Grey v Police No. Scgrg-98-1143 Judgment No. S6876

GREY v POLICE
[1998] SASC 6876

Magistrates Appeal

Perry J (Ex tempore)

The appellant appeals against his conviction following an ex parte hearing in the Magistrates Court sitting at Adelaide on a charge that on 29 May 1997 at Colonel Light Gardens he was the driver of a car turning to the right on Goodwood Road into the junction at Kingston Avenue and Goodwood Road, and failed to give way to an oncoming vehicle contrary to s63 of the Road Traffic Act 1961.
The prosecution in the Magistrates Court had a somewhat chequered history.
The defendant is in poor health. When the matter was first heard on 3 February 1998, although the police prosecutor was present, the appellant did not appear. However, he had sent a sickness certificate which was placed on file.
On that occasion, that is on 3 February 1998, the court granted the prosecutor leave to proceed ex parte. But having done so, it then adjourned the matter to 3 March 1998 at 2 p.m. The registrar of the court was directed to notify the appellant of the adjournment in writing.
The matter was duly called on 3 March 1998. Again the appellant was not present in court. So that the matter then proceeded ex parte with the result that the magistrate fined the appellant $50.
On 20 March 1998 the appellant lodged an application for re-hearing. That was listed for 3 April 1998 at 10 a.m. When the matter was called on for hearing on that day, the appellant was again not present in court but a medical certificate was on file which prompted the magistrate to adjourn the case to 1 May at 10 a.m.
On 1 May the appellant was not present in court as he was again ill. But a Mr Harper appeared on his behalf. Mr Harper is a friend of the appellant. The outcome of the hearing on that day was that the re-hearing was granted, and the matter was set down for the trial on 13 May 1998.
On that day the appellant did not appear but a note explaining his absence was on the court file. The court adjourned the matter to 27 May at 11.30 a.m. The registrar was again directed to notify the appellant of the adjournment in writing.
On 27 May the learned magistrate constituting the court verified that the registrar had notified the defendant of the hearing date in writing and granted leave to the prosecutor to proceed ex parte, there being no note explaining the absence of the appellant on that day.
The prosecutor then submitted an account of the facts to the magistrate.
They have been summarised in an affidavit of the police prosecutor, Mr Colthorpe. He informed the magistrate that at about 6.15 p.m. the police were travelling north in a vehicle in the centre lane of Goodwood Road at Daw Park at about 60 km/h. They observed a blue Holden station wagon driven by the appellant, travelling in the opposite direction and indicating a right turn into the junction with Kingston Avenue. The Holden station wagon then commenced to turn right at a very slow speed. In fact rather than a right hand turn it completed a U-turn. The police vehicle had to brake suddenly to avoid a collision.
The police officer who was driving sounded a warning device, which I assume means he blew the horn of the police car. The Holden station wagon then moved from the left-hand lane to the centre lane without any warning and again failed to give way to the police vehicle. The Holden was stopped, and the appellant questioned.
When asked to give his reason for failing to give way to oncoming traffic the appellant said to the police officer that they were 50 m away and he had plenty of time. When told that the police had to brake heavily to avoid a collision the appellant said, “Rubbish, I'm a good driver, I didn't do anything wrong”.
The appellant was then convicted again. This time he was fined $180.
The appellant subsequently lodged a further application for re-hearing. But when that was brought on for hearing in June this year, the appellant informed the court below that he wished to withdraw it, as he had lodged an appeal to the Supreme Court. When the appeal to this court came on for hearing before me today, the appellant appeared in person. Also present was his friend, Mr Harper.
I have done my best to elicit from the appellant what his case on the appeal is. In the first place he contends that it was wrong of a certain magistrate, Mr Gurry, to sit on the matter as he did at one stage, as he had previously intimated that he would not do so. That intimation was given when on one of the hearings there was some sort of exchange between Mr Gurry and the appellant which caused the appellant to believe that Mr Gurry was in some way biased.
A statutory declaration has been put forward by Ms Elizabeth Colatis who gives her occupation as program co-ordinator. She says that she appeared in court on an earlier occasion in October 1997 and was present when following an objection by Mr Grey, Mr Gurry apparently intimated that he would not hear the case. It seems clear that if that is so, Mr Gurry, who eventually did conduct the hearing on 3 March when the first fine, that is $50, was imposed, must have overlooked that.
Be that as it may, no evidence has been put before me to satisfy me that in fact Mr Gurry should have disqualified himself. More importantly that conviction did not stand. It was subsequently set aside and it was another magistrate who later heard the matter when it was called on for hearing on 27 May 1998, and who imposed the fine of $180 following the ex parte hearing.
The complaint therefore as to Mr Gurry hearing the matter at one stage cannot be sustained.
Apart from that complaint the appellant was permitted to explain to this the court what he had to say about the circumstances of the passage of driving which resulted in his being charged. Apparently the case which he wishes to have an opportunity to put is that the police car was a long way away when he first started to make his turn and that it must have been travelling at an excessive speed if it was embarrassed by his action in turning. He admits, however, that he drives very slowly and that he would have executed the turn very slowly.
It appears to me on a careful perusal of the file and having regard to the chronology of the hearings in this matter, that the appellant was given every opportunity, if he had cared to come to court on an occasion when he was not ill to present his defence, he did not do so. His absence on the two days upon which convictions were recorded is unexplained, by illness or otherwise. I gave him every opportunity during the hearing of the appeal to explain his absence on those two days, but no satisfactory explanation has been forthcoming.
In those circumstances it appears to me that no good reason has been made out to set aside the conviction.
On the other hand I am troubled that on one occasion he was fined $50 and on another occasion $180. That seems to suggest to me that on the face of it there is some unfairness in the process.
In the circumstances I think it proper to allow the appeal for the purpose of reducing the fine from $180 to $50 which, together with court costs, will amount to $167 in all. The appeal is allowed to the intent that the fine is reduced to that amount.
I allow six months from today within which the fine, as reduced by me by this order, and costs are to be paid.

[1998] SASC 6876

23 September 1998