Local Court New South Wales Medium Neutral Citation: NSW Police Force v Gavrilov [2015] NSWLC 6 Decision date: 29 May 2015 Jurisdiction: Criminal Before: Buscombe LCM Decision: The application is refused. Catchwords: CRIMINAL LAW - application for an annulment of a conviction and sentence pursuant to s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) - prior application for an annulment of conviction found to have been withdrawn - whether leave is required Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 8, 10, 63 Crimes (Sentencing Procedure) Act 1999 (NSW), s 25(2) Crimes Act 1914 (Cth), s 20(1)(a) Criminal Procedure Act 1986 (NSW), s 196 Evidence Act 1995 (NSW), s 144 Cases Cited: Boulghourgian v Ryde City Council (2008) 8 DCLR (NSW) 314 Miller v DPP (2004) 145 A Crim R 95 Police v Edwards [2008] NSWLC 28 Rukavina v DPP [2008] NSWDC 214 Willis v R [2014] NSWDC 325 Category: Principal judgment Parties: NSW Police Force (Prosecution) Stanislav Gavrilov (Defence) Representation: Sgt J Francis (Police Prosecutor) S.A.S Lawyers (Solicitor for the Defence) File Number(s): 2014/124866 Publication restriction: Nil JUDGMENT 1. This is an application for an annulment of a conviction and sentence by the applicant, Stanislav Gavrilov, under s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Act") ("s 4 application"). I heard the application on 15 May 2015 and stood the matter over to today, so that a sound recording of what occurred in the proceedings on 12 June 2014 might be obtained. Chronology 1. The evidence and the Court file disclose the following in relation to the history of the proceedings. 2. On 26 April 2014 the applicant was charged with offences of assault occasioning actual bodily harm and use of a carriage service that a reasonable person would regard as menacing, harassing or offensive. The offences were alleged to have occurred on 4 and 6 March 2014, respectively, and were alleged to have occurred in a domestic context. The applicant was granted police bail to appear on 19 May 2014. The bail acknowledgement form signed by the applicant provided for that court date. 3. On 19 May 2014 the applicant did not appear and was convicted in his absence under s 196 of the Criminal Procedure Act 1986 (NSW) and a warrant was issued under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"). 4. On 12 June 2014 the warrant was executed and the applicant appeared unrepresented. The matter was adjourned for sentence on 26 June 2014. On that date the applicant did not appear, however, the Court file noted that a medical certificate had been received. The proceedings were adjourned to 23 July 2014 with a notation that the registry notify the applicant of the adjourned date. 5. On 23 July 2014 the applicant failed to appear and a further warrant was issued under s 25(2) of the Sentencing Act. On 5 August 2014 the warrant was executed. The applicant appeared from custody, was represented by someone called Turner, whom the applicant said in evidence he understood was the duty solicitor. The applicant was granted bail and the Court file reveals that an application to annul the conviction entered on 19 May 2014 was filed and adjourned to 12 August 2014 so that the applicant might obtain a medical certificate. 6. The grounds contained in that s 4 application were as follows: "That the order made by the [C]ourt was made in my absence. I was hindered from attending due to accident, illness, misadventure or other circumstance. It is in the interests of justice to annul the order having regard to the following circumstances". Those grounds are part of the printed form that is available for such applications. There has been handwritten on the form the following: "Victim told me charge would be withdrawn (19/5/14). Medical certificate obtained not given to [C]ourt on time (23/7/2014)." 7. On 12 August 2014 the applicant appeared, and according to the Court file, someone by the name of Tighe appeared for him. It is well known, and a fact I take judicial notice of under s 144 of the Evidence Act 1995 (NSW) ("Evidence Act"), that a female solicitor called Ms Tighe from Legal Aid NSW frequently appeared at the Downing Centre and Central Local Court in 2014. Deputy Chief Magistrate Mottley has recorded on the Court papers "no s 4 app.", adjourned the matter for sentence on 16 September 2014, and called for the preparation of a pre-sentence report. 8. At the hearing of the s 4 application before me, a transcript of what occurred on 12 August 2014 was available although there was some controversy about its contents. At the top of the page it shows that Ms Tighe appeared for the applicant and that Sergeant Carlin appeared for the prosecution. The transcript is very short and on its face Ms Tighe played no role during the mention of the charges, and records the prosecutor telling her Honour that the applicant had instructed him to withdraw the s 4 application and requesting that her Honour order the preparation of a pre-sentence report. Everything attributed to the prosecutor in the transcript one would expect would have been said by a legal representative appearing for the applicant. Counsel for the applicant submitted that I ought not be satisfied that the applicant was in fact represented at the time the s 4 application was withdrawn. Counsel also submitted that enquiries had been made in relation to obtaining a sound recording of what occurred that day but had been unsuccessful. 