Tracey Anne Kathleen Mackay v Director of Public Prosecutions

[2025] NSWDC 66

District Court

New South Wales

Medium Neutral Citation:

Mackay v DPP [2025] NSWDC 66

Hearing dates:

17 March 2025

Date of orders:

17 March 2025

Decision date:

17 March 2025

Jurisdiction:

Criminal

Before:

Everson SC DCJ

Decision:

The appeal against the refusal to annul the convictions is dismissed.

I am satisfied the current final ADVO imposed on the Appellant was made for good reasons. Nothing placed before this Court justifies setting aside that ADVO. Accordingly, that appeal is also dismissed.

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Appeal and Review) Act 2001 (NSW)

Cases Cited:

R v Sweet [2021] QDC 216

Rex v Jack Congo Murrell (1836) 1 Legge 72

Category:

Principal judgment

Parties:

Appellant
Respondent

Representation:

Tracey Anne Kathleen Mackay (Appellant)
Director of Public Prosecution (NSW) (Respondent)

File Number(s):

2020/00301775

JUDGMENT

1. On 27 September 2020 a provisional apprehended domestic violence order (“ADVO”) was made against the appellant by the Local Court at Penrith, naming the appellant's ex-husband and his new partner as persons in need of protection (“PINOP”). I say new partner, because the appellant and the father of her daughter separated in 2012 and were divorced in 2013. The appellant's ex-husband was given full custody of their daughter as ordered by the Family Court.

2. The ADVO itself, prohibited the appellant from contacting the PINOP in any way. Three exceptions were provided: one, unless the contact is through a lawyer, two unless the contact is to attend accredited or court-approved counselling, mediation and/or conciliation, or three, unless the contact is as ordered by the Local Court or another court about contact with the child or children.

3. The ADVO in question has had multiple iterations. That same contact prohibition was included in the final apprehended domestic violence order made on 6 October 2020, the interim apprehended domestic violence order made on 3 February 2021, and the final apprehended domestic violence order that was made on 31 March 2022.

4. The appellant has been charged, convicted and sentenced for contravening that contact prohibition on eight separate occasions in 2020, 2021 and 2022, as follows:

• Charge sequence 1 of the Court Attendance Notice H75711970 (in proceedings 2020/00301775) is alleged to have occurred at Woodstock on 17 October 2020.

• Charge sequence 1 of the Court Attendance Notice H78492676 (in proceedings 2021/00031134) is alleged to have occurred at Springwood between 26 November 2020 and 2 January 2021.

• Charge sequence 1 of the Court Attendance Notice H78216850 (in proceedings 2021/00031158) is alleged to have occurred at Springwood between 8 January 2021 and 22 January 2021.

• Charge sequence 1 of the Court Attendance Notice H81908382 (in proceedings 2021/00138318) is alleged to have occurred at Springwood on 9 February 2021.

• Court Attendance Notice H83249214 (in proceedings 2021/00276688) contains three charge sequences alleged to have occurred at Warrimoo on different days. Sequence 1 is alleged to have occurred on 31 March 2021; sequence 2 on days between the 2nd and the 11th of April 2021; and sequence 3 on 10 May 2021.

• Charge sequence 1 of the Court Attendance Notice H89921846 (in proceedings 2022/00232747) is alleged to have occurred at Springwood on 10 February 2022.

5. The contraventions were in the form of emails and/or text messages sent by the Appellant to the PINOP. Each of the contraventions is an offence, contrary to sub-section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and punishable by imprisonment for 2 years and/or a fine of $5,500.

6. The history of the proceedings against the appellant is fairly summarised in the written submissions furnished by the prosecutor.

7. On 15 February 2023, the proceedings in relation to 2020/00291737, 2020/00301775, 2021/00031134, 2021/00031158 and 2021/00138318 were listed for hearing at Penrith Local Court. The appellant made no appearance and was unrepresented. The presiding Magistrate unsuccessfully attempted to contact the appellant via telephone link.

