Johns v Police - [2015] SASC 118

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHNS v POLICE
[2015] SASC 118
Judgment of The Honourable Justice Stanley
17 August 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Appeal against conviction and the refusal to set aside that conviction pursuant to s 76A of the Summary Procedure Act 1921 (SA).
On 13 March 2015 the appellant was found guilty by a magistrate, in her absence, of the offence of exceeding the speed limit by 10 kilometres per hour or more but less than 20 kilometres per hour, contrary to Rules 20 and 21 of the Australian Road Rules. It was alleged that on 18 March 2014 the appellant exceeded the speed limit when driving a motor vehicle on Daws Road in Edwardstown at a speed of about 77 kilometres per hour on a section of road where the speed limit was 60 kilometres per hour as indicated by a speed limit sign. The magistrate imposed a fine of $340 and ordered that the appellant pay a total of $850 to take account of court fees, prosecution costs and the Victims of Crime levy. The appellant applied pursuant to s 76A of the Summary Procedure Act 1921 (SA) to another magistrate to set aside her conviction. On 24 April 2015 that magistrate, after hearing the appellant, dismissed the application pursuant to s76A. The appellant appealed.
On appeal the appellant complained that she was found guilty of the offence without being heard. She further submitted that she was wrongly convicted as she had not been speeding, or if she was speeding, it would only have been over a very short distance. Accordingly, she contended that the conviction was unjust. She had no criminal convictions and this conviction would potentially hinder her in the future as far as employment was concerned given the necessity for obtaining police clearances before employers will offer you a job. She submitted that the national safety guidelines prescribe that any mobile speed camera should only be used in locations which are known black spots or high accident zones. She submitted that there was no evidence that the speed camera in this case was so located. Further, she submitted that she failed to attend on 13 March 2015 when the matter was listed for trial because she had a sick child. She was unaware that she needed to provide a doctor’s certificate. Had she been aware of the need for evidence of her child’s illness she would have done so.
The respondent submits that the matters determining an appeal against the decision pursuant to s 76A of the Summary Procedure Act 1921 (SA) and the appeal against the conviction are the same. The court has a discretion to allow an appeal in circumstances where a defendant fails to attend a hearing. That is an evaluative exercise focussed on whether interests of justice require that the appeal be allowed. Relevant to this exercise is consideration of whether the failure to attend was the result of genuine misadventure and whether there is a probability of injustice if the conviction is not set aside. The respondent submits that the evidence fails to establish that the appellant’s non-appearance was the result of genuine misadventure. In any event, the respondent submits that there is no probability of injustice resulting from the conviction as the appellant has no reasonable prospects of successfully defending the charge.
Held (per Stanley J) dismissing the appeal:
1. It is unnecessary to decide whether the appellant was prevented by genuine misadventure from being present at court to present her case (at [18]).
2. I am not persuaded the appeal should be allowed because the appellant has been unable to demonstrate that she has a meritorious defence to the charge. I am not persuaded that the appellant will suffer an injustice if the conviction is allowed to stand (at [18]).
3. Appeal dismissed. I will hear the parties as to costs (at [20]).
Summary Procedure Act 1921 (SA) s 76A, 2 62, s 62C, s 62BA; Australian Road Rules ; Magistrates Court Act 1991 (SA) s 42(1a), referred to.
Laurendi v Police (2010) 205 A Crim R 379; Maider v Dancis (1985) 39 SASR 136; Grant v Irrgang (1991) 160 LSJS 334; Tew v Police [2013] SASC 75; Van Ryswyck v Hicks (1974) 8 SASR 376, considered.

JOHNS v POLICE
[2015] SASC 118
Magistrates Appeal
STANLEY J:
Introduction

This is an appeal against conviction and the refusal to set aside that conviction pursuant to s 76A of the Summary Procedure Act 1921 (SA) (the Act).
On 13 March 2015 the appellant was found guilty by a magistrate, in her absence, of the offence of exceeding the speed limit by 10 kilometres per hour or more but less than 20 kilometres per hour, contrary to Rules 20 and 21 of the Australian Road Rules. It was alleged that on 18 March 2014 the appellant exceeded the speed limit when driving a motor vehicle on Daws Road in Edwardstown at a speed of about 77 kilometres per hour on a section of road where the speed limit was 60 kilometres per hour as indicated by a speed limit sign. The magistrate imposed a fine of $340 and ordered that the appellant pay a total of $850 to take account of court fees, prosecution costs and the Victims of Crime levy.
