Mallios v Commissioner of Police (No 2) - [2024] SASC 135

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
MALLIOS v COMMISSIONER OF POLICE (No 2)
[2024] SASC 135
Judgment of the Honourable Justice B Doyle
29 November 2024
TRAFFIC LAW - OFFENCES - PROCEDURE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
Appeal before a single judge against a decision of a magistrate declining to order that the applicant’s driver’s licence not be suspended in accordance with a notice of immediate licence disqualification or suspension given to him by a police officer under s 47IAA(2) of the Road Traffic Act 1961 (SA) (‘RTA’).
The applicant, relying on s 42 of the Magistrates Court Act 1991 (SA), sought orders that the time for filing the appeal be extended, that leave to appeal be granted, that the appeal be allowed, that his licence disqualification or suspension be quashed and that the matter be referred back to another magistrate for trial and final judgment.
Held, declining to grant leave to appeal:
1.The material relied upon by the applicant before the magistrate did not demonstrate a reasonable prospect that the applicant would, in proceedings for an offence against s 47EAA(9) of the RTA, be acquitted.
2.The magistrate did not fail to have regard to relevant considerations, did not have regard to irrelevant considerations, did not fail to afford procedural fairness, or otherwise err.
3.The additional material filed in the appeal proceeding referring to ‘nervous shock’ ought not be received, and would not, in any case, demonstrate a reasonable prospect of acquittal.

4. The grounds of appeal are not sufficiently arguable to justify a grant of leave to appeal.
Joint Criminal Rules 2022 (SA) rr 38.2(2), 191.3; Magistrates Court Act 1991 (SA) ss 3(1), 10(2), 40, 42; Magistrates Court Rules 1992 (SA) r 1.02; Road Traffic Act 1961 (SA) ss 47E(1), 47EAA, 47IAA, 47IAB; Uniform Civil Rules 2020 (SA) rr 15.2(2), 217.10(1); Uniform Special Statutory Rules 2022 (SA) rr 3.1, 6.1(1), 371, referred to.
Aylett v Police [2006] SASC 132; Bormann v Coldwell (1986) 43 SASR 297; Bottomley v Symons (1982) 31 SASR 18; Czerwinski v Hayes (1987) 47 SASR 44; EA Stevens Pty Ltd v Deloitte Growth Solutions Pty Ltd [2009] SASC 364; Flavel v Van Reesema [2005] SASC 418; Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36; Mallios v Commissioner of Police [2024] SASC 131; Martincic v Ethnic Broadcasters Inc [2024] SASCA 33; Ostrowski v Palmer (2004) 218 CLR 493; Police v Conway; Police v Parker [2006] SASC 186; Police v Ghuede (2007) 99 SASR 280; R v Taylor [2014] SASCFC 112; Sambastian v Police [2024] SASC 26; Summersides v Rasch Pty Ltd (Unreported, Supreme Court of South Australia, King CJ, Judgment No S 4209, 17 September 1993); Wang v Gelnar Pty Ltd [2023] SASC 43, considered.

MALLIOS v COMMISSIONER OF POLICE (No 2)
[2024] SASC 135
Criminal: Appeal

B DOYLE J: The applicant seeks leave to appeal against a decision of a magistrate declining to order that his driver’s licence not be suspended in accordance with a notice of immediate licence disqualification or suspension given to him by a police officer under the provisions of the Road Traffic Act 1961 (SA) (‘RTA’).
The notice of appeal relies upon s 42 of the Magistrates Court Act 1991 (SA). That section confers, subject to its own provisions and any appellate court rules, a right of appeal upon a ‘party to a criminal action’ in respect of ‘any judgment given in the action’. As will be explained, although the action did not involve the adjudication of criminal ground, it would appear that s 42, rather than s 40, governs the appeal. For the reasons that follow, I consider that the judgment under appeal is an interlocutory judgment. I would decline to grant leave to appeal and, should leave not be required, I would dismiss the appeal.
Background
On 18 March 2024, the applicant, who had been driving a motor vehicle, was required by a police officer to submit to an alcotest pursuant to s 47E(1) of the RTA. A negative result was returned. Police then directed him to submit to a drug screening test under s 47EAA(1) of the RTA.
By reason of s 47EAA(9) of the RTA, a person required under the section to submit to a drug screening test must not refuse or fail or comply with all reasonable directions of a police officer in relation to the requirement and, in particular, must not refuse or fail to allow a sample of oral fluid or blood to be taken in accordance with the directions of a police officer.