9. Over the morning adjournment I had made enquiries as to how long it would take to obtain the sound recording and was told it could be obtained in three days. I decided in those circumstances not to determine the application until the sound recording had been obtained. The sound recording has now been obtained. It is clear that a female person says the words attributed to the prosecutor in the transcript. The prosecutor is shown on the transcript as Sergeant Carlin, and it is a well-known fact in this location that the sergeant is one of the police prosecutors who regularly appears at the Downing Centre. The sergeant has appeared before me on numerous occasions over the last three years. The sergeant is a male person. I propose to take judicial notice of those facts under s 144 of the Evidence Act. 10. Having now heard the sound recording of the proceedings that day and taking account of the notations on the Court file for that day, I have no doubt that the words attributed to the prosecutor in the transcript were in fact spoken by Ms Tighe, a solicitor appearing for the accused at that time. 11. On 16 September 2014 the applicant appeared for sentence before then Deputy Chief Magistrate Culver. A transcript of what occurred that day is available and it is clear that Ms Tighe did represent the applicant that day. No attempt was made to re-agitate the abandoned s 4 application and no adjournment sought for the purpose of making a fresh application. The sentence proceedings proceeded and in relation to the assault occasioning actual bodily harm charge A received a sentence of imprisonment comprising a non-parole period of 9 months with a balance of term of 3 months; i.e. a total sentence of 12 months with a non-parole period of 9 months. In relation to the use carriage service offence he was convicted and placed on a recognizance under s 20(1)(a) of the Crimes Act 1914 (Cth). 12. In support of the current application, counsel for the applicant relied upon the following statements by Ms Tighe on 16 September 2014 as showing that the applicant had always wished to defend the charge. Ms Tighe at p 1 L 48 of the transcript that day is recorded as saying in relation to an aspect of the pre-sentence report that was before the Court: "…and one thing to point out is that Mr Gavrilov originally had wanted to defend the charges, in particular the assault occasioning actual bodily harm. He missed his court date, was convicted in his absence, and then he decided to have the matter resolved and not to lodge a s 4 application in order to get the hearing date. That explains, in my submission, his attitude regarding – if I can take your Honour to p 2 – a significant change in his attitude to the offending in the final two paragraphs, 'The offender failed to take responsibility for his aggressive behaviour and he lacked insight to [sic] the impact on the victim, blaming her for his actions.' The explanation is he originally did not agree with the police facts which he is pleading to. It is not to go behind the plea now but that's an explanation as to when he's being honest and open with this author of the report, he's not fully accepting the facts of the offence." 1. On the day of the sentence, the applicant lodged an appeal to the District Court, the notice of appeal stating, "I am appealing the above sentence because the sentence is too severe". the applicant was granted bail to prosecute his appeal, hence a stay of his sentence operated: s 63 of the Act. 2. I was told by the applicant's counsel that the applicant withdrew his District Court appeal against his sentence on 20 February 2015. 3. The current application for annulment of his conviction under s 4 of the Act was filed on 9 April 2015. In that application, the applicant stated that the conviction had been made in his absence. He also stated he was unaware of the original Local Court proceeding until after it was completed. He further stated he was hindered from attending due to illness and attached two medical certificates. The application also stated that it was in the interests of justice to grant the application and referred to the transcripts of 12 August and 16 September 2014. 4. The medical certificates that were attached to the application reveal the following: There is a certificate dated 19 May 2014 which states in relation to the applicant: "He has attended for assessment of illness today". Not only did the certificate not state that he was unfit to attend court, it failed to nominate any illness that the applicant was said to be suffering from. The medical certificate provided no evidence that the applicant was hindered from attending court because of illness. 5. The second medical certificate is dated 26 June 2014 and records that the applicant "will be unable to attend court today 26/6/14 due to food poisoning". The Applicant's Evidence 1. The applicant gave evidence on the application. He said that he failed to attend Court on 19 May 2014 as he did not know about the date. He said that someone from the Court telephoned him that day, before lunch, and told him that he should obtain a medical certificate. He could not recall the name of the person who called him. He said that he did not fax the medical certificate to the Court as he did not know he should do so. In cross-examination he accepted that when charged he was probably given a court attendance notice which showed that he was required to attend Court on 19 May 2015. He said in cross-examination that he could not remember what illness he suffered from on 19 May 2015. 2. His recollection was that on 12 June 2014 he reported on bail and was arrested under the warrant that had been issued for him. He said he believed he had the medical certificate for 19 May 2014 in his possession and that the police who arrested him took it. 3. He said that he did not attend Court on 26 June 2014 as he was unwell and obtained a medical certificate which he faxed to the Court. It does appear from the Court file that the medical certificate was received by the Court that day. 4. The applicant gave evidence that he was not told of the adjourned date after 26 June 2014, made no enquiries and relied upon the Court to advise him of the adjourned date. The applicant's evidence was that he did not attend Court on 23 July 2014 as he did not know of that Court date. In cross-examination the applicant agreed that he made no enquiries of the Court as to the adjourned date after 26 June 2014. 