Sullivan v Director of Public Prosecutions (NSW)

[2020] NSWSC 253

Supreme Court

New South Wales

Medium Neutral Citation:

Sullivan v Director of Public Prosecutions (NSW) [2020] NSWSC 253

Hearing dates:

3 March 2020

Date of orders:

20 March 2020

Decision date:

20 March 2020

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) The application for an extension of time in which to appeal against the conviction is refused.
(2) The application to extend the time for commencing judicial review proceedings in relation to the refusal to annul the conviction is granted.
(3) The decision of the Local Court on 7 December 2015 in New South Wales Police Force v Sullivan [2015] NSWLC 28 is quashed.
(4) The annulment application is remitted to the Local Court to be dealt with according to law.
(5) The parties are to pay their own costs.

Catchwords:

CRIMINAL LAW – appeal against conviction – delay in bringing appeal – financial disadvantage – whether party to whom disadvantage flowed needs to be established beyond reasonable doubt – where credit card owner named in Court Attendance Notice – whether particular needs to be established – issue at first instance – whether accused was authorised to use the card – deception – whether prosecution required to call merchants to prove they were deceived – circumstantial case – inference that merchants deceived open on the evidence – no merit in conviction appeal – leave to extend time refused

 

CRIMINAL LAW – application to annul conviction – where applicant present at original hearing – where Minister referred annulment application to Local Court – application of wrong test – interests of justice – no requirement to establish exceptional circumstances

 

CRIMINAL LAW – annulment application – mental health legislation – where applicant seeks disposition under s 32 – purpose of legislation – whether purpose solely diversionary – criminal liability and mental illness – power to discharge unconditionally – power exercisable where mental illness present at the time of the offence and hearing – where applicant self-represented – where mental health issues not known or raised – Catch 22 – whether annulment “redundant” – where a bond already expired – delay

  CRIMINAL LAW – annulment application – where matter referred to court by Minister – whether Minister’s opinion to be taken into account by Local Court exercising jurisdiction – Minister’s opinion irrelevant

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 5, 8
Crimes Act 1900 (NSW), ss 192D, 192E
Mental Health (Forensic Provisions) Act 1994 (NSW), s 32
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:

Cawthray v R [2013] NSWCCA 105
Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154
DPP (NSW) v Knight [2006] NSWSC 646; (2006) 162 A Crim R 555
Duncan v Independent Commission Against Corruption [2016] NSWCA 143
Francuziak v Minister for Justice [2015] FCAFC 162
Miller v Director of Public Prosecutions [2004] NSWCA 90
NSW Police Force v Sullivan [2015] NSWLC 28
R v Kennedy [2000] NSWCCA 48; (2000) 118 A Crim R 34
R v Severo Dossi (1919) 13 Cr App R 158
R v VHP (unreported, New South Wales Court of Criminal Appeal, 7 July 1997)
R v Westerman (1991) 55 A Crim R 353
Restricted Decision [2019] NSWCCA 43
The King v Dean [1932] NZLR 753

Texts Cited:

Joseph Heller, Catch 22 (1st ed, 2011, Random House UK).

Category:

Principal judgment

Parties:

Michael Sullivan
Director of Public Prosecutions (NSW)

Representation:

Counsel:
T Epstein (Plaintiff)
B Baker (Respondent)

  Solicitors:
Dib & Associates Lawyers (Plaintiff)
Director of Public Prosecutions (NSW)

File Number(s):

2019/371047

Publication restriction:

Nil

Judgment

1. By amended summons filed 10 December 2019, Michael Sullivan seeks leave to appeal against his conviction in the Local Court on 26 July 2013 in respect of an offence of dishonestly causing a financial disadvantage by deception. By the same summons he seeks an order under s 69 of the Supreme Court Act1970 (NSW) quashing a decision of the Local Court made on 7 December 2015, refusing an annulment application in relation to the 2013 conviction. [1]

   1. New South Wales Police Force v Sullivan [2015] NSWLC 28.

2. Both the appeal and the application for judicial review are woefully out of time and Mr Sullivan seeks an extension of time in which to file the initiating process. A number of factors are relevant to the application for an extension of time but both parties agree that one of the more significant considerations is whether the appeal or application for judicial review is sufficiently meritorious to justify an extension of time of such a magnitude. The considerations bearing upon the application for an extension of time with respect to the conviction appeal are different to those that will determine the application to extend time to review the decision refusing to annul that conviction. For one thing, the effluxion of time is far greater in respect of the appeal against conviction. Another difference is that the applicant did not lodge an appeal against that conviction for a number of years after he had made the application for annulment in the Local Court and sought to appeal (out of time) to the District Court.

