LAMBERT v Police - [2010] SASC 225

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LAMBERT v POLICE
[2010] SASC 225
Reasons for Decision of The Honourable Justice Kelly
22 July 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
Appellant appealed against refusal of application under s 76A of the Summary Procedure Act 1921 (SA) to have a conviction for larceny set aside - appellant failed to appear at numerous hearings before the Magistrates Court - conviction and fine entered in appellant's absence on 8 March 2004.
Held: appeal against conviction dismissed – extension of time allowed for appellant to file fresh notice of appeal against sentence – appeal against sentence allowed – order made by the Magistrate recording a conviction set aside – under s 16 Criminal Law (Sentencing) Act 1988 no conviction recorded against appellant.
Summary Procedure Act 1921 (SA) s 62 and s 76A; Criminal Law (Sentencing) Act 1988 (SA) s 16, referred to.
Grant v Irrgang (1991) 160 LSJS 34, considered.

LAMBERT v POLICE
[2010] SASC 225
Magistrates Appeal: Criminal
KELLY J:
Introduction

On 8 March 2004 the appellant was convicted of stealing a jacket and a tank top from Rockmans at Tea Tree Plaza on 24 October 2002. The appellant was convicted and fined the sum of $250.
In early 2010 the appellant filed an application in the Magistrates Court to have the conviction set aside under the provisions of s 76A of the Summary Procedure Act 1921 (SA). That application was heard by the Magistrates Court and refused on 10 March 2010. The Magistrates Court did not publish its reasons for refusing the s 76A application, however it appears from the court record that the learned Magistrate was not satisfied that the appellant had an arguable defence to the original charge.
This appeal proceeded in two stages on 16 June 2010 and 2 July 2010. The appellant originally filed a notice of appeal against the 10 March 2010 decision of the Magistrate to refuse her application made under the provisions of s 76A of the Summary Procedure Act 1921 (SA). On 2 July 2010 I permitted the appellant to file a fresh notice of appeal against the conviction and the sentence of the Magistrate on 8 March 2004.
That appeal was heard on 2 July 2010. At the end of submissions I ordered that the appeal against conviction be dismissed and allowed the appeal against sentence to the extent of ordering under the provisions of s 16 of the Criminal Law (Sentencing) Act 1988 (SA) that no conviction be recorded.
I said I would provide reasons later. The following are my reasons for dismissing the appeal against conviction and for allowing the appeal against sentence.
Background
This matter has a rather chequered history.
The appellant was originally charged on complaint in the Holden Hill Magistrates Court on 5 August 2003. She was charged with one count of larceny arising out of conduct which occurred on 24 October 2002.
The matter first went before the Magistrates Court on 30 September 2003. On that day the appellant did not attend court, however she sent a facsimile to the court stating that she would be unable to attend the hearing on that day. The Court noted the letter from the appellant and the matter was adjourned to 10 November 2003 at 2.15 pm. A notice was sent from the Court to the appellant to notify her of the adjourned hearing.
On 10 November 2003 early in the morning the appellant again contacted the Magistrates Court, this time by telephone, stating that she was unable to attend at the hearing listed that afternoon. Later that morning she sent a facsimile stating that she was unable to attend at the hearing listed on 10 November 2003 and requested an adjournment. In the facsimile the appellant also stated that “I now understand I must attend”.
On 10 November 2003 the Magistrates Court duly adjourned the matter to 4 December 2003 at 9.30 am. The Registry sent a notice to the appellant that day informing her of the adjournment and notifying her that her attendance was required at the next hearing.
On 4 December 2003 the appellant sent another facsimile to the Magistrates Court which bore a transmission time of 5.51 am. In that facsimile, the appellant stated that she was unable to attend the hearing listed that day and requested a further adjournment.
The Magistrates Court did further adjourn the matter to 12 January 2004 at 10 am. It also transferred the matter to the Clare Court in order to make it easier for the appellant to attend.
The appellant did not appear on 12 January 2004 at the Clare Court. On that date the Court noted there was no record that the appellant had been informed of the hearing that day and therefore the matter was further adjourned to 9 February 2004 at 11.30 am. On 12 January 2004 the Court sent a notice to the appellant informing her of the adjourned hearing date.
