Supreme Court New South Wales Medium Neutral Citation: Kostov v Commissioner of Police (No 2) [2020] NSWSC 679 Hearing dates: 29 May 2020 Decision date: 01 June 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Substitute the Commissioner of Police, NSW Police Force, for NSW Police as the defendant in the proceedings. (2) Extend the time within which the summons is to be filed to 20 February 2020. (3) Refuse leave to appeal. (4) Otherwise dismiss the summons. Catchwords: CRIME — Appeal and review — Appeal from Local Court to Supreme Court — where self-represented accused left courtroom during part of proceedings in court below — whether Magistrate erred by relying on evidence of witnesses who were not cross-examined — whether accused was required to be legally represented — whether accused who chooses to absent themself during proceedings is taken to be present for purposes of Crimes (Appeal and Review) Act 2001 and Criminal Procedure Act 1986 Legislation Cited: Commonwealth Constitution Court Suppression and Non-publication Orders Act 2010 (NSW), s 6 Crimes Act 1900 (NSW), s 254 Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 11, 52, 53, 55 Crimes (Sentencing Procedure) Act 1999 (NSW), s 25 Criminal Procedure Act 1986 (NSW), ss 3, 28, 36, 37, 38, 192, 194, 195, 196, 202 Judiciary Act 1903 (Cth), s 78B Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 Supreme Court Act 1970 (NSW), s 69 Supreme Court Rules 1970 (NSW), Pt 51B, r 6 Vexatious Proceedings Act 2008 (NSW), ss 8, 13 Cases Cited: Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 at [71] McKellar v DPP [2014] NSWSC 459 Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 Texts Cited: International Covenant on Civil and Political Rights, Art 14 Category: Principal judgment Parties: Adriana Kostov (Plaintiff) Commissioner of Police, NSW Police Force (Defendant) Representation: Counsel: Self-represented (Plaintiff) K Curry (Defendant on all issues other than s 78B of the Judiciary Act 1903 (Cth)) R McEwen (Defendant on issues under s 78B of the Judiciary Act 1903 (Cth)) Solicitors: Not applicable (Plaintiff) Office of the General Counsel, NSW Police Force (Defendant) File Number(s): 2020/55717 Decision under appeal Court or tribunal: Local Court Date of Decision: 13 August 2019 Before: Milledge LCM File Number(s): 2019/82890 Judgment Introduction 1. By summons filed on 20 February 2020 Adriana Kostov (the plaintiff) seeks leave to appeal pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) against her convictions in the Local Court on 13 August 2019 for two counts of using a false document to obtain financial advantage contrary to s 254(b)(ii) of the Crimes Act 1900 (NSW) (the convictions). 2. This Court's jurisdiction to determine the appeal arises from ss 52 and 53 of the Act, which relevantly provide as follows: "52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the conviction or sentence as may be prescribed by rules of court. 53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves— (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. … (4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court." 1. The time within which such an application is to be made is 28 days after the material date. In this case, the material date was 13 August 2019, being the date on which the orders for conviction were entered by Milledge LCM. Thus the summons was required to be filed by 10 September 2019. Accordingly, the plaintiff requires an extension of time under Pt 51B, r 6 of the Supreme Court Rules 1970 (NSW). The extension of time is not opposed by the defendant. 2. The summons named "NSW Police" as the defendant. The NSW Police does not have separate legal personality. In these circumstances, either the informant, Constable Candice Chapman, should be named as the defendant or the Commissioner of Police, NSW Police Force (the Commissioner). In the circumstances of the present proceedings, it is appropriate that the Commissioner be named as the defendant. Accordingly, an order will be made to that effect. Application for adjournment 1. On the day on which the matter was listed for substantive hearing before me, 29 May 2020, the plaintiff applied for an adjournment of the proceedings. Her application was made on several bases. First, she contended that it was necessary for the matter to be removed to the High Court because she had raised a constitutional issue and had served notices under s 78B of the Judiciary Act 1903 (Cth). Secondly, she contended that she had been unable to obtain legal representation and was indigent. Thirdly, she said that she was unwell. Fourthly, she said that she was distressed because her uncle has terminal cancer. Fifthly, she said that it was unfair for her to have to proceed given that the Attorney-General had raised the issue of her legal incapacity. 