Mallios v Commissioner of Police - [2025] SASCA 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
MALLIOS v COMMISSIONER OF POLICE
[2025] SASCA 66
Judgment of the Court of Appeal (ex tempore)
(The Honourable Acting Chief Justice Livesey and the Honourable Justice Stanley)
11 June 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - GENERALLY
This is an application for permission to appeal against a decision by a Supreme Court judge (the appeal judge) to refuse leave to appeal from a decision by a Magistrate.
On 18 March 2024, a police officer stopped the vehicle being driven by the applicant and required that he submit to a drug screening test. The applicant repeatedly refused to comply. The police officer then handed the applicant a notice pursuant to s 47IAA(2) of the Road Traffic Act by which the applicant was notified of an immediate licence suspension for six months.
The applicant applied to the Magistrates Court under s 47IAB(1) of the Road Traffic Act for an order that the applicant’s licence not be suspended for six months after the applicant refused a drug screening test. The Magistrate dismissed the application.
The applicant then filed a notice of appeal in the Supreme Court of South Australia. The applicant was given a number of adjournments and numerous opportunities to prepare his case and appear before he failed to appear at the final hearing of his appeal before the appeal judge.
The appeal judge refused permission to appeal, finding that the applicant had failed to demonstrate any reasonable prospect of a defence and that no arguable error was demonstrated in the reasons of the Magistrate.
The applicant failed to attend the hearing before this Court, and did not apply for an adjournment.
Held, refusing permission to appeal with costs:
1. It is appropriate to proceed in the absence of the applicant.
2.The applicant apparently requires a lengthy extension of time and has not satisfactorily explained the delay nor the difference in the dates appearing on the notice of appeal and the appeal grounds. To the extent an extension is required, it should be refused.
3.Leave or permission must be determined recognising that this is the applicant’s second opportunity to pursue an appeal. Given the expiry of the six-month licence suspension period and the commencement of the separate Magistrates Court proceedings, allowing the decision to stand will not work a substantial injustice to the applicant.

4. In the interests of finality, it is important that these appeal proceedings be brought to an end.
Road Traffic Act 1961 (SA) ss 47EAA(9), 47IAA(2), 47IAB(1); Magistrates Court Act 1991 (SA) s 42; Supreme Court Act 1935 (SA) s 50(4)(a)(ii); Uniform Civil Rules 2020 (SA) r 213.1(1)(b), referred to.
Hanna v Flinders University [2025] SASC 6; Mallios v Commissioner of Police (No 2) [2024] SASC 135; Mallios v Commissioner of Police [2024] SASC 131; McDonald v State of South Australia [2022] SASCA 43; Miojlic v City of Onkaparinga Council [2025] SASCA 2; M, K v Chief Executive of the Department for Child Protection [2021] SASCA 27; Sambastian v Police [2024] SASC 26; Sambastian v Police [2024] SASCA 79, considered.

MALLIOS v COMMISSIONER OF POLICE
[2025] SASCA 66
Court of Appeal – Criminal: Livesey ACJ and Stanley JA
THE COURT (ex tempore):
Introduction

The applicant seeks permission to appeal against a decision by a Supreme Court judge to refuse leave to appeal from a decision by a Magistrate who dismissed an application made under s 47IAB(1) of the Road Traffic Act 1961 (SA) (the Road Traffic Act) for an order that his licence not be suspended for six months after he refused a drug screening test.[1]
[1] Mallios v Commissioner of Police (No 2) [2024] SASC 135 (the appeal judge).
The appeal judge had earlier dismissed an application that he recuse himself on the ground of bias.[2]
[2] Mallios v Commissioner of Police [2024] SASC 131. This case does not raise for decision the question whether an appeal can be taken against a recusal decision, Hanna v Flinders University [2025] SASC 6 (Hughes J).
For the following reasons, permission to appeal should be refused with costs. To the extent an extension of time is required, it should be refused absent any application for an extension or any explanation for the lengthy delay. As will be seen, there is now little point to this appeal as the six-month licence suspension period expired in September last year.
