Delaney Ellis v Police - [2014] SASC 17

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
DELANEY ELLIS v POLICE
[2014] SASC 17
Reasons for Decision of The Honourable Justice Nicholson (ex tempore)
13 February 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
The appellant, a Victorian man travelling through South Australia, was charged in Ceduna at 1.55 in the morning of 16 October 2013 with the offences of driving under the influence of alcohol, failing to comply with a direction to undertake an alco breath test and failing to provide name and address details. On the police case he was grossly intoxicated and behaving in a volatile manner. He was placed in a padded cell in Ceduna and police bail refused. On the appellant's case he had not been driving at all because his car was inoperable (clutch failure) and there was no requirement for him to have undertaken an alco breath test. At about 10 that same morning a telephone hearing with an Adelaide suburban Magistrates Court was arranged. It started as a bail hearing but transmogrified into a plea and sentence hearing. Pleas were received and sentence passed. There were a number of failures of process giving rise to a reasonable apprehension that a miscarriage of justice had occurred.
Held: (with the consent of the respondent) appeal allowed.
The following orders were made:
1. The appeal is allowed.
2. All orders made in the Elizabeth Magistrates Court on 16 October 2013 in this matter are quashed.
3. The matter, being the complaint issued against the appellant under s49 of the Summary Procedure Act 1921 on 16 October 2013, be remitted to the Magistrates Court for rehearing.
4. In the first instance, the matter be remitted to the Adelaide Magistrates Court for directions as to its further conduct.
5. There be no order as to the costs of this appeal.
Supreme Court Civil Rules 2006 (SA) Rule 295; Summary Procedure Act 1921 s49, referred to.
Stengle v Wells (unreported, Supreme Court of South Australia, Cox J, 30 April 1985, judgment no. S4958); Markl v Police [2005] SASC 141, considered.

DELANEY ELLIS v POLICE
[2014] SASC 17
Magistrates Appeal: Criminal
NICHOLSON J.

This is an appeal against conviction of the appellant following the, apparent, entry of guilty pleas in the Elizabeth Magistrates Court on 16 October 2013. The appellant had been charged with three offences, driving under the influence of alcohol, failing to comply with a direction to submit to an alco test and failing to provide name and address to the police.
All of the events: the alleged offending, the charging, the first return before the Magistrates Court, the apparent pleas of guilty and sentencing took place on the one day.
The appellant was arrested at or about 1.55am on 16 October 2013 in or near Ceduna and charged with the three offences. Police bail was refused and the appellant was remanded in the Ceduna Police Station cells and at one stage in a padded cell.
The appellant lives in Victoria and was travelling through South Australia, possibly on the way to Western Australia, immediately prior to the alleged offending which as I say occurred, if it occurred, in Ceduna. Police bail was refused, apparently on the basis that the appellant had no fixed address in South Australia, had failed to give his name and address details, and was subject to an outstanding warrant in Victoria. In the circumstances, the police officer concerned took the view that the appellant may be a flight risk. Accordingly, at or about 10am that same morning, arrangements were made for a bail hearing to be conducted over the telephone with a Magistrate in the Elizabeth Magistrates Court.
Present at the Ceduna Police Station was the appellant, a police prosecutor Mr Paul Silvester and Ms Heaver, a representative of the Aboriginal Legal Rights Movement. The appellant does not regard himself as Aboriginal but Ms Heaver, as I understand to be the practice sometimes, purported to assist him given that he was not a local and was not legally assisted at the time. There is no transcript of the proceedings which occurred over the telephone, nor did the Magistrate provide reasons. However, the Magistrate has helpfully provided a quite detailed written report following a request from my chambers pursuant to Supreme Court Civil Rules 2006 (SA), Rule 295(1)(e).
