Cutting v Police No. Scgrg-98-18, Scgrg-98-332 Judgment No. S6627

[1998] SASC 6627

THURSDAY, 9 APRIL 1998

CUTTING  v  POLICE
Magistrates Appeal
Prior J
         There has been some confusion surrounding hearing the matter listed for today.  There are two relevant files, File No 332 of 1998 and File No  18 of 1998. 
Reference was made by the applicant to what he described as an affidavit filed in this matter, and to an application lodged on 6 April 1998 for a stay of proceedings until he could obtain legal aid.  Both the affidavit as described by him and the application for a stay are in File No 18 of 1998. 
I have called on the application of 6 April and heard that application this day ahead of the matter listed for hearing today.  It is for the registrar to correct any difficulties created by the filing of material in the wrong file. 
I now consider the application otherwise apparently fixed for 15 April.  That application must be refused.   In oral submissions before me Mr Cutting made plain that he has sought legal aid well before this month and had those applications refused.  He referred to the Legal Aid Commission and also to the Ombudsman.   I therefore dismiss the stay application presently filed in Supreme Court File No 18 of 1998. 
I now proceed to deal with the matter properly arising in Supreme Court File No.332 of 1998. In September 1995 the applicant was charged on complaints with seven breaches of s15(1) of the Domestic Violence Act 1994. The matter came before the Adelaide Magistrates Court in October of that year. A pre-trial conference occurred in November. Three weeks later two counts on the complaint were withdrawn. A magistrate proceeded to take some evidence with respect to the remaining five charges, with further evidence being taken on 23 January 1996. On that day the magistrate found the five charges proceeded with proved. He imposed a single penalty for those five offences pursuant to s.18A of the Criminal Law (Sentencing) Act 1988. That single penalty was a fine of $100. Court fees, levies and costs amounting to $544 were also ordered to be paid by the applicant.
More than two years after the magistrate found the five charges proved, the applicant lodged a notice of appeal to this Court.  By that notice he challenged his convictions and the sentence imposed by the magistrate.  In seeking an extension of time within which to appeal to the date of the notice of appeal lodged in the Magistrates Court on 11 February 1998, the applicant refers to stress in not having legal representation as an explanation for the delay in instituting any appeal.  Stress was not particularised in any great detail, apart from the obvious, in the course of submissions before me.  There was, as already mentioned, some reference by Mr Cutting to the fact that he has sought legal advice, and had legal advice refused. 
He also disclosed that a police officer sought to execute a warrant of apprehension against him for non-payment of the fine and other sums ordered to be paid.   Apparently this occurred at the end of November 1997.  Mr Cutting says that he was advised by the police officer that he should appeal against his conviction if he wished to avoid imprisonment for non-payment of the total sum of $644. 
In the course of submissions today Mr Cutting acknowledged that he was aware of the provisions of ss67 and 68 of the Criminal Law (Sentencing) Act but that he wished to have the convictions and sentence set aside for what he maintains is good and proper cause. I also understood him to say that he would rather go to gaol than have to pay any fine. He was in a position to serve time in custody at an earlier time. However, his personal circumstances are now such that any time spent in custody would generate real difficulties for himself and those whom he continues to support. I am not persuaded that an extension of time should be granted.
By the grounds of appeal contained in the notice of appeal the applicant seeks to argue that the convictions are illegal as they are "not consistent with the restraining order" referred to in the complaint and, that the weight of evidence proves that the convictions are false, due to conflicting testimony by the applicant's accuser.  It should be noticed that the restraining order referred to in the complaint is one made in the Magistrates Court on 21 October 1994.  Part of the argument advanced by the applicant before me related to an order made in the Family Court on 2 March 1995 which authorised, or called for, the applicant to give a notice in writing, at the conclusion of access to his child, of his intention to take weekend access.  The effect of the magistrate's finding with respect to four of the charges found proved was that the notice purportedly authorised by the Family Court order offended the order of the Magistrates Court.  I think there was evidence properly before the magistrate to establish the breach of the Magistrates Court's order and that the terms in the Family Court order did not exculpate the applicant. 
It is only appropriate to extend time within which to appeal if a court is persuaded that there is merit in the appeal or that a miscarriage of justice may occur if an extension of time is refused.  The court must consider any reasons given for the delay.  I am unable to identify any adequate or plausible reason for the long delay here. 
A further consideration is whether there are, or were, any exceptional circumstances.  I find none here.  On the merits, it is plain to me that the applicant cannot succeed.  No miscarriage of justice might occur if the appeal is not allowed to proceed. 
The facts, as agreed or established before the magistrate, are that on 25 October 1994 the applicant was served with a restraining order.   That order was imposed in the Magistrates Court at Adelaide on 21 October 1994.  By it, the applicant was restrained from approaching, visiting or communicating with Nina Cutting and the applicant's daughter Jessie Dana Cutting, whether in person, writing, or by telephone, for a period of two years, except for the purpose of complying with an order of the Family Court Australia for access or, complying with the terms of an agreement for access made between solicitors for the parties.  Another part of the magistrate's order prohibited the applicant from threatening, harassing or intimidating Nina Cutting or any other family member or any other person at the place where Nina Cutting or those others may reside, for a period of two years. 
In his reasons for decision the magistrate said he had no hesitation in saying that the witnesses called for the prosecution:  "All endeavoured to give a truthful account of their involvement in the matters … before the court".  As to the applicant, the magistrate spoke of being left in a state of disquiet.  The magistrate found that to a significant extent the applicant based his testimony upon reconstruction of events the subject of the charges rather than upon reliance on his memory of the particular incidents.  The magistrate said besides this he was persuaded in part the applicant was less than truthful when he gave evidence.  The magistrate spoke of having to decide to treat the applicant's evidence with caution.  He reviewed the material tendered by the prosecution and found each of the charges proved.  In my view the material before the magistrate entitled him to find the charges proved.  His credibility findings are adverse to the applicant and open to him on the evidence before him.  This is not a case where it could be said that the magistrate palpably misused the advantage he had of seeing and hearing the witnesses. 
There is no other ground upon which a court could interfere.  In all of the circumstances, the application for extension of time within which to appeal must be refused and the proceedings in this court dismissed. 
The first four of the five counts dealt with by the magistrate related to letters written by the applicant.   The magistrate properly found that they were in breach of the restraining order.  As to the other matter, remarks alleged against the applicant were found proved and in breach of para.1 of the restraining order made in the Magistrates Court.  For the reasons already advanced and consistent with the submissions of the respondent, that approach cannot be said to be incorrect.  Given the credibility findings, the decision arrived at by the magistrate cannot be overturned.  There is no merit in the challenge to the sentence imposed.  The application for extension of time is refused and the appeal dismissed.