A drug screening test is refused
During the evening of 18 March 2024, a police officer stopped the vehicle being driven by the applicant and required that he submit to an alcotest. That test returned a negative result. The police officer then required that the applicant submit to a drug screening test. The applicant refused to comply. The officer read from a document, effectively warning the applicant about the consequences of failing to comply.[3] The applicant again refused. The applicant was directed a third time to submit to a drug screening test, and again he refused to comply. The applicant said to the police officer: “I comprehend what you say, I don’t stand under your authority”.[4]
[3] This was a PD301 Oral Advice on Refusal or Failure to Comply, the appeal judge, [25]-[26].
[4] The appeal judge, [27].
The applicant was given a fourth chance to submit to a drug screening test. The applicant again refused, giving a similar response. The police officer told the applicant about the available defences but the applicant declined, for example, to request that a sample of blood be taken by a medical practitioner or registered nurse of his choosing.[5]
[5] The appeal judge, [28].
The police officer then handed the applicant a notice pursuant to s 47IAA(2) of the Road Traffic Act by which he was notified of an immediate licence suspension for six months.[6]
[6] The appeal judge, [6]-[9].
The Magistrates Court application
On 20 March 2024, the applicant applied to the Magistrates Court under s 47IAB(1) of the Road Traffic Act for an order that his licence not be suspended. In his affidavit evidence, the applicant expressed regret and assured the court that he would observe the law. He said that his driver’s licence was important to his work, and he needed it to visit his elderly mother.
After a hearing, the Magistrate dismissed the application but suggested that the applicant obtain legal advice, and then make another application to that court. The applicant did not do that.[7]
[7] The appeal judge, [10]-[17].
The Supreme Court appeal
On 9 July 2024, the applicant filed a notice of appeal in the Supreme Court, seeking an extension of time within which to seek leave to appeal, relying on s 42 of the Magistrates Court Act 1991 (SA) (the Magistrates Court Act). The applicant also filed an interlocutory application seeking a stay of the suspension and affidavit evidence which included an assertion that “as a direct consequence of the roadside incident” the applicant “went into nervous shock”.[8]
[8] The appeal judge, [18]-[20].
In hearings before Bampton J and B Doyle J between 26 July and 11 November 2024 which were before, as well as after, the end of the six‑month licence suspension period, the applicant was given a number of adjournments and numerous opportunities to prepare his case and appear. In the result, the applicant appeared before the two Supreme Court judges on five occasions before he failed to appear at the final hearing of his appeal before Justice Doyle on 11 November 2024.[9]
[9] Bampton J: 26/7/2024 (no appearance, directions hearing, extension of time granted), 30/7/2024 (directions hearing). B Doyle J: 14/8/2024 (adjournment granted until 16/8/2024), 16/8/2024 (adjournment granted until 23/9/2024), 4/9/2024 (directions hearing), 23/9/2024 (no appearance, adjourned until 7/11/2024), 7/11/2024 (interlocutory application for recusal), 11/11/2024 (no appearance, appeal hearing).
In very detailed reasons delivered on 29 November 2024, the appeal judge carefully explained in some detail why he refused leave to appeal and why he refused the applicant leave to file further affidavit evidence concerning the allegation regarding “nervous shock”.
The Court of Appeal – the application for permission to appeal
On 28 May 2025, the applicant filed a notice of appeal seeking permission to appeal from the Court of Appeal. The appeal to this Court is only by permission pursuant to s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) and r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA).
The applicant’s notice of appeal was filed on 28 May 2025, but the appeal grounds bear the date 19 December 2024. The applicant has not satisfactorily explained the difference or the delay. On the face of it, a lengthy extension of time is required. Insofar as an extension is required it should be refused.