In that report, her Honour indicates that she was advised, she thinks by Ms Heaver, that the appellant would be willing to plead guilty to the charges so as to be able to leave Ceduna, if the Magistrate was willing to hear the matter over the phone. The prosecutor was agreeable to that suggestion and, as matters transpired, it was somehow indicated that the prosecutor would not oppose minimum sentences being imposed. It would seem that the Magistrate took the view that if the appellant were to be refused bail, he might end up spending a substantial period in custody awaiting the next available hearing date in the circuit list. However, the Magistrate had also formed the view, based on the circumstances of the alleged offending as disclosed by the terms of the complaint, that the offences, whilst serious, were not such as in the ordinary course would attract a sentence of imprisonment.
The Magistrate was left with the understanding that the parties were content to finalise the matter there and then on the basis that minimum penalties would be imposed. However, the Magistrate conceded that she did not speak directly to the defendant on these issues. She has no recollection as to the exact way in which the pleas of guilty were heard by her over the telephone. Her practice is to read the charges and receive the plea through counsel or by the defendant in question if not represented. However, the Magistrate recognised that it was possible that she accepted the guilty pleas through Ms Heaver on this occasion.
Available to this Court on the appeal is an affidavit by the arresting police officer, Sergeant Peter Stephen, sworn 6 February 2014 setting out the circumstances leading up to and resulting in the arrest by Mr Stephen of the appellant, an affidavit of an assistant police prosecutor, Mr Paul Silvester, sworn 30 January 2014 setting out the circumstances of the telephone hearing insofar as he is able to depose to them, the report of the Magistrate already referred to, the respondent’s written summary of argument and a written argument provided by the appellant which argument includes his (unsworn) account of the events leading up to his arrest and the events following his arrest.
There is significant conflict between the parties as to the facts. On the account of the police, the appellant was grossly intoxicated at 1.55am on the morning in question whilst in charge of his motor vehicle which he had been seen to drive into the local BP service station, being the location of the arrest. In support of the arresting police officer’s observations as to the state of the appellant’s intoxication, the police have identified, and presumably in any trial of this matter would seek to rely upon, three other lay witnesses: a quarantine inspector at the fruit fly station on the Eyre Highway, the console operator at the BP service station and a passenger who had been in the car at an earlier time when, according to the witness, the appellant had been driving it. Each of these prospective witnesses has provided information or a statement to the police describing the appellant as driving the vehicle in question at the relevant time and/or as appearing to be extremely intoxicated at or about the relevant time.
The appellant strenuously disputes the police account. He maintains that the motor vehicle in question was inoperable on 16 October 2013. He asserts that the car had a broken clutch which was why he and his passengers had been camping outside of Ceduna waiting for a tow truck to arrive later in the day. According to the appellant, when the police officers arrived in the early hours of the 16^th October the car had been in an undriveable condition and had continued to be so. The appellant denies driving the vehicle. He maintains that at no time was he obliged to provide an alco test – on the basis that the car was inoperable and he had not been driving on the day. The appellant also makes a number of other serious allegations. The appellant asserts that he was physically assaulted, sexually molested and unlawfully threatened by police officers. He asserts he was the victim of racist abuse. He says he was denied access to legal counsel, toilet facilities and food and water whilst in police custody. He asserts that at no time did Ms Heaver have any authority to act on his behalf or to speak for him.
Upon receiving the apparent pleas of guilty over the telephone, the Magistrate imposed the following penalties.
(i)For the offence of drive under the influence – a fine of $1,100 with court fees of $287.50, Victims of Crime levy $160, prosecution costs $100, making a total of $1,647.50 with 28 days to pay. The appellant’s licence was disqualified for 12 months commencing 11.20am on 16 October 2013. The appellant was also ordered to pay vehicle impounding costs of $903.60 with, again, 28 days to pay.
(ii)For offence of failing to comply with a direction to undergo an alco test for breath analysis the appellant was fined $1,100 with a Victims of Crime levy of $160, being in total $1,260 with again, 28 days to pay. The appellant’s licence was also disqualified with respect to this offending for 12 months also to commence at 11.20am on 16 October 2013 (and, therefore, by implication to operate concurrently with the first suspension).
