New South Wales Supreme Court CITATION : Damon Charles MILLER v DPP [2003] NSWSC 66 HEARING DATE(S) : 22-23/04/2002 JUDGMENT DATE : 20 February 2003 JUDGMENT OF : Dowd J DECISION : Leave to appeal refused; appeal dismissed; summons discussed with costs. CATCHWORDS : Appeal against refusal to annul conviction - interlocutory decision. Crimes Act 1900 LEGISLATION CITED : Criminal Appeal Act 1912 Justices Act 1902 Avon Downs v FCT (1949) 78 CLR 353 CASES CITED : House v R (1936) 55 CLR 499 Licul v Corney (1976) 180 CLR 213 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 PARTIES : Damon Charles Miller (Plaintiff) Director of Public Prosecutions (Defendant) FILE NUMBER(S) : SC 10604/2002 COUNSEL : D B McGovern (Plaintiff) M Buscombe (Defendant) SOLICITORS : Carroll and Associates (Plaintiff) S E O'Connor (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 20031111/97/2 FILE NUMBER(S) : LOWER COURT Syme LCM JUDICIAL OFFICER : - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DOWD J Thursday 20 February 2003 10604/2002 DAMON CHARLES MILLER v DIRECTOR of PUBLIC PROSECUTIONS JUDGMENT 1 HIS HONOUR: This is an appeal brought by the plaintiff by way of summons seeking that leave be granted to appeal a decision of Syme LCM on 13 February 2002 dismissing an application brought by the plaintiff to annul convictions pursuant to s100D of the Justices Act 1902 ("the Act") and that, in substitution of the decision appealed against, an order be made under s100K of the Act to the effect that an ex parte conviction entered against the plaintiff by Lulham LCM on 10 December 2001 be set aside. 2 I direct that the proceedings be amended to reflect the correct description of the defendant as the Director of Public Prosecutions. 3 The appeal is brought pursuant to s104 of the Act, which relevantly is in the following terms: "s104 (1) Appeals by defendants A person against whom any conviction or order was made, or sentence was imposed, by a Magistrate in summary proceedings may appeal under this Division to the Supreme Court on any of the following grounds: (a) a ground that involves a question of law alone, (b) a ground that involves a question of mixed law and fact, but only with the leave of the Supreme Court, (c) the ground that the conviction, order or sentence cannot be supported having regard to the evidence. This subsection does not apply in respect of an order that is made in relation to committal proceedings or an interlocutory order. … … (4) Appeals in relation to interlocutory orders A defendant or an informant may appeal under this Division to the Supreme Court against any interlocutory order that is made by a Magistrate in summary proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court. …" 4 Section 100D is in the following terms: "s100D (1) An application may be made by or on behalf of a person for the annulment of any of the following: (a) a conviction or an order (other than an interlocutory order) made in respect of the person by a Magistrate that was made in the absence of the person, (b) a sentence imposed on the person by a Magistrate in the absence of the person. (2) An application for an annulment of a conviction or an order made by a Magistrate or a sentence imposed by a Magistrate may also be made by or on behalf of any person who is an informant in the proceedings concerned." 5 The grounds for granting an application under s100D are set out in s100K of the Act: "s100K (1) A Local Court must grant an application if the applicant is the informant and if it is satisfied that there is just cause why the application should be granted. (2) A Local Court must grant an application if the applicant is a person other than the informant and if it is satisfied that: (a) the defendant was not aware of the relevant proceedings until the proceedings were completed or the sentence was imposed or the other action was taken, or (b) the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the relevant proceedings, or (c) having regard to the circumstances of the case, there is other just cause why the application should be granted." 6 The application to set aside the convictions arose out of the conviction by Lulham LCM on 10 December 2001 in relation to charges relating to the making and using of a false instrument whereby the plaintiff was convicted in his absence. The proceedings are quite old, the matter having been before the court on many occasions prior to 10 December 2001. There had been previous interlocutory hearings and appeals from decisions made by previous magistrates before whom aspects of the matter were heard. The matter was set down for hearing on 19 June 2001 for three days from 10 to 12 December 2001, that hearing date being confirmed on 19 November 2001 on which latter day the plaintiff was present but unrepresented. 7 On 10 December 2001 a barrister, Mr Vuletich, appeared but withdrew from the proceedings after he had unsuccessfully sought an adjournment. The matter proceeded then, on an ex parte basis, to conviction. 