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), s 102(1), s (1a), s (3d); Summary Procedure Act 1921 (SA) s 76A; Motor Vehicles Regulations 2010 (SA) reg 90A(2); Criminal Law (Sentencing) Act 1988 (SA) s 5, s 16, s 39, referred to.
Franklin v Stacey (1981) 27 SASR 490; McFarlane v Police (2014) 122 SASR 1, applied.
Police v Warren [2000] SASC 285; Jackamarra v Krakouer (1998) 195 CLR 516; R v Jones (2002) 2 CR App R 128; Gazepis v Police (1997) 70 SASR 121; R v Collie (2005) 91 SASR 339; Jago v District Court of New South Wales (1989) 168 CLR 23; Dietrich v The Queen (1992) 177 CLR 292; Wilde v The Queen (1988) 164 CLR 365; Van Ryswyck v Hicks (1974) 8 SASR 376; Tew v Police [2013] SASC 75; Pawlak v Police [2017] SASC 40; DPP v Bone (2005) 64 NSWLR 735; Van Reesema v Flavel [2004] SASC 421; Hemming v Neave & Anor (1989) 51 SASR 427; Piva v Brinkworth (1992) 59 SASR 92; Ly v Glover (1998) 150 LSJS 449; Singh v Police [2013] SASC 155; Police (SA) v Kostoff [2014] SASC 130, considered.

BILACZENKO v POLICE
[2017] SASC 86
Magistrates Appeal: Criminal
STANLEY J:
Introduction

This is an appeal against conviction.
On 11 April 2016 the appellant was convicted in his absence by a magistrate of 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) (Motor Vehicles Act) and one count of causing an uninsured motor vehicle to stand on a road contrary to s 102(1) of the Motor Vehicles Act.
The magistrate permitted the prosecution to proceed with the trial of the charges ex parte on that date when the appellant failed to appear. On the hearing of this appeal it was not contested by the respondent that the appellant’s failure to appear at the trial of the matter was the result of genuine misadventure because the trial had originally been listed on 14 April 2016 but the listing was changed in the absence of the appellant who did not receive notice of the change of date before 14 April 2016. On that date he attended at court expecting his trial to proceed only to discover that he had been convicted in his absence three days earlier.
The magistrate proceeded on the basis that the documents filed by the appellant indicated that he sought to defend the charges on the basis of his impecuniosity. The magistrate noted that that was not a proper basis for a defence as they are offences of absolute liability. On that basis he proceeded to impose a conviction for each offence without penalty. The magistrate waived court fees but directed the defendant to pay the Victims of Crime levy on each count of $160 and prosecution costs of $100.
The appellant subsequently made an application pursuant to s 76A of the Summary Procedure Act 1921 (SA) seeking to have the convictions set aside. The magistrate refused that application.
The appellant filed an appeal in this Court against the convictions on 4 November 2016. The grounds of appeal are that the police were not entitled to change the trial date without giving the appellant notice, and to convict the appellant in proceedings conducted without his knowledge which denied him the right to face his accuser and cross-examine police witnesses. He seeks orders by way of declaration that the Court did not have jurisdiction and that his convictions are null and void and an order for costs. The appeal is over six months out of time.
The appellant requires an extension of time within which to institute the appeal. The respondent opposes the grant of an extension of time. It does so on the basis that if an extension is not granted there will be no miscarriage of justice as the offences with which the appellant was convicted are offences of strict liability and the appellant has not put forward any proper basis upon which the charges could have been defended.
Principles relevant to an extension of time
The principles governing the exercise of the Court’s discretion to extend time within which to appeal are identified in Police v Warren[1] by Gray J as follows:[2]
[1] [2000] SASC 285.
[2] [2000] SASC 285 at [16].
(1)The discretion exists for the sole purpose of doing justice between the parties.
(2)Some material must be advanced upon which the court can exercise its discretion.
(3)There is an obligation to explain with frankness and candour the reason for delay.
(4)The longer the delay the more exceptional or substantial the explanation required.
(5)If no sufficient grounds of appeal are disclosed an extension will not be granted.
(6)The court is not obliged to consider the merits in detail.
(7)The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.
(8)Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.
[Citations omitted]
In Jackamarra v Krakouer[3] Kirby J expounded the principles applicable to the exercise of the discretion to extend time as follows:[4]
[3] [1998] HCA 27, (1998) 195 CLR 516.