2. In order to address the application for adjournment, it is necessary to summarise the relevant chronology, including of the proceedings in the Court below and thereafter. This summary is also relevant to the substantive matter, although the grounds of appeal are confined to matters which were before Milledge LCM. The relevant facts The proceedings in the Court below The directions hearings 1. On 6 March 2019 the plaintiff was charged with two offences under s 254(b)(ii) of the Crimes Act. It was alleged that, on 1 February 2019, she used a false email which purported to be from Registrar Riznyczok of the Supreme Court of New South Wales to obtain a financial advantage of $311; and that, on 18 February 2019, she attempted to use a false email from Registrar Riznyczok to obtain a financial advantage of $241. The documents purported to authorise a partial waiver of filing fees by the Registry. 2. The plaintiff was served with court attendance notices, detailing the offences, which required her attendance at the Local Court at the Downing Centre on 24 April 2019. On that day, the plaintiff appeared through a legal representative, Mr or Ms Lau, and pleaded not guilty to the offences. Directions were made for the service of the prosecution brief and a reply. The matter was stood over to 5 June 2019. On 5 June 2019, the plaintiff appeared through her legal representative, Mr or Ms Kalantar. A direction was made for reply to brief and the matter was set down for hearing on 9 August 2019 with an estimate of three hours. 3. On 24 July 2019 the plaintiff applied to vacate the hearing on the basis that she had a serious health issue which required surgery. The Deputy Chief Magistrate refused the application on the basis that there was no evidence to support the application. On 1 August 2019 the Deputy Chief Magistrate again refused the adjournment on the basis that medical evidence was required to substantiate the allegation. On 5 August 2019 the plaintiff provided medical evidence which led to the hearing of the matter being adjourned from 9 August 2019 (the expiry date of the plaintiff's incapacity, according to the medical certificate she had provided) to 13 August 2019. The plaintiff applied for another adjournment to prepare for the hearing. This was declined on the basis of the time that had elapsed since the plaintiff was charged and the brief served. None of the decisions relating to adjournment was made by Milledge LCM. The substantive hearing 1. On 13 August 2019, the hearing of the matter was listed before Milledge LCM. On that day the plaintiff appeared in person. She did not apply for the matter to be adjourned. Although the plaintiff raised with the magistrate that the matter had been adjourned from 9 August 2019, she confirmed that she did not want another adjournment, notwithstanding her medical issues. 2. The police prosecutor called the first witness, Ms Ha, a counter clerk at the Supreme Court. In the course of Ms Ha's evidence in chief, the plaintiff took exception to someone sitting in the public gallery. The magistrate refused to require the person either to identify herself or to leave the court room. Subsequently, the plaintiff absented herself from the court on the basis of the person remaining in court. As the plaintiff had not returned by the time Ms Ha's evidence in chief concluded, there was no cross-examination and Ms Ha was excused. The prosecutor also called Ms Shevlin, a team leader in the Registry of the Supreme Court. As the plaintiff had not returned by the time Ms Shevlin's evidence in chief concluded, there was no cross-examination and Ms Shevlin was excused. Mr Riznyczok, the Registrar of the Court of Appeal, and Ms Kenna, the Prothonotary of the Supreme Court, also gave evidence at a time when the plaintiff was not in court and were, accordingly, not cross-examined. They were excused at the conclusion of their evidence in chief. 3. The prosecutor's next witness was the informant, Constable Chapman. After she had started her evidence in chief, the plaintiff returned to the court room. At the conclusion of Ms Chapman's evidence in chief, the magistrate asked the plaintiff whether she wished to cross-examine her, to which the plaintiff answered in the negative. 4. The magistrate found that there was a case to answer. The plaintiff chose not to give evidence in her defence. The magistrate called on the plaintiff to make submissions. She made submissions orally and in writing. The written submissions had been prepared by the plaintiff in advance and were provided to the magistrate at the conclusion of the evidence. The fact that the plaintiff had prepared written submissions for the magistrate is consistent with her desire to conduct the hearing on her own behalf and her readiness to do so on 13 August 2019. 