8 Mr Vuletich had tendered a medical certificate dated 18 September 2001 indicating that the plaintiff was unfit for work from 17 September for a period of three months. The application before Syme LCM to annul the convictions was based on a claim that the learned magistrate was obliged to grant the application to annul on the basis that the plaintiff was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the relevant proceedings, or having regard to the circumstances of the case there is other just cause why the application should be granted. 9 The grounds upon which the appeal was brought were that the magistrate misconstrued the phrase "hindered from taking action in relation to the relevant proceedings" as appears in s100K (2)(b) of the Act and that the magistrate took into account, in determining whether the evidence adduced by the plaintiff satisfied the requirements of s100K (2)(b) of the Act, a number of factual findings which were irrelevant considerations. It was further contended that the decision of the learned magistrate was so unreasonable that no one in her Worship's position could have made the decision. 10 There was a further matter ventilated before the learned magistrate as to the unavailability of Mr Clive Evatt, barrister to appear for the plaintiff, and there was evidence before the court as to his unavailability on the day of the hearing to appear for the plaintiff. Interlocutory or final decision 11 It was submitted by counsel for the plaintiff that the decision to refuse the annulment by Syme LCM was an interlocutory order and that the court should apply Licul v Corney (1976) 180 CLR 213 at 219 per Barwick CJ which held that an order must put an end to the action or proceeding between the parties. 12 An order is final even though it may be the subject of an appeal or indeed a conviction may be final even though, for instance under the Crimes Act 1900, it may be subject to an application under Pt 13A of the Crimes Act to inquire into a conviction. 13 It seems to me that an order declining to annul a conviction is not interlocutory as such as the effect of a refusal is final subject to matters such as appeal or an inquiry into conviction and therefore, notwithstanding the support by the defendant for the proposition that the order was interlocutory, I consider that one has to look at the effect of the order which is final, in effect, notwithstanding that it may be subject to an appeal. This appeal must, therefore, come within s104(1) to succeed. 14 There have been numerous decisions under s5F of the Criminal Appeal Act 1912, as to what may constitute an interlocutory order, which dealt with matters such as an application for separate trials or refusal to hear a question of fitness to be tried, or dealing with claims as to professional privilege or matters such as the exclusion of evidence or substantially all of the evidence to be led by a prosecution (see R v Bozatsis and Spanakakis (1997) 97 A Crim R 296). 15 Each of these matters has been held to be of an interlocutory nature. "Interlocutory" clearly imports a matter prior to a final order or conviction and is not, therefore, of the same nature as the order made by Syme LCM which was in the nature of a final order which had the effect of maintaining the existing conviction. If the decision had been to annul the conviction then the effect would have been to render the decision interlocutory. 16 The remaining grounds of appeal for a defendant involve appeal on the ground of law alone or a matter involving mixed law and fact but, the latter, only with the leave of this court or that the order made cannot be supported having regard to the evidence. Ground for granting applications under s100K 17 Clearly this application is on the basis of s100K (2)(b) and (c). That is: that the plaintiff was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the present proceedings or having regard to the circumstances of the case there is other just cause why the application should be granted. Plaintiff's submissions 18 It was submitted that the magistrate had a statutory obligation to grant the application if so satisfied although the magistrate's conclusion may be reviewed in terms of House v R (1936) 55 CLR 499 and that the statement of Dixon J (as he then was) in Avon Downs v FCT (1949) 78 CLR 353 at 360 applies: "It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law." 19 It is submitted that the relevant proceedings, for the purpose of s100K (2) (a) and (b), are the events which occurred on 10 December 2001. I agree with this submission. 20 It is further submitted on behalf of the plaintiff that the language used in construction of s100K (2) must be looked at as used contextually and that as a matter of general principle there must be very exceptional circumstances to justify proceeding with a trial in the absence of an accused. I do not accept that there must only be very exceptional circumstances to proceed to a trial if the accused has absented himself from a trial of which he was clearly aware. 