[4] [1998] HCA 27 at [66], (1998) 195 CLR 516 at 539 – 543.
I take the following principles to apply:
1.The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language. In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances.
2. Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account. The starting point for the exercise of any power granted under legislation is the ascertainment of the terms of the grant and a consideration of the purposes for which the power has been afforded. Thus, if a rule requires that "special reasons" or "special circumstances" be shown as a pre-condition to a procedural indulgence, this will indicate a need to demonstrate circumstances out of the ordinary. But where, as is usually the case (and is the case here), the discretion is conferred in unlimited terms, the question for the decision-maker is whether it would be just in all the circumstances to grant or refuse the application. Necessarily, the indulgence is not granted as of course. It is for the party seeking to persuade the decision-maker to show that it should be granted. Such persuasion will usually depend upon the provision of an acceptable explanation of how the time default occurred. Neither a party nor its legal advisers may simply assume that a request for an extension of time will always be acceded to. Inherent in the grant of a discretionary power is the assumption that it will sometimes be refused.
3. Courts have often drawn a distinction between the approach which they take to time limits of a substantive character and those appropriate to procedural rules. Thus in In re Salmon (dec'd), Sir Robert Megarry V-C contrasted the requirement for the institution of proceedings within a certain time under the Inheritance (Provision for Family and Dependants) Act 1975 (UK) with procedural rules typically found in rules of court:
"[T]he time limit is a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules."
For the purpose of this classification, which I accept, it cannot be doubted that the requirement under the Rules of the Supreme Court of Western Australia, that an appeal be entered for hearing within a specified time, is one of a procedural character and not one touching the substance of a party's appellate rights.
4. The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile. The practice ordinarily adopted in judging the arguability of a point was described by Lord Denning MR for the English Court of Appeal in R v Secretary for the Home Department; Ex parte Mehta. It ordinarily involves consideration of "the outline of the case":
"We never go into much detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time."
This description accords with my own experience of Australian practice. It appears to accord with that of the Federal Court of Australia where Mehta was cited and applied. In Esther Investments, Seaman J, talking of the practice of the Supreme Court of Western Australia, said that the assessment of the merits was necessarily "broad" because the Court, on an application to extend time, will ordinarily have only "limited materials and argument". Reason and efficiency support this practice. On an application to cure a procedural time default, the parties are entitled to expect that the court will deal with procedural issues and not without warning or consent turn the motion into the substantive hearing of the appeal. Were that to be a common practice, the time of the courts in reviewing the factual and legal details of cases might be doubled - first in the practice list and then, if the matter were allowed to proceed, in the substantive hearing. That would not be an efficient use of the court's time or of the parties' attention to the case. Moreover, it could work an injustice on a party if a telescoped hearing, which should primarily be addressed to a procedural question, were converted into the determination of issues of complexity and substance, the proper treatment of which may require more time than is typically available in a busy practice court.
5. Judicial attitudes to the grant of an indulgence under procedural rules of court have changed somewhat since the rather rigid approach which formerly marked such decisions. The change came about as it was realised that such rules were themselves only intended to contribute to the attainment of justice. That object necessitates a flexibility which accepts "the fallible world in which legal disputes arise and in which they must be resolved". Judges have warned against permitting the rules of court, particularly those relating to time, to become "an instrument of tyranny". This judicial attitude produced a less "draconian" practice which tended to focus attention on the need for a measure of flexibility, the avoidance of undue technicality and the consideration of whether there was any actual prejudice to a party if the indulgence were granted, beyond that inherent in the continued prosecution of the proceedings.
6. In the cyclical way of these tendencies, the close of the century has seen something of a revival of insistence upon a stricter adherence to rules and practices. The source of the strictness is a larger judicial concern to ensure the efficient despatch of court business. Such an objective was never completely overlooked by the courts. Lord Denning MR, for example, in Allen v Sir Alfred McAlpine & Sons Ltd countered the applicant's submission that to strike out an action without trial for time default would contravene Magna Carta, with this retort:
"To this there is a short answer. The delay of justice is a denial of justice. Magna Carta will have none of it. 'To no one will we deny or delay right or justice' [Magna Carta, ch 40].
All through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time [Hamlet, Act III, sc 1]. Dickens tells how it exhausts finances, patience, courage, hope [Bleak House, ch 1]. To put right this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent justice of the court. And the Rules of Court expressly permit it."
