McKENZIE, Cecil James v R [2010] NSWDC 78

New South Wales District Court

CITATION: McKENZIE, Cecil James v R [2010] NSWDC 78

HEARING DATE(S): 8 February 2010 17 February 2010

JUDGMENT DATE: 11 May 2010

JURISDICTION: Criminal

JUDGMENT OF: Bennett SC DCJ at 1

DECISION: No jurisdiction. Matters to be returned to the Local Court

CATCHWORDS: CRIME – Appeal to District Court against conviction – leave granted to convert to appeal against refusal by Magistrate to grant annulment application under s 4 Crimes (Appeal and Review) Act 2001 – whether Magistrate had granted leave to make the application under s 4(3) – whether Magistrate had considered and determined the application – lack of evidence of proceedings in Local Court – whether District Court had jurisdiction – no jurisdiction

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Justices Act 1902

CASES CITED: DPP v Goben [1999] NSWSC 696 Miller v DPP [2004] NSWCA 90

PARTIES: McKENZIE, Cecil James RTA

FILE NUMBER(S): 2009/97539; 2009/172399; 2009/123371

SOLICITORS: Mr Heinrich (Appellant) Mr Eurell (RTA)

IN THE DISTRICT COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION

2009/97539; 2009/172399; 2009/123371

BENNETT SC DCJ

Tuesday 11 May 2010

McKENZIE, Cecil James v R

APPEAL AGAINST THE LOCAL COURT'S REFUSAL OF APPLICATION FOR ANNULMENT OF CONVICTION

Introduction

1 These matters came to the District Court initially as appeals from convictions Cecil James McKenzie suffered in his absence upon a prosecution brought by the Roads and Traffic Authority for alleged offences in his work as a truck driver. Ultimately it was acknowledged that there was no jurisdiction available to the court to entertain the proceedings. When the proceedings were last before me on 17 February 2010 I stood them over generally so that I might give further consideration the question and publish my judgement.

The Proceedings in the District Court

2 The proceedings were first listed in the District Court, Goulburn on 9 November 2009 for mention from whence they were adjourned to 23 November 2009 to fix a hearing date. They were then listed for hearing on 27 November 2009 with a half hour estimate. The file note records the matter as an all grounds appeal, and an annulment application. Apart from the confusion in so describing the proceedings, if this were to be an appeal from the convictions the jurisdiction given to this court in s 11 of the Crimes (Appeal and Review) Act 2001 is to hear and determine appeals from conviction, or from sentence, or both. The term "all grounds appeals" is no longer of application. Moreover, there is no jurisdiction in this court to grant an annulment application. If an appeal from a failure to grant an application is successful, the proceedings must be remitted to the Local Court to be deal with under section 9 of the Act: ss 11A & 16A, Crimes (Appeal and Review) Act.

3 On 25 November 2009 a solicitor appeared for Mr McKenzie and with the consent of the solicitor for the Roads and Traffic Authority sought that the matter be vacated from the list and adjourned to the sittings commencing on 1 February 2010. This was granted. I was due to commence those sittings on that day but was delayed until 5 February 2010 because of a trial in Sydney that ran beyond its estimate. The proceedings were mentioned before the Registrar in the interim and after further mentions were ultimately listed for hearing before me on 8 February 2010. On that date the hearing was further adjourned to 17 February 2010 with an indication that there was an issue about whether Mr McKenzie could pursue an appeal since there was a period of more than 3 months between the time when the magistrate heard and determined the matters and when the notices of appeal were filed: s 13 Crimes (Appeal and Review) Act.

4 On 17 February 2010 a Notice of Motion to amend the notices of appeal and an affidavit sworn by Mr McKenzie on 17 February 2010 were filed in court with leave and with the consent of the prosecution. Upon that material, pursuant to section 62 of the Crimes (Appeal and Review) Act, I allowed amendment of the notices of appeal to be read as, Appeal Against the Local Court's Refusal of Application for Annulment of Conviction.