The defences available to a person who is prosecuted under s 47EAA(9) are circumscribed by s 47EAA(10)-(15). If a court convicts a person of an offence against s 47EAA(9), the court must order that the person be disqualified from holding or obtaining a driver’s licence, in the case of a first offence, for a period of not less than 12 months, as the court thinks fit. That period cannot be reduced or mitigated in any way unless the court is satisfied, by evidence given on oath, that the offence is trifling, in which case the court may order a period of disqualification that is less than the prescribed minimum period but not less than one month: s 47EAA(16).
If a police officer reasonably believes that a person has committed an offence against s 47EAA(9), he or she may give that person a notice of immediate licence disqualification or suspension that includes prescribed particulars, under s 47IAA(2) of the RTA.
If the person holds a driver’s licence, the consequence is that their licence is suspended for the ‘relevant period’ in accordance with s 47IAA(4).
The ‘relevant period’ in such a case commences when the notice is given unless the police officer giving the notice is satisfied that it would be appropriate to postpone commencement of the relevant period for 48 hours: s 47IAA(12)(a). The ‘relevant period’ ends 6 months from that date unless it ends sooner by reason that the Magistrates Court, under s 47IAB, orders that the person’s licence is not suspended, or reduces the period of suspension, or by reason that proceedings for the offence to which the notice relates are determined by a court or are withdrawn or otherwise discontinued, or alternatively by reason that the person has been notified by the Commissioner of Police that they are not to be charged with any offence to which the section applies in respect of the conduct to which the notice relates: s 47IAA(12)(b).
The applicant was given such a notice on 18 March 2024.
Application to Magistrates Court
On 20 March 2024, the applicant made an application under s 47IAB(1) of the RTA to the Magistrates Court for an order that his licence not be suspended by the notice.
The Magistrates Court may make such an order in two circumstances. The first is if the Court is satisfied, on the basis of oral evidence given on oath by the applicant that there is a reasonable prospect that the applicant would, in proceedings for the offence to which the notice relates, be acquitted of the offence and the evidence before the Court does not suggest that the applicant may be guilty of another offence to which s 47IAA applies: s 47IAB(2)(a)(i). The second is if the Court is satisfied that the person has not been charged with an offence to which s 47IAA applies or an offence against s 45A and the prosecution authorities have had a reasonable time, in the circumstances, within which to make a determination as to the laying of charges against the person: s 47IAB(2)(a)(ii).
In connection with such an application, the Commissioner of Police must be served with a copy of the application and is a party to the application and may (but is not required to) appear at the hearing represented by legal counsel or a police officer: s 47IAB(4). The Commissioner of Police may make submissions but is not entitled to cross-examine the applicant: s 47IAB(4a).
In support of his originating application, the applicant filed three affidavits.[1] The applicant affirmed that he has never used drugs of any kind, but that he was not aware that it is an offence to refuse a drug screening test, and was taken aback by the officer’s demeanour in directing him to do so. He stated that he had been under a lot of stress at the time. He expressed regret and stated that he could unequivocally assure the Court and police that he understands and will observe the law. His application stated that his licence was important to his work and to visiting his elderly mother. The applicant also stated that he had complied with a breath analysis which returned a result of zero, and that the police officer could not have held a reasonable belief that he was under the influence of any substance including drugs. He pointed to his good driving record and complained that the notice did not disclose a reasonable reason for the suspension.
[1] Dated 20 March 2024 (FDN 2), 21 March 2024 (FDN 4) and 27 March 2024 (FDN 5), filed in MCCRM-24-010547. The latter two affidavits were filed after the magistrate adjourned the application on 22 March 2024 for the applicant to seek legal advice, noting that FDN 2 did not provide enough evidence to support the application.
The application was heard by a magistrate on 27 March 2024. The magistrate explained that in view of the fact that the notice had only recently been issued, it could not be said that the police had delayed unreasonably by not having laid a charge at that time.
The magistrate considered that none of the matters raised in the applicant’s affidavits constituted evidence that there was a reasonable prospect of acquittal. The magistrate explained that the matters that had been raised might be described as extenuating circumstances relevant to penalty if he were convicted but they did not go to guilt of the offence.
The magistrate refused the application under s 47IAB(1) but suggested that the applicant seek legal advice and, if there was other evidence, he could raise that suggested he was not guilty, he might make another application.
The applicant did not make a further application to the Magistrates Court.
Appeal to this Court
By notice of appeal filed in this Court on 9 July 2024, the applicant sought an extension of time within which to seek leave to appeal to this Court against the decision of the magistrate on 27 March 2024.[2] The applicant filed appeal grounds in support of the appeal[3], as well as an affidavit.[4]
[2]     FDN 1.