On 9 February 2004 at 9.45 am the appellant contacted the Clare Court by telephone and stated that she was unable to attend at the hearing that day. She also sent a facsimile to the Court on that date requesting a “private hearing”.
On 9 February 2004 the Magistrates Court adjourned the matter again to 8 March 2004 at 2.15 pm and ordered that a fresh summons be issued to the appellant. On 11 February 2004 the Court did issue a fresh summons to the appellant requiring her attendance at the adjourned hearing on 8 March 2004 at 2.15 pm. That summons was served personally on the appellant on 24 February 2004.
On 8 March 2004 the appellant sent a facsimile which included a medical certificate to the Magistrates Court. That document which bears the transmission time of 12.55 pm on 8 March 2004 was sent to the Holden Hill registry. It appears that the document was then forwarded to the Clare Court at 2.12 pm. The appellant’s requests for adjournments outlined above were made on medical grounds.
On 8 March 2004 the appellant failed to appear at the listed hearing at 2.15 pm. On that date the respondent sought leave to proceed against the appellant ex-parte under the provisions of s 62 of the Summary Procedure Act 1921 (SA). The Court granted permission and convicted the appellant and imposed a fine of $250 plus court fees.
On 16 April 2004 the fine and costs ordered on 8 March 2004 were paid in full.
Thereafter a period of almost six years elapsed until in early 2010 the appellant filed an application in the Magistrates Court to have the conviction set aside under the provisions of s 76A of the Summary Procedure Act 1921 (SA). That appeal was heard by the Magistrates Court and refused on 10 March 2010. The Court did not publish reasons for refusing the s 76A application.
On 31 March 2010 the appellant filed a notice of appeal against the refusal of the Magistrate to set aside the conviction imposed on 8 March 2004. At that time the notice of appeal which was filed on the appellant’s behalf by Dadds Jandy Lawyers, included only one ground of appeal, namely that the learned Magistrate erred in failing to exercise his discretion in favour of setting aside the conviction.
When the matter came on for hearing on 16 June 2010 the appellant was unrepresented and has remained unrepresented throughout.
After seeking clarification directly from the appellant whether in fact she was appealing against conviction or against sentence, it became apparent that the appellant wished to pursue an appeal against conviction.
Although it is not the usual practice on the hearing of an appeal to receive further evidence, in the unusual circumstances of this case I considered it to be in the interests of justice that I permit the appellant to present such further evidence as she saw fit on the hearing of the appeal.
Accordingly I received her submissions on appeal which contained a number of factual assertions and the appellant gave sworn evidence.
In the course of giving evidence the appellant explained in her own words why she considered the conviction recorded against her on 8 March 2004 to be unjust. However, having heard the appellant’s evidence about the history of this matter and her explanation as to why she is not guilty of the original offence of larceny, I have to say that her explanations were neither convincing or even plausible. There was nothing put to me by the appellant to suggest that the Magistrate’s conclusion that the appellant had no arguable defence was incorrect. Moreover there was nothing put to me either in evidence or by way of submissions by the appellant to suggest that the original conviction was made in error.
Discussion
In my view the application by the appellant under the provisions of s 76A of the Summary Procedure Act 1921 (SA) to have the conviction entered on 8 March 2004 set aside, was out of time. Under the provisions of s 76A(2), any application to set aside a conviction must be made within 14 days after the applicant receives notice of the conviction or order. This application was made almost six years out of date. However the Court may of its own initiative set aside a conviction or order if satisfied that the parties consent to have it set aside, or that the conviction or order was made in error, or that it is in the interests of justice to set aside the conviction or order. The appellant put nothing before this Court to suggest that she was unaware of the conviction of 8 March 2004. In fact, payment of the fine and costs ordered on 16 April 2004 suggests that at the very latest the appellant was aware of the conviction by 16 April 2004.
However even if the appellant’s application was not out of time, having heard the appellant and reviewed the matter for myself I have reached the conclusion that the Magistrate’s decision to refuse the s 76A application should be upheld.
The appellant has provided no explanation for her delay in making an application under s 76A of the Summary Procedure Act 1921 (SA) to have the conviction set aside. It would appear that the appellant’s wish to travel overseas to the United States of America has prompted this application. The conduct alleged against the appellant occurred on 24 October 2002, that is seven and a half years ago. The appellant was aware of each of the adjourned dates for hearing, but nevertheless failed to appear on any occasion before either the Holden Hill or Clare Magistrates Court. The Court extended great leniency to the appellant in transferring the hearing of the original charge from Holden Hill to the Clare Court solely to assist the appellant to attend.