5 Documents drawn from the court file were assembled and marked Exhibit A. I have reviewed further documents from the court file that were not included in the tender for further guidance upon what occurred in the Local Court proceedings. Documents held in the file include those exhibited before the Magistrate on 26 June 2009 and Mr McKenzie's driving history. Those documents are not relevant to the question with which I am concerned and I have put them to one side without reading their content.

6 There is also a Cover Log Sheet for the proceedings on 26 June 2009, with particulars of witnesses called and the exhibits tendered, according to which the proceedings were sound recorded and were of 40 minutes duration. There is also a case enquiry print out from the Local Court information system showing the history of the proceedings.

7 The concession by the parties that there was no jurisdiction in the court to hear appeals from the Magistrate's decisions was upon the premise that her Honour had rejected a second application for annulment of the convictions without having first given any consideration to whether Mr McKenzie should have leave to pursue that course. The proceedings were adjourned so that I might publish my judgement, and I now do so.

The Proceedings in the Local Court

8 Mr McKenzie was charged with four offences; 1. Drive whilst licence suspended; 2. Failure to proceed to a weighbridge; 3. Failure to record information in his driver log book; and 4. Failure to record particulars of his change of activity in his logbook.

9 Included in the material tendered is the Court Attendance Notice cover sheet in which Mr McKenzie is identified as the defendant. According to that document the proceedings were first in the Local Court on 16 January 2009. There was no appearance by the defendant, but in the column beneath that date there are the words, Message. for adjournment. [sic]

10 No plea was entered and the entry records that the matter was adjourned upon the application of the defendant.

11 The next date was 13 February 2009. The defendant did not appear and was convicted in his absence. The case enquiry printout also records the imposition of penalties on 13 February 2009 in addition to the convictions.

12 Included in Exhibit A is an Application to the Local Court filed at Griffith on 19 February 2009 asking that the convictions of 13 February 2009 be annulled. The grounds asserted were that Mr McKenzie believed the matter was for hearing on 16 February 2009, and, that he was ill with flu on and from 12 February 2009 and unable to attend on 16 February 2009. He claimed that he telephoned the court on that day to tell them that he was ill and was told that the court dealt with the matter in his absence.

13 The next date on the Court Attendance Notice cover sheet is 27 February 2009 but what the entry beneath intends is not entirely clear. Above the date are the words, ANNULMENT APPLICATION

14 Beneath it is noted that there is no appearance by the defendant, but a representative named Gore appears in place of Mr Heinrich. There is a blacked out portion immediately in front of the word "guilty" in the section dealing with the plea. The entry represents that the matter was adjourned to 17 April 2009, and beneath that there appear the words, ANNULMENT Application granted. ORDER MADE 13/2/09 ANNULLED

15 Beneath those entries is another blacked out section and immediately beneath that the words, For Sentence

16 In the case enquiry entries for 27 February 2009, of which there are three, it is noted that there was a guilty plea. The brevity of the entries is less than enlightening. They are in the following terms, APPEARANCES: No Appearance of Defendant: Defendant Represented Deft Present - Guilty Magistrate: 252 – Magistrate BEATTIE ADJOURNMENT: Adjourned to Local Court on 17/04/2009 at 09:30 am for Sentence Annulment FULLY GRANTED

17 The column entry in the court attendance notice coversheet and the case enquiry printout for that date, read together, appear to represent that there was an appearance by a solicitor, who I believe was Ms Gore from a firm in Goulburn in which she and Mr Heinrich are principals, but in the absence of the defendant at least for some period of time during which the matters were being dealt with. The application for annulment of the earlier conviction was granted, and the matter adjourned to 17 April 2009 for sentence upon a plea of guilty being entered on behalf of the defendant or indicated as the plea to be entered on the next occasion. Why that would be so in circumstances where there was an application for annulment is not clear, unless one allows for the possibility that the Magistrate was of the view that the defendant might have been seeking application of s 10 of the Crimes (Sentencing Procedure) Act 1999 upon an admission of guilt in the hope of avoiding convictions. I do not understand what was intended by the entry stating that the annulment was fully granted.