[3]     FDN 2.
[4]     Dated 5 July 2024 (but affirmed 8 July 2024) (FDN 3).
By interlocutory application,[5] the applicant also sought an order that his licence disqualification or suspension be ‘stayed’ pending the determination of the appeal. The applicant filed two further affidavits relating to that application.[6]
[5] FDN 4. A further interlocutory application (FDN 6) was filed which substantially mirrored FDN 4.
[6] Dated 2 July 2024 (FDN 5) and 15 July 2024 (FDN 7).
Amongst other things, the applicant affirmed in conclusory terms that his application had ‘proper merits’ which would be advanced more fully in due course. In the context of seeking an extension of time he stated that ‘as a direct consequence of the roadside incident, [he] went into nervous shock’ and ‘was required to seek medical attention’. He asserted that he would be able to establish that the police were not justified in disqualifying him, and he ought to be entitled to have his driver’s licence suspension lifted pending the outcome of the appeal. He also stated that he had been informed the appeal might not be listed until September or October 2024. He said that he was seeking to have the suspension immediately ‘stayed’ as the appeal would be futile if he were required to wait that long, by which time the period of suspension would have ended.
Following an initial hearing on 26 July 2024, at which the applicant did not appear, he was on 30 July 2024 granted an extension of time within which to make his application for leave to appeal.
In the intervening period, on 29 July 2024, the Commissioner of Police filed an Information and Summons in the Magistrates Court charging the applicant with a summary offence against s 47EAA(9) in respect of the failure to submit to a drug screening test on 18 March 2024. Those proceedings, which I will refer to as the ‘offence proceedings’, are separate and distinct from the proceeding in which the applicant sought orders pursuant to s 47IAB.
At the directions hearing in this Court on 30 July 2024, directions were made by Bampton J expediting the hearing of the matter in order that it could be determined prior to the expiry of the six-month period of disqualification or suspension that had commenced when the s 47IAA notice was issued to the applicant by police on 18 March 2024.
Those directions required the respondent to file written submissions by 5 August 2024, with the applicant to file his written submissions by 12 August 2024. The matter was listed for hearing on 14 August 2024.
The respondent filed a short affidavit on 5 August 2024 affirmed by Senior Constable Simon Torjul.[7] In it he affirmed that on the evening of 18 March 2024 he stopped the vehicle being driven by the applicant and submitted him to an alcotest which returned a negative result. He then directed the applicant to submit to a drug screening test and produced a drug screening device and explained it to him. The applicant refused to comply with the direction.
[7] FDN 12.
Senior Constable Torjul read a PD301 Oral Advice on Refusal or Failure to Comply to the applicant. The applicant then refused to comply with the direction a further two times. A copy of the form PD301 containing Senior Constable Torjul’s notes of the applicant’s responses to the advice and questions is annexed to the affidavit.
That document discloses that the applicant was informed that it is a criminal offence to refuse or fail to provide a sample of his oral fluid or blood without good cause and that this could result inter alia in a loss of licence for six months or more. The applicant reportedly said:
I comprehend what you say, I don’t stand under your authority.
The applicant was then given a further opportunity to submit to the drug screening test and gave a similar response. The document records that the applicant was advised of the available defences to the charge and that he declined, for example, to make a request that a sample of blood be taken by a medical practitioner or registered nurse of his choosing.
In accordance with Bampton J’s directions, the respondent filed written submissions dated 5 August 2024.[8] The applicant prepared written submissions dated 12 August 2024.[9]
[8] FDN 13.
[9] Filed on 15 August 2024 (FDN 16).
When the matter came before Bampton J on 14 August 2024, the applicant said that he was not aware that the appeal was to be heard on that day, and that he understood it was to be an argument that his licence be reinstated – presumably a reference to the interlocutory relief he had sought pending the hearing of the appeal. The applicant was granted an adjournment until 16 August 2024.
The following day, he sent an email to the chambers of Bampton J requesting that the appeal be adjourned for a period of at least three to four weeks, and requesting that his application for a stay be heard on 16 August 2024.
At the hearing on 16 August 2024, the applicant confirmed that he sought an adjournment of the appeal and that he wanted the Court to grant a stay of his licence suspension. The grounds proffered related to the hardship being caused to him by the suspension. The respondent made submissions to the effect that the appeal lacked merit, including because proceedings had now been instituted in relation to the s 47EAA(9) offence.
