Laurendi v Police

[2010] SASC 324

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

LAURENDI v POLICE

[2010] SASC 324

Judgment of The Honourable Justice Vanstone

24 November 2010

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE - MATTERS OF PROCEDURE - INTERLOCUTORY ORDERS

Appellant convicted for speeding offence in Magistrates Court following ex parte trial - application pursuant to s 76A Summary Procedure Act to set aside conviction refused by magistrate - whether s 42 Magistrates Court Act gives right of appeal - whether refusal to set aside conviction an interlocutory judgment.

Held: refusal under s 76A Summary Procedure Act is an interlocutory judgment and not susceptible of appeal - appeal notice amended to apply to conviction - appeal allowed - matter remitted for rehearing.

Magistrates Court Act 1991 s 42; Summary Procedure Act 1921 s 76A; Australian Road Rules r 315, r 322, referred to.
Southern Cross Exploration NL & Ors v Fire And All Risks Insurance Company Ltd & Ors [No 2] (1990) 21 NSWLR 200; Van Reesema v Police [2006] SASC 251, discussed.
Police v Franco [2008] SASC 268, (2008) 258 LSJS 75; Police v Clayton-Smith (2010) 107 SASR 261; Hall v Nominal Defendant (1966) 117 CLR 423; Licul v Corney (1976) 180 CLR 213; Ralph v Police [2008] SASC 359; Ralph v Police [2008] SASC 95; Sambastian v Police [2010] SASC 46; Maider v Dancis (1985) 39 SASR 136; Grant v Irrgang (1991) 160 LSJS 334, considered.

LAURENDI v POLICE
[2010] SASC 324

Magistrates Appeal

1. VANSTONE J: This purported appeal raises the question of whether there is a right of appeal against a decision of the Magistrates Court declining to exercise the power conferred by s 76A of the Summary Procedure Act 1921 (SA) to set aside a conviction or other order.

2. Mr Laurendi was charged with a speeding offence.  He intimated that he would contest the charge.  However, he failed to attend the Magistrates Court on the day fixed for the trial of the charge.  The magistrate determined that the trial should proceed ex parte and Mr Laurendi was convicted in his absence. He filed an application pursuant to s 76A of the Summary Procedure Act (SPA).  That provision enables the Magistrates Court to set aside a conviction on grounds which include that it is in the interests of justice to do so.

3. The application came on before the same magistrate who had heard the trial. Mr Laurendi told the magistrate that he had failed to attend on the trial date because he had made an honest mistake as to the date and had attended for his trial two days after the appointed day. No issue is taken with the truth of those assertions. He further advised that his defence was that signage on the road indicating a temporarily altered speed limit was obscured by the foliage of a tree and that, but for the lack of effective signage, he would not have been speeding. He had brought with him a photograph of the sign, but the magistrate declined to view it. The respondent concedes that the speed limit sign would only govern the speed limit on the relevant stretch of road if it were clearly visible to the road users to whom it was designed to apply: r 315 and r 322(2) Australian Road Rules.  Had the appellant proved at his trial that the speed sign did not comply with the Australian Road Rules then he must have been acquitted: r 315 and r 322. The respondent also concedes that in refusing to examine the proffered photograph the magistrate declined to have regard to a relevant matter and therefore failed to properly exercise the discretion reposed in him. The appellant seeks by this appeal to have that decision overturned.

4. However, the respondent contends that a decision of the Magistrates Court refusing to set aside a conviction or order under s 76A SPA is an interlocutory order and is therefore not one which can be the subject of an appeal to this Court pursuant to s 42 of the Magistrates Court Act 1991 (SA).

5. Section 42 of the Magistrates Court Act provides as follows:

   42—Appeals

   (1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).

   (1a)An appeal does not, however, lie against an interlocutory judgment unless—

   (a)the judgment stays the proceedings; or

   (b)the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or

   (c)the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.

6. In Police v Franco [2008] SASC 268; (2008) 258 LSJS 75, Bleby J discussed the nature of s 76A SPA. His Honour was dealing with a prosecution appeal against the decision of a magistrate made under that section. The magistrate set aside an earlier order for forfeiture of firearms and ammunition and imposed in its place an order forfeiting the ammunition and imposing a condition upon the respondent’s firearms licence. As to s 76A, Bleby J said, at [35]:

   The Magistrates Court, although a court of record, is also a court of summary jurisdiction. Where an error has been made or relevant facts have been withheld from or mistakenly omitted from being placed before the Court, either through no want of diligence on the part of the applicant or because of a genuine misunderstanding on the applicant’s part, which has resulted in an injustice, or where material circumstances have changed which justify the reconsideration of an order of this nature and the interests of justice require it, resort to s 76A of the Summary Procedure Act is entirely appropriate. Within the constraints imposed by s 76A(3) it is a convenient summary remedy for an injustice which otherwise could only be cured by the much more cumbersome and expensive procedure of an appeal to this Court.