3. I have determined that the application to extend time to appeal against the conviction should be refused. However, the application to extend time for commencing the judicial review proceedings should be allowed. The order of the Magistrate refusing to annul the conviction should be quashed and the annulment application remitted to the Local Court to be determined according to law. These are my reasons for those conclusions.

The conviction appeal

The facts of the case and grounds of appeal

4. The grounds of appeal against conviction are:

1. The Magistrate erred in finding the element of causing a financial disadvantage satisfied and, therefore, erred in failing to enter the verdict of acquittal.

2. The Magistrate erred in finding that the element of deception was satisfied and, therefore, erred in failing to enter a verdict of acquittal.

5. While the grounds as framed appear to be little more than questions of fact, the way in which the case was argued was that there was no evidence capable of establishing the elements of the offence. This is either a question of law alone or a mixed question of fact and law. Either way, putting aside the question of an extension of time, I would be inclined to hear the appeal on its merits and if necessary grant leave to appeal.

6. To understand these grounds of appeal, it is necessary to set out briefly the case presented against Mr Sullivan at the summary hearing.

7. It was the prosecution case that Mr Sullivan had obtained the credit card of the victim (Hannah Day) and used it on a number of occasions to obtain goods and services. When he was arrested, Mr Sullivan participated in an electronically recorded interview with police (“ERISP”). In the ERISP he admitted to using the credit card on a number of occasions between 1 - 4 July 2012. For example he admitted that on 1 July 2012 he attended the Australiawide Convenience Store and used the card to make a purchase in the sum of $36 "to buy a packet of cigarettes probably". The same day he used the card at the Lord Dudley Hotel and the Four in Hand Hotel to make purchases in the amount of $64.50 and $30.00. He said those transactions were referrable to “just lunch and a few drinks. A bottle of wine” and “a couple of drinks”. There were also 13 transactions on 3 July 2012. Three of those were in the sum of $136 (each) and were said by Mr Sullivan to be for a massage at a place "somewhere in the Cross."

8. In the electronically recorded interview Mr Sullivan said he was given permission by Ms Day to use the credit card. This was also the defence that he ran at the summary hearing. In other words he said he was authorised to use the card. Ms Day denied this.

Ground 1

9. One of the small mysteries surrounding the prosecution case is that it asserted a financial disadvantage to the victim (Ms Day) rather than asserting a financial advantage to Mr Sullivan. Ms Baker who appeared for the Director of Public Prosecutions on these applications agreed that the easier way of proving its case would have been to assert a financial advantage in Mr Sullivan. She could not explain why the Court Attendance Notice was framed in the way it was or why the prosecution elected to conduct its case in that way.

10. The argument for Mr Sullivan in this Court was that there was no evidence capable of establishing that Ms Day suffered a financial disadvantage. She was not asked any specific questions going to that issue at the summary hearing. It was submitted that if there was any financial disadvantage it would have been to the Commonwealth Bank of Australia which issued the credit card. This submission was based on the assumption that the arrangements between the Bank and the consumer would mean that the Bank, or perhaps its insurer, would not charge the customer for fraudulent transactions. Accordingly, so the argument ran, there was no financial disadvantage. These submissions must be rejected.

