Kolusovski v Police (No 2)

The appeal concerned the applicant, Kolusovski, and the respondent, the Police. The dispute arose from an application made by Kolusovski to the Magistrates Court for an order under section 113 of the *Criminal Law (Sentencing) Act 1988* (SA) to have his conviction for driving without a licence set aside. The Magistrates Court dismissed this application, and Kolusovski sought to appeal that dismissal to the Supreme Court of South Australia.

The central legal issue before the Supreme Court was whether an appeal lay to the Supreme Court from the decision of a Magistrate dismissing an application made under section 113 of the *Criminal Law (Sentencing) Act 1988* (SA). This required the Court to consider the scope of the right of appeal from decisions of the Magistrates Court, particularly in relation to interlocutory or procedural decisions rather than final judgments on the merits of a criminal charge.

The Court determined that section 113 applications are not proceedings for the summary conviction of an offence, nor are they appeals from a conviction or sentence. Instead, they are applications for a specific statutory remedy that, if successful, would have the effect of setting aside a conviction. The dismissal of such an application is therefore not a final judgment in the sense that would ordinarily attract a right of appeal under the relevant appeal provisions. The Court concluded that there was no statutory right of appeal from the Magistrate's decision to dismiss the section 113 application.

Consequently, the appeal was dismissed.