5. At the conclusion of the plaintiff's submissions, the magistrate indicated that she did not want to hear from the police prosecutor and observed that the plaintiff was unrepresented. Her Honour gave ex tempore reasons for finding the plaintiff guilty of both offences. The orders for conviction were made and entered on that day. The plaintiff expressed a wish for legal representation on sentence. The magistrate stood the matter over for sentence on 1 October 2019. The dates after conviction 1. On 1 October 2019, the plaintiff did not attend Court. She was represented by Mr Maspero, who announced his appearance as agent for Ms Tambyrajah, who had apparently accepted the brief but could not appear due to a personal commitment. The magistrate adjourned the matter for sentence to 2 October 2019. On that day, the court was informed by a representative from the Legal Aid Commission, Mr Warr, that the plaintiff had a grant of legal aid but that her solicitor had withdrawn. A further adjournment was sought. The matter was adjourned to 4 October 2019. On that day, Mr Warr informed the court that the plaintiff was in Melbourne. He suggested that the court exercise its power to convict and fine her in her absence pursuant to s 25 of the Crimes (Sentencing Procedure) Act 1999 (NSW). I note that s 25 prohibits the Local Court from making certain orders (such as an order imposing a sentence of imprisonment) in the absence of an offender. At the conclusion of the hearing on 4 October 2019, the magistrate issued a warrant for the plaintiff's arrest pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act. The plaintiff's appeal to the District Court 1. The plaintiff attempted to appeal to the District Court against her convictions. On 10 October 2019 Syme DCJ struck out the appeal as incompetent because, although an appeal as of right lies to the District Court from a conviction in the Local Court, such an appeal may not be brought until after sentence has been imposed by the Local Court: s 11(2) of the Act. The plaintiff's application for annulment of her convictions in the Local Court 1. On 30 October 2019 the plaintiff, through her legal representative, Mr Digges, filed an application in the Local Court for annulment of her convictions pursuant to s 4(1A) of the Act. 2. Section 4 of the Act relevantly provides: "4 Applications to Local Court (1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held. (1A) An application may be made by the defendant or by the prosecutor. However, an application by the defendant may be made only if— (a) in the case of an application for an annulment of a conviction—the defendant was not in appearance before the Local Court when the conviction was made… 1. The plaintiff's application for annulment came before Milledge LCM on 1 November 2019. Mr Digges appeared for the plaintiff, who was not present in Court. He had been allocated the matter by the Legal Aid Commission but was not familiar with the facts and circumstances and did not appreciate that the plaintiff had been convicted after a hearing in her presence. The magistrate informed him of these matters and dismissed the application on the basis that s 4(1A) of the Act did not apply as the plaintiff was present for the hearing which resulted in the convictions. Her Honour granted Mr Digges access to the court file in order that he could acquaint himself with the procedural history of the matter. The plaintiff's appeal to the District Court 1. On 5 December 2019, the plaintiff appealed to the District Court against the dismissal of the annulment. When the matter came before Hunt DCJ on 11 December 2019, his Honour dismissed it on the grounds that he had no jurisdiction to hear it. The plaintiff's judicial review proceedings in the Court of Appeal 1. On 6 March 2020, the plaintiff filed a summons in the Court of Appeal seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) against the decision of Hunt DCJ to dismiss her appeal. 2. On 19 November 2018 Fagan J made orders in respect of the plaintiff under the Vexatious Proceedings Act 2008 (NSW), the effect of which was that she was prohibited from commencing or prosecuting proceedings, other than criminal proceedings, without leave. On 18 May 2020, Bell P held that proceedings under s 69 were not criminal proceedings and that the effect of this ruling was that the proceedings filed in the Court of Appeal were taken to have been dismissed by reason of s 13(3) of the Vexatious Proceedings Act: Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 at [71]. 3. The plaintiff's proceeding in this Court is, however, a criminal proceeding, within the meaning of s 8(9) of the Vexatious Proceedings Act. Accordingly, she does not require leave under the Vexatious Proceedings Act to commence or prosecute them. Section 78B of the Judiciary Act 1903 (Cth) 1. The principal basis on which the plaintiff sought an adjournment of these proceedings was that the proceedings involved a question arising under the Constitution or its interpretation within the meaning of s 78B of the Judiciary Act. If there was an issue falling within that provision, I would be obliged, by reason of the terms of the provision, to adjourn the matter. 2. The plaintiff refused to identify the basis on which she contended that s 78B applied. Accordingly, for the purposes of determining whether such an issue arose, I had regard to the s 78B notice and the plaintiff's application for removal to the High Court, which was attached to an email sent to this Court. The two documents were marked for identification. The gist of the plaintiff's submissions contained in these two documents was that the right to legal representation under Article 14 of the International Covenant on Civil and Political Rights (ICCPR) amounted to a right under the Australian Constitution to be legally represented at a criminal hearing. It was not necessary to hear from Ms McEwen, who appeared on behalf of the defendant on the s 78B issue. Accordingly, I found that the proceedings did not involve a matter arising out of the Constitution or involving its interpretation within the meaning of s 78B and gave ex tempore reasons for this finding: Kostov v Commissioner of Police [2020] NSWSC 678. 