Willis v R [2014] NSWDC 325

District Court New South Wales

Medium Neutral Citation: Willis v R [2014] NSWDC 325 Decision date: 16 October 2014 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Appeal allowed. Catchwords: CRIMINAL LAW - annulment application - conviction entered in absence of accused - circumstances where annulment must be granted - meaning of "hindered" - whether self-induced drug intoxication could be regarded as "illness, misadventure or other cause" - interests of justice Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 8(2), 16K Cases Cited: Boulghourgian v Ryde City Council (2008) 8 DCLR (NSW) 314 Category: Principal judgment Parties: Christopher Richard Willis (Applicant) Regina (Respondent) Representation: Counsel: C Mendes (Applicant)

Solicitor: A Thomas, NSW Office of the Director of Public Prosecutions (Respondent) File Number(s): 2013/00389659 Decision under appeal Court or tribunal: Albury Local Court Date of Decision: 4 April 2014 Before: Murray LCM File Number(s): 2013/00389659

Judgment 1. Christopher Charles Willis has been charged with some very serious offences. Specifically they are assault occasioning actual bodily harm, stalking or intimidating somebody else and being armed with intent to commit an indictable offence. They all attract imprisonment as penalties. 2. Mr Willis has a criminal record which includes previous periods of imprisonment. A conviction on the current charges therefore means that a further period of imprisonment is on the cards. 3. He was charged with these offences - which are domestic violence related - when he was arrested on 31 December 2013. He spent about a week in custody before getting bail on 6 January 2014. 4. Mr Willis intended to defend the charges and they were listed for hearing on 4 April 2014. However he did not turn up on that day and was convicted in his absence. 5. Mr Willis applied to the Local Court for those convictions in his absence to be annulled. The Crimes (Appeal and Review) Act 2001 allows a person to ask the Court to annul a conviction in certain circumstances. In fact s 8(2) provides that the Local Court "must grant an application for annulment" if the Court is satisfied that the "defendant was otherwise hindered by accident, illness, misadventure or other cause from taking action in relation" to the missed hearing, or that "having regard to the circumstances of the case, it is in the interests of justice to do so." 6. Mr Willis' application came on for hearing before his Honour Magistrate Murray in the Local Court here in Albury. His Honour refused the application and Mr Willis has exercised his right to appeal to this Court against that refusal. 7. The reason given by Mr Willis for missing the hearing is that his life was in disarray between his release on bail in January and the hearing date because of his addiction to the prohibited drug ice. He had lost the bail slip which contained the date. In fact he was regularly reporting as he was required to do by the bail conditions. His father accompanied him in this. But as soon as he realised that he had missed the date, as he said, he left town. He was concerned about being arrested. He was eventually arrested and is presently in custody. 8. Ms C Mendes of counsel, who appears for Mr Willis, drew my attention to a decision of Judge Bennett SC in Boulghourgian v Ryde City Council (2008) 8 DCLR (NSW) 314. His Honour, by reference to Supreme Court authority, discussed the wide and vague words of s 8(2)(b) which refer to "accident, illness, misadventure or other cause." Judge Bennett went on to observe at [79] (325) that the Court of Appeal "has made abundantly clear" that "the legislation was not intended to produce injustice. Those accused who wish to defend the charges brought against them must be permitted to do so." His Honour went on to observe in the following paragraph that the failure of an accused "wishing to defend the charges against them to attend court, through mere oversight, should not result in a finding of guilt and conviction as a matter of course." 9. Mr A Thomas, who appears for the respondent to the appeal, the Director of Public Prosecutions, does not take issue with the question of the injustice of a person not having their case heard, but submits that this case may not be one that would fall within the "accident, illness, misadventure or other cause" provision. 10. Minds may differ over whether a disordered life brought about by self‑induced addiction to a powerful drug of addiction should qualify as a hindrance by way of illness or misadventure. I am inclined to think that it would. 11. I agree with his Honour Judge Bennett where his Honour said as [77] (324-325) by reference to the Court of Appeal, that there is a "proposition that the word 'hindered' meant something less than prevented, namely, making something more or less difficult but not impossible, or alternatively, affecting to an appreciable extent the activity in question." Self-induced drug intoxication could well be regarded as an illness or a misadventure and certainly as an "other cause." 12. I am satisfied by the explanation of Mr Willis that although his missing his court appearance was culpable in the sense that it was his own fault, it resulted from "illness, misadventure or other cause." In any event, I would also be of the opinion that "having regard to the circumstances of the case, it is in the interests of justice" to allow the application in this case. 13. For those reasons I propose to allow the appeal. 14. My formal order is this. Under 16K of the Crimes (Appeal and Review) Act 2001, I determine this appeal by granting the appeal, and I remit the matter to the Local Court. HIS HONOUR: Now they are the formal orders that I make. Was your client sentenced? MENDES: Your Honour, he has not been sentenced. HIS HONOUR: No, okay. So I don't need to-- MENDES: There was a stay-- HIS HONOUR: --I don't need to stay any sentence, okay. MENDES: No your Honour, there's only just a question with respect to bail. HIS HONOUR: Yeah. MENDES: Your Honour, bearing in mind the time, also there being other proceedings that I indicated to your Honour earlier, whether or not it's more appropriate that bail be determined on 28 October in the Local Court or whether we consider bringing an application before your Honour. If you would allow the indulgence until tomorrow morning so I can get those instructions? HIS HONOUR: I will, yeah. MENDES: Your Honour will see from the paperwork that rehabilitation to a residential - or a residential rehabilitation was something that was canvassed in those proceedings. I need to also make inquiries as to bed availability and so forth. HIS HONOUR: I guess you do, but also he's going to get another hearing date and he'll come back and defend the charges hopefully and if he's acquitted then he goes back to his residential rehab. If he's convicted, we don't know what the sentence will be but it's on the cards, as I said, that he could get a gaol term which would put an end to his participation in the course. But that's speculation. MENDES: And the intervening factor of a sentence presumably on 28 October with respect to two other matters and how that will play out. So your Honour, there are a few matters that I need to get instructions now in light of your Honour's decision. HIS HONOUR: All right. I'll hang onto the papers-- MENDES: Thank you your Honour. HIS HONOUR: --and - so what, tomorrow morning-- MENDES: Your Honour has matters listed at 9.15 or 9.30 - is it 9.30? HIS HONOUR: I'll list it at 9.30 if you like. Thanks for making that case available. I think I might direct that a transcript be taken out of my judgment as well so we can add to District Court jurisprudence on this topic. MENDES: Thank you your Honour. HIS HONOUR: All right.