New South Wales District Court CITATION: Alessi, John Carlo v DPP [2008] NSWDC 146 HEARING DATE(S): 09/05/2008 EX TEMPORE JUDGMENT DATE : 9 May 2008 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Application granted; Conviction annulled; Matter remitted to Local Court at Wyong CATCHWORDS: Criminal Law - Application for Annulment of conviction - Absence of legal representative caught up in other court - adjournment sought to obtain evidence and because of absence of legal representation - appellant gtiven time to contact legal representative - failure to return to court - matter forced on in absence of appellant and legal representative - bona fide seeking to defend charge - annulment granted - remitted to Local Court LEGISLATION CITED: s.4 Crimes (Appeal and Review) Act 2001 PARTIES: Director of Public Prosecutions John Carlo Alessi FILE NUMBER(S): 2008/0005959 SOLICITORS: Mr G. Whitaker Mr G. Archer JUDGMENT HIS HONOUR: 1. On 18 March 2008, John Carlo Alessi was convicted in his absence by the presiding magistrate at the Wyong Local Court. Section 4 of the Crimes (Appeal and Review) Act 2001, gave to the appellant the right to appeal to the Local Court for the annulment of a conviction or sentence made or imposed upon him, provided that he was not in appearance before the Local Court when the conviction or sentence was made. 2. The matters before the Local Court on that day were that he had knowingly contravened a prohibition or restriction contained in an apprehended domestic violence order and that he had assaulted somebody, both of those events occurring simultaneously on 26 June 2007. 3. The matter had progressed as a defended matter on 26 February 2008. A solicitor had been instructed, Mr Archer who in fact appears in this Court was the solicitor on the record. Evidence was taken from a couple of witnesses and then it would seem the matter was stood over to 18 th March 2008. 4. On that date, Mr Archer unexpectedly found himself embarrassed in that he had obligations in the District Court in Newcastle and at the Local Court in Wyong. There was also a system failure operating in his office in that there were management restrictions upon his staff in terms of faxing documents from the office without their first being sighted by him. Consequently, his situation was not communicated by his office to the Local Court until sometime around or after eleven o'clock, no doubt coinciding with a morning tea adjournment in Newcastle. The appellant had indicated to the Court that he was not represented and was seeking an adjournment on two bases it would seem, firstly that he was seeking a triple­0 recording and secondly that his counsel was not present. 5. The Wyong Local Court, I have no doubt, is a busy court. His Honour was keen to get on with the hearing. The appellant appeared before his Honour and said that his solicitor was actually in transit, he had a small matter to attend to at the Newcastle Local Court and he was going to be at the Court within the next hour. His Honour indicated that he would wait the solicitor's attendance. Meanwhile the prosecutor had his own difficulties in that the witness whose testimony he was seeking to introduce had some personal difficulties. She had just started a new job and her employer was not happy about it. The prosecution indicated that she could have the morning off, but needed to be at work at one o'clock in Sydney. Putting to one side the fairness to the employer, no doubt the witness herself was stressed by that situation. 6. His Honour then invited the appellant to retire outside and make a phone call, no doubt thinking that that would not take long. In the event it apparently took some twenty minutes. There is evidence that matters, were interposed. Then the next thing that is recorded is, "There's no appearance of Mr Alessi anywhere in the building or outside the Court your Honour. We couldn't see him anywhere, we checked the toilets and we've called him everywhere." His Honour said, "I know you've said that you've done that and I don't disbelieve you. If you'd do it [again], I'm desperate now to get this matter on." His Honour continued, "I'm prepared to wait, I don't want to start anything else. What time would it have been when I sent Mr Alessi out to ring his lawyers?" "About twenty past", was the reply recorded. His Honour then went off the bench for five minutes. 7. His Honour then returned saying, "If Mr Archer had mentioned the matter at 9:30, he'd be lucky to be here by 11:00." 8. The prosecutor then reminded the learned Magistrate of his own personal difficulty with the witness. His Honour said, "I'm not waiting for Mr Archer". He was critical of Mr Archer for accepting the brief in the matter if he could not be here at 9 o'clock. His Honour then went off for a further five minutes to allow the search for the appellant to continue. Before he adjourned he said, "If Mr Alessi's not back then, we'll go to plan B" (whatever that is). His Honour returned, asked the court officer to give Mr Alessi another call and made the observation that he had been gone for at least twenty minutes. A further matter was interposed, his Honour yet again sought to have Mr Alessi called, observing that it had been a half an hour had passed. 9. I have not heard Mr Alessi's evidence, but I am told that it would be to the effect that he was gone for twenty minutes and that he was trying to contact his solicitor. 10. It seems to me, the adjournment of this matter must have been something in excess of thirty minutes. It may be that Mr Alessi would have some difficulty persuading me that he had remained in the close precincts of the court or immediately outside it. I do not know what telephone equipment he had access to. I do recognise that he may well have been stressed. He does not appear to me to be a gentleman who would have felt comfortable trying to run his own case. The prosecutor then continued by showing the relevant witness who had come from Sydney, a document and tendering the statement. The statement was admitted, it was noted here without objection, it is difficult to imagine who could have objected. 11. Mr Archer raises the question of procedural fairness. In view of the question of why Mr Alessi was gone for so long, I could not come to any view about whether he had been denied procedural fairness or not. But I am satisfied that he did and was intending to defend this matter, was bona fide in that intent and that events beyond his control impacted upon his ability so to do. 12. In that case it seems to me he had a good case to argue before the Magistrate on the issue of whether his application for annulment should have been upheld or granted. In the event it was not granted. Mr Archer himself indicates that he gave evidence on the application seeking to explain the situation. It may be that in everyone's concern about the situation, the fundamental proposition was overlooked, which is that the appellant bona fide was seeking to defend this case and the defence was capable of answering it. It seems to me that the administration of justice is best served by allowing that to go ahead. 13. The appellant appeals to this court, pursuant to 11A of the Crimes (Appeal and Review) Act . He has an appeal as of right. The very fact that he has an appeal as of right suggest to me that the legislature is keen that those who are bona fide in seeking to defend a matter have the opportunity so to do. This is not a case of him needing to seek leave, he has the right to appeal against the annulment provided that appeal is made within twenty­eight days. Significantly, and he should know this, not more than one appeal may be made under this section. 14. The procedure for the determination of appeals against the local Court is set out in 16A of the Crimes (Appeal and Review) Act . It provides that the application may be dismissed or it may be granted. If the application is granted, this Court must remit the matter to the Local Court and the Local Court is to deal with it under s 9 upon its return. That section requires that the Local Court must then notify each of the interested parties and must then deal with the matter afresh. 15. That has been of some concern to the Crown, particularly because the complainant and the police officer have given evidence already. In the course of the application, Mr Archer has indicated their willingness to tender in the Local Court, the transcripts of evidence of the two relevant witnesses that was taken on 26th of February. 16. That being so, the Crown now does not as I understand the Crown position, oppose the granting of this application, so it would it seem to be by consent. But in any event, for reasons I have given, it would have been granted anyway. 17. The formal orders are, the application is granted. The effect of that granting of the application is that the conviction is annulled. The matter is remitted to the Local Court pursuant to s 16A of the Crimes (Appeal and Review) Act. 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.