3. As I was delivering ex tempore reasons on the plaintiff's application that the proceedings had to be adjourned by reason of s 78B of the Judiciary Act, the plaintiff chose to disconnect from the virtual courtroom. I adjourned the court so that my staff could communicate with the plaintiff to ask her to reconnect with the virtual courtroom in order that the matter could continue. 4. At 11.38am the plaintiff, before she had received any communication from my Associate, wrote the following email to my Associate: "I refer to this matter. Please note, I asked Her Honour a fair request, to allow me to Reply to the Submission provided this morning on 78B. In light of the fact I have a family member in palliative care as of yesterday, I am in no position, to run this matter. Please allow myself, to make the submission by end of business today, I have no computer, to do this. Thank you." 1. My Associate sent two further emails to the plaintiff, the first at 11.44am, asking her to dial back into the court so that the matter could proceed, and the second at 11.49am saying: "Justice Adamson has asked me to remind you that if you fail to dial back in[,] the Court may make orders in your absence." 1. Notwithstanding these emails, the plaintiff chose to absent herself from the hearing. 2. The plaintiff chose not to remain in, or return to, the virtual courtroom to press her application for adjournment on any other basis. In these circumstances, the remaining bases need not be determined. Her decision not to participate in the hearing does not prevent the further conduct of the proceedings, which will be addressed below. The further conduct of the proceedings in this Court 1. Ms Curry, who appeared on behalf of the Commissioner on all issues other than the s 78B issue, submitted that it would be open to me to dismiss the proceedings under s 55 of the Act, without addressing the merits of the matters raised by the summons. I am not persuaded that this would be an appropriate course. Both parties have filed detailed written submissions as directed by the Registrar. These submissions have been reproduced in the appeal book which has been provided to the Court for the purpose of the substantive hearing. I proposed to Ms Curry (the plaintiff having absented herself by this time) that I would determine the matter on the papers. Ms Curry did not seek to be heard against this course. The orders sought in the summons 1. The plaintiff requires an extension of time to appeal and leave to appeal. She seeks an order setting aside the convictions and an order remitting the matter to the Local Court for determination according to law. As the extension of time is not opposed by the defendant, I propose to grant the extension as sought. I consider that the delay is adequately explained by the matters referred to above, which indicate the proceedings taken by the plaintiff in the District Court and the Court of Appeal in the period between the material date and the filing of the summons. The grounds of appeal 1. The grounds in the summons are as follows: "1 Her Honour Magistrate Milledge, made an error of law, in hearing Prosecution evidence, in the Plaintiff's absence, and making a conviction based on such untested evidence heard in the Plaintiffs absence; 2 It was an error of law, for Magistrate Milledge to use Section 196 of the Criminal Procedure Act, to hear and determine a matter, whereby the Plaintiff, was unrepresented, unwell, and was not given the opportunity to challenge prosecution evidence; 3 It was an error of law, for Magistrate Milledge to find, the Plaintiff guilty of using false instrument, to obtain financial benefit, where, the Plaintiff, nor a legal representative, heard, Prosecution evidence being delivered; 4 It was an error of law, for Magistrate Milledge, to refuse, a Section 4 Annulment, of the conviction made, in the Plaintiff's absence, and an error of law, and conflict, that such, was heard, by Magistrate Milledge, who was biased in these proceedings; 5 The Plaintiff has been subjected to gross injustice and procedural unfairness due to the errors of law in (1) to (3) above, and therefore the Plaintiff submits that Leave should be granted to allow this appeal, and the conviction made in the Plaintiffs' absence should be quashed, and a Re-Hearing ordered." 1. In substance, the plaintiff's grounds turn on the conduct of the hearing in the Court below. They raise a number of issues, including the following: 1. whether findings can be made on the basis of evidence of witnesses who were not cross-examined; 2. whether an accused is required to be represented by a lawyer or whether he or she can appear in person; 3. whether an accused who chooses to absent him- or herself from proceedings during those proceedings ought be taken to be present or absent for the purposes of s 4 of the Act and s 196 of the Criminal Procedure Act 1986 (NSW). Relevant legislation 1. The Act provides for applications for annulment of convictions. Section 4, which limits the entitlement of a defendant to apply for such an order (to circumstances where the defendant was not in appearance when the conviction was made) has already been set out above. Section 8 of the Act 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." 