5. The applicant said he could not recall how he came before the Court on 5 August 2014 and believed he was represented by the duty solicitor. He accepted in cross-examination that a s 4 application was lodged on his behalf on 5 August 2014. His evidence was that it was the duty solicitor who prepared the original s 4 application and that none of the writing on it was his, and he did not sign it. 6. In relation to what occurred in Court on 12 August 2014, when the Court was told that he withdrew his application under s 4 of the Act, the applicant's evidence initially was that he could not remember if he was legally represented that day, and then said "I don't think I was, No". His evidence was that he did not know Ms Tighe from Legal Aid, and that her name "did not ring a bell". 7. When asked in his evidence in chief why he withdrew his initial s 4 application, the applicant said he could not remember why. He said it was possible that he had spoken to someone at Legal Aid about it. He said in cross-examination that he recalled being in Court when the s 4 application was withdrawn, but had no recollection of what was said by anyone on 12 August 2014. 8. He agreed no attempt was made on 16 September 2014 to make a s 4 application but said he did not know he could. 9. The applicant gave evidence that another charge involving the same complainant was dismissed after hearing on 28 November 2014. 10. The applicant gave evidence that he had suffered from mental health issues in the past. In that regard two reports were tendered in support of the application. One by Dr Alex Pilsky, a consultant general and forensic psychiatrist, dated 19 June 2011 and one by Dr John Jacmon, a consultant psychologist, dated 18 January 2010. 11. In 2010, Dr Jacmon assessed the applicant as suffering from post-traumatic stress disorder, depression, anxiety and substance abuse. Dr Jacmon proposed a treatment plan to address the conditions that he had assessed the applicant to be suffering from at that time. No evidence was given as to whether or not the applicant engaged in the proposed treatment plan and whether it had assisted the treatment of his conditions. 12. In Dr Pilsky's report of 19 June 2011, he diagnosed the applicant as suffering from chronic post-traumatic stress disorder, major depression, cannabis dependence and alcohol abuse. A treatment plan was contained within his report. No evidence was given as to whether the applicant engaged in the treatment plan and, if he did, whether or not it assisted the applicant in the treatment of those conditions. The Law 1. Section 4(3) of the Act provides that, "Except by leave of the Local Court, a person may not make more than one application under this section in relation to the same matter." The provision does not expressly deal with the situation where an application is filed, withdrawn and another application is then filed and sought to be argued. During the hearing before me it was assumed that leave would be required in the current circumstances. Upon reflection, I think that assumption is incorrect. The use of the word "make" in s 4(3), in my opinion, leads to the conclusion that what is required is that an application be made and determined by the Court before leave is required for a further application to be heard. In my opinion, the simple filing of an application and the provision of a mention or hearing date does not result in an application having been made. 2. All that occurred here was that an application was filed with the Court, but that application was never made to the Court in the sense that the Court was never called upon to hear and determine the application. In my opinion, no leave was required for the application that was heard before me in these circumstances. 3. The unusual nature of the current application is highlighted by the terms of s 4(1A) of the Act. Section 4(1A) provides that an application by a defendant may only be made 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 or (b) in the case of an application for an annulment of a sentence – the defendant was not in appearance before the Local Court when the sentence was imposed." 1. Here the conviction was made on 19 May 2014 and the applicant was not present. In so far as the requirement for the exercise of the power to annul a conviction is concerned, it is present here. There is, therefore, power to annul the conviction. However, the applicant was sentenced on 16 September 2014 and was present when sentenced. There is no specific power in s 4 to annul a sentence unless a defendant was not in attendance at the time that the sentence was imposed. 2. Section 10(1) of the Act provides that, "On being annulled, a conviction or sentence ceases to have effect and any enforcement action previously taken is to be reversed". In my opinion, if a conviction is annulled under s 4, any sentence that was imposed as a consequence of that conviction is also annulled, even if the applicant was present at the time that sentence was imposed. Once a conviction ceases to have effect it must surely follow that any sentence that was imposed as a consequence of the conviction ceases to have effect. 3. To hold otherwise would produce an absurd result in my opinion. It would be absurd, for example, to hold that there was, in this case, a power to annul the conviction, and exercise it, but conclude that the sentence remained in place because s 4 did not empower the Court to annul it as the applicant was present when it was imposed. How could a person be the subject of a sentence of imprisonment without a conviction being in existence? Such an absurd result could not have been intended by the legislature in my opinion. 