Justice Bampton indicated that she declined to grant a stay, having not been satisfied that the grounds of appeal were reasonably arguable. She urged the applicant to seek advice in relation to the charge laid in the Magistrates Court. Her Honour produced a ruling that identified and explained the relevant provisions of the legislative regime.[10]
[10] Reasons for decision dated 16 August 2024 (FDN 18).
In view of the applicant’s request that he be given several weeks to prepare for the appeal, I listed this appeal for hearing on 23 September 2024, but I listed the matter for directions on 4 September 2024. At that hearing I enquired as to whether, in light of the fact that the period of his licence suspension would expire before the hearing date, giving rise to a question as to the appeal’s practical utility, he wished to seek that the appeal be expedited and heard on a date the following week. The applicant indicated he was not sure he would be ready before 23 September 2024, and was seeking legal advice. He did not request an earlier hearing date.
The applicant was informed that any further written submissions, list of authorities or chronology upon which he was proposing to rely should be filed 14 days before 23 September 2024, viz, on 9 September 2024.
By email sent on 9 September 2024, the applicant indicated he had been making arrangements for assistance in preparing appeal documents and was in a position to provide those documents for an appeal hearing later that week or early the following week, and requested that the appeal be brought forward so that it would be heard before 17 September 2024.
However, in circumstances where he had earlier declined two opportunities to have the appeal expedited, the applicant was informed on 10 September 2024 that the Court would not explore the possibility of an earlier hearing date until the foreshadowed further materials, due on 9 September 2024, were filed. The applicant did not file any further material or further press his request for expedition.
Instead, late on 20 September 2024, the last business day before the hearing of the appeal, the applicant sent an email indicating he was too unwell to attend the appeal on Monday, attaching a letter from a medical practitioner indicating she considered him unfit to attend court in his present state of health. The applicant’s email requested that the Court allocate another date and time convenient to the Court and the parties.
The respondent indicated it opposed a further adjournment of the matter. The respondent submitted that the appeal was now futile and of no utility, and that it was open to the Court to find that the grounds of alleged error in the notice of appeal no longer fall to be determined as the applicant no longer has a real interest in relation to the matter as it would produce no foreseeable consequences.
The respondent submitted that the matter had necessitated five previous attendances and ought to be finalised as a matter of priority.
The applicant submitted by responding email that the issue relating to the correctness of the Magistrate’s decision did not lack utility and that the appeal was not rendered futile by the expiration of the period of the licence suspension. He asked that the appeal be listed in the week commencing 4 November 2024.
The applicant did not appear at the hearing on 23 September 2024. The respondent urged me to refuse the informal application that had been made for an adjournment and to dismiss the appeal on two grounds: firstly, that the appeal lacked utility and was futile; and, secondly, that it lacked reasonable prospects of success.
I decided that, in view of the medical evidence provided by the applicant, I should grant an adjournment to a date that the applicant had, by email correspondence, indicated he could attend. I adjourned the hearing of the appeal and application for leave to appeal until 7 November 2024.

By email sent on 30 October 2024, the applicant requested that the hearing be deferred until after the offence proceedings were concluded in the Magistrates Court. I did not accede to that request. By interlocutory application filed on 4 November 2024,[11] and as later amended by a revised form of that application filed on 7 November 2024,[12] the applicant challenged the entitlement of Ms Nolan, of the Crown Solicitor’s Office, to appear for the respondent, and applied that I should recuse myself on the ground of bias. I heard argument in respect of that application on 7 November 2024 and I decided that I should dismiss the interlocutory application.[13] After delivering my ex tempore reasons for that decision, I explained to the applicant that it remained open to him to seek an adjournment of the hearing of the matter either on the basis that he required further time to prepare in view of having been focussed upon the interlocutory application, or on the basis that he could seek to persuade me that the matter should be adjourned generally until after the conclusion of the offence proceeding in the Magistrates Court.
[11] FDN 22.
[12] FDN 24.
[13] Mallios v Commissioner of Police [2024] SASC 131.
The applicant did not advance an application on the latter basis, but did request that I adjourn until 11 November 2024 so that he could better prepare for the hearing. Over the opposition of the respondent, whose counsel pointed out that the applicant had already been granted a number of adjournments, I decided that, in view of the limited prejudice that would be caused to the respondent, I would grant that adjournment and I listed the matter for hearing on 11 November 2024 at 10.15 am.
The application for leave to appeal and the appeal
I now turn to a consideration of the application for leave to appeal and the appeal.
Decision to proceed in absence of applicant
The applicant did not appear at 10.15 am on 11 November 2024, including after the matter had been called outside the Courtroom.