21 It was submitted on behalf of the plaintiff that the medical evidence as to the unfitness of the plaintiff was not challenged or contradicted and that the magistrate's findings as to the various steps that the plaintiff took caused the magistrate not to be satisfied that the plaintiff was hindered by illness or other cause from taking action in relation to the relevant proceedings and that, therefore, her Worship erred in taking into account all of the circumstances prior to 10 December and not the facts which may have hindered the plaintiff on 10 December 2001. 22 It is further submitted on behalf of the plaintiff that, where a particular set of facts had, of necessity to be interpreted as coming within a statute, that a question of law will be involved in that decision and that, therefore, even excepting the primary facts found by the magistrate, the facts as found do not establish the ultimate facts of whether or not the plaintiff was within s100K (2)(b). 23 It was further submitted on behalf of the plaintiff that the conclusion by her Worship that the plaintiff's stated reason for attending the doctor on 10 December 2001 was untrue and that this misconceives Dr Bartipan's evidence and, therefore, is an error of law and that the magistrate further erred in law in concluding that the plaintiff deliberately chose to absent himself from the court on 10 December and that this analysis overlooked the evidence of Dr Bartipan. 24 It is further submitted that the finding by her Worship that the plaintiff deliberately chose not to attend was not open to her there was no evidence for so finding and that on the plaintiff's own unchallenged evidence the decision was unreasonable as to be a manifestation of legal error. The Magistrate's decision 25 An examination of her Worship's decision shows that the question of the plaintiff's credit was central to a consideration of either sub-paragraph (b) and (c) of s100K. An examination of Dr Bartipan's evidence shows that it is not necessary to reject that evidence to evaluate the evidence of the plaintiff. In the several matters enumerated by her Worship in her reasons for her judgment, it is clear that from a medical point of view her Worship's finding was that the medical evidence of Dr Bartipan substantially related only to peripheral leg swelling which was probably as a result of the plaintiff failing to take medical advice or medication as prescribed. 26 Ultimately the reasons carefully set out by her Worship in relation to each of the matters raised by the plaintiff and the question of the plaintiff's medical state, as well as the issue as to whether Mr Clive Evatt was to appear or not, that her Worship found as set out on page 19 of the judgment that the statement by the plaintiff about Mr Evatt's availability cannot stand with the evidence of Mr Rollinson the barrister who gave evidence about Mr Evatt's availability. 27 Her Worship found in her judgment on page 19 in relation to the plaintiff's evidence: "Mr Miller's evidence before the Court must be in extreme doubt and I certainly cannot accept it. It does not appear to be true. It is contradicted in many areas by his own witnesses." 28 Her Worship simply made a finding of fact on the evidence which grounded the ultimate finding under s100K (2)(b) and (c) of the Act that she was not satisfied that the plaintiff was hindered and was not satisfied that there was other just cause why the application should be granted. These findings examining the issue of credibility and the reasons upon which that credibility decision is based show that her Worship carefully considered the evidence before her and made a simple finding of fact in terms of the requirements of s100K. 29 The plaintiff's evidence having been rejected, her Worship simply made a decision that she had not been satisfied by the plaintiff, as the section required her to do. 30 It is not necessary to decide whether this appeal involves a question of law alone or mixed law and fact. There is no basis on the finding by her Worship to interfere or overturn her decision. It is clear from the thorough examination of the reasons for judgment for the order that her Worship made that there is no argument that the order cannot be supported. 31 In my view, on any basis, the appeal from the decision of Syme LCM on 13 February 2002 should be dismissed on the basis that no error has been shown by her Worship and it is not necessary to determine the question of whether there is any issue that a ground of appeal involves a question of mixed law and fact, as no ground under s104(1) has been made out by the plaintiff. 32 The plaintiff having failed in this appeal the plaintiff should pay the defendant's costs. 33 The orders, therefore, that I propose are: i. Appeal dismissed; ii. Summons dismissed; iii. Plaintiff to pay the defendant's costs of the proceedings. ********** Last Modified: 04/14/2008 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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