18 In the next column to the right, the date 17/4/09 appears in the first row, but there is nothing recorded in the rows beneath. The Case Enquiry entries for that date of which there are two, state rather cryptically, APPEARANCES: No appearance of Defendant Defendant Represented Deft Present – Guilty Magistrate: 252 – Magistrate BEATTIE ADJOURNMENT: Adjourned to Local Court on 26/06/2009 at 09:30 am for Sentence

19 The next date is 26 June 2009. On this occasion Mr Heinrich is shown to be the representative, but there is nothing to indicate that the defendant was present. The handwritten abbreviated notes that appear beneath require interpretation. The first appears as, lve to w/d after adj. Applic refused [sic]

20 This I have taken to mean that after Mr Heinrich unsuccessfully sought adjournment of the proceedings he withdrew. Beneath the following appears: - Proceeded ex parte - All offences proved

21 Beneath that entry there are some further notes, only portions of which I can interpret, but they appear to be in respect of the application for adjournment. I infer from what is written that there was a funeral in Victoria, and that the prosecution were advised thereof on Monday. There is a note indicating that the application was refused, and another note against the word "Pros", which I cannot decipher. To the right of this information is the note that the defendant was convicted of each offence, with particulars of the fines imposed and orders for costs, including professional costs.

22 The Case Enquiry entries for that day, of which there are two, include the following, APPEARANCES: No Appearance of Defendant Defendant [sic] Unrepresented NAD - Not Guilty Magistrate: 252 – Magistrate BEATTIE

23 The second entry records the particulars of the fines and costs ordered. The letters "NAD" probably are shorthand for the non appearance of the defendant.

24 I do not have any of the recordings of what occurred in any of the proceedings in the Local Court, or the transcripts, but the notation in the entries beneath 27 February 2009 that the defendant pleaded guilty troubles me. My understanding is that he has not ever done so. His approach to the proceedings throughout, and the attempt by Mr Heinrich to further adjourn the proceedings on 26 June 2009 do not sit comfortably with that notation. Moreover, it is apparent that on 26 June 2009 the prosecution had available witnesses and called them to give evidence, and tendered a range of exhibits in the ex parte proceedings after which Mr McKenzie was convicted. There is no explanation for the prosecution having the witnesses available if there had been a plea of guilty entered earlier, or there was an earlier indication that this would be course taken.

25 Also included in Exhibit A is an Application to the Local Court bearing the date 12/8/09, signed by John Hart, barrister, with the particulars of his telephone number. This was filed in the Local Court, Goulburn seeking an annulment of the convictions on 26 June 2009, accompanied by a handwritten letter for the attention of a person name Jodie, bearing the date 11-8-09, and the defendant's signature. This represents that it is a brief note from him, and refers to a phone conversation regarding a "Section 4 application". It then offers reasons for the matter to be re-listed as the death of a close family member in Victoria, and his attendance at the funeral on the "final court hearing date".

26 The notice includes the representation, apparently by Mr Hart, that Mr McKenzie is illiterate and that he obtained a friend to write the accompanying letter for him.

27 The Case Enquiry entries for 30/06/09 and 13/08/09 refer to the lodgement of the application for annulment.

28 The next sequence of documents in Exhibit A are the four Notices of Appeal from convictions for these offences in respect of orders said to have been made on 16 October 2009. These were filed on 16 October 2009. The Notice of Listing specifies the orders to have been made on 20 October 2009. I have no explanation for that anomaly.