I adjourned the matter for a short period to allow for the possibility that the applicant was running late.
A telephone call was made to the applicant’s mobile telephone number but was not answered. A message was left for the applicant alerting him to his non-attendance and inviting him to return the call.
The matter was stood over to allow time for the applicant to arrive or to return the telephone call. No return telephone call was received. The matter was called outside the Courtroom on a further occasion.
The respondent submitted that I should proceed in the applicant’s absence. In circumstances where the applicant had been clearly informed, at the conclusion of the hearing on 7 November 2024, of the time and date of the hearing on 11 November 2024, I was satisfied that the applicant had been given clear notice of the hearing.
Having regard to the procedural history of the matter including my having granted the applicant two earlier adjournments over the opposition of the respondent, I considered it was appropriate to proceed in the absence of the applicant.[14]
[14] A power to proceed in the absence of a party who has had notice of the hearing but has not attended is contained in Rule 15.2(2)(c) of the Uniform Civil Rules 2020 (SA) and Rule 38.2(2)(c) of the Joint Criminal Rules 2022 (SA).
Material to be considered on the application or appeal
The material on the Magistrates Court file is available for use on the hearing without any requirement to satisfy the rules concerning fresh evidence and without needing to be tendered.[15] I therefore proceed on the basis that the three affidavits sworn and filed in that proceeding are before me. Likewise, the notice of licence disqualification or suspension issued to the applicant forms part of the Magistrates Court file and is available to be considered in this proceeding. It stipulated the basis upon which the notice was being issued, namely, for a refusal or failure to comply with directions in relation to a drug screening test, oral fluid analysis or blood sample, pursuant to s 47EAA(9) of the RTA.[16]
[15] Flavel v Van Reesema [2005] SASC 418 at [22] (Duggan J, Perry ACJ and Anderson J agreeing).
[16] The notice forms part of FDN 1 on the Magistrates Court file.
However, the three affidavits filed in the proceeding in this Court were, self-evidently, not before the magistrate who refused the applicant’s application pursuant to s 47IAB of the RTA. It is therefore necessary for me to consider whether those affidavits should be received.
By reason of the applicant’s absence there was, strictly speaking, no application to rely on those affidavits. However, I considered it appropriate to proceed on the basis that the applicant would have wished to rely on those affidavits.
Whether and in what circumstances evidence that was not before the magistrate should be received invites consideration of the jurisdictional basis for the appeal. The applicant’s notice of appeal relied upon s 42 of the Magistrates Court Act 1991 (SA). An appeal pursuant to that section is by way of rehearing. That requires the Court to:[17]
… reconsider the materials before the trial judge along with such other materials as it may decide to admit and then make up its own mind. However in doing so the court is not to disregard the judgment appealed from, but must carefully weigh and consider it. However, if on full consideration, the court concludes the judgment was wrong, then the court must substitute for the judgment under appeal any order it considers that the court should make.
[17] R v Taylor [2014] SASCFC 112 at [18] (Stanley J, Kelly and Peek JJ agreeing).
Section 42(4) permits the appellate court, if the interests of justice so require, to receive fresh evidence. In Aylett v Police,[18] Doyle CJ said:[19]
This has been taken to require the appellant to show that the evidence could not have been earlier or previously obtained, exercising reasonable diligence. That will often be an appropriate test but it may not fit all circumstances. In the end, it is the statutory terms that must take priority, although I am, of course, bound by the case law that gives content to those statutory terms. …
The nature of the evidence, the circumstances which called for it to be presented, and the reason for not advancing it before, will always be relevant. These matters may affect the approach of the court to the question of whether it should be admitted. They may affect the manner in which the question is formulated.
[18] [2006] SASC 132.
[19] [2006] SASC 132 at [11], [13].
If, contrary to the view I express later in these reasons, the appeal ought properly to have been brought pursuant to s 40 of the Magistrates Court Act 1991 (SA), it would also proceed by way of rehearing and the Court would have power, in an appropriate case, to receive and act on further evidence which was not before the Magistrates Court.[20] Whilst the approach to be taken may be sensitive to the subject matter of the action and the consequences for the party seeking to rely on the material if permission is granted or refused, I consider in the present case that the question whether to receive further evidence would be answered consistently irrespective of whether the proceeding is treated as governed by s 40 or s 42 of the Magistrates Court Act 1991 (SA). The considerations properly informing a decision whether to receive fresh evidence include the form and significance of the proposed evidence and, more broadly, the importance to be accorded to finality.
