Bennett v Police No. Scciv-03-13

[2003] SASC 117

BENNETT v POLICE
[2003] SASC 117

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)    This is an appeal against the penalties imposed following the appellant’s plea of guilty in the Magistrates Court to charges that on 22 June 2001 she drove whilst disqualified and drove an unregistered and uninsured motor vehicle. The sentencing magistrate ordered that the appellant be imprisoned for 21 days but suspended that sentence upon her entry into a good behaviour bond in the sum of $300 for a period of 12 months. That penalty was assigned to the offence of driving whilst disqualified.

2. As for the other two charges, the magistrate imposed a single penalty of $150 and a licence disqualification of three months commencing on 19 December 2002, which was the date upon which the appellant was dealt with in the court below.

3. A notice of appeal was filed on the appellant’s behalf by a solicitor employed in the Legal Services Commission at Noarlunga Centre and the matter was listed for hearing on Monday 3 February 2003.

4. On 15 January 2003, after notification of the appointed date for the hearing, the appellant personally contacted my chambers by telephone to advise that she intended to file a notice of discontinuance, as she did not wish to pursue the appeal.

5. As of 24 March 2003 no notice of discontinuance had been filed and on that date my associate wrote to the appellant at her home address as set out in the notice of appeal to explain that a notice of discontinuance was necessary if the appeal was not to be pursued. A draft notice was enclosed with the letter, with the suggestion that she return it to the court registry as soon as possible if she still wished to discontinue the appeal.

6. There was no response from the appellant to that letter, and no notice of discontinuance has been filed.

7. When the matter was re-listed for hearing before me today, Mr Clarke of the Legal Services Commission appeared as counsel to indicate that he had no instructions to prosecute the appeal. He explained that the appellant made some contact with the Legal Services Commission recently, but did not give instructions one way or another as to prosecution of the appeal.

8. In those circumstances, the appropriate course is to order that the appeal be dismissed for want of prosecution. I so order.

9. Given that every opportunity was afforded to the appellant to file a notice of discontinuance, and given also that she had available to her the assistance of the Legal Services Commission in attending to that exercise, I think it proper to accede to the submission by Ms Duncan for the respondent that I should order payment of costs by the appellant.

10. I order that the appellant pay to the respondent the respondent’s costs of and incidental to the defence of the appeal which I fix at a lump sum of $150.

11. Mr Clarke, we will post the reasons to the appellant personally as well as to your office. Do you have any advance on the Hackham West address?

12. MR CLARKE:       No, your Honour.

13. HIS HONOUR:     We will use that address.