Gikas v Police

[1999] SASC 139

GIKAS v POLICE

[1999] SASC 139

Magistrates Appeal

1. LANDER J.       The appellant lodged a notice of appeal on 8 January 1999 appealing against a conviction entered against him on 20 August 1998.

2. The appeal is well out of time.  The notice of appeal seeks an extension of time within which to appeal and the grounds relied upon are:

   (1)    That extension of time be granted:

(a)Delay has been caused by the time for the transcript and the Magistrate’s reasons to be provided.

(b)Awaiting Counsel’s opinion.

(c)To avoid a miscarriage of justice.

1. The appellant was charged first that on 14 August 1997 he assaulted Adrian John Inglis and secondly that on the same day he behaved in a disorderly manner in a public place namely Freeman Lane.

2. The appellant pleaded not guilty but the learned Magistrate found both charges proved beyond reasonable doubt.

3. Eventually the second count was withdrawn and the learned Magistrate entered a conviction in respect of the first count and fined the appellant $700.  Court fees and prosecution fees totalling $2209 were allowed and the appellant was given twelve months in which to pay those costs.

4. The notice of appeal contained the following grounds in relation to the appeal against conviction:

   “(2)   That the Learned Special Magistrate erred in:

   (a)     reversing the onus of proof;

   (b)failing to properly apply the onus of proof at the conclusion of all evidence presented by both the prosecution and defence;

   (c)failing to provide adequate reasons for rejecting the defendant or witnesses called by the defence.”

5. The appellant’s counsel did not provide the Court and the respondent with the appellant’s outline of submissions as provided for in Practice Direction 25.  The appellant’s outline of submissions was provided to the Court less than four hours before the matter was due to be heard.  The outline was not very helpful, as it merely restated two of the grounds of appeal.

6. The respondent’s counsel attempted to comply with Practice Direction 25 and provided the Court with his outline of submissions in the week before the hearing.  I am told that his outline of submissions was also served on the appellant’s solicitor.  I was told by counsel for the appellant that he only received a copy of the outline a few hours before the hearing.  I am not sure why his instructing solicitor delayed in providing him with the respondent’s outline of submissions.

7. In any event the respondent’s outline of submissions made it clear that the respondent intended to argue that the appeal was incompetent in that the notice of appeal was not filed within the time prescribed by r96C.02 of the Supreme Court Rules and s42 of the Magistrates Courts Act.

8. Notwithstanding that the respondent clearly objected to the competence of the appeal, when the matter first came before me the appellant brought forward no evidence to support the application for the extension of time within which to appeal.

9. Counsel for the appellant said that he was not in a position to offer any evidence…