Bray v Police

[2005] SASC 456

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application)

BRAY v POLICE

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice White)

5 December 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

Application to the Full Court against the decision of a Judge of the Supreme Court refusing leave to appeal against that Judge's decision refusing an extension of time to appeal against convictions and sentence recorded in the Magistrates Court - an extension of time to apply to the Full Court for leave to appeal granted - leave to appeal refused.

BRAY v POLICE
[2005] SASC 456

Full Court:  Doyle CJ, Sulan and White JJ

1. THE COURT:       This is an application to the Full Court for leave to appeal against a decision by a single Judge.  The single Judge refused to extend time within which Mr Bray might appeal against convictions recorded by the Magistrates Court, and appeal against the sentence imposed by the Magistrates Court.

2. The Judge refused to extend time because there was no merit in the proposed appeal.

3. That decision was given on 22 July 2005.

4. On 26 October 2005 Mr Bray applied for leave to appeal against that decision.  The reasons of the Judge dealing with that application show that Mr Bray had sought to appeal to the High Court, and had been informed that he must first exhaust all avenues of appeal in this Court.  That does not fully explain the delay.

5. Be that as it may, on 3 November 2005 the single Judge extended to 26 October 2005 the time within which Mr Bray might seek leave to appeal from his decision.

6. The Judge then refused leave to appeal.  He did so because the case raised no general issue, and because the proposed appeal lacked any merit.

7. When the Judge made that order on 3 November 2005 he told Mr Bray that he could apply to the Full Court for leave to appeal.  He told him that there were time limits, and that Mr Bray should speak to the Registry staff about that.  A copy letter to Mr Bray from the Registry, dated 10 November 2005, refers to an undated letter received from Mr Bray that day, and informs him that he had until 17 November 2005 to apply to the Full Court.  Information was given about the procedure for doing so.

8. By application filed on 18 November 2005 Mr Bray now seeks from the Full Court an order extending time within which he might seek leave to appeal, and an order granting him leave to appeal, from the decision of the single Judge.

9. That application has been considered by the Full Court comprising Doyle CJ, Sulan and White JJ in accordance with r 94.03 of the Supreme Court Rules.  The Court has considered the application on the papers submitted by Mr Bray, including his written argument.  The Court has also considered the reasons of the single Judge of 22 July 2005, and his reasons of 3 November 2005.

10. In the circumstances the Court is prepared to extend the time within which Mr Bray might make application for leave to appeal.  The Court does so on the basis that the application is only one day out of time (see r 94.02), that Mr Bray does not have the benefit of legal representation, and that he lives some distance from the Registry.

11. The issues raised by Mr Bray’s application can be stated briefly.  He pleaded guilty to two charges of assault.  They arose from a dispute with two neighbours.  The Magistrate dealt with the matter in a lenient fashion, and was obviously trying to arrive at orders that represented a practical approach to the situation.  He convicted Mr Bray without penalty.  He ordered Mr Bray to pay the male victim compensation of $378 for damage to his spectacles.  He ordered him to pay witness expenses of $52, waived court fees and prosecution costs, and imposed the statutory levy of $140.

12. Mr Bray claims that he was unfairly pressured by the prosecutor to plead guilty.  He describes the circumstances in which this occurred in some detail in his written submissions.  He claims that he is not guilty of the offences charged.  He says that he acted in self defence.  He says that the orders made should be set aside.

13. All of these issues were considered by the single Judge.  The very same matters were raised before him.  The Judge has prepared detailed written reasons explaining why the proposed appeal lacked merit.  Mr Bray relied on unsubstantiated oral assertions.  An affidavit from the police prosecutor had been filed, setting out his version of events.  Apparently there was no cross-examination of the police prosecutor on his affidavit.  If his version of events was accepted, there could be no basis at all for setting aside the plea of guilty.  Mr Bray’s submissions to the Full Court do not take the matter any further.  

14. The case raises no issue of general principle.  The Judge has decided it by reference to well established principles.  There is no arguable error in the Judge’s approach.  On the material before the Judge, there was no basis at all for setting aside the pleas of guilty.  If the pleas of guilty stand, no criticism can be made of the Magistrate’s orders.  The proposed appeal against sentence lacks any merit.

15. For those reasons the Court extends to 18 November 2005 the time for applying for leave to appeal to the Full Court, but refuses leave to appeal against the decision of the Judge of 22 July 2005 refusing to extend the time within which Mr Bray might appeal to the Supreme Court against the convictions and sentence.