More recently, this rhetoric has been converted into action in Australia as courts have come to appreciate that they have their own interest in ensuring compliance with time limits. Court lists are typically more congested today. This fact and a growing awareness about the needs for efficiency in judicial administration help to explain a somewhat diminished inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires.
7. In Esther Investments, the Full Court of the Supreme Court of Western Australia embraced, as relevant to applications for an extension of time, the four "major factors" which had been identified in Palata Investments Ltd v Burt & Sinfield Ltd, viz, the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent. It was those principles which the Full Court applied in the present case. I would point out that Palata Investments was concerned with an application for an extension of time for appealing, not for extending the period within which an appeal, already lodged within time, might be entered for hearing. The distinction is important. In the latter case, the scope for review of the merits is necessarily more limited. The main object of the scrutiny is to obviate a hearing which would clearly be futile or to reinforce a preliminary view that a time default should be cured because of the apparent merits or arguability of the matter. I do not doubt that the four considerations mentioned in Esther Investments are relevant. But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.
8. Where it is appropriate to conduct a preliminary assessment of the arguability or suggested futility of an appeal, it is necessary to bear in mind the principles of appellate review applicable to the case. Where, as in this case, the appellate court has, by statute, a right and duty to reconsider the decisions of fact and law made at the trial, the breadth of the court's functions has been stated many times. Of course, if the decision of the primary judge turned on the credibility of the evidence of witnesses called at the trial, the difficulties of disturbing conclusions based upon such findings are well known. Nevertheless, even in such cases, findings of credibility can sometimes be overcome. Conflicts of medical and other expert testimony are not, in my view, ordinarily susceptible to resolution by simple credibility assessment. A party, having an appeal as of right which it has exercised by filing a notice of appeal within time, is normally entitled to have the appeal heard and determined on its merits by the painstaking examination of evidence and argument. That is an entitlement which the appellant has been overcome of in this case.
[Footnotes omitted.]
Section 9 of the Motor Vehicles Act
Section 9 of the Motor Vehicles Act provides:
9—Duty to register
(1)     A person must not drive an unregistered motor vehicle, or cause an unregistered motor vehicle to stand, on a road.
Maximum penalty: $7 500.
(1a)   However, subsection (1) does not apply to a person who drives a motor vehicle other than a heavy vehicle, or causes such a motor vehicle to stand, if the person proves that he or she—
(a)drove the motor vehicle, or caused the motor vehicle to stand, in prescribed circumstances; and
(b)     did not know that the motor vehicle was unregistered.
(1b)   For the purposes of subsection (1a), a person may prove a matter referred to in that subsection by furnishing to the Commissioner of Police a statutory declaration in accordance with any requirements prescribed by the regulations.
(1c)   If a charge of an offence against subsection (1) involves a motor vehicle other than a heavy vehicle and the defendant was not a registered owner or the registered operator of the vehicle, it is a defence to the charge if the defendant proves that he or she did not know, and could not reasonably be expected to have known, that the vehicle was unregistered.
(2)     It is a defence to a charge of an offence against subsection (1) involving a heavy vehicle to prove, in a case where the registration of the motor vehicle was not in force by reason of suspension and the defendant was not a registered owner or the registered operator of the vehicle, that—
(a)a registration label was affixed to the vehicle indicating that the vehicle was registered; and
(b)the defendant did not know, and could not reasonably be expected to have known, that the registration of the vehicle was suspended.
(3)     If an unregistered motor vehicle is driven or found standing on a road, the owner of the vehicle is guilty of an offence.
Maximum penalty: $7 500.
(4)     It is a defence to a charge of an offence against subsection (1) or (3) to prove that the motor vehicle was driven or left standing on a road in circumstances in which this Act permits a motor vehicle without registration to be driven on a road.
(4a)   It is a defence to a charge of an offence against subsection (3) to prove that—
(a)the vehicle was not driven or left standing on the road by the defendant; and
(b)the defendant had taken reasonable steps to ensure that any person lawfully entitled to use the motor vehicle would have been aware that the vehicle was unregistered.
(5)     It is a defence to a charge of an offence against subsection (3) to prove that, in consequence of some unlawful act, the vehicle was not in the possession or control of the defendant at the time it was driven or left standing on the road.
