section 4 in respect of the matter had been granted by the Local Court.’

69 Although this provision refers to ‘an application under section 11A’, when one turns to that provision it will be seen to provide for an appeal from an unsuccessful application for annulment. This court is not dealing with an application for leave to appeal, or an application for annulment, but rather an appeal from the decision of the magistrate rejecting the application, in accordance with the legislation that provides for this review. This Court does not substitute its orders for that of the magistrate, but must remit the matter to the Local Court to be dealt with the matter under s 9 of the Crimes (Appeal and Review) Act as if the application for annulment had been granted in the Local Court.

70 Thus, when the matter is returned to the Local Court any magistrate may deal with the matter, but must do so afresh and as if no conviction or sentence had been previously imposed.

Order

1. Appeal allowed.

2. Set aside the order of Magistrate Beattie on 4 June 2008.

3. Remit the proceedings to the Local Court to be dealt with according to law.

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Note: A previous version of this judgment was placed on the file and distributed to the parties on 4 September 2008. This subsequent version has been re-formatted for online publication and contains the following corrections:

at [4] ‘record’ is replaced with ‘records’

at [5] ‘careful’ is replaced with ‘carefully’

at [9] ‘he growing them bushland’ is replaced with ‘he was growing them in bushland’

at [35] ‘Neither’ is replaced with ‘Nor’

at [36] ‘legislation’ is replaced with ‘provisions’

at [57] the paragraph is amended to better reflect legislative form

at [65] ‘misistaken’ is replaced with ‘mistaken’