R v Parker [2012] NSWDC 259

District Court New South Wales

Medium Neutral Citation: R v Parker [2012] NSWDC 259 Hearing dates: 11 September 2012 Decision date: 11 September 2012 Before: Berman SC DCJ Decision: Application is granted and the matter is remitted to the Local Court for hearing Catchwords: CRIMINAL LAW - Annulment application - Conviction entered in absence - Misadventure Legislation Cited: Crimes (Appeal and Review) Act Category: Procedural and other rulings Parties: The Crown Todd Parker Representation: Director of Public Prosecutions - Respondent Legal Aid Commission - Applicant File Number(s): 2011/192962

Judgment 1HIS HONOUR: The matter of Todd Parker ultimately comes down to whether Mr Parker should be entitled to have a conviction entered in his absence annulled, but it is a rather complicated matter involving a great deal of confusion. Ultimately, however, it comes down to an interpretation of s 8(2) of the Crimes (Appeal and Review) Act. 2The magistrate who dismissed Mr Parker's application on 25 May 2012 implicitly prefers one view of that, but I prefer another. 3A brief history of this matter is as follows. Mr Parker was charged. He was late getting to court when his matter was listed for hearing, but not unreasonably so. When his matter was called on, however, it appears that he was in conference with the duty barrister and so neither he nor the duty barrister heard his name being called. In those circumstances the magistrate dealing with the matter that day quite appropriately formed the view that Mr Parker had simply not turned up at court and convicted him in his absence. Thereafter matters went awry. 4Of particular importance to Deputy Chief Magistrate Mottley was this circumstance, Mr Parker made a s 4 application but then withdrew it, apparently upon receiving indication from the prosecutor that he was unlikely to receive a custodial sentence. He then requested the matter proceed to sentence and much to his surprise, no doubt, he did receive a custodial sentence. It was in those circumstances that Mr Parker made a further application under s 4, that being the one being dismissed by Deputy Chief Magistrate Mottley on 25 May. 5Of course that further application could only be made with the leave of the Court. It is not entirely clear whether that leave was granted, but the order made by her Honour was to refuse "this application." I take that to be the s 4 application and it is, therefore, implicit in that that her Honour had granted leave to Mr Parker to make that application. Thus what is the subject of appeal to this court is not an order refusing leave to bring the application, but an order refusing the application itself. 6The starting point to unravel this mess, (and I confess it is a mess that I may have had some part in causing), is to turn to the legislation. Section 8(2)(b) of the Crimes (Appeal and Review) Act provides that the Local Court must grant an application for annulment made by the defendant if it is satisfied that the defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings. 7The matter before Deputy Chief Magistrate Mottley proceeded on the basis that Mr Parker would have no hope in the world of bringing himself under that subsection and so the only criteria considered in the Local Court was that to be found in subs (c) which requires a consideration of the interests of justice. For that her Honour considered the circumstances in which the s 4 application, the first one, was withdrawn and quite appropriately held that mere disappointment in a sentence is not justification for annulling a conviction. However, as I began these remarks, my interpretation of subs (b) is different to her Honour's. In the course of discussions with the lawyer then appearing for Mr Parker on 25 May her Honour went through the criteria. Under s (a) she noted that he failed the criteria in subs (a) and no one has suggested that her Honour was wrong to make that finding. But she then read out subs (b) and said, "He fails on that one because he filed his s 4". Thus her Honour has found that Mr Parker was not hindered from taking action in relation to the original Local Court proceedings because he did take action in relation to those original Local Court proceedings when he filed the first s 4 application. However, despite the width of those words "taking action", in my view a person making a s 4 application is not for purposes of that section taking action in relation to the original Local Court proceedings, otherwise everyone who made a s 4 application would be automatically disqualified from bringing themselves under subs (b). The only proper way of interpreting s 8(2)(b) is to consider that "taking action in relation to the original Local Court proceedings" means defending the original Local Court proceedings or taking some other action in relation to those proceedings such as appearing on sentence. 8Thus I accept Mr Healy's basic submission to me. I do not mean that it is basic in the sense that it is not a clever one. I accept Mr Healy's submission to me as to the fundamental nature of the question I have to decide and that is, that I should look at the situation that presented itself when Mr Parker, at the Local Court, had his matter called but did not hear it being called. In my view that circumstance clearly satisfies the description as being a misadventure which prevented him from there and then going into the courtroom and defending the matter. What occurred thereafter would be relevant to questions regarding the interests of justice, but subsequent events are not relevant to the question as to whether misadventure prevented Mr Parker defending the matter, as he wished to, in the original Local Court proceedings. 9In my view, with the greatest of respect, the Deputy Chief Magistrate has focused on the wrong issue in determining the s 4 application made to her. For those reasons I grant the application and remit the matter to the Local Court for hearing. 10ADJOURNED TO WEDNESDAY 18 SEPTEMBER 2012