11. It is doubtful that it was necessary for the prosecution in the circumstances of this case to establish a financial disadvantage in a particular person, notwithstanding that the Court Attendance Notice particularised Ms Day as the person who so suffered. There may be cases where a particular such as that becomes, if not an element of the offence, something that needs to be established beyond reasonable doubt for the prosecution to succeed. An analogy can be drawn with cases where time is made “of the essence” by the way the case is conducted: see, for example, R v Westerman (1991) 55 A Crim R 353, Cawthray v R [2013] NSWCCA 105, R v VHP (unreported, New South Wales Court of Criminal Appeal, 7 July 1997), R vKennedy [2000] NSWCCA 48; (2000) 118 A Crim R 34, The King v Dean [1932] NZLR 753, and cf R v Severo Dossi (1919) 13 Cr App R 158, DPP (NSW) v Knight [2006] NSWSC 646; (2006) 162 A Crim R 555. However, in the circumstances of this case, the fact that Ms Day was particularised as the person who suffered the financial disadvantage, did not make it incumbent upon the prosecution to establish that she, as opposed to the Commonwealth Bank or its insurer, suffered the financial disadvantage. What was established was that somebody had suffered a financial disadvantage and that was the element of the offence, as opposed to the particular, that needed to be established. I accept the Director’s submission that it is not an element of s 192E(1)(b) of the Crimes Act 1900 (NSW) that the person who suffered the financial disadvantage be identified.

12. While Restricted Decision [2019] NSWCCA 43 involved the offence of dishonestly obtaining a financial advantage, it remains instructive in this case. The Court of Criminal Appeal held in Restricted Decision that s 192E(1)(b) does not import a requirement that the deceived person be identified.

13. There may be cases where a particular such as this needs to be established to the criminal standard. However, this was not one of them. The reality is that there was no issue at the summary hearing in relation to who may have suffered the financial disadvantage. The only issue before the Local Court was whether Ms Day had authorised Mr Sullivan to use the credit card.

14. In any event, allowing for the possibility that proof of the identification of the person who suffered the financial disadvantage was essential, the Director’s second submission on this issue should also be accepted. While it may be the case that the Commonwealth Bank would have covered the fraudulent transactions, there was no evidence of this and, at least at the time the transactions were made, Ms Day incurred a debt. Even a temporary financial disadvantage such as that is sufficient to establish the element of financial disadvantage: Crimes Act 1900 (NSW), s 192D(2), Restricted Decision at [37], Duncanv Independent Commission Against Corruption [2016] NSWCA 143 at [519] per Beazley P.

15. For those reasons ground one must be rejected.

Ground 2

16. Under this ground Mr Sullivan asserts that there was no evidence that he perpetrated any deception or that any deception caused the financial disadvantage alleged in the Court Attendance Notice. The basis of this submission is that the prosecution did not call the shop keepers, bar attendants, restaurant owners or other merchants who provided the goods and services obtained by use of the card. It was submitted that it was incumbent on the prosecution to call those witnesses in order to give evidence that they were deceived.

17. This ground of appeal must also be rejected. The evidence was that the card was owned by Ms Day, that she had not authorised Mr Sullivan to use it, and that the card was used by Mr Sullivan to obtain various goods and services. While there was no direct evidence that those who accepted the credit card were deceived, there is a strong circumstantial case that they were. In other words, it was open to the Magistrate to infer that the merchants or their employees believed that Mr Sullivan was the owner of the credit card or otherwise lawfully authorised to use it. If Ms Day's evidence that she did not authorise the use of the card was accepted beyond reasonable doubt, it was open to the Court to infer there was no other reasonable inference available.

18. Again, what the prosecution must prove, and the method by which it will attempt to prove it, may depend on the way in which a case is conducted. In other words, one can imagine cases of fraud where it would be necessary for the prosecution to call the person deceived. However that was not this case. Rather, there was a singular issue, namely whether the prosecution had established beyond reasonable doubt that Ms Day did not authorise Mr Sullivan to use the card in the way that he did.

19. Ground two should be rejected.

Conclusion as to the conviction appeal

20. In coming to these conclusions, and taking into account the way in which the summary hearing was conducted, I have not lost sight of the fact that Mr Sullivan was unrepresented and, as now appears to be the case, suffering from a depressive illness and other mental health issues. Even so, the case that the prosecution had to meet was clear and the matters that are now raised were not issues before the Local Court.