4. While the phrase "any enforcement action previously taken is to be reversed" does not encompass a sentence, it does demonstrate a legislative intention that upon an annulment being granted, an accused should be in the same position he or she was in prior to the recording of a conviction or the imposition of a sentence. The construction I have given to the provision is consistent with that legislative intention. Should the conviction here be annulled? 1. Where a defendant applies to annul a conviction, s 8(2) of the Act provides: "(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, or 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. Here I am not satisfied that the applicant was not aware of the Local Court proceedings until after they were completed. In relation to the recording of the conviction, the completion date is 19 May 2014, being the date the conviction was recorded. The applicant conceded in cross-examination that he was probably given a court attendance notice showing the Court date. I referred earlier to there also being a bail acknowledgment form signed by the applicant showing that date. In these circumstances I am in fact satisfied that the applicant knew of the Court date. 2. I am also not satisfied that the applicant was hindered by accident, illness, misadventure or other cause from taking action in relation to the original Local Court proceedings. I accept that in considering whether the applicant has satisfied that requirement of the provision, a liberal approach should be adopted; see Miller v DPP (2004) 145 A Crim R 95; Rukavina v DPP [2008] NSWDC 214; Boulghourgian v Ryde City Council (2008) 8 DCLR (NSW) 314 and Willis v R [2014] NSWDC 325. 3. In relation to 19 May 2014, the medical certificate for that date that has been supplied specified no illness that the applicant was said to have been suffering that prevented him from attending Court that day. The certificate, somewhat unusually, simply stated that he had attended for "assessment of illness today" and provided no indication of what illness the applicant was said to be suffering from, or why it prevented him from attending Court that day. In cross-examination, the applicant said he could not remember what illness he had been suffering from that day. There is no basis on the evidence for any finding that the applicant was too ill, or had an accident or some other misadventure that caused him not to be at Court on 19 May 2014 when the conviction was recorded. 4. I am also not satisfied that having regard to the circumstances of this case, it is in the interests of justice to grant the annulment of the conviction on 19 May 2014. At the time that the applicant withdrew his initial s 4 application he was represented by a solicitor engaged by Legal Aid NSW. The matter was adjourned for sentence on 16 September 2014 and the same solicitor appeared for the applicant. No application was made to re-agitate a s 4 application on 16 September 2014. It is a clear inference from the transcript on both days that the solicitor, in not pursuing a s 4 application, was doing so in accordance with her instructions, and advised the Court that the applicant had decided not to proceed with his s 4 application. The applicant gave no evidence to suggest that the solicitor did not act in accordance with his instructions, and the solicitor was not called. I find that the solicitor, in acting in the manner in which she did, was acting in accordance with the applicant's instructions. 5. It is now more than a year since the allegations were made and the convictions were recorded. The applicant has served a significant part of the sentence that was imposed on him. 6. Both at the time of the withdrawal of the initial s 4 application and the sentence, the applicant was legally represented. It appears that he now seeks to have the conviction annulled and to defend the matter as he has very belatedly reconsidered his decision to abandon his original s 4 application. 7. The phrase "interests of justice" should be construed widely, and is not only concerned with the interest of an accused. There are the interests of the complainant and the prosecution to consider, as well as the interest of the community generally in having allegations of domestic violence heard at the earliest opportunity. Delays in the hearing of cases can impact adversely on all interested parties to the proceedings. 8. While I accept that the provision is to be applied in a non-restrictive way, in my view it cannot be said in these circumstances that it is in the interests of justice to grant the annulment. 9. In circumstances where an accused was legally represented at the time a s 4 application was withdrawn and at sentence, and where I am satisfied that in withdrawing the original s 4 application and not re-agitating it prior to sentence the solicitor was acting in accordance with instructions, in my opinion it would bring the justice system into disrepute to hold that the interests of justice required the application to be granted. 10. I note that it has been held that the ground in s 8(2)(c) of the Act should be given an interpretation which limits its scope to the circumstances which caused the applicant's non-appearance: Police v Edwards [2008] NSWLC 28. I was not addressed in relation to the construction adopted in that decision and find it unnecessary to express a view as to its correctness. 11. For these reasons the application is refused. Buscombe LCM The Local Court Downing Centre (Sydney) 29 May 2015 ******** 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: 20 July 2015