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

1. 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.

2. The matter has some history. 

3. 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.

4. 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.

5. 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. 

6. 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. 

7. The applicant claims he has been wrongly found guilty of the offences by two Judges of this Court. 

8. As the applicant’s notices of appeal were filed well out of time, the applicant requires an extension of time within which to file his notice of appeal. 

9. In support of the application for an extension of time, the applicant has filed a number of documents and medical reports indicating that he is, and has been, a very unwell man with multiple medical conditions.  These include amputation of the right main toe, diabetes, teeth falling out, numbness in the soles of his feet, sarcoptic mite, gall stone removal by surgery and bladder cancer with ongoing therapy. 

10. I turn now to discuss the merits of the grounds identified by the applicant insofar as I can understand them.

11. The applicant complains that there is an element of duplicity in the decisions made by Nicholson J and Stanley J, as Nicholson J’s decision to dismiss the appeal is for the same, or substantially the same, reasons as given by Stanley J in the 2017 decision. 

12. The applicant complains that due to Stanley J’s comments that the applicant was unlikely to succeed at a new trial, there is an apprehension of bias in that both the Magistrate at the retrial, and the prosecutor, adopted Stanley J’s incorrect analysis of the applicable law which applied. He also claims that Stanley J incorrectly put forward a defence of backdating and that his Honour applied the incorrect subsections of s 9 and s 102 of the MVA in determining that the applicant did not have a defence.

13. The applicant also complains that Nicholson J did not view the content of two CD video exhibits marked ‘Faulty Speed and Red Light Cameras’ on the basis that they were irrelevant because they did not involve the applicant. 

14. I have read the transcript of the second trial before Magistrate Forrest which led to the finding of guilt.  I have also read both the decision of Stanley J and Nicholson J. 

15. The applicant’s contention that the Judges applied the incorrect law is plainly misconceived.  There is no occasion to review the authorities[3] referred to and relied on by Stanley J for precisely the same reasons which he gave.  The grounds of appeal do not raise any point of principle or public interest which would justify the granting of permission to appeal.  I make it clear that if the appeal grounds had any merit, I would not have hesitated in permitting the applicant an extension of time within which to file the notice of appeal.  However, as none of the applicant’s complaints raise any arguable ground of appeal, I would refuse permission to appeal. 

    [3]    Franklin v Stacey (1981) 27 SASR 490, McFarlane v Police (2014) 122 SASR 1.

16. LIVESEY J:        I agree. 

17. BLEBY J:             I agree that permission to appeal should be refused.