1. The Criminal Procedure Act makes provision for appearances and the conduct of criminal proceedings. Of present relevance, s 3(1) defines "accused person" as follows: "accused person includes, in relation to summary offences, a defendant and, in relation to all offences (where the subject-matter or context allows or requires), an Australian legal practitioner representing an accused person." 1. Part 3 of the Criminal Procedure Act (which includes ss 36, 37 and 38) deals with criminal proceedings generally, including those within the summary jurisdiction of the Local Court: s 28(1). Section 36 relevantly provides that an accused person may appear personally or by an Australian legal practitioner. Section 37(2) relevantly provides that an accused person's case may be conducted by the accused person or by the accused person's Australian legal practitioner. Section 38 provides: "38 Hearing procedures to be as for Supreme Court In any proceedings for an offence (other than in the Supreme Court for an indictable offence), the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence." 1. Section 192 of the Criminal Procedure Act provides: "192 Procedures where both parties present (1) If both the accused person and the prosecutor are present at the day, time and place set for the hearing and determination of proceedings for an offence (including a day to which the hearing has been adjourned) the court must proceed to hear and determine the matter. (2) The court must state the substance of the offence to the accused person and ask the accused person if the accused person pleads guilty or not guilty. (3) Instead of hearing and determining the matter, the court may, if it thinks that the matter should not proceed on the specified day, adjourn the hearing to another day for mention or hearing." 1. Section 194 of the Criminal Procedure Act provides: "194 Procedure if offence not admitted (1) If the accused person pleads not guilty or fails or refuses to make a plea or the court does not accept the accused person's guilty plea, the court must proceed to hear and determine the matter. (2) The court must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person." 1. Section 195 of the Criminal Procedure Act relevantly provides: "195 How evidence is taken (1) A prosecutor may give evidence and may examine and cross-examine the witnesses giving evidence for the prosecution or the accused person, respectively. (2) An accused person may make full answer and defence. An accused person may give evidence and may examine and cross-examine the witnesses giving evidence for the accused person or the prosecution, respectively. …" 1. Section 196 of the Criminal Procedure Act relevantly provides: "196 Procedure if accused person not present (1) If the accused person is not present at the day, time and place set for the hearing and determination of the matter (including a day to which the hearing has been adjourned), the court may proceed to hear and determine the matter in the absence of the accused person in accordance with this Division. … (3) The court may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the date, time and place of the hearing. …" 1. Section 202 of the Criminal Procedure Act relevantly provides: "202 Determination by court (1) The court must determine summary proceedings after hearing the accused person, prosecutor, witnesses and evidence in accordance with this Act. (2) The court may determine the matter by convicting the accused person or making an order as to the accused person, or by dismissing the matter. (3) In the case of a matter heard in the absence of the accused person, the court may adjourn the proceedings to enable the accused person to appear or be brought before the court for sentencing. Note. Section 25 of the Crimes (Sentencing Procedure) Act 1999 provides for the issue of warrants of arrest for absent defendants so that they may be brought before the Court for sentencing. Section 62 of that Act also provides for the issue of warrants of commitment after sentencing." Consideration 1. As the narrative set out above demonstrates, the plaintiff appeared by her legal representative on 24 April 2019 and 5 June 2019, as she was entitled to do. The effect of ss 3 and 36 of the Criminal Procedure Act is that the plaintiff was before the court on these occasions: McKellar v DPP [2014] NSWSC 459. 2. On 13 August 2019, the plaintiff appeared before the Court below in person as she was entitled to do under s 36 of the Criminal Procedure Act. She was entitled to conduct the proceedings herself under s 37(2) of the Criminal Procedure Act. There was a corresponding obligation imposed on the magistrate to hear and determine the proceedings on that day: s 192 of the Criminal Procedure Act. I note that the plaintiff did not apply to have the proceedings adjourned on 13 August 2019. 