   It may be noted that Bleby J described the work of the provision as remedial.  In Police v Clayton-Smith (2010) 107 SASR 261, Gray J described the main work of the section as follows at [22]:

   Section 76A, although conferring a broad discretion designed to facilitate the efficiency of the courts and avoid unnecessary appeals, is primarily directed to circumstances where the previous conviction is contaminated with error, or where otherwise, having regard to the circumstances of the particular case, the interests of justice demand the use of the power.

7. Before me, counsel for the respondent submitted that the refusal to set aside a conviction pursuant to s 76A SPA amounts to or is analogous to an interlocutory judgment. Counsel put that such a decision is a unique type of legal proceeding which does not readily fit within the framework established by s 42 of the Magistrates Court Act. Counsel submitted that, if an interlocutory judgment is one which does not finally dispose of the rights of the parties in the principal cause, then a refusal to interfere under s 76A would have to be seen as one which did not disturb the earlier disposition of the action. That being the case, and assuming that the s 76A proceeding was part of the original criminal action, the proceeding would have to be at least equated with an interlocutory one. If the 76A proceeding were seen to be a new action, then, counsel argued, it could not be categorised as a criminal action and therefore would not give rise to a separate appeal under s 42 Magistrates Court Act.

8. In seeking to define the meaning of “interlocutory judgment”, counsel referred to the discussion of that question by Windeyer J in Hall v Nominal Defendant (1966) 117 CLR 423 at 442-444. At 443 Windeyer J said that the test that seemed to be most satisfactory involved looking at the consequences of the order and asking the question whether it finally determined the rights of the party in the principal cause pending between them. His Honour went on to observe that sometimes an order favouring one party might finally determine the dispute, whereas had the order favoured the other party, it might not. Counsel also pointed to the observation of Gibbs J, as he then was, in Licul v Corney (1976) 180 CLR 213 at 225 to the effect that the nature of the order made, rather than the application which led to it, and the legal rather than the practical effect of the judgment determined its proper characterisation.

9. In support of her argument that the nature of the decision was interlocutory, counsel for the respondent also referred to Southern Cross Exploration NL & Ors v Fire And All Risks Insurance Company Ltd & Ors [No 2] (1990) 21 NSWLR 200, a case which she submitted had some analogy in terms of its facts to the current one. There, the appellants sought to appeal against an order refusing an extension of time within which to comply with a self-executing order for the dismissal of proceedings. The order, made by the Chief Judge in Equity on 21 March 1986, was to the effect that in default of certain steps being taken by 30 May 1986, “the proceedings be and stand dismissed”. It is unnecessary to deal with further steps which were then taken in the litigation. Much later, on 30 March 1990, the plaintiffs were refused an extension of time for compliance with the stipulated steps and a declaration was made that the action had been dismissed pursuant to the self-executing order. All members of the Court of Appeal held that the order refusing an extension of time was of an interlocutory nature and thus an appeal against it could only proceed with leave. The reasons for so finding were differently expressed, but not, as I read them, at variance in point of principle. In his judgment, at 217, Handley JA expressed this view:

   In my opinion the order dismissing the motion for an extension of time did not “itself” finally dispose of the rights of the parties in the action and for two reasons.  First because in theory at least a further application for extension of time could be brought.  Thus the motion dismissed [on 30 March 1990] was the second of such applications brought by the plaintiffs, an earlier one having been dismissed by Kearney J on 30 May 1986.  Secondly all that the Chief Judge’s order did was to refuse an extension of time.  The result of course was that the proceedings stood finally dismissed, but by virtue of the self-executing order and not by virtue of the order refusing an extension of time.

   By analogy, in the present case, counsel for the respondent argues that the parties’ rights were finally determined at the trial and the s 76A proceeding did not change that position.

10. The only authority unearthed by counsel’s researches which specifically addressed the competence of an appeal against a refusal to make orders under s 76A SPA was Van Reesema v Police [2006] SASC 251, a decision of Perry J. In that matter the appellant had failed to attend at a pre-trial conference in respect of his speeding charge. A magistrate proceeded to determine the matter in his absence and convicted him. The appellant then applied pursuant to 76A(3)(c) SPA to have the conviction and penalty set aside. That application was dismissed, the magistrate holding that no reasonably arguable defence was demonstrated. It was that decision which was the subject of the appeal.