(6)     It is a defence to a charge of an offence against subsection (3) where the defendant is the last registered owner or last registered operator to prove that the defendant was not the owner or the operator of the motor vehicle, as the case may be, at the time of the alleged offence.
(6a)   The provisions of Schedule 1 apply to an offence against this section if evidence relating to the offence was obtained through the operation of a photographic detection device.
(6b)   A motor vehicle is driven or caused to stand by a person in prescribed circumstances for the purposes of subsection (1a) if—
(a)the person is not an owner or the registered operator of the vehicle and he or she is required by his or her employer to drive the vehicle, or to cause the vehicle to stand, in the course of his or her employment; or
(b)the motor vehicle is driven or caused to stand in circumstances declared by the regulations.
(7)     In this section—
owner, in relation to a motor vehicle, includes the last registered owner and the last registered operator of the vehicle, but does not include a person who takes the vehicle on hire;
unregistered motor vehicle means a motor vehicle without registration in force under this Act.
Section 102 of the Motor Vehicles Act

Section 102 of the Motor Vehicles Act provides:
102—Duty to insure against third party risks
(1)     A person must not drive an uninsured motor vehicle, or cause an uninsured motor vehicle to stand, on a road.
Maximum penalty: $10 000.
(1a)   However, subsection (1) does not apply to a person who drives a motor vehicle other than a heavy vehicle, or causes such a motor vehicle to stand, if the person proves that he or she—
(a)drove the motor vehicle, or caused the motor vehicle to stand, in prescribed circumstances; and
(b)     did not know that the motor vehicle was uninsured.
(1b)   For the purposes of subsection (1a), a person may prove a matter referred to in that subsection by furnishing to the Commissioner of Police a statutory declaration in accordance with any requirements prescribed by the regulations.
(1c)   If a charge of an offence against subsection (1) involves a motor vehicle other than a heavy vehicle and the defendant was not a registered owner or the registered operator of the vehicle, it is a defence to the charge if the defendant proves that he or she did not know, and could not reasonably be expected to have known, that the vehicle was uninsured.
(2)     If an uninsured motor vehicle is driven or found standing on a road, the owner of the vehicle is guilty of an offence.
Maximum penalty: $10 000.
(3)     It is a defence to a charge of an offence against subsection (1) or (2) to prove that the motor vehicle was driven or left standing on a road in circumstances in which this Act permits an uninsured motor vehicle to be driven on a road.
(3aa) It is a defence to a charge of an offence against subsection (2) to prove that—
(a)the vehicle was not driven or left standing on the road by the defendant; and
(b)the defendant had taken reasonable steps to ensure that any person lawfully entitled to use the motor vehicle would have been aware that the vehicle was uninsured.
(3a)   It is a defence to a charge of an offence against subsection (2) to prove that, in consequence of some unlawful act, the vehicle was not in the possession or control of the defendant at the time it was driven or left standing on the road.
(3b)   It is a defence to a charge of an offence against subsection (2) where the defendant is the last registered owner or last registered operator to prove that the defendant was not the owner or the operator of the motor vehicle, as the case may be, at the time of the alleged offence.
(3c)   The provisions of Schedule 1 apply to an offence against this section if evidence relating to the offence was obtained through the operation of a photographic detection device.
(3d)   A motor vehicle is driven or caused to stand by a person in prescribed circumstances for the purposes of subsection (1a) if—
(a)the person is not an owner or the registered operator of the vehicle and he or she is required by his or her employer to drive the vehicle, or to cause the vehicle to stand, in the course of his or her employment; or
(b)the motor vehicle is driven or caused to stand in circumstances declared by the regulations.
(4)     This section does not apply to a person who, on any road, drives a motor vehicle, if—
(a)the motor vehicle is registered in a proclaimed State or Territory of the Commonwealth or is otherwise permitted by the law of a proclaimed State or Territory of the Commonwealth to be driven on public roads within that proclaimed State or Territory; and
(b)there is in force in that State or Territory in respect of the motor vehicle a policy of insurance—
(i)    that complies with the law of the State or Territory; and
(ii)under which the owner and the driver of the motor vehicle are insured against liability which might be incurred by the owner or driver in respect of the death of, or bodily injury to, any person caused by or arising out of the use of the motor vehicle in this State.
(5)     For the purposes of subsection (4), the Governor may by proclamation declare any State or Territory, the law of which in the Governor's opinion substantially meets the requirements of this Part, to be a proclaimed State or Territory.
