Bilaczenko v Police - [2020] SASCFC 121

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
BILACZENKO v POLICE
[2020] SASCFC 121
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Livesey and The Honourable Justice Bleby)
11 December 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Application for permission to appeal the decision of a Judge of this Court to dismiss an appeal against a finding by a Magistrate that the applicant was guilty of two offences contrary to the Motor Vehicles Act 1959 (SA).
Held per Kelly J (Livesey and Bleby JJ agreeing):
1. Permission to appeal is refused.
Motor Vehicles Act 1959 (SA) ss 9(1), 102(1) , referred to.
Bilaczenko v Police [2017] SASC 86, discussed.
Franklin v Stacey (1981) 27 SASR 490; McFarlane v Police (2014) 122 SASR 1, considered.

BILACZENKO v POLICE
[2020] SASCFC 121
Full Court: Kelly, Livesey and Bleby JJ

KELLY J: This is an application seeking permission to appeal to the Full Court from a decision of Nicholson J to dismiss an appeal against a finding by a Magistrate that the applicant was guilty of two offences contrary to s 9(1) and s 102(1) of the Motor Vehicles Act 1959 (SA) (‘the MVA’).[1]
[1] Bilaczenko v Police [2018] SASC 117.
The matter has some history.
On 14 September 2015, a police officer on patrol at Minlaton Road, Yorketown saw the applicant’s motor vehicle parked on Minlaton Road in front of the local hotel. After making routine enquiries and discovering that the vehicle was unregistered and uninsured, the applicant was charged on Complaint and Summons with one count of causing an unregistered vehicle to stand on a road contrary to s 9(1) of the MVA and one count of causing an uninsured vehicle to stand on a road contrary to s 102(1) of the MVA.
The applicant was convicted in his absence by a Magistrate on 11 April 2016, however, for reasons which do not presently matter, that conviction was overturned on appeal by Stanley J on 15 June 2017.[2]
[2] Bilaczenko v Police [2017] SASC 86.
The matter was again remitted for trial before a different Magistrate who again found the offences proved. The applicant, undeterred, appealed to a single Judge of this Court. Nicholson J dismissed that appeal in August 2018.
The applicant has now filed two applications for permission to appeal against the decision of Nicholson J. The first was filed on 27 April 2020 and an amended application was filed on 10 October 2020.
The applicant claims he has been wrongly found guilty of the offences by two Judges of this Court.
As the applicant’s notices of appeal were filed well out of time, the applicant requires an extension of time within which to file…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bilaczenko v Police

Details

AGLC: Bilaczenko v Police [2020] SASCFC 121
Case: [2020] SASCFC 121
Decision Date: 11 December 2020

CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kelly, Livesey and Bleby JJ, considered an application for an extension of time to appeal a decision. The applicant, Bilaczenko, sought this extension against the respondent, the Police.

The central legal issue before the Court was whether to grant an extension of time for Mr Bilaczenko to lodge an appeal against a prior decision. This required the Court to assess the merits of the proposed appeal and the reasons for the delay in filing it.

The Court applied the principles governing applications for extensions of time to appeal, which involve a balancing exercise. This includes considering the strength of the grounds of appeal, the length of the delay, the reasons for the delay, and any prejudice to the respondent. After weighing these factors, the Court concluded that an extension of time should not be granted in this instance.

Consequently, the application for an extension of time to appeal was dismissed.

Orders