3. When the plaintiff chose to leave the courtroom on 13 August 2019, she did not thereby become other than "present" for the purposes of s 192 since she was present "at the day, time and place set for the hearing". Thus, s 196 of the Criminal Procedure Act had no application to her with respect to the hearing on 13 August 2019. There was no denial of procedural fairness since the magistrate made it clear that she would proceed with the hearing if the plaintiff chose to leave the court room. 4. The apparent reason for the plaintiff's departure was that she took exception to a person in the public gallery remaining present in the court room. It is an important aspect of open justice that persons are entitled to come into a court room and watch proceedings without having to identify themselves. Although courts have power, in some circumstances, to make orders which affect open justice, the power to make such orders is constrained, including by the provisions of the Court Suppression and Non-publication Orders Act 2010 (NSW). Section 6 of that Act expressly provides: "6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice." 1. The plaintiff's conduct in leaving the court room for that reason did not affect the opportunity she was given to present her case, including by giving evidence and challenging the evidence of the prosecution witnesses by cross-examining them. Whether a party wishes to challenge the evidence of a witness is a matter for that party. The plaintiff chose not to challenge the evidence of any of the prosecution witnesses and indicated her choice either by leaving the court room for the evidence of such witnesses or by informing the magistrate that she did not want to cross-examine. Evidence which is unchallenged may be more comfortably accepted by the tribunal of fact. In these circumstances, ground 1 cannot be made out. 2. Ground 2 cannot be made out because it is based on the false premise that s 196 applied. For the reasons given above, s 196 was inapplicable because the plaintiff was present for the hearing, even though for some part of it she chose to leave the courtroom. 3. Ground 3 is also based on a false premise. The plaintiff was not to be treated as if she was not present merely because she chose to leave the courtroom for some parts of the proceedings. Although her own conduct had the effect that she did not hear parts of the prosecution case, she had an opportunity to hear all the evidence and challenge it if she chose to, but decided not to. In these circumstances, ground 3 cannot be made out. 4. Ground 4 is a challenge to the magistrate's refusal to annul the convictions. It is not clear how ground 4 falls within the plaintiff's appeal against her convictions, which necessarily preceded the refusal of her application for annulment. As referred to above, the basis on which the magistrate refused to annul the convictions was that s 4(1A) of the Act did not apply. The transcript in the appeal book, which is summarised above, indicated that the plaintiff returned to the court room during the evidence in chief of the informant. The plaintiff remained in the court room and made submissions on why she ought not be convicted. Following these submissions, the magistrate gave reasons and ordered the convictions. The plaintiff has not challenged the correctness of the transcript which showed that she was "in appearance before the Local Court when the conviction was made". In these circumstances, it was not open to her Honour to find other than she did: namely that s 4(1A) of the Act did not apply. Ground 4 cannot be made out, even if it were properly before this Court. I note that, as set out above, the plaintiff sought to appeal against this decision to the District Court. 5. Ground 5 makes a general allegation of gross injustice and procedural fairness and is dependent on the fate of grounds 1, 2 and 3, which have been addressed above. Procedural fairness requires that a party be given an opportunity to be heard. In the context of a criminal hearing, procedural fairness entitles a party to appear on his or her own behalf or by a legal representative, to be present throughout the hearing, to cross-examine witnesses called by the opposing party, to adduce evidence from witnesses called by the party and to make submissions. The requirements of procedural fairness are given statutory force in ss 3, 36, 37, 38, 192, 194, 195 and 202 of the Criminal Procedure Act referred to above. I am not persuaded that there is any respect in which the Court below has failed to accord procedural fairness to the plaintiff or has otherwise occasioned injustice to her. Further matters raised in the plaintiff's written submissions 1. In her written submissions, the plaintiff submitted that the magistrate erred in allowing the matter to proceed notwithstanding that she did not have legal representation. The applicable principles were enunciated by the High Court in Dietrich v The Queen (1992) 177 CLR 292 at 311 (Mason CJ and McHugh J); [1992] HCA 57 (Dietrich): "The position in Australia For the foregoing reasons, it should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused. A trial judge faced with an application for an adjournment or a stay by an unrepresented accused is therefore not bound to accede to the application in order that representation can be secured; a fortiori, the judge is not required to appoint counsel. The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge's discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained." 