The applicant’s grounds of appeal are as follows:
(a)     that HH the learned Judge erred in Law and in Fact, as briefly outlined in
(i)    that I was not provided with adequate Notice of the hearing of the Appeal proper, and/or
(ii)     that HH the learned Judge failed to make proper arrangements to hear and determined the Appeal proper - in my presence, and/or
(iii)    that HH the learned Judge failed to follow proper Practice and Procedure in hearing the Appeal, and/or
(iv)    that HH the learned Judge in the Interlocutory matter (1), where an Application was made to recuse himself, HH Justice B. Doyle refused to recuse himself from these proceedings, and/or
(v)     that HH the learned former Judge in the Interlocutory matter, where an Application was sought to ‘Stay” proceedings, HH Justice Bampton refused to grant leave, or to ‘stay’ proceedings and/or stay the operation of the suspension/disqualification issued by a Police Officer.
(b)That HH the learned single Judge failed to follow the acceptable and settled Rules of Evidence, denied me Natural Justice, denied me proper Practice and Procesure and denied me Procedural Fairness with respect to the single judge Appeal
In support of the application for permission to appeal, the applicant filed an affidavit affirmed on 19 December 2024 in the following terms:
1. I am the named “Appellant” in this matter going to the Court of Appeal.
2.I say that an Appeal – before a single Judge of the Supreme Court of South Australia, was held and determined on 29th November 2024.
3.I say that I was not provided with adequate Notice as to the date and time of the hearing of the above-mentioned Appeal.
4.I say that I was not present when the above-mentioned Appeal was heard and determined.
5.I say that I am seeking “Leave” of the Court of Appeal, to have my matter heard and determined.
6.I seek an ORDER, in the accompanying Interlocutory Application, that Leave be granted for this matter to be heard and determined by the Court of Appeal.
Again, whilst the affidavit bears the date 19 December 2024, it appears to have been filed on 28 May 2025.
The notice of appeal suggests two broad complaints. The first concerns the circumstances in which the applicant failed to appear at the final hearing before the appeal judge on 11 November 2024. The second appears to be his Honour’s refusal to recuse himself.
As is well known, when considering whether to grant leave or permission to appeal, this Court acts in the interests of justice and by reference to three inter-related questions: (1) whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; (2) whether the decision raises an issue of principle or general importance; and (3) whether allowing the decision to stand would work a substantial injustice to the applicant.[10] Leave or permission must be determined recognising that this is the applicant’s second opportunity to pursue an appeal:[11]
Of course, it is necessary to evaluate these questions recognising that this is the applicant’s second application for leave to appeal.[12] Because the matter has already received comprehensive consideration by a single judge that will usually make it more difficult for an applicant to demonstrate that the interests of justice require that there be a grant of leave to appeal. Where the matter has already been considered on appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal, an issue of principle or general importance, or exactly where substantial injustice arises. Complaints about the outcome, disengaged from the identification of material error, will not usually assist an applicant seeking a second appeal hearing.
[10] McDonald v State of South Australia [2022] SASCA 43, [21] (Livesey P and Bleby JA).
[11] Miojlic v City of Onkaparinga Council [2025] SASCA 2, [12]. See also Oatley v Commonwealth Director of Public Prosecutions [2021] SASCA 108, [39] (Livesey P, Lovell JA and Stanley AJA).
[12] See, for example, M, K v Chief Executiveof the Department for Child Protection [2021] SASCA 27, [5]-[7] (Doyle and Livesey JJA); Sambastian v Police [2024] SASCA 79, [4] (Livesey ACJ and Bleby JA).
The reasons of the appeal judge demonstrate that the applicant was given numerous opportunities to appear, together with a number of adjournments over the objections of the respondent. The respondent’s objections were generally based on two propositions. The first was that the appeal was futile given the expiry of the six-month licence suspension period. The second was that the applicant had not demonstrated reasonable prospects of success on appeal.[13]
[13] The appeal judge, [39]-[42].
Nonetheless, the applicant’s requests were generally accommodated, including on 7 November 2024. On that date, the applicant argued that the appeal judge should recuse himself on the ground of bias. The judge gave ex tempore reasons for his refusal to recuse himself, as well as for his dismissal of the application made by the applicant that the Crown Solicitor could not represent the Commissioner of Police.[14]
[14] Mallios v Commissioner of Police [2024] SASC 131.