11. Perry J held that insofar as the notice of appeal was directed towards quashing the dismissal of the s 76A application, it was an appeal against an interlocutory order and therefore incompetent. However, having identified that the conviction was entered irregularly (the appellant not having consented to the matter being disposed of in his absence at the pre-trial conference) Perry J was prepared to treat the notice of appeal as directed to the conviction.

12. In several other matters in this Court, single judges have dealt with an appeal against a s 76A refusal without having discussed the issue of competence. One example is Ralph v Police [2008] SASC 359. There, Mr Ralph had filed successive applications pursuant to s 76A SPA for a rehearing. He had not been present for the trial of the charges against him and had been convicted in his absence. His appeal was against the dismissal of the third application for rehearing. Nyland J found that s 76A did not give a defendant the right to institute successive applications and that the appeal was irregular for that reason. In any event, her Honour found that Mr Ralph had not demonstrated an arguable case of miscarriage of justice.

13. In a quite separate matter, Ralph v Police [2008] SASC 95, White J dealt with and dismissed Mr Ralph’s appeal against a decision of a magistrate made under s 76A SPA refusing to set aside orders made earlier by another magistrate. No reference was made to the question of whether the appeal was against an interlocutory judgment.

14. In Sambastian v Police [2010] SASC 46 Duggan J, in an ex tempore judgment, allowed an appeal against the refusal of a magistrate to set aside a conviction for a speeding offence. The appellant had not attended at his trial. He claimed he had been misinformed as to the trial date. After the s 76A SPA application was heard and refused, evidence became available that supported the appellant’s claim. Duggan J held that the appellant had provided an “acceptable explanation” for his failure to attend. His Honour set aside the dismissal of the s 76A application and remitted the matter to the Magistrates Court for a new trial. It is apparent from the reasons given by the judge that the question of the status of the s 76A determination was not raised before him. In any event it is apparent that the appeal was meritorious.

15. Of course there are a number of cases where single judges have entertained an appeal against orders made upon a s 76 SPA hearing, but those are cases in which the second magistrate has been prepared to vary or set aside the orders originally made, giving rise to a new final determination of the parties’ rights.  Examples are provided by two of the cases I earlier cited, namely Franco and Clayton-Smith. It should also be noted that many of the older authorities in which such appeals were entertained were dealt with under an earlier statutory regime. Section 42(1a) of the Magistrates Court Act, containing the prohibition against appeals against interlocutory judgments, was introduced by the Statutes Amendment (Courts) Act 1994 which came into operation on 9 June 1994. That subsection was later amended so that the prohibition against appeals against interlocutory judgments was no longer absolute. Earlier I set out the terms of s 42(1a) as it now stands.

16. In this matter I have not had the benefit of argument presented by the appellant in support of the validity of the notice of appeal.  Throughout the proceedings Mr Laurendi has not been represented by counsel.

17. I have concluded that the decision of a magistrate under s 76A SPA refusing to interfere with the original orders is interlocutory. It does not finally dispose of the substantive rights of the parties. The earlier disposition did that. I think the Southern Cross Exploration decision is apposite and, in my respectful opinion, the decision of Perry J in Van Reesema is correct.

18. Were it otherwise it would be possible, at least in theory, for a convicted person to mount appeals both against a s 76A SPA refusal and against the original disposition. That would be a strange result, given the purposes underlying the introduction of s 76A as earlier discussed.

19. I turn back to the position of Mr Laurendi. In my view this is an appropriate case in which to treat his notice of appeal as being directed to the conviction, rather than to the s 76A proceeding.

20. In Maider v Dancis (1985) 39 SASR 136, at 142, Cox J likened the considerations relevant under the, then, relatively new s 76A SPA to those factors which had previously informed decisions made in the context of appeals against conviction where appellants had failed to attend hearings. Debelle J in Grant v Irrgang (1991) 160 LSJS 334, at 337-338, followed the same approach and set out factors relevant to the exercise of either discretion. One factor was genuine misadventure, another carelessness.

21. In this case I am persuaded that Mr Laurendi should have the opportunity to put his defence to the charge.  While I would not characterise his reason for failing to attend his trial as misadventure, neither would I characterise it as mere carelessness.  The photograph produced to me tends to indicate that Mr Laurendi has an arguable case;  although I did not examine material which counsel for the respondent had in her possession which might have borne on that matter.  Importantly, the reasons given by the appellant for his failure to attend are not challenged by the respondent and, indeed, I was impressed by the genuineness of Mr Laurendi in his presentation before me.

22. Accordingly, I make the following orders:

    1.the notice of appeal will be amended so that it refers to the decision made on 21 May 2010 to convict the appellant;

    2.the appeal will be allowed and the conviction and other orders set aside;

    3.the matter will be remitted to the Magistrates Court for rehearing.