29 I have no record of any proceedings before the Magistrate on 16 October 2009.

The Appellant's Evidence

30 In his affidavit Mr McKenzie advances the following: 1. He is illiterate. 2. He is not guilty of the charges. 3. He did not appear in court on 26 June 2009 because of the funeral of a close family member in Victoria. 4. He lodged an annulment application on 12 August 2009 against the convictions of 26 June 2009. 5. The application was listed for mention on 18 September 2009. Mr John Hart, barrister, advised him to attend court and obtain a date for the hearing of the application. He did so and the date appointed was 16 October 2009. 6. On 16 October 2009 the Magistrate rejected the application for annulment, after which he attended the office and advised a member of staff that he wished to appeal. When asked what he was appealing he responded, The Magistrate's decision cause I'm not guilty. 7. The staff member filled out papers and he signed them and then left. 8. His belief was that he was appealing from the decision not to grant the annulment.

31 Upon this evidence Mr McKenzie was permitted to amend the Notices of Appeal to appeals against the Local Court's refusal for annulment of conviction. The date when the application was refused by the Local Court was not specified in Notice of Motion, but when read with the Notices of Appeal of which amendment was sought it is apparent that 16 October 2009 was the relevant date. As noted earlier, I have no record of any proceedings before the Magistrate on that date, and the last entry in the Case Enquiry printout is against the date 13/08/09.

32 These various documents and provide the following chronology of events in the Local Court.

DATE EVENT 16 January 2009 The proceedings were first in the Local Court and were adjourned to 13 February 2009. 13 February 2009 Mr McKenzie was convicted in his absence. Penalties were ordered. 19 February 2009 Application for the annulment of the convictions lodged. 27 February 2009 Annulment application granted. Proceedings adjourned for sentence on 17 April 2009. 17 April 2009 Adjourned for sentence to 26 June 2009 26 June 2009 The proceedings continued in the absence of Mr McKenzie, after a failed application for an adjournment by his solicitor who then withdrew. Evidence was called from the prosecution witnesses and exhibits were tendered. Convictions followed, and penalties and costs ordered. 12 August 2009 Application for annulment of convictions of 26 June 2009 filed. 18 September 2009 Mr McKenzie has sworn that he attended court on this day, upon the advice of his counsel, and arranged for the application to be adjourned for hearing on 16 October 2009. 16 October 2009 Notices of Appeal. Mr McKenzie has sworn that he attended court on that day but the Magistrate refused his application for annulment, whereupon he went to the registry to lodge appeals, relying upon the assistance given by a staff member working at the counter

Consideration

33 The last entry in the Case Enquiry printout is against the date 13/08/09. There is no record in that of a magistrate having considered the application for annulment. There is no record before me of any proceedings in respect of this matter before a magistrate on that date apart from the evidence of Mr McKenzie by way of his affidavit. However, accepting that Mr McKenzie has been truthful and accurate in his assertions, the position may be summarised in terms that he suffered convictions in his absence on 13 February 2009, he lodged an application for annulment on 19 February 2009 granted on the 27 February 2009, after which the proceedings were adjourned for sentence on 17 April 2009, and then adjourned once more for sentence to 26 June 2009, perhaps upon the premise of guilty pleas entered or indicated after the annulment was granted. On 26 June 2006 after an unsuccessful application for further adjournment made by Mr McKenzie's solicitor in his absence, he withdrew and the hearing proceeded over a period of 40 minutes during which the prosecution called witnesses and tendered exhibits. A further application for annulment was lodged on 12 August 2009, returnable on 18 September 2009 when the application was adjourned for hearing on 16 October 2009. On that day, according to Mr McKenzie, his further application was refused.

34 There is no evidence that there was any consideration to the question whether Mr McKenzie ought to be given leave to pursue a further application for annulment of the convictions.

35 In the course of argument the parties agreed that this court has no jurisdiction to entertain an appeal from the decision of the Magistrate said to have been made on 16 October 2009 in terms rejecting the application for annulment, unless leave was given beforehand to make the second application for annulment after the proper consideration of that question as required by s 4(3) of the Act and the application refused, in which case there would be available an appeal pursuant to s 11A of the Act. The parties agreed that no further step could be taken in this court and that the matter should be returned to the Local Court where Mr McKenzie might pursue the remedies available to him: DPP v Goben [1999] NSWSC 696.

