Elliott v Police No. Scciv-01-1465

[2001] SASC 441

ELLIOTT V POLICE
[2001] SASC 441

Magistrates Appeal (Ex Tempore)

1. LANDER J.         This is an appeal against a conviction entered in the Holden Hill Magistrates Court on 9 September 1997. The appellant filed his notice of appeal on 23 October 2001.  Annexed to the notice of appeal is an affidavit sworn on 15 October 2001.

2. The appellant was charged that on 28 November 1996 at Modbury Heights, he drove a motor vehicle on Golden Grove Road at a greater speed than 60 km/h, namely at 75 km/h.

3. The matter came on before a Magistrate on 9 September 1997. The appellant was unrepresented, and pleaded not guilty. The Magistrate heard evidence from the police officer who said that on the day in question he was operating a laser speed measuring device on Golden Grove Road at Modbury Heights. He said whilst operating that device he made notes on an infringement notice which he later delivered to the appellant.

4. In his evidence, he said that he took up a position on the roadway for traffic travelling along Golden Grove Road. He gave evidence of the manner in which he operated the laser unit, and the testing procedures in relation to it.

5. He had no independent memory of the events. He relied upon endorsements which he made on the expiation notice to say that he had detected the appellant’s motor vehicle travelling north on Golden Grove Road at about 75 km/h.

6. The appellant cross-examined the police officer and then gave evidence on his own behalf. It was his evidence that whilst travelling along Golden Grove Road he passed a cement truck at about 60 km/h. He noticed the police officer on the median strip. The police officer had his back to him as he approached him. He said that as he approached him, the police officer turned and indicated with his hand that the appellant should pull over into the left lane. He said that he was told by the police officer that he had been timed by a laser speed measuring device at 75 km/h. The appellant’s evidence was that the police officer in fact had no laser gun with him. The police officer asked him for a reason as to why he was speeding. The appellant said:

   “Bullshit, how can you say that.  When I approached you, you never had the gun in your hand so how could you time me.”

7. There was a clear conflict in the evidence between the appellant and the police officer. On the appellant’s story, the police officer was a liar. The police officer had no independent recollection of the events but had at the time made contemporaneous notes of his observations of the appellant’s motor vehicle.

8. The Magistrate gave ex tempore reasons in which he observed the stark differences between the respective cases. He accepted the evidence of the police officer. He rejected the appellant’s evidence. He found the charge proved. He convicted the appellant and fined him $110 together with $73 Court costs, a $28 levy and $110 prosecution costs. He allowed the appellant 6 months to pay the sum of $321.

9. The notice of appeal in this matter was lodged more than four years after the hearing before the Magistrate.

10. An appeal lies from a decision in the criminal division of the Magistrates Court pursuant to s42 of the Magistrates Court Act in accordance with the rules of the appellate Court. Rule 96(c).02 of the Supreme Court rules provides:

    “An appeal pursuant to s 42 of the Act shall be instituted within 14 days of the making of the judgment by serving a notice of appeal on the Registrar of the Registry of the Court which made the said judgment the subject of the appeal.”

11. There is no doubt that this Court does have power to extend time within which an appellant has to appeal. It is a discretionary power given to this Court and it will always be exercised in favour of the party seeking such an extension, if that party can satisfy the Court that it should exercise the discretion in favour of that party, otherwise a miscarriage of justice might be suffered.

12. In Gikas v Police (1999) 202 LSJS 301 I identified the principles which govern applications of this kind. The power to exercise a discretion exists for the purpose of doing justice between the parties. The power will, in the end, be exercised to prevent a possible miscarriage of justice.

13. The appellant has proffered two affidavits in support of his application for an extension of time. In his first affidavit, which was annexed to the notice of appeal, he said that he did not appeal this decision earlier because he had no money, no place to live, failing health, and he was unable to work. He said in his affidavit: ‘It was my every intention to appeal in the specified time but it was not to be.’

14. When the matter first came on, I indicated to the appellant that there was no evidence to support the assertions in his affidavit. He said he would be able to obtain evidence of his failing health. I adjourned the matter for a week to enable him to do so. Today, he has presented a report from Dr AC Roberts who practises at Elizabeth, who has certified the following:

    “This is to certify that I treated Tony Elliott on the following dates:

    13.02.97.  Neck pain radiating to R-hand.

    13.03.97.  Neck pains and stiffness.

    3.06.97.     Abdominal pain and left lower chest pain.

    23.06.97.  As above.

    27.06.97.  Pain persists.

    13.12.97.  Viral illness.

    22.12.97.  Sore hands and unable to work regularly.”

15. There is no evidence of any failing health or any treatment for ill health between 1997 and 2001.

16. In his second affidavit, the appellant has asserted:

    “Further to the previous affidavit the reason for the delay in appealing is, since the appointed time ran out I have been told that ‘It is now not possible to appeal.’

    Until just recently when I was told that this was not the case.  Hence the appeal.”

17. In his submissions to me the appellant has asserted that he was told very shortly after the conviction was entered, but after the 14 day period had expired, that he was precluded from appealing. He said it was not until very recently, and just prior to the filing of the notice of appeal, that he was advised otherwise, and then brought this appeal.

18. In my opinion, the explanations offered by the appellant are not satisfactory to explain the very lengthy delay in this matter. There was no satisfactory evidence to support the application for an extension of time. There are some apparent inconsistencies in the reasons given for his failure to appeal.

19. However, as I have said, an extension of time will be granted if it is necessary to prevent a party suffering a miscarriage of justice. Therefore, I need to examine briefly the circumstances leading up to the conviction to determine whether there is any risk that the appellant would, even with an unsatisfactory explanation, suffer a miscarriage of justice if the conviction was allowed to stand. He would, of course, suffer a miscarriage of justice if the conviction is unsafe and unsatisfactory, and if the appeal was, in those circumstances, likely to succeed.

20. The appellant has, in support of this application, made a number of assertions from the bar table. First, he says the police officer who gave evidence in the Court below was a liar. That, of course, is consistent with his defence. Secondly, he says the transcript in the Court below has been doctored. He said that there has been evidence which has been omitted, and deliberately so, so as to conceal the evidence given by the police officer in court below. Thirdly, he said the Magistrate has in his reasons not told the truth.

21. I tried to explain to the appellant there is a difference between the Magistrate being wrong and the Magistrate being untruthful.

22. The appellant, who is an intelligent man, understood, I think, the distinction that I made. However he maintains that the Magistrate has failed to tell the truth.

23. His case is that he is the victim of a conspiracy between a police officer, a Magistrate and the Court officials who have doctored the transcript.

24. There is no possibility, in my opinion, of this appellant being successful in overturning the conviction which has been entered in the court below. The Magistrate was entitled to reject his evidence for the reasons the Magistrate gave. The appellant cannot succeed, in my opinion, on this appeal.

25. The appellant has also appealed against sentence. In my opinion, he could not succeed on any appeal against sentence.  I think he conceded in his submissions that the sentence was not manifestly excessive if it is assumed that he was travelling at 75 kilometres per hour.

26. As it is my opinion that there is no prospect the appellant could succeed on this appeal he could not suffer any miscarriage of justice if the application for an extension of time is refused.

27. The application for an extension of time is refused and the appeal is dismissed.