[20] Summersides v Rasch Pty Ltd (Unreported, Supreme Court of South Australia, King CJ, Judgment No S 4209, 17 September 1993); Caruso v Beard (Unreported, Supreme Court of South Australia, Lander J, Judgment No S5805, 10 October 1996). Rule 217.10(1)(c) of the Uniform Civil Rules 2020 (SA) is to the effect that subject to any statute to the contrary, the Court may hear further evidence in its discretion. As to the exercise of the Court’s discretion under a provision of that kind, see, eg, Wang v Gelnar Pty Ltd [2023] SASC 43 at [15] (Stanley J).
The respondent did not object to the Court receiving the affidavit sworn on 5 July 2024 but opposed the receipt of the affidavits sworn on 2 July 2024 and 15 July 2024 on the basis that the matters addressed in them could have been, but were not, put before the magistrate. Additionally, the respondent submitted that the form in which the evidence was given was objectionable, consisting of conclusory and bare assertions that the ‘roadside incident’ caused him to suffer ‘nervous shock’ which was said to contribute to the automatic disqualification. It was also noted that the affidavit sworn on 2 July 2024 foreshadowed the bringing forward of medical evidence but that no such evidence had, in the months that have since passed, been furnished.
The respondent also submitted that the evidence fell short of evidence that disclosed a ‘reasonable prospect’ that the applicant would, in offence proceedings relating to the applicant’s refusal to comply with the direction to submit to a drug screening test, be acquitted.
In order to consider those submissions, it is necessary briefly to consider the circumstances in which a person charged with an offence contrary to s 47EAA(9) of the RTA may avoid a conviction.
Relevantly, s 47EAA(10) provides that it is a defence to a prosecution under s 47EAA(9) if: (a) the requirement or direction to which the prosecution relates was not lawfully made; or (b) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—(i) the consequences of refusing or failing to comply with the requirements or direction; and (ii) in the case of—(A) a drug screening test or an oral fluid analysis—the person’s right to request the taking of a blood sample under subsection (11); or (c) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
Section 47EAA(11) provides that if a person to whom a requirement is made or to whom a direction is given under the section relating to a drug screening test refuses or fails to comply with the requirement or direction by reason of some physical or medical condition and makes a request of the police officer that a sample of the person’s blood be taken by a medical practitioner or registered nurse, the police officer must do all things reasonably necessary to facilitate the taking of a sample of the person’s blood in a manner that is then set out.
Section 47EAA(13) makes clear that a concern that the result may be to furnish evidence that could be used against the person is not a basis to refuse to comply with a requirement or direction. Nor is the person able to raise the objection that the person has consumed a drug after they last drove the motor vehicle.
Section 47EAA(14) then provides that a person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section relating to a drug screening test by reason of some physical or medical condition of the person unless—(a) a sample of the person’s blood was taken in accordance with subsection (11); or (b) the person made a request as referred to in subsection (11), but—(i) a police officer failed to facilitate the taking of the sample as required; or (ii) a medical practitioner or registered nurse was not reasonable available for the purpose of taking such a sample; or (c) the taking of a sample of their blood was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.
Where a person is charged with an offence of the kind in question here and relies upon the ‘good cause’ defence, they bear an onus on the balance of probabilities.[21] What may amount to ‘good cause’ has been considered in a number of authorities.[22] Whilst it has been recognised as being a phrase of wide import, if a belief is relied upon as a basis for refusing to comply with a relevant and lawful direction, it must be reasonably held.[23] It has also been recognised that ‘laxity in applying the exculpatory provision might easily have the effect of frustrating the purpose of the legislation’.[24] The legislation ‘obviously intends to invade private rights’ and ‘the need to maintain the safe and efficient regulation of traffic and to ascertain whether an offence against the Act has been or is being committed, justifies the giving of directions which require immediate compliance’.[25]
[21] Sambastian v Police [2024] SASC 26 at [76] (Kimber J).
[22] See Police v Ghuede (2007) 99 SASR 280 at [13]-[14] (Vanstone J), referred to in Sambastian v Police [2024] SASC 26 at [77] (Kimber J).
[23] Bottomley v Symons (1982) 31 SASR 18 at 19 (King CJ) and 23 (Wells J), referred to in Sambastian v Police [2024] SASC 26 at [78]-[79] (Kimber J).
[24] Czerwinski v Hayes (1987) 47 SASR 44 at 46 (King CJ), referred to in Sambastian v Police [2024] SASC 26 at [80] (Kimber J).