I accept that the appellant was then, and continued for many years, to suffer from a debilitating depressive illness, an illness which pre-dated the charges and to some extent still continues.
The circumstances in which a court may set aside a conviction under the provisions of s 76A of the Summary Procedure Act 1921 (SA) were conveniently summarised by Debelle J in Grant v Irrgang (1991) 160 LSJS 334. Those circumstances include where a defendant was unaware of the date of the hearing or the previous hearing, where a defendant was prevented from appearing by a genuine misadventure, and where the evidence establishes that the defendant did not fail to appeal by reason of carelessness. In the event that the defendant is careless it would nevertheless be necessary for her to satisfy the court of the probability of an injustice being done in order to enliven the discretion under s 76A(3) of the Summary Procedure Act 1921 (SA).
Here in the independent exercise of the discretion on review, I am satisfied that the appellant was aware of both the hearing on 8 March 2004 and every other hearing prior to that date. The appellant had numerous opportunities to turn up to court but chose to send facsimiles and phone messages to the Court on the day of the hearing. Even though the appellant was suffering from a depressive illness, I do not consider that given the lengthy number of adjournments and the opportunities extended by the Court for her to attend, that the appellant can claim to have been prevented from attending court by genuine misadventure.
Moreover in light of the evidence given by the appellant before me I am satisfied that there will be no injustice done to the appellant by failure to set aside the conviction. I too would have reached the same conclusion as the Magistrate that she no arguable defence.
It was for these reasons that I dismissed the appellant’s appeal against conviction.
However that is not the end of the matter. Even thought the appellant filed a notice of appeal in which she complained against the decision of the Magistrate on 10 March 2010, I am satisfied from the material available to me, which included an affidavit from the then police prosecutor dated 11 May 2010, and from the court record and submissions made to me, that the Magistrate did not consider the question of the sentence imposed on the appellant at the hearing of 10 March 2010. Although it does appear from some of the material in the affidavit of the police prosecutor that the Magistrate, like me, canvassed with the appellant whether she wished to appeal against the sentence, I am satisfied that the Magistrate did not treat it as an appeal against sentence nor did he determine the issue.
In these circumstances I considered it appropriate to invite the appellant, if she so desired, to file a fresh notice of appeal seeking an extension of time within which to appeal against the original sentence imposed on her on 8 March 2004.
In doing so I acknowledged that this was a most unusual procedure, however I am mindful that apart from obtaining some help to file her original notice of appeal the appellant has been unrepresented throughout. I considered it was in the interests of justice to accept a late notice of appeal from the appellant and to consider the merits of the appeal against sentence, even though it was imposed over six years ago.
In determining the appeal against sentence I am mindful of the fact that the respondent did not suggest that, had the appellant been represented before the Magistrate on 8 March 2004, the police would have opposed an application by the appellant that the Court exercise the discretion available to it under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) and refrain from recording a conviction. It appears from the affidavit of the then police prosecutor that no one turned their mind to that matter.
The appellant has no other convictions. It is significant that notwithstanding her ongoing difficulties which appear to arise out of her depressive illness, she has not been in any further trouble with the law since 8 March 2004. The offence is minor however the effect of the conviction is according to the appellant, hindering her efforts to travel overseas.
In these circumstances I considered it appropriate to revisit the exercise of the discretion available to the Court under s 16 of the Criminal Law (Sentencing) Act 1988 (SA). I was satisfied there is proper reason in this case to refrain from recording a conviction.
It was for these reasons that I did on 2 July 2010 set aside the sentence imposed by the Magistrate and refrain from recording a conviction.
The formal orders made by me were:
1       The appeal against conviction is dismissed.
2       In so far as the appeal against sentence is concerned I permit the appellant an extension of time until 2 July 2010 in which to file a notice of appeal against sentence.
3       That part of the order made by Mr Newman SM on 8 March 2004 recording a conviction is set aside.
4 In the exercise of my discretion under s 16 of the Criminal Law (Sentencing) Act 1988 (SA) I refrain from entering a conviction against the appellant.
5       The Magistrate’s order is otherwise undisturbed.
6       No order as to costs.