(iii)For the offence of refusing to give name and address details the appellant was discharged without penalty but ordered to pay a Victims of Crime levy of $160.
This Court has jurisdiction to entertain an appeal against conviction from the Magistrates Court notwithstanding the entry or apparent entry of guilty pleas. Ultimately, the principal question is whether there is a reasonable apprehension that there may have been a miscarriage of justice in the court below.[1]
[1] Stengle v Wells (unreported, Supreme Court of South Australia, Cox J, 30 April 1985, judgment no. S4958) and Markl v Police [2005] SASC 141 at [35] (Besanko J).
In the circumstances of this matter, and notwithstanding that the respondent disputes in its entirety the factual account given by the appellant, the respondent has indicated that it would consent to an order quashing the orders made in the Magistrates Court and remitting the matter to the Magistrates Court with no order as to costs.
The appellant wants more and seeks a quashing of all orders made by the Magistrate Court and the dismissal of the charges. It would not be appropriate in the circumstances of this case to accede to the appellant’s position. Even if the appeal were to be allowed, the matter is one that would need to be remitted to the Magistrates Court for a rehearing. This Court is not in a position and it would not be appropriate in the circumstances of this appeal, to review the evidence on both sides as to the contested factual matters so as to finally determine the dispute. At the very least, both parties should be given the opportunity to prepare for a trial and, at any trial that might ensue, to call evidence from relevant witnesses and have them examined and cross-examined in the ordinary way.
Leaving aside the respondent’s concession for the present, I do have, in any event, a reasonable apprehension that there has been a miscarriage of justice in this matter such that the appeal should be allowed. There are a number of circumstances arising from the police affidavits and the Magistrate’s report that support such a finding. However, I need only mention the following.
(i)The appellant had no realistic opportunity to obtain legal advice, as to the nature of the charges, as to whether he should plead guilty or contest the charges and as to the penalties that might be imposed.
(ii)The appellant’s pleas were entered only a matter of hours after the appellant had been removed from a padded cell at the Ceduna police station in which he had been placed, on the Crown case, because of his gross intoxication and volatile behaviour and only a matter of hours after having been charged in the very early hours of that morning.
(iii)The pleas were taken over the telephone with there being no opportunity for the Magistrate to make an assessment of the appellant and with very little, if any, conversation passing between the Magistrate and the appellant.
(iv)There is an appreciable risk that the appellant was induced to plead guilty or at least induced to plead guilty on the spot rather than defer the matter in order to obtain legal advice, by the fear that if he did not do so he would be remanded in custody in Ceduna. There is also an appreciable risk that, in this context, he was induced to plead on the basis that minimum penalties would be imposed but without an appreciation of what they would be.
(v)There is an appreciable risk that Ms Heaver, the representative of the Aboriginal Legal Rights Movement and not a qualified practitioner, was permitted to address the court, apparently on the appellant’s behalf, in circumstances where the appellant did not consent to this or was in no position to fully understand what was taking place. It is highly likely, in my view, that the appellant did not have a full appreciation of the significance of his pleas and what would follow therefrom.
I am satisfied that the respondent’s offer to consent to an order quashing all of the orders made in the Magistrates Court on 16 October 2013 was properly made in all the circumstances. In any event, I am satisfied that such an order should be made. I make the following orders.
1.The appeal is allowed.
2.All orders made in the Elizabeth Magistrates Court on 16 October 2013 in this matter are quashed.
3.The matter, being the complaint issued against the appellant under s49 of the Summary Procedure Act 1921 on 16 October 2013, be remitted to the Magistrates Court for rehearing.
4.In the first instance, the matter be remitted to the Adelaide Magistrates Court for directions as to its further conduct.
5.There be no order as to the costs of this appeal