The appeal judge then gave the applicant an opportunity to seek an adjournment to prepare an application that the appeal should be adjourned until after the conclusion of proceedings which had been commenced in the Magistrates Court on 29 July 2024. In those proceedings the applicant was charged with a summary offence against s 47EAA(9) of the Road Traffic Act concerning his failure to submit to a drug screening test on 18 March 2024.[15] Instead, the applicant simply requested that the hearing of the appeal be adjourned to 11 November 2024. Over the opposition of the respondent, the appeal judge agreed to list the matter for hearing on 11 November 2024 at 10.15 am.
[15] The appeal judge, [22], [44]-[45].
Inexplicably, the applicant did not appear that day. This was despite the appeal judge adjourning for a short period and the judge’s staff making a call to the applicant’s mobile telephone number. The appeal then proceeded in his absence.[16] There is nothing in the applicant’s complaint about the asserted failure to make proper arrangements for the hearing of the appeal.
[16] The appeal judge, [48]-[52].
As for the refusal by the judge to recuse himself, the applicant has not identified any reason to question that decision. Again, there is nothing in this point.
Insofar as the applicant makes other vague and generalised assertions and complaints, it is difficult to know what lies behind them.
A close reading of the reasons of the appeal judge demonstrates that his Honour was at pains to afford the applicant procedural fairness. He gave extensive reasons for his conclusions that any further affidavit evidence would not be received, and that the applicant had failed to demonstrate any reasonable prospect of a defence.[17] His Honour found that no arguable error had been demonstrated in the reasons of the Magistrate.
[17] The appeal judge, [61]-[75], citing, amongst other authorities, Sambastian v Police [2024] SASC 26 (Kimber J).
In these circumstances, there is no reason to doubt the decision made by the judge. Given the expiry of the six-month licence suspension period and the commencement of the Magistrates Court proceedings, allowing the decision to stand will not work a substantial injustice to the applicant.
Another adjournment?
This matter was initially listed for callover on 23 June 2025. In correspondence from the Court on 3 June 2025 the parties were advised that instead of the callover the Court had decided to list the matter for hearing before the Court of Appeal on Wednesday, 11 June 2025 at 2:15 pm. The Court directed that any outlines be filed and exchanged by 2:00 pm on Tuesday, 10 June 2025.
The following day the Crown Solicitor confirmed attendance, and the Court sent a further email on 4 June seeking confirmation regarding the applicant’s appearance as soon as possible. The Court advised that the appeal would proceed on the appointed day.
On 9 June 2025 the applicant responded, apologising for his late reply. He said that he was away working and didn’t have access to his emails daily. He said that he could not attend any hearings this week. He said that he had made arrangements to attend the callover on 23 June.
On 10 June 2025 the respondent, but not the applicant, filed and served an outline as directed.
The applicant’s delay in responding to correspondence from the Court has not been explained. The applicant has not explained where he is or why he cannot attend, even if by video or telephone. The applicant did not explain his failure to provide an outline.
Earlier today the applicant was warned that the matter would be called on as arranged and that consideration would be given to any adjournment application. The Court advised that whether it proceeded today would depend upon the applicant’s explanation and any arguments presented. Subject to a satisfactory explanation from the applicant, and if an adjournment were granted, the parties were advised that the matter would be heard by the Court of Appeal on 30 June 2025.
The applicant has made no contact with the Court. Attempts have been made to telephone the applicant, without success, and the Court waited 15 minutes before commencing the hearing today. In the absence of a satisfactory explanation from the applicant, an assertion that he will appear at a callover which has been vacated, rather than at the hearing set down for today, is neither satisfactory nor sufficient to require an adjournment. No application was made to adjourn today’s hearing.
It is necessary that all parties comply with the directions of this Court, whether or not they are legally represented. Over a week ago the applicant was warned that the appeal would proceed today. The Court determined that it was appropriate to proceed in the absence of the applicant.
Conclusion
In the interests of finality, it is important that these appeal proceedings be brought to an end.
Permission to appeal must be refused. The applicant must pay the respondent’s costs, fixed in the amount of $750.