BILACZENKO v Police - [2017] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BILACZENKO v POLICE
[2017] SASC 86
Judgment of The Honourable Justice Stanley
15 June 2017
CRIMINAL LAW - PROCEDURE - HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED - IN PRESENCE OF ACCUSED PERSON
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal against conviction imposed by a magistrate in the absence of the appellant for one count of causing an unregistered motor vehicle to stand on a road contrary to s 9(1) of the Motor Vehicles Act 1959 (SA) and one count of causing an uninsured motor vehicle to stand on a road contrary to s 102(1).
On the hearing of the appeal it was not contested that the appellant’s failure to appear at trial was the result of genuine misadventure. The trial was originally listed for 14 April 2016 but the listing was changed in the appellant’s absence who did not receive notice of the change of date prior to 14 April 2016. On that date he attended court only to find that he had been convicted in his absence three days earlier. The magistrate proceeded on the grounds that the documents he filed showed an intention to defend the charges on the basis of impecuniosity, and that impecuniosity was not a proper defence as the offences charged were of strict liability.
Held: Appeal allowed.
1. It is a fundamental right of an accused to be present during his or her trial (at [12]). Unless it can be said that an appropriately instructed jury acting reasonably on the evidence and applying the correct onus and standard of proof would inevitably have convicted the accused, the conviction must be set aside (at [14]).
2. The real issue is whether a miscarriage of justice would occur if an extension of time is refused and the appeal dismissed. This requires consideration of the merits of any defence and whether the departure from the requirements of a fair trial is so serious and fundamental that the verdict must be set aside (at [16]).
3. The appellant has not satisfied the Court that it is arguable that he has a meritorious defence to the charges, which ordinarily would not result in a miscarriage of justice. However, this is not a case of a minor irregularity. Rather, the appellant has been denied a fair trial which he is entitled to as a matter of right (at [29]). In the circumstances it is appropriate to grant an extension of time within which to institute the appeal and remit the matter for retrial (at [30] to [31]).
4. In any event, whilst the magistrate imposed no penalty, the appellant was entitled to be heard as to whether a conviction should have been recorded (at [32]).
Motor Vehicles Act 1959 (SA) s 9(1), s (1a), s (6b),…

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.

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Details

Case: [2017] SASC 86
Decision Date: 15 June 2017

CaseChat Overview and Summary

The case of Bilaczenko v Police involved the appellant appealing against his convictions for various criminal offences. The trial was conducted in the Magistrates Court of South Australia, with the appeal subsequently heard in the higher court. The primary issue before the court was whether the trial had been conducted in the appellant's presence as required by law, and if there had been any other irregularities that amounted to a miscarriage of justice.

The legal issues revolved around the procedural requirements of criminal trials, specifically the need for the accused to be present during the hearing. The court also had to consider if there were any other procedural errors that could have prejudiced the appellant's right to a fair trial. The appellant argued that his absence from parts of the trial constituted a breach of his legal rights, while the respondent maintained that the trial had been conducted fairly and lawfully.

The court found that the appellant's absence from parts of the trial did indeed constitute a procedural irregularity that had the potential to prejudice his right to a fair trial. Despite this, the court also considered the broader context of the trial and found no other irregularities that amounted to a miscarriage of justice. Consequently, the appeal was allowed, the convictions were set aside, and the matter was remitted for further hearing to determine whether convictions should be recorded. The court also granted an extension of time for the appeal to be instituted.

The final orders of the court included setting aside the verdicts of guilty and the convictions, as well as the orders for payment of the Victims of Crime levy and prosecution costs. The matter was to be remitted to another magistrate to hear the trial anew, with the court reserving the issue of the costs of the appeal for further discussion with the parties involved.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Even if I had come to a different conclusion in relation to the appeal against the verdicts of guilty the appeal would have been allowed to the extent of setting aside the convictions and the matter remitted for further hearing in relation to whether convictions should be recorded. Conclusion I would grant an extension of time within which to institute the appeal. I would allow the appeal. I would set aside the verdicts of guilty and the convictions and orders for payment of the Victims of Crime levy and prosecution costs. I would remit the matter to another magistrate to hear the trial. I will hear the parties as to the question of the costs of the appeal.

Ratio Decidendi

Legal Principle Established

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