21. As the above analysis demonstrates, and in spite of the careful, thorough and cogent submissions of Ms Epstein, there is little merit in either of the grounds of appeal against conviction. The delay in bringing the appeal was egregious. The offences were allegedly committed in July 2012 and the hearing took place in July 2013. That means in excess of six years passed between the conviction and the filing of the summons in this Court. There was an attempt to appeal to the District Court but that appeal was brought outside of the statutory time limit and was either withdrawn or dismissed for want of jurisdiction. More significantly, in November 2015, Mr Sullivan brought the application for annulment of the conviction. At that time he was represented by senior counsel. That application did not challenge the finding of guilt or assert that there was no evidence capable of establishing the charge.

22. The fact that Mr Sullivan elected to make the annulment application rather than appealing to this Court, whilst represented by capable and experienced senior counsel, in addition to the delay and lack of merit in the grounds of appeal, leads to the inevitable conclusion that the application to extend time in which to appeal against the conviction should be refused.

Application for judicial review

23. The applicant also seeks judicial review pursuant to s 69(1) of the Supreme Court Act 1970 (NSW) of the Magistrate’s refusal to annul his conviction. He relies on the following grounds:

(3)   The Magistrate failed to exercise her jurisdiction by erroneously confining her consideration on the basis that the power to annul did not extend beyond circumstances where the defendant was not present or, alternatively, that it only did so in exceptional circumstances.

(4) The Magistrate failed to exercise her jurisdiction by erroneously confining her consideration on the basis that a party will not be permitted to adduce fresh evidence and/or that the discretion under s 32 of the Mental Health (Forensic Provisions) Act 1994 (NSW) could not have been exercised by the Magistrate at the time of hearing.

(5)    The Magistrate failed to exercise her jurisdiction by erroneously failing to give any weight to the fact that the Attorney General had formed the opinion that a question existed as to the guilt of the plaintiff.

24. Applications for orders for the annulment of a summary conviction are governed by the provisions of ss 4 to 8 of the Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”). Section 4 concerns cases where the defendant was not present at Court at the time of conviction or sentence: see CAR Act, s 4(1A).

25. The applicant was present at the hearing. His application was made pursuant to s 5 of the CAR Act. That section provides:

5   Applications to Minister

(1)  An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Minister by any person.

(1A)  An application under this section may be made at any time after the relevant conviction or sentence is made or imposed.

(2)  If satisfied that a question or doubt exists—

(a)  as to the defendant’s guilt, or

(b)  as to the defendant’s liability for a penalty,

the Minister may refer the application to the Local Court sitting at the place at which the original Local Court proceedings were held.

26. Section 8 of the CAR Act provides the circumstances in which applications for annulment should be granted by the Local Court. It provides:

8   Circumstances in which applications to be granted

(1)  The 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)  The 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.

27. On 6 March 2015, Mr Sullivan made an application to the Minister pursuant to s 5. That application contended that at the time of the Local Court hearing, and probably at the time of the commission of the offences, the applicant was suffering from a mental illness. He sought to argue that the matter should be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Reports of a psychologist supporting this claim were annexed to the petitions made to the Minister.

28. There was no suggestion in the petitions that a doubt existed "as to the defendant's guilt" in accordance with s 5(2)(a) of the CAR Act. Rather, the application was based on the likelihood that, had the Court known of Mr Sullivan's mental illness at the time of the hearing, it would have proceeded under s 32 of the mental health legislation. The result may have been that there was some form of conditional release or an order dismissing the charge and discharging the defendant unconditionally. In terms of the provision in s 5 of the CAR Act, this seemed to be raising a question or doubt "as to the defendant’s liability for a penalty": s 5(2)(b).

29. At the time the application under s 5 was made and determined, the Attorney General was interstate and his delegate, the Solicitor General, made the decision required by s 5. In spite of the limited nature of the petitions made by Mr Sullivan, the application was granted on the basis that the Solicitor General was:

"satisfied that a question or doubt has arisen as to the guilt of Michael Sullivan for the offence dishonestly obtain financial disadvantage”.

30. Pursuant to the provision in s 5, the Solicitor General referred the matter to the Downing Centre Local Court to be dealt with in accordance with Part 2 of the CAR Act. The document setting out that decision is undated but the letter forwarding it to the Registrar of the Downing Centre Local Court was dated 21 July 2015.