The appellant applied pursuant to s 76A of the Act to another magistrate to set aside her conviction. On 24 April 2015 that magistrate, after hearing the appellant, dismissed the application pursuant to s76A. The appellant appealed this decision. On the hearing of the appeal I granted her permission to amend her notice of appeal to include an appeal against the earlier decision of the magistrate delivered on 13 March 2015 which found her guilty of the offence of exceeding the speed limit. I did so, at least in part, because the judgment appealed from dismissing the application pursuant to s 76A, is an interlocutory decision as it did not finally dispose of the substantive rights of the parties. That occurred by the earlier decision of the first magistrate.[1] Accordingly, there is an issue as to the competence of the appeal against the dismissal of the s 76A application.[2] The amendment permitting an appeal against the earlier decision overcomes this difficulty, as the considerations relevant to an appeal against conviction where the appellant had failed to attend the original hearing have been likened to the factors relevant to an application pursuant to s 76A.[3] I extend the time within which to appeal the earlier decision accordingly.
[1] Laurendi v Police [2010] SASC 324 at [17], (2010) 205 A Crim R 379 at 383 – 384.
[2] See s 42(1a) Magistrates Court Act 1991 (SA).
[3] Maider v Dancis (1985) 39 SASR 136 at 142; Grant v Irrgang (1991) 160 LSJS 334 at 337 – 338; Laurendi v Police [2010] SASC 324 at [20], (2010) 205 A Crim R 379 at 384.
The appellant opted not to pay the expiation notice issued to her in relation to the speeding offence. Apparently this was because she did not believe she was speeding. The appellant appeared at hearings on 5 November 2014 and 13 February 2015 and intimated at each of these hearings that she intended to plead not guilty to the charge. It seems that the appellant failed to appear when the matter was before the Court for mention on 8 October 2014 and 17 December 2014. In any event, she failed to appear when the trial was listed on 13 March 2015. No explanation was provided to the Court at the time for her non-attendance. The magistrate proceeded ex parte. The magistrate found the appellant guilty without the provision of reasons.
On the hearing of the s 76A application on 24 April 2015 the appellant indicated that her failure to attend when the trial was listed on 13 March 2015 was due to one of her children being unwell.
At that hearing the appellant challenged her conviction on the grounds that the speed camera which had detected her speed was unlawfully located and the camera was inaccurate. The magistrate dismissed the application on the ground that the appellant had not put forward any legal basis that justified setting aside the conviction.
Appellant’s submissions
On the hearing of the appeal the appellant complained that she was found guilty of the offence without being heard. She further submitted that she was wrongly convicted as she had not been speeding, or if she was speeding, it would only have been over a very short distance. Accordingly, she contended that the conviction was unjust. She had no criminal convictions and this conviction would potentially hinder her in the future as far as employment was concerned given the necessity for obtaining police clearances before employers will offer you a job.
She submitted that the national safety guidelines prescribe that any mobile speed camera should only be used in locations which are known black spots or high accident zones. She submitted that there was no evidence that the speed camera in this case was so located.
Further, she submitted that she failed to attend on 13 March 2015 when the matter was listed for trial because she had a sick child. She was unaware that she needed to provide a doctor’s certificate. Had she been aware of the need for evidence of her child’s illness she would have done so.
Respondent’s submissions
The respondent submits that the matters determining an appeal against the decision pursuant to s 76A of the Act and the appeal against the conviction are the same. The court has a discretion to allow an appeal in circumstances where a defendant fails to attend a hearing. That is an evaluative exercise focussed on whether interests of justice require that the appeal be allowed. Relevant to this exercise is consideration of whether the failure to attend was the result of genuine misadventure and whether there is a probability of injustice if the conviction is not set aside. The respondent submits that the evidence fails to establish that the appellant’s non-appearance was the result of genuine misadventure. In any event, the respondent submits that there is no probability of injustice resulting from the conviction as the appellant has no reasonable prospects of successfully defending the charge.
The legislative context
Pursuant to s 62 of the Act, if a defendant fails to appear on the hearing of a complaint, the court may proceed in the absence of the defendant to the hearing and, subject to s 62C, to adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had personally appeared before it. Pursuant to s 62BA, where in any proceedings the defendant does not appear at the hearing, the court may proceed to adjudicate on the complaint in the absence of the defendant and may in so doing regard any allegation contained in the complaint as sufficient evidence of the matter alleged. Section 62C prohibits a court in these circumstances from imposing upon a defendant any disqualification from holding or obtaining a driver’s licence or any sentence of imprisonment unless the court has first adjourned the hearing to a time and place in order to enable the defendant to appear for the purpose of making submission on penalty.