36 The jurisdiction of this court to hear matters brought to it from decisions made in Local Court proceedings is provided by the Crimes (Appeal and Review) Act. Section 4 of the Act provides (emphasis added), (1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held: (a) by the defendant, or (b) by the prosecutor, but may be made by the defendant only if the defendant was not in appearance before the Local Court when the conviction or sentence was made or imposed. (2) An application under this section must be made: (a) within 2 years after the relevant conviction or sentence is made or imposed, or (b) if an application has been made to the Minister under section 5 within that 2-year period, within 2 years after the application under section 5 has been disposed of under this Part. (3) 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. (4) An application must be in writing, and must be lodged with a registrar of the Local Court.

37 If leave were to be given to make a second application, but the application refused, Mr McKenzie would then be permitted to bring an appeal from that decision in accordance with s 11A of the Act. It provides, (1) Any defendant whose application under section 4 for annulment of a conviction has been refused by the Local Court may appeal to the District Court against the refusal. (2) An appeal under this section must be made within 28 days after the Local Court notifies the defendant of its refusal of the application. (3) Not more than one appeal may be made under this section in respect of any particular conviction.

38 If leave to make a second application were to be denied, there is no further remedy available to an appellant under this Act. Questions might then arise as to the availability of prerogative relief in the Supreme Court in respect of that decision, but that is not a matter for my consideration.

39 The breadth of the phrase used in s 4(3), providing that except by leave of the Local Court, a person may not make more than one application under the section in relation to the same matter, in my opinion allows for circumstances such as the present so that one may seek leave to apply to a magistrate for annulment of subsequent convictions, notwithstanding that an application for annulment in respect of earlier convictions for the same offences was successful.

40 The phrase, "the same matter" should not in my opinion be construed so as to be limited to the subsequent convictions. If that were to be the proper construction, it would mean that an appellant could persist in a series of applications for annulment, and thereafter appeals to the District Court, in respect of the same offences regardless of the number of times convicted in his or her absence beforehand. This could not have been the intention of Parliament when it introduced and thereafter modified the legislative scheme whereby offenders might more efficiently have matters dealt with in their absence, subject to the safeguards that permitted them to seek appropriate redress when through some form of misadventure they missed their intended court date. The judgements in Miller v DPP [2004] NSWCA 90 provide an enlightening discussion upon the merit of this scheme and the approach to be taken to the interpretation of the legislation, although it should not be overlooked that the decision is concerned with the provisions as they appeared in the Justices Act 1902 as amended. The merit of these provisions, which allow for the expeditious disposal of proceedings before magistrates where an accused person chooses not to appear cannot be questioned. Their implementation saves cost and inconvenience that would otherwise be incurred requiring the use of resources and the presence of witnesses to present evidence to prove offences, in respect of which an accused person may properly submit to a finding of guilt without the formalities that might otherwise be required.

41 However the provisions relevant to these processes must be applied when they are engaged, and should not be overlooked in the interests of expediency or efficiency.

42 There is before me no evidence of any consideration by the Magistrate of the second application for annulment, or the determination of that question, apart from the affidavit by Mr McKenzie. There are no documents from the court at all regarding this save for the application for annulment and the letter accompanying it, and the notation toward the end of the Case Enquiry printout that an application for annulment was lodged.

43 Moreover, there is no evidence before this court that a magistrate considered the question whether to give leave to Mr McKenzie to lodge a further application for annulment as the preliminary step required by s 4(3) of the Act.

Conclusion

44 I have come to the view that there can be no further step taken in this court in respect of these matters unless there is a determination by the Magistrate to allow Mr McKenzie leave to pursue his second application for annulment, but then refuses that application. If on the other hand leave is given, and the application granted, the proceedings will then continue in the Local Court and Mr McKenzie will have his rights of appeal as provided in the Act in respect of decisions thereafter that are adverse to him.

45 These matters must therefore to be returned to the Local Court to allow Mr McKenzie to pursue his available remedies there.

**********

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.