31. The application for annulment was heard in the Local Court on 5 November 2015. Judgment was delivered on 7 December 2015. The judgment discloses a number of errors of law on the face of the record. The Director submitted there were no such errors but conceded that, if established, some of the errors would constitute jurisdictional error. There is no need, here, to discuss the nature of the remedies provided under s 69, the bases upon which such relief might be granted, or the relevant distinctions (in law and application) between a jurisdictional error and an error of law on the face of the record.

Ground 3

32. The first error contended for by the applicant, and established on the face of the record, is that the Magistrate erroneously confined their consideration of the annulment application to circumstances where "the defendant was not present or, alternatively, that it only so extended in exceptional circumstances". The Magistrate appeared to proceed on the basis that the power to annul only arose in circumstances where the defendant was present and/or where “exceptional circumstances” were established.

33. There was more than one occasion in the judgment where the learned Magistrate referred to the fact that Mr Sullivan was present at the hearing and made reference to matters relevant to s 4 of the CAR Act. That section only applies in circumstances where the defendant was not present at the time of the summary hearing. For example, the Magistrate provided a history of Part 2 of the CAR Act which included the following:

“28. His Honour Justice Young in Miller v Director of Public Prosecutions [2004] NSWCA 90 considered section 4 and section 9 of the Crimes (Appeal and Review) Act, and said at [30] that:

‘The Second Reading Speech gives the clear impression that the aim of the amendments was to liberalise the circumstances in which convictions before magistrates where the accused had not appeared, could be annulled.’

29.   Accordingly this would suggest that to widen the section’s application beyond circumstances where the defendant was not present, to include circumstances where he was present and had a hearing on the merits, would appear to go beyond the purpose of the amendments.”

34. The references to Miller and to the Second Reading Speech were of no relevance to Mr Sullivan’s annulment application. Those matters would have been relevant if it had been an application under s 4 in circumstances where the defendant was not present.

35. Later in the judgment the Magistrate said:

“47. It is not difficult to envisage a number of scenarios where, but for the existence of section 5, justice would not be served simply because the defendant was out of time to pursue an annulment by operation of section 4. For example, a defendant could have left the jurisdiction without being aware of the court date or may have left the jurisdiction involuntarily. Alternatively a defendant may have been hospitalised and remained so either in relation to a serious mental illness or physical illness and the review date may have lapsed.

48.   However, it is difficult to envisage how the interests of justice are served by allowing an annulment in circumstances where:

(1) there has been a hearing on the merits in the presence of the defendant;

(2) there has been some considerable delay without any real explanation for the failure to seek advice about the availability of any review or for the withdrawal of the District Court appeal; and

(3) an apparent justification is offered for the application before the court on this occasion on the basis that the defendant was denied the benefit of the exercise of a discretion that exists under s 32 of the Mental Health (Forensic Provisions) Act, in circumstances where that discretion could not have been exercised by the magistrate at the time of Mr Sullivan’s hearing (in other words, when that discretion could not be enlivened and did not exist at the time for the magistrate who dealt with his matter).”

36. The judgment concluded as follows at [52]-[54]:

“52.   Be that as it may, even if it were accepted that there may be circumstances where a defendant was present at his or her hearing and may then be able to satisfy the court that it is in the interests of justice to annul a conviction or sentence, I suggest that would require exceptional circumstances. These circumstances are not exceptional.

53. It is not this Court’s function to define in advance a possible scenario that may come within section 8; rather the court must determine the matter on the circumstances of this particular case.

54.   In the circumstances of this case I am not satisfied that it is in the interests of justice that the application be granted.”

37. It is difficult to escape the conclusion that the Magistrate was importing into the statute a requirement that a defendant making an annulment application referred to the Local Court by the Attorney General is required to establish exceptional circumstances in a case where they were present at the time of the summary hearing. This is wrong. Sections 8(2)(a) and 8(2)(b) are relevant to the Court's power to grant an annulment application where the defendant was not present or otherwise unable to take action in relation to the original Local Court hearings. They are not relevant to an application such as that made by Mr Sullivan. The only criteria under the legislation applicable to his application was the question posed by s 8(2)(c), that is, whether:

"having regard to the circumstances of the case, it is in the interest of justice to do so [annul the conviction]".