Section 76A provides:
76A—Power to set aside conviction or order
(1) The Court may set aside a conviction or order—
(a)     on its own initiative; or
(b)     on the application of a party made within 14 days after the party receives notice of the conviction or order.
(3) The Court may set aside a conviction or order under this section if satisfied—
(a)     that the parties consent to have it set aside; or
(b)     that the conviction or order was made in error; or
(c)     that it is in the interests of justice to set aside the conviction or order.
(4) Where the Court sets aside a conviction or order under this section it may, without further formality—
(a)     proceed to re-hear the proceedings in which the conviction or order was made; or
(b)     adjourn the proceedings for subsequent re-hearing.
Relevant principles
The governing principle in the disposition of this appeal is whether the interests of justice require that the appeal be allowed. In Tew v Police[4] White J said that the governing principle is similar to that stated by Cox J in Maider v Dancis[5] as follows:
Certainly, convictions and orders are not to be set aside on grounds that are unmeritorious or otherwise inadequate. The rights and interests of the respondent are to be considered, not only those of the applicant. There will be times when it will be appropriate to have regard to the substantial merits of a proposed defence, and times when it will not. There may be other useful ways of probing the merits of an application. But in the end … it will be a matter of doing what the justice of the case in hand requires.
[4] [2013] SASC 75.
[5] (1985) 39 SASR 136 at 142.
Those governing principles were further considered in Grant v Irrgang[6] by Debelle J. While those principles have been formulated in the context of s 76A, they are, for the reasons explained above, relevant to the exercise of the court’s appellate function where a person has been found guilty on complaint in their absence.
[6] (1991) 160 LSJS 334.
Those principles look firstly to the explanation for the failure to attend, secondly, whether the person had previously indicated an intention to plead not guilty and defend the matter, and, thirdly, whether the court is satisfied of the probability that the appellant will suffer injustice if the conviction is allowed to stand.
In the context of s 76A Debelle J emphasised that an applicant will not succeed if he does no more than establish the possibility of injustice. The onus is no light one. As Hogarth ACJ said in Van Ryswyck v Hicks,[7] a complainant is not to be put to the expense and trouble of a further hearing in the court below unless an appellant makes it clearly appear that he will suffer injustice if the conviction is not quashed.
[7] (1974) 8 SASR 376 at 379.
Ultimately it is a matter of doing what the justice of the case requires.[8]
[8] Maider v Dancis (1985) 39 SASR 136 at 142.
Consideration
In this case there is no dispute that the appellant had previously indicated an intention to plead not guilty to the complaint. At the hearing of the s 76A application and on appeal to this Court, the appellant has not put forward any evidence that her child was ill on 13 March 2015. The respondent submits that the Court should treat the appellant’s explanation for her failure to attend at the trial with some scepticism given her failure to notify the Court on the day and her previous non-attendance on two occasions. In my view the illness of a child may be a satisfactory explanation for the failure to attend. It is a matter of notoriety that children fall ill unexpectedly and rapidly. Events such as these cannot be anticipated and arrangements for the care of sick children often prove difficult at short notice. However, in the end, it is unnecessary to decide whether the appellant was prevented by genuine misadventure from being present at court to present her case. Assuming for the sake of argument that she had been prevented by the unexpected illness of her child, I am not persuaded that the appeal should be allowed. I am not persuaded the appeal should be allowed because the appellant has been unable to demonstrate that she has a meritorious defence to the charge. By her own admission she may have been speeding, at least for a short distance. Her submission based on the national safety guidelines has not been established. She did not produce these guidelines to the court. In any event, by definition they are no more than guidelines. Further, any argument based on the proposition that the speed camera was located in a position which was not a known black spot or high accident zone fails for lack of evidence. The appellant’s submission that her conviction is unjust because it could cause her difficulties in the future if an employer required a police clearance, is irrelevant to her guilt of the offence charged.
In the circumstances I am not persuaded that the appellant will suffer an injustice if the conviction is allowed to stand.
Conclusion
The appeal is dismissed. I will hear the parties as to costs.