Cicolella v Hemming (DEP of Prim Ind SA Fisheries) No. Scgrg-98-266 Judgment No. S6573

[1998] SASC 6573

JOHN CHRISTOPHER CICOLELLA V BRIAN EDWARD HEMMING (DEPARTMENT OF PRIMARY INDUSTRIES, SA FISHERIES)

Application (Ex Tempore)

LANDER J

This is an application by an appellant from a decision by a Magistrate sitting in the Magistrates Court in Adelaide, the decision being the sentence imposed upon the application of four offences, two under the Fisheries Act and two under the Harbours and Navigation Act.

In imposing sentence, the magistrate proceeded under s.18(a) of the SentencingAct to fine the defendant, ordered forfeiture of fish, vessel, tank and instruments, and suspended the applicant's fishing licence immediately for three calendar months.  The effect of the order was to immediately prevent the applicant, who is a professional fisherman, from engaging in his livelihood from 16 February 1998. 

The appeal has been brought pursuant to s.42 of the Magistrates Court Act, which means that the appeal is governed by rule 96C of the Supreme Court Rules.  That rule, in turn, requires the proceedings to be governed by r97. 

The effect of a sentence under the Magistrates Court Act is to operate immediately and the effect of the appeal is not to stay that sentence. 

The applicant - who, as I have said, is a professional fisherman - has made this application and argues through senior counsel, Mrs Shaw QC, that, if his appeal is successful against the order for suspension, it will mean, because the appeal cannot be heard before April, that the appeal will be rendered nugatory.  He says that if, as he hopes, the order for suspension is set aside, it will mean he would have served at least two and possibly near three months of the order for suspension which itself is only three months. 

Rule 97.16 of the Supreme Court rules provides that:

“An application for leave to appeal, or an appeal, governed by r97 is not to:

(a)...... Operate as a stay of execution or a stay of proceedings of the decision of the Court or tribunal appealed from; or

(b)Invalidate any intermediate act or proceeding except in so far as the Supreme Court may direct, or subject to any direction of the Supreme Court, as the Court or tribunal below may direct.” 

After this order was made, an application was made to the learned Magistrate asking her to suspend the order for suspension pending the disposal of the appeal.  She declined, saying she had no jurisdiction and directed the applicant to this Court.  It is in those circumstances that this application has been made. 

The respondent opposed the application pointing out that the effect of a stay will mean that the licence will be available to the applicant over the next two (and perhaps three) months which, the respondent told me from the bar table, was during the main part of the fishing season. 

Ms Lee-Justine, who appeared for respondent, argued that in those circumstances if in due course the applicant fails in his appeal, it will mean that the consequences of his conviction - that is the sentence - will be less onerous than it would otherwise have been because he would serve the time of suspension during a period when he would be less busy in his trade as a fisherman.

I am prepared to accept that submission, albeit unsupported by evidence from the bar table.  However, I think the overriding consideration in this matter is whether or not a person's rights on appeal ought to be preserved. 

It is the case that, if this appeal is not heard until April, and if the applicant succeeds on this appeal, then it will mean that he has served in main the sentence against which he appeals.  That, in my opinion, would render the appeal nugatory and to frustrate the whole of the court process. 

In those circumstances I am prepared to make an order staying the order for suspension made by Ms Hayes SM on 16 February 1998 until such time as the appeal to this Court dated 20 February 1998 is disposed of. 

In ordering that stay, I have accepted the assurance of senior counsel for the applicant that the applicant will be in a position to argue the appeal before this court in the April sessions. 

If in fact the applicant is unable for any reason to advance the appeal in the April sessions, then I would be disposed to hear an application vacating this order. 

In making this order I have, of course, not considered, except in a very general sense, any of the circumstances of the offence or the merits of the.

The order will be then as I have pronounced it.