8. The charges in relation to 2020/00291737 were dismissed, as the Magistrate found no prima facie case. The other offences were proved. The appellant was convicted and fined $500 in relation to H75711970; $1,000 in relation to H78492676; $1,200 in relation to H78216850. The appellant was convicted under s10A with no penalty imposed in relation to H81908382.

9. On 3 August 2022, the proceedings in relation to 2021/00276688 were listed for hearing at the Penrith Local Court before his Honour Magistrate O'Neil. The appellant did not personally appear but was represented by a legal practitioner who sought an adjournment of the hearing. The Magistrate refused the adjournment application, and the matter proceeded to sentence. The appellant was convicted and fined $350 in relation to each count.

10. The appellant subsequently appealed to this Court. On 16 December 2022, Judge Beckett allowed the appeal, quashed the conviction and remitted that matter back to the Local Court. That matter was listed for mention on 10 January 2023 and was given a hearing date of 6 November 2023. On that occasion, the appellant made no appearance and was unrepresented. The Court received correspondence from the appellant stating, "This is my appearance, I will not be appearing by phone or in person". The matter was heard and determined in the absence of the appellant. The appellant was convicted and fined $500 in relation to each count.

11. Sub-section 11A(1) of the Crimes (Appeal and Review) Act 2001 (NSW) affords a defendant a right of appeal against the Local Court’s refusal of their application for annulment of conviction. However, sub-section 11A(3) expressly provides that “not more than one appeal may be made under this section in respect of any particular conviction”. Consequently, this Court has no jurisdiction to entertain the second such appeal lodged by the appellant in the proceedings 2021/00276688 concerning the three charge sequences on Court Attendance Notice H83249214.

12. On 12 July 2024, the Local Court at Penrith heard and determined the appellant’s application to annul her convictions. In determining the appellant’s application, the Local Court was obliged, by reason of section 8 of the Crimes (Appeal and Review) Act, to grant the application for annulment if satisfied that the appellant was not aware of the original Local Court proceedings until after the proceedings were completed, or that she was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings, or that, having regard to the circumstances of the case, it is in the interests of justice to do so.

13. Magistrate Gibson who dealt with the appellant’s application to annul her convictions on 12 July 2024, was unable to conclude, on the balance of probabilities, that the Appellant was prevented by misadventure from attending court. His Honour accepted that the appellant “had a lot of matters on foot” and was “an unrepresented litigant”. However, there was no evidence justifying a conclusion that the appellant did not know that her matters were listed for hearing and that she was required to be at Court on those occasions. His Honour also concluded that it was otherwise not in the interests of justice to annul the Appellant’s convictions.

14. The interests of justice is a broad test involving various considerations depending on the type of case under consideration. In this case, the interests of justice include, but are not limited to the interests of the Appellant. Also relevant, are the interests of the witnesses, including the nominated persons in need of protection, notably in this case, the ex-husband of the appellant. The interests of the community in seeing litigation dealt with to finality in a fair and efficient manner is also a relevant consideration.

15. On the hearing of the Appellant’s application before this Court, the prosecutor argues that notwithstanding the terms of sub-section 11A(1), the Appellant must also overcome section 12(1) of the Crimes (Appeal and Review) Act which relevantly provides that any person who has been convicted by the Local Court in the person’s absence may appeal to the District Court against the conviction, but only by leave of the District Court.

16. That is probably correct. Over the objection of the prosecutor, I grant leave to the Appellant to appeal to the District Court against her conviction because she is a self-represented litigant and given what I have read of the manner in which she has approached these proceedings, in the interests of justice are weighted in favour of the grant of leave, given the prosecution is in no way prejudiced. Similarly, I grant leave to the Appellant to adduce fresh evidence, as provided for by sub-section 18(2) of the Crimes (Appeal and Review) Act, although it seems that some of it was probably before the Local Court.

17. In determining whether to annul the convictions and remit the matter to the Local Court, I have had regard to all of the material tendered by the prosecution as well as all of the material tendered by the Appellant, as well as the documents she identified as her submissions.