(6)     A proclamation under subsection (5) may be revoked or varied by a subsequent proclamation.
(7)     In this section—
owner, in relation to a vehicle, includes the last registered owner and the last registered operator of the vehicle, but does not include a person who takes the vehicle on hire.
Consideration
It is a fundamental right of an accused person to be present at all stages of his or her trial.[5]
[5] R v Jones [2002] EWCA Crim 2949, (2002) 2 CR App R 128; Gazepis v Police (1997) 70 SASR 121 at 127; R v Collie [2005] SASC 148 at [33] – [38], (2005) 91 SASR 339 at 347 – 349.
It is not disputed that in the circumstances which existed the appellant was denied the opportunity to defend the charges due to him not receiving notice of the change of trial date. That was not his fault.
The right to a fair trial according to law is a fundamental element of the criminal justice system.[6] In Wilde v The Queen,[7] Brennan, Dawson and Toohey JJ, albeit in the context of considering the proviso, said that where there has been a departure from the requirements of a properly conducted trial, there will have been a substantial miscarriage of justice if the accused has thereby lost a chance, which was fairly open to him, of being acquitted. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.[8]
[6] Jago v District Court of New South Wales (1989) 168 CLR 23 at 29, 56, 72 and 75; Dietrich v The Queen (1992) 177 CLR 292 at 299, 326-328, 353 and 363 - 363.
[7] (1988) 164 CLR 365.
[8] (1988) 164 CLR 365 at 171-172.
In Gazepis v Police[9] Doyle CJ, with whom Lander and Bleby JJ agreed, considered the application of the principle in Wilde v The Queen[10] to trials in the Magistrates Court where the proviso does not apply. The Court considered whether a conviction should be set aside because a magistrate ordered the appellant to leave the courtroom briefly during the course of the trial. Doyle CJ considered that the irregularity did not cause an unfair trial. Doyle CJ said:[11]
[9] (1997) 70 SASR 121.
[10] (1988) 164 CLR 365.
[11] (1997) 70 SASR 121 at 129 – 130.
The powers of this Court on hearing the appeal are to be found in s 42(5) of the Magistrates Court Act 1991 (SA). The power is expressed in a form which is quite common, and includes the power to “confirm, vary or quash the judgment subject to the appeal”.
Such provisions in this State have been interpreted as not requiring or permitting the court to allow an appeal, despite an error in the court below, if the court is satisfied that there has been no miscarriage of justice: see, eg, Newman v Byrne [1969] SASR 350 at 353, per Mitchell J and O'Leary v Daire (1984) 13 A Crim R 404 at 416, per White J. I deliberately refrain from expressing any view upon the question of whether it is incumbent upon the appellant to demonstrate a miscarriage, or incumbent upon the respondent to demonstrate that none has occurred.
In the present case I am satisfied that what happened could not have affected the decision reached by the magistrate. I am so satisfied because, as I have indicated, the defendant shortly after the incident in question became aware of the very concern that the magistrate expressed while the defendant was out of the court. The defendant was as well informed as he would have been had he been in court all of the time.
However, as I have already indicated, I accept that that approach does not appear adequate to vindicate the right involved here, or to deal with an error such as occurred here. For the reasons that I have explained, an error involving an infringement upon an important right affecting the manner in which the court proceeds may require a different approach.
On the other hand, such authority as I have found, does not support the view that an error affecting the manner in which the court conducts a hearing necessarily vitiates the trial. This matter was considered by the High Court in Wilde v The Queen. The court was there considering the question of what errors were “so radical or fundamental that by their very nature they exclude the application of the proviso” (at 373). The majority (Brennan, Dawson and Toohey 11) went on to say (at 373):
“There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted ... [the cases] provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial ...”
I do not consider that, in appeals such as the present one where the proviso is not in terms applicable, the court should adopt a rigid or technical approach to errors such as occurred here. I consider that the court should make an assessment of the significance of the error that occurred. I am content to adopt the approach taken by the Full Court of the Supreme Court of Victoria in R v Kerr (No 2) [1951] VLR 239. I do so even though that was an appeal from a conviction by verdict of a jury, and so the proviso was applicable…
The real issue is whether a miscarriage of justice will occur if an extension of time is refused and the appeal is dismissed. That requires consideration of the merits of any defence which the appellant submits he has to the charges and the issue of whether the departure from the requirements of a fair trial is so serious and fundamental that the verdict must be set aside.[12]
[12] Van Ryswyck v Hicks (1974) 8 SASR 376 at 378-379; Tew v Police [2013] SASC 75 at [12]-[15]; Pawlak v Police [2017] SASC 40 at [11].