1. These are the principles which govern criminal hearings in Australia. International conventions do not apply of their own force in Australia and, to give rise to rights, must be implemented by local law: see the detailed summary of the relevant principles in Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 303-305 (Gummow J). Accordingly, the plaintiff cannot call in aid Article 14 of the ICCPR as being the source of a separate enforceable right. 2. When the matter was called on 13 August 2019, the plaintiff did not seek an adjournment either to obtain legal representation or on any other ground. Rather, she indicated to the magistrate that she was appearing for herself and was ready to proceed. In these circumstances, the magistrate was not required to turn her mind to the principles referred to above. The magistrate was bound to respect the plaintiff's right to appear and conduct the proceedings on her own behalf. Thus the parameters of Dietrich and whether the offences with which the plaintiff were charged were "serious crimes" as referred to in the reasons extracted above did not arise. In her written submissions in this Court, the plaintiff has raised various medical issues and reasons why the matter ought to have been adjourned. However, these matters were not indicated to the magistrate when the matter was called for hearing on 13 August 2019. Later in the proceedings, when the plaintiff left the courtroom she indicated that she did not wish to continue. In these circumstances, it was open to her Honour to continue with the proceedings. 3. The question of legal representation was raised with the Court below at the conclusion of the proceedings after the convictions had been ordered. The plaintiff indicated that she wanted an adjournment to obtain legal advice before she was sentenced. This adjournment was granted. In these circumstances, the plaintiff has not shown that the magistrate was in error. 4. The plaintiff contended in her written submissions that she was convicted in her absence on 1 October 2019. However, the Local Court "CAN Master Coversheet" and JusticeLink both record that the convictions were ordered on 13 August 2019 at the conclusion of the hearing, when the plaintiff was present in Court. It follows that the defendant is not entitled to apply for an annulment of the conviction because she was there in court when the order was made: s 4(1A)(a) of the Act. It would appear that the plaintiff's submissions are based on the misapprehension that s 8 can be read as a stand-alone provision which gives a defendant a right to apply for an annulment, irrespective of s 4(1A)(a). 5. The plaintiff also referred, in her written submissions, to a report of Dr Paisley dated 27 November 2019, which was apparently prepared at the request of the Legal Aid Commission pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The report post-dated the orders made by the magistrate which are the subject of challenge in this Court. Accordingly, they are not germane to the appeal. 6. The plaintiff sought to raise the alleged circumstance that the Attorney-General of New South Wales had, on 21 May 2019, filed a notice of motion to have the plaintiff declared legally incapable. The motion was filed in proceedings 2019/2669 brought by the plaintiff in the Court of Appeal against the State of New South Wales and the Attorney-General for New South Wales. This is not a matter that arises in these proceedings, to which the Attorney-General is not a party. Conclusion 1. I am not persuaded that any of the grounds raised by the plaintiff have been made out. To the extent to which they raise a question of law alone the plaintiff does not require leave: s 52 of the Act. To the extent to which questions of mixed law and fact or questions of fact are raised, leave is required: s 53 of the Act. Each of the grounds in the summons raises a question of fact or a question of mixed law and fact which means that leave is required. For the reasons given above, I am not persuaded that any of the grounds, if leave to appeal were granted, would be made out. Each appears to have been based on a misapprehension of the effect of the Criminal Procedure Act and the principles associated with the adversarial system outlined above. In these circumstances, I am not persuaded that a grant of leave is warranted. Costs 1. I did not understand the defendant to seek the costs of the proceedings. In these circumstances, it is not necessary to address the question of costs. Orders 1. For the reasons set out above, I make the following orders: 1. Substitute the Commissioner of Police, NSW Police Force, for NSW Police as the defendant in the proceedings. 2. Extend the time within which the summons is to be filed to 20 February 2020. 3. Refuse leave to appeal. 4. Otherwise dismiss the summons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2020