[25] Bormann v Coldwell (1986) 43 SASR 297 at 305-306 (von Doussa J), referred to in Sambastian v Police [2024] SASC 26 at [80] (Kimber J).
It is relevant to note that whilst s 47EAA(14) restricts the circumstances in which the ‘good cause’ defence can be made where the person’s refusal to comply with the direction is based on some ‘physical or mental condition of the person’, there may be cases in which an anterior question of voluntariness is raised by credible evidence and where the prosecution has not negatived the reasonable possibility that the person was not capable of understanding and considering the direction such that their refusal to comply with the direction is relevantly involuntary. To the extent that the person’s physical or mental condition may be relevant to that matter, the person may rely upon it without being constrained or circumscribed by the circumstances set out in s 47EAA(14).[26]
[26] See, eg, Police v Ghuede (2007) 99 SASR 280 at [20] (Vanstone J), referred to in Munn v Police [2017] SASC 173 at [72]-[73] (Parker J).
The upshot is this. In considering the possible significance of any fresh evidence in the present matter, I should bear in mind that whilst a defence of refusing to comply with the direction to submit to a drug screening test for ‘good cause’ based upon any concerns the applicant may have had relating to his physical or medical condition can only succeed if the circumstances come within s 47EAA(14), potentially, evidence relating to the applicant’s medical or physical condition might negate his capacity to have heard and comprehended the direction itself. If so, it would go to the question of his voluntariness in refusing to comply with it, and it might be relied upon without any regard to the requirements of s 47EAA(14).
Returning to the two affidavits in question, the high point of the evidence is contained in the affidavit made on 2 July 2024, in which the applicant affirmed as follows:
[3]I say that at the time that this commenced on the roadside where the primary event of having my Driver’s Licence revoked – I have been diagnosed as having suffered nervous shock, and
[4]I say that I will provide a letter or Report from my Doctor to support the assertion that I was suffering Nervous Shock at the time of the incident and that event contributed to the automatic Disqualification of my Driver’s Licence at the time of the incident …
[7]I say that as a direct consequence of the roadside incident, I went into nervous shock and I was required to seek medical attention.
There are numerous difficulties with the evidence to the extent it might be relied upon to found a defence of involuntariness. Firstly, to the extent that it relies on what has allegedly been said by another, it is hearsay. Secondly, to the extent that it comprises the applicant’s own assessment of what occurred, expressed in the conclusory fashion that it is, it must involve an element of opinion, and it is one which is expressed without an adequately explained factual foundation. Thirdly, the expression ‘nervous shock’ is itself unrevealing and unhelpful. It is not self-evident that a condition that might come within the rubric of that expression would entail that the applicant would not have heard and understood that he was being directed to submit to a drug screening test.
Any application to rely on evidence of this kind also would fall to be considered in a context where:
·in the first affidavit he affirmed in the Magistrates Court, the applicant stated that he refused the drug test because after telling the officer he had not consumed any alcohol and doing the breath test, which came back zero, he believed he would be free to go and he ‘honestly had no idea that the law existed and that was an innocent mistake on [his] part’ and he ‘just thought the police officer was angry with [him] because [he] was arguing with [the officer]’;
·in a subsequent affidavit he affirmed in the Magistrates Court, the applicant stated that he refused the drug test on the basis that he did not understand it was an offence to do so and was taken aback by the officer’s demeanour in directing him to do so and that he was ‘not as patient or courteous as [he] should have been’; and
·at a hearing before Bampton J on 30 July 2024, the applicant said he refused the test because ‘I did ask the officer what chemicals were on the swab; he couldn’t answer the question and I refused to put the swab in my mouth because I don’t put chemicals or drugs or anything into my body’.
This is not the occasion to finally consider or resolve the question of the applicant’s guilt of the underlying offence. The applicant will be free to contest the offence proceeding by reference to the evidence he adduces in the Magistrates Court. That said, the position adopted by the applicant as just described appears to reflect that whilst the applicant has proffered an explanation for why he did not comply, he did understand that he was being given a direction. He may have had a belief that (or been unsure whether) the police officer lacked legal authority to give the direction, but that is not a question that goes to voluntariness. Nor, in my view, absent special circumstances not presently disclosed, would a mere absence of belief in the legal authority of the officer to give the direction amount to ‘good cause’. In so far as the applicant’s reason for refusing included a concern about the chemicals on the swab, the applicant could only make out ‘good cause’ in the circumstances set out in s 47EAA(14), which, on the material presently before the Court, he cannot do.