On the hearing of the appeal, without objection, the Court received from the appellant a bundle of materials which he submits explains the bases upon which he wishes to defend the charges if the appeal is allowed, the convictions are set aside and the matter is remitted to the Magistrates Court for retrial.
The appellant submits that it was not his intention to drive his motor vehicle while unregistered and uninsured. He submits that at the time of the offences he did not know that the registration and insurance on his vehicle had expired. He submits that he believed he had paid the registration and insurance. This resulted from confusion created by government cuts to pensioner concession entitlements and deductions that were being wrongly made from his bank account leaving him with a false impression as to what he had paid. He cites a judgment of DPP v Bone[13] in which Adams J found that a defence of honest and reasonable mistake was available to a defendant charged with an offence of driving whilst more than the prescribed concentration of alcohol was in his blood.
[13] [2005] NSWSC 1239, (2005) 64 NSWLR 735.
Subsequently the appellant paid the registration and insurance which was backdated to 3 August 2015 when his registration and insurance had expired. He submits this means that at the time of the alleged offence on 14 September 2015 his vehicle was technically registered and insured.
The appellant further submits that he was experiencing financial hardship particularly as a result of pensioner concession cuts and significant increases in council rates.
A defence of honest and reasonable mistake is not available to charges of causing an unregistered and uninsured motor vehicle to stand on a road. In Franklin v Stacey[14] the Full Court held that the offences created by s 9 and s 102 of the Motor Vehicles Act impose strict liability for driving an unregistered and uninsured motor vehicle. Upon charges of an offence against these sections the Full Court held it was not necessary for the prosecution to prove a mental element on the part of the defendant. The Court concluded the defence of honest and mistaken belief based on reasonable grounds in the existence of facts which, if they had been true as the defendant believed them to be, would have rendered his conduct innocent, is not open to a defendant. I am bound by that authority.
[14] (1981) 27 SASR 490.
The appellant further submits, in effect, the law as stated in Franklin v Stacey should no longer be followed due to the abandonment of the practice of issuing registration labels for attachment to motor vehicles alerting drivers whether the vehicle is registered and insured. The appellant described this as a revenue raising experiment.
In McFarlane v Police[15] the Full Court dismissed a submission to the same effect that due to the abandonment of the practice of issuing registration labels for attachment to vehicles, Franklin v Stacey was no longer to be followed. The Full Court held that the abolition of registration labels does not require Franklin v Stacey to be distinguished. The defence of honest and reasonable mistake of fact is not available to a charge of driving an unregistered motor vehicle or a charge of driving an uninsured motor vehicle. Again I am bound to follow that authority.
[15] [2014] SASCFC 111, (2014) 122 SASR 1.
The appellant seeks to rely upon the provisions of s 9(1a) and s 102(1a) of the Motor Vehicles Act. Those two provisions are in substantially the same terms. They provide that s 9(1) and s 102(1) do not apply where a person has driven or caused a vehicle to stand in prescribed circumstances and the person did not know the vehicle was unregistered or uninsured. Prescribed circumstances are defined in s 9(6b) and s 102(3d). They provide that prescribed circumstances are where the vehicle is owned by his or her employer, or an organisation for which they volunteer, or some other person and is used in the course of undertaking work required by a contract of service or during the course of volunteer work.[16] These provisions were addressed by the Court in McFarlane v Police. The Court said:[17]
Amendments made to ss 9 and 102 of the Motor Vehicles Act since Franklin v Stacey was decided reinforce the correctness of that decision. Those two sections now provide a series of defences available to the driver of an unregistered or uninsured vehicle. For example, a person who has driven a vehicle owned by his or her employer (or an organisation for which they volunteer) has a defence if they did not know the vehicle was uninsured or unregistered. The defence may be established by providing a statutory declaration to South Australia Police. However, none of the statutory defences was available to the appellant.
