Crosby v Police - [2002] SASC 213

CROSBY v POLICE
[2002] SASC 213
MAGISTRATES APPEAL

BLEBY J (ex tempore): The applicant seeks an extension of time within which to lodge an appeal and to appeal against a magistrate’s decision to record a conviction.
The applicant appeared in the Elizabeth Magistrates Court on 11 April 2002 where he pleaded guilty to knowingly producing cannabis, namely six plants, contrary to s 32(1)(a) of the Controlled Substances Act 1984. The original charge involved the cultivation of 13 plants. The complaint was amended, by consent, whereupon the appellant pleaded guilty. The appellant was convicted by the magistrate and fined $350.
I turn to the application for an extension of time. The delay in commencing this appeal was not lengthy. The appeal was instituted only five days outside the 14 day period which is allowed under rule 96C.02. Under r 3.04(d) of the Supreme Court Rules the Court has a discretion to extend the period of time if it thinks it just to do so.
The appellant returned to his home state of Queensland three days after this matter was dealt with in the Elizabeth Magistrates Court. He states that he has applied for a number of jobs in Queensland since his conviction. Many of his applications have been unsuccessful because he has been required to disclose the fact of his conviction.
The notice of appeal states that the applicant seeks an extension of time in which to lodge an appeal because “the practical consequences of a conviction have only recently become clear to the appellant”. In his affidavit he deposes to the difficulty he has encountered in obtaining employment. He adds:
“I now realise that my prospects of obtaining employment are significantly reduced by having had a conviction recorded. The significance of the conviction only became apparent after my job applications were rejected.”
I have some difficulty in accepting that submission. The practical consequences of a conviction were certainly apparent to the applicant’s solicitor at the time he pleaded guilty to the offence. That was the main thrust of her submission to the Magistrate. His solicitor in her affidavit confirms that in her submission to the Magistrate, and in the presence of the applicant and, it must be presumed, on his instruction, she made the point that a conviction would hinder his attempts to obtain employment. It seems to me, therefore, that this ground alone cannot excuse subsequent delay. Even if the applicant’s awareness of the problem only subsequently arose that would be insufficient excuse to justify an extension: Leathley v Police [1999] SASC 246, at [5].
No other grounds are put forward in support of the extension of time save, perhaps, the self-evident ground that the delay is relatively short. I, therefore, consider whether the appeal has any prospect of success, that being relevant to the question of extension of time: Maurovic v Police (Doyle CJ, 7 August 1996, jdgmt S5771, unreported); Davies v SA Police (1993) 174 LSJS 8.
I consider that there is little merit in…

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.

Continue reading Crosby v Police

Details

AGLC: Crosby v Police [2002] SASC 213
Case: [2002] SASC 213
Decision Date: 26 June 2002

CaseChat Overview and Summary

The case of Crosby v Police involved the applicant, Crosby, seeking an extension of time to lodge an appeal against a magistrate’s decision to record a conviction for producing cannabis. Crosby had pleaded guilty to producing six cannabis plants, a charge that had been reduced from 13 plants by consent. The magistrate fined Crosby $350 and recorded a conviction. Crosby applied for an extension of time to appeal, citing difficulties in finding employment due to the conviction. Crosby argued that the practical consequences of the conviction had only recently become clear to him, impacting his job prospects.

The legal issues before the court were whether the court should grant an extension of time for the appeal, and whether the magistrate had erred in recording a conviction. The court considered the statutory provisions for extending time, particularly under rule 3.04(d) of the Supreme Court Rules, and whether the appeal had any prospect of success. The court also examined whether the magistrate had properly exercised the discretion under section 16 of the Criminal Law (Sentencing) Act 1988 to impose a penalty without recording a conviction. Crosby argued that the magistrate had failed to exercise this discretion correctly, particularly in not considering whether Crosby was unlikely to commit the offence again.

The court found that Crosby's delay in lodging the appeal was not sufficiently justified, and that the practical consequences of the conviction were apparent at the time of the plea. The court noted that Crosby's solicitor had already argued against recording a conviction. Regarding the substantive appeal, the court held that the magistrate had not made the necessary findings to exercise the discretion under section 16, and even if the court were to make such findings, the offence was not trifling and there were no extenuating circumstances to warrant not recording a conviction. The court concluded that the appeal had little prospect of success and therefore dismissed the application for an extension of time and the appeal itself, ordering Crosby to pay the respondent’s costs.

Orders