38. It is true that in the final paragraph of the judgment and elsewhere within the judgment, the learned Magistrate made reference to the "interests of justice" test and case law establishing that the expression is one of wide import. However, it is clear that the chronology of the case and the fact that the applicant represented himself at the hearing, was present throughout and was not denied procedural fairness, led her Honour to the conclusion that, absent exceptional circumstances, the application for annulment should be refused.

39. The Director submitted that the observation about exceptional circumstances was a "musing" or "suggestion" that was made after the true reasons for the decision had been stated in [48] and [49]. This ingenious submission suggested, in essence and as it was put by Ms Epstein, [2] that a line should be drawn under [49] and the balance of the judgment should be considered as no more than surplusage or musings. I am unable to accept the Director’s submission. The learned Magistrate said at [48] and [49]:

“48.   However, it is difficult to envisage how the interests of justice are served by allowing an annulment in circumstances where:

(1) there has been a hearing on the merits in the presence of the defendant;

(2) there has been some considerable delay without any real explanation for the failure to seek advice about the availability of any review or for the withdrawal of the District Court appeal; and

(3) an apparent justification is offered for the application before the court on this occasion on the basis that the defendant was denied the benefit of the exercise of a discretion that exists under s 32 of the Mental Health (Forensic Provisions) Act, in circumstances where that discretion could not have been exercised by the magistrate at the time of Mr Sullivan’s hearing (in other words, when that discretion could not be enlivened and did not exist at the time for the magistrate who dealt with his matter).

49.   In summary, what are the interests of justice that are served when there has been no denial of natural justice or denial of procedural fairness and the exercise of a discretion being sought (if in fact the defendant adheres to the indication given that there would be no challenge to the evidence before the court) is in fact a redundant exercise because the defendant has not only been dealt with according to law but that lawful penalty, a 12 month bond, has now expired? Indeed it would seem to me that it may bring the justice system into disrepute.”

2. Transcript p 47.

40. There followed a possibly irrelevant reference to the case of Francuziak v Minister for Justice [2015] FCAFC 162 and then, at [51]:

“51. Admittedly in this case the contention is that the defendant did not deliberately or inadvertently fail to put his case because he himself was not aware of what he could put. However, it must be noted that he was aware of his diagnosis when he withdrew his appeal at the District Court.”

41. The Magistrate then stated their conclusions at [52]-[54], which are set out above at [36]. This was not a judgment delivered ex tempore but after an adjournment of about a month. That is not to underestimate the crushing workload faced by the Local Court. However, I can see no way of reading the reasons other than to conclude that the reasoning flowed to the conclusions in [52] and [54]. In [52] it is clear that the Magistrate was exercising the jurisdiction on the basis that the circumstances of the case were such that Mr Sullivan needed to establish exceptional circumstances.

42. This constituted at least an error of law on the face of the record and probably a constructive failure to exercise the jurisdiction altogether.

Ground 4

43. The next ground of appeal asserts a failure to exercise the jurisdiction by refusing the application on the grounds that the Magistrate hearing the original case could not have exercised the power under s 32 of the Mental Health (Forensic Provisions) Act 1990. This ground of appeal arises out of the Magistrate’s observation at [48] where she said that it was "difficult to envisage how the interests of justice are served in circumstances where”:

“(3) an apparent justification is offered for the application before the court on this occasion on the basis that the defendant was denied the benefit of the exercise of a discretion that exists under s 32 of the Mental Health (Forensic Provisions) Act, in circumstances where that discretion could not have been exercised by the magistrate at the time of Mr Sullivan’s hearing (in other words, when that discretion could not be enlivened and did not exist at the time for the magistrate who dealt with his matter).”

44. Her Honour went on to say that the exercise of discretion under s 32 would be "in fact a redundant exercise because the defendant has not only been dealt with according to law but that lawful penalty, a 12 month bond, has now expired." Her Honour went further saying this may "bring the system of justice into disrepute".