18. Matters impacting upon whether the Appellant should succeed in her contest against the refusal to annul the convictions in the Local Court, include: whether notice of the charges was properly served; the applicant’s explanation and/or motive for non-participation in Local Court proceedings, particularly the application for annulment; the nature and level of seriousness of the charges; the interests of justice in determining the issues between the parties on their real merits; and the interests of natural justice in affording an opportunity to the applicant to be heard now that she seeks to be heard.

19. An important additional factor to be considered is the Appellant’s likelihood of success in any subsequent hearing of the charges. In determining this issue, it is important to note this Court does not regard itself as the tribunal of fact on the issues that may impact upon a Magistrate’s view of evidence led by the parties in a fresh hearing. Evidence led in the Local Court would be a matter for it to assess. However, in circumstances where the Appellant’s chances of non-conviction in the Local Court on these charges had no prospects of success there would be little point in annulling the convictions.

20. The Judgment by Magistrate Gibson reflects that his Honour carefully considered the application brought by the Appellant and that he considered all of the submissions of the Appellant.

21. One of those submissions was that the Appellant had not been correctly named in the apprehended domestic violence orders or in other Court documents, by reason of what she asserted was the incorrect use of her maiden name or married name as opposed to the surname she now asks to be known by. Such an argument was succinctly dealt with by Judge Cash KC in the District Court of Queensland in R v Sweet [2021] QDC 216.

22. His Honour observed that in Australia, a human being is also a legal person. An adult human being with full capacity can sue and be sued. Such adults are subject to the criminal laws of the States and Commonwealth of Australia. That knowledge of the name or even legal status of an accused person is not essential to attract criminal liability is confirmed in the decision of the Full Court of the Supreme Court of NSW (Forbes CJ, Dowling and Burton JJ) in Rex v Jack Congo Murrell (1836) 1 Legge 72, where it was held that the criminal law applied to an Aboriginal man who, at the time, would have had no other legal rights.

23. In the present case, as in the Queensland case of R v Sweet, there is no room for doubt or confusion as to who is said to have done the alleged criminal acts and who is to appear before the Court in response to those charges. That is the Appellant. Her apparent wish to be identified by a name that is different to the name she was assigned at birth and/or assumed after marriage, is of no moment at all. However she is known, she remains the same person: the one alleged to have committed the offences charged in the several charge sequences; and, the defendant to the apprehended domestic violence orders.

24. The decision that this Court is obliged to make is not confined to a consideration of the Appellant’s explanation and/or motive for non-participation in the Local Court proceedings. The evidence tendered on the hearing of this appeal leads irresistibly to the conclusion that the Appellant was never confused as to her obligations to attend Court. Like Magistrate Gibson, I have concluded that the Appellant chose to deliberately not attend Court. I find that her asserted reasons for refusing to enter NSW in order to attend Court are without merit.

25. Consequently. I have also considered the nature and level of seriousness of the charges and the importance of determining the issues between the parties on their real merits. The question of success for the Appellant proceedings fully litigated before the Local Court is one that must be decided adversely to her. The choice made by the Appellant to not attend the Local Court when she knew she had to attend, was a reasonable choice, in a self-centred sense, given that in all of the charges against her, the prosecution case against her was strong and in the majority of charges she made full admissions as to the commission of the offence/s to the arresting police but asserted her innocence on the basis of the utterly misconceived basis that the relevant ADVO identified her by a surname that she no longer used.

26. All things considered, I am unable to discern any factual, legal or discretionary error on the part of Magistrate Gibson in refusing to annul the convictions.

ORDER

27. For the foregoing reasons, the appeal against the refusal to annul the convictions is dismissed.

28. I am satisfied the current final ADVO imposed on the Appellant was made for good reasons. Nothing placed before this Court justifies setting aside that ADVO. Accordingly, that appeal is also dismissed.

**********

Decision last updated: 20 March 2025