We consider that by providing a series of statutory defences that are based upon mistakes of fact that have occurred in certain specified circumstances (regardless of their reasonableness), the Parliament has left no room for the court to imply the Proudman v Dayman defence where the mistake is said to have occurred in circumstances other than those expressly allowed by the statute. In other words, the Parliament has made detailed provision about the available defences and has thereby covered the field.
[Citation omitted.]
[16] Regulation 90A(2) of the Motor Vehicles Regulations 2010 (SA).
[17] [2014] SASCFC 111 at [18]-[19], (2014) 122 SASR 1 at 4.
The appellant does not submit that the vehicle was owned by his employer or an organisation for which the appellant volunteered. On the contrary, he submits that the vehicle is owned by him. Accordingly, he cannot avail himself of the defences provided by s 9(1a) and s 102(1a).
While Franklin v Stacey and McFarlane v Police were concerned with charges of driving an unregistered and uninsured motor vehicle, the same principles apply to charges of causing an unregistered and uninsured motor vehicle to stand on a road.
Further, the appellant does not dispute the fact that he was the owner of the vehicle concerned or that the vehicle was standing on a public road at the time. It is not a defence to the charges to submit, as he does, that by subsequently paying his registration and insurance which was backdated to a date prior to the offences being committed the vehicle was not unregistered and uninsured at the time. The proposition only has to be stated to demonstrate the logical flaw in the argument. The subsequent payment of the registration fee and the insurance premium by the appellant cannot deem his motor vehicle to have been registered and insured at an earlier time, when it was not, by reason of the appellant’s default in failing to register and insure his motor vehicle being rectified subsequent to the commission of the offences.
Insofar as the appellant complains about his conviction on the basis of his financial circumstances I observe the magistrate did not impose any penalty in relation to each offence.
In summary, the appellant has not been able to satisfy me it is arguable that he has a meritorious defence to the charges. Ordinarily, in these circumstances, there is no miscarriage of justice in allowing the verdicts to stand. There is a public interest in the finality of litigation in cases such as the present.[18] Further, it is not in the interests of the appellant for him to be put to further trouble and expense where the inevitable conclusion of these proceedings will be verdicts of guilty in respect of each offence charged. While the appellant complains about the costs he has incurred, these are costs incurred as a result of him seeking to defend charges to which he had no good defence. However, the appellant has been deprived of his fundamental right to a fair trial. That is a trial where he is present to hear the charges against him and the evidence relied upon by the prosecution and afforded the opportunity to answer those charges. This is not a case like Gazepis where there has been a minor irregularity in the conduct of the trial. The appellant has been deprived of a fair trial. He is entitled to a fair trial as a matter of right. Notwithstanding the apparent futility of such a trial I consider that the appellant’s fundamental right to a fair trial cannot be denied.
[18] Van Reesema v Flavel [2004] SASC 421.
In the circumstances I consider an order for an extension of time within which to institute the appeal should be made.
In my view, the appropriate order is that an extension of time within which to bring the within appeal should be granted, the appeal allowed and the matter remitted to another magistrate to hear the trial.
In any event, I am of the view that the appeal must be allowed because the magistrate, having found the appellant guilty of the charges he faced, proceeded to record convictions for each offence without affording the appellant the opportunity to be heard. While the magistrate imposed no penalty, the appellant is entitled to be heard as to whether a conviction should have been recorded. It is open to the appellant if he is found guilty to make submissions in reliance upon sections 15, 16 or 39 of the Sentencing Act.
Section 9 and s 102 of the Motor Vehicles Act are regulatory offences. A contravention of such provisions will ordinarily result in the recording of convictions.[19] However, this Court has in recent years recognised that the policy considerations which emphasise the preventative and deterrent aspects of punishment for such offences is diminished in the case of offences which can be expiated.[20] As the Chief Justice said in Singh v Police (SA):[21]
It is difficult to see why a conviction is generally necessary in the case of the few offenders who, for whatever reason, fail to take advantage of the expiation process, pursuant to which the great preponderance of offenders escape convictions without jeopardising the integrity of the registration and insurance scheme.
[19] Hemming v Neave & Anor (1989) 51 SASR 427 at 429; Piva v Brinkworth (1992) 59 SASR 92 at 96; Ly v Glover (1998) 150 LSJS 449 at 454.
[20] Singh v Police (SA) [2013] SASC 155; Police (SA) v Kostoff [2014] SASC 130.
[21] Singh v Police (SA) [2013] SASC 155 at [39].

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.