45. The basis of these observations was that there was no evidence at the original hearing capable of supporting the disposition of the matter under s 32. Further, it was predicated on the fact that the case had been conducted as a defended hearing, and that the 12 month bond had since expired. On a factual level, this approach ignored the evidence that Mr Sullivan was suffering from a depressive illness at the time of the hearing before the Local Court in July 2013. It seems that he was not aware that he was suffering from such an illness. This presented something of a Catch 22. As the fictional character Doc Daneeka pondered in Mr Heller’s book: [3]

“You can't let crazy people decide whether you're crazy or not can you?”

3. Joseph Heller, Catch 22 (1st ed, 2011, Random House UK) Chapter 5.

46. In the circumstances, it is hardly surprising that there was no evidence before the Local Court of Mr Sullivan’s condition. It was not a proper basis to refuse the annulment application. It is likely that in most cases where annulments are sought in circumstances where the applicant was present at the original hearing, new and additional evidence will be adduced that was not available to the Court that convicted the applicant in the first place.

47. The Director sought to support the approach of the Magistrate by arguing that she was correct in her observation that referring the matter back to the Local Court for consideration under s 32 was a “redundant exercise”. The Director emphasised the purpose of s 32. It was submitted that s 32 provides a “diversionary scheme” where people suffering from mental health issues are taken out of the criminal justice system and dealt with in accordance with the provisions of relevant mental health legislation: see, for example, Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154. The provision allows the Local Court to release an offender conditionally. Often orders made under s 32 include conditions requiring the offender to maintain regular contact with mental health professionals and to comply with a mental health plan. Conditions may also include the taking of medication and other matters calculated to deal with the mental illness or cognitive impairment that has justified the disposal of the matter under s 32.

48. Whilst there is considerable force in these submissions, I accept Ms Epstein’s submission that s 32 has another purpose. That purpose arises in a case, and this may be one of them, where the accused person suffered from the mental illness at the time of the offence. There may be cases where the condition has either been treated by the time of the hearing or has otherwise resolved. In such cases, it is open to the Magistrate to dismiss the charge unconditionally: s 32(3)(c). In this respect, s 32 is not merely a diversionary scheme with a protective purpose, but also a provision that ensures that criminal liability is not attributed to somebody who was mentally ill at the time of the offence.

49. I am satisfied that ground four is established.

Ground 5

50. The final ground of appeal asserts that “the Magistrate failed to exercise her jurisdiction by erroneously failing to give any weight to the fact that the Attorney-General had formed the opinion that a question existed as to the guilt of the plaintiff".

51. This ground is without merit. Ms Epstein, who did not draft the grounds or written submissions, did not press ground 5 with any great vigour. The ground seeks to contend that the Magistrate should have taken into account the views of the Attorney. There are manifest problems with this submission. For one thing, it is simply not known how the Attorney General or their delegate came to the conclusion that there was a doubt as to Mr Sullivan's guilt. As was pointed out above at [27]-[28], while that was the basis of the referral, there was no contention in the petition under s 5 that such a doubt existed. Rather, the petition was based on whether the matter should have been subject to an application under s 32.

52. The problem with this ground of appeal is more fundamental than that. Section 5 provides a mechanism whereby a person may make an annulment application to the Local Court even though they were in attendance at the time of the original hearing: cf s 4 CAR Act. It requires the Attorney General or their delegate to come to a conclusion. If a positive conclusion is reached in relation to either of the matters in s 5(2), the Minister’s power is limited to referring the matter to the Local Court. Once the matter is so referred it is a matter for the presiding Magistrate to determine the application based on the evidence then before the Court and pursuant to s 8. It is not for the Local Court in exercising that jurisdiction to abdicate its responsibility to make findings of fact and to apply those findings to the provisions of the relevant legislation. The views of the Attorney General are not relevant to the exercise of discretion of the Magistrate.

53. Ground five must therefore be rejected.

Returning to the extension of time and discretionary considerations

54. The fact that I have come to the conclusion that grounds 3 and 4 should be upheld is not determinative of whether the orders sought in the summons should be granted. The relief sought under s 69 of the Supreme Court Act is discretionary in nature. Further, r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) requires that an application under s 69 be commenced within 3 months of decision under review.

55. The decision not to annul the conviction was made on 7 December 2015. The three month time limit expired on 6 March 2016. The proceedings were commenced on 25 November 2019. That is a delay of more than 3½ years. Rule 59.10(2) UCPR allows the Court to extend the time for commencing the proceedings and r 59.10(3) provides the following non-exhaustive list of considerations:

(a) any particular interest of the plaintiff in challenging the decision,

(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,

(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,

(d) any relevant public interest.

56. As I have said the parties agreed that the merit of the application was also a relevant consideration.

57. An affidavit of Mr Sullivan’s solicitor set out matters relevant to the delay and also the discretion to make orders in the nature of prerogative relief. Paragraph 20 sets out the issues directly relevant to the delay as follows:

• He has been addressing his mental health issues and alcoholism including attending upon a psychologist, AA and other therapies.

• Until December 2018 he was not sure what legal avenues were available.

• He was having difficulty obtaining funding for legal representation and had a mistrust of lawyer due to past experiences.

• The improvements he has now made to his life means that “the need to remove the convictions is now more pressing than ever.”

58. The last dot point is no doubt a reference to matters raised earlier in the affidavit. To summarise those matters, Mr Sullivan seeks to pursue a career in the finance industry. A conviction for fraud “significantly prejudices” his ability to find a job in the industry. This includes his ability to act as a company director, to travel overseas and to get work when the potential employer exercises due diligence. There is an opportunity to work with a firm in London although, that opportunity may have evaporated prior to the hearing of this case. A problem surrounding Mr Sullivan relying on these matters is that they were raised with the Magistrate in the penalty phase of the hearing in 2013. Even so, they are legitimate matters militating in favour of considering the matter on its merits.

59. In terms of the matters referred to in r 59.10(3):

1. The matters referred to in [57] above establish a particular interest that the plaintiff has in bringing the proceedings.

2. The Director did not seek to establish any prejudice arising from entertaining the application. For example, it is not suggested that the prosecution will be prejudiced in conducting the case, either on this appeal, the potential annulment application or, if the latter was granted, at any rehearing of the matter. The Director’s approach was no doubt a proper and fair acknowledgement that the question sought to be ventilated in the Local Court is limited to the s 32 issue. The situation may have been different if the application was based on an attempt to have the matter re-heard in full. In that case, there may be difficulties in obtaining relevant evidence, in locating witnesses or the witnesses’ recall of events that occurred in 2012. Without pre-empting the decision of the Magistrate, if an attempt was made to expand the issue to include questions concerning the proof of the charge, it may be that the annulment application would be refused. In light of the history of the case, it may be difficult to establish that it is in the interests of justice to allow Mr Sullivan to contest those issues at this stage.

1. The plaintiff was aware of the decision from the time it was made, more than four years ago. This militates strongly against granting the extension.

2. There is a public interest in the finality of litigation. Equally, there is a public interest in justice being done fairly by reference to the particular and individual circumstances of each case. There is also a public interest in the interpretation and correct application of provisions such as ss 5 and 8 of the CAR Act.

60. Mr Sullivan’s explanations for the delay are, at times, a little patchy. Nevertheless, accepting the evidence on its face, there is an explanation in his long term mental health issues and more recent rehabilitation and professional opportunities. There is no real prejudice to any other party. Given the merit in two of the grounds of appeal and public importance in the correct application of the relevant provisions, I am inclined to extend the time in which to bring the application for relief under s 69.

Conclusion, costs and orders

61. Because the plaintiff has been successful, costs would ordinarily follow the cause. However the summons brought two quite separate matters to the Court. The appeal against the conviction was without merit and brought after an inordinate delay. Because that appeal was dismissed, the parties have each enjoyed some success in the litigation. Further, the delay in these proceedings is most undesirable. In the exercise of the broad discretion of the Court in relation to costs, I have concluded that the parties should bear their own costs.

62. For the foregoing reasons I make the following orders:

1. The application for an extension of time in which to appeal against the conviction is refused.

2. The application to extend the time for commencing judicial review proceedings in relation to the refusal to annul the conviction is granted.

3. The decision of the Local Court on 7 December 2015 in New South Wales Police Force v Sullivan [2015] NSWLC 28 is quashed.

4. The annulment application is remitted to the Local Court to be dealt with according to law.

5. The parties are to pay their own costs.

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Endnotes

Decision last updated: 20 March 2020