In these circumstances, even if I were satisfied that despite the importance of finality I should accept that there was a sufficient explanation for not adducing the material before the magistrate, I would not exercise any discretion available to me to receive the parts of the two affidavits in question to the extent that they refer to ‘nervous shock’. The affidavits otherwise do not contain material relevant to showing a reasonable prospect of an acquittal.
In the alternative, if I were to receive the affidavits, I would, in those circumstances, also receive the affidavit of Senior Constable Torjul. That affidavit contains evidence to the effect that the applicant said that he comprehended what he was being directed to do and, despite this, declined to comply, because, inter alia, ‘I don’t stand under your authority’ and ‘my medical thing is none of your business’. That evidence would present a significant obstacle to a finding that the applicant did not comprehend that he was being given a direction.
Before leaving the question of the receipt of the evidence, I note that s 47IAB in fact requires the Court to be satisfied on the basis of ‘oral evidence given on oath’ that there is a reasonable prospect that the applicant would be acquitted. The affidavits filed in this proceeding are not, obviously enough, oral evidence. However, I have considered the matter on the footing that the applicant might have given oral evidence in the terms of his more recent affidavits. I have borne in mind that he would not have been liable to cross-examination on those affidavits, but I remain of the view that the evidence which the applicant might purport to give in the form set out in the affidavits would not provide a proper basis to conclude that there is a reasonable prospect that he would be acquitted.
Competence of the appeal and leave to appeal

In Police v Conway; Police v Parker,[27] the Full Court considered an appeal against two decisions by a magistrate under s 47IAB (as it then stood) to set aside licence suspension notices. Both appeals were referred directly to the Full Court by single Justices of the Court. It was contended that the magistrate erred in each case by acting without sworn evidence being given. At the relevant time, the section did not stipulate that there needed to be ‘oral evidence given on oath’; it simply referred to ‘evidence given by or on behalf of the applicant’.
[27] [2006] SASC 186.
The Full Court concluded that the function of the magistrate under s 47IAB is administrative, and that the terminology of the section was indicative of an administrative decision making process, not of a criminal judicial function. Also, given the significant consequences for the recipient of such a notice, the Court was not persuaded that there was a requirement that the evidence necessarily be on oath or otherwise compliant with the rules of evidence. All that was required was that there be information, whatever its source, of some probative value.
As I have observed, the section has been amended since the Full Court’s decision. The question of present significance is whether, by reason of the character of the function being performed by a magistrate under s 47IAB, a decision made pursuant to that section is in fact a ‘judgment’ within the meaning of the Magistrates Court Act 1991 (SA) and, assuming that it is, whether it may be the subject of an appeal under s 40 (which applies to a party to a civil action) or s 42 (which applies to a party to a criminal action) and, in either case, whether it is ‘interlocutory’ so as to impose a requirement of leave to appeal.
Naturally, the applicant did not contend that the appeal to this Court is incompetent. Although the respondent drew my attention to the description of the magistrate’s function in Police v Conway; Police v Parker, the respondent did not submit that the appeal was incompetent because the character of the magistrate’s function and decision lacked the essential attributes of a judgment. Given that the Full Court did not itself dismiss the appeal on the footing that no appeal could lie from the magistrates’ decisions in that matter, and bearing in mind that the section has been amended since that decision in a way which might tend to support a characterisation of the decision as a ‘judgment’, I will proceed on the basis that the appeal is competent. Because an action pursuant to s 47IAB does not involve the adjudication of criminal guilt, it is not, in a classical sense, a criminal proceeding. However, the classification of all proceedings as ‘civil’ or ‘criminal’ is, as has been recognised, unstable.[28] And, in the present context, it is necessary to have regard to s 3(1) of the Magistrates Court Act 1991 (SA) which provides that a ‘criminal action’ means an action or proceeding brought in a criminal division of the Court, and a ‘civil action’ means an action or proceeding brought in a civil division of the Court. Section 10(2) provides that the rules may assign a particular statutory jurisdiction (other than a statutory jurisdiction specifically assigned by or under another Act to a particular Division of the Court) either to the Civil (General Claims) Division, or to the Criminal Division, of the Court.
[28] Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at [114] (Hayne J, Gleeson CJ and McHugh J agreeing).
The Magistrates Court Rules 1992 (SA) formerly made provision in relation to actions pursuant to s 47IAB of the RTA in Section B of those rules and Rule 1.02 provided that Section B related to the ‘Criminal Jurisdiction’. However, actions pursuant to s 47IAB now appear to be governed by Division 1 of Part 3 of the Uniform Special Statutory Rules 2022 (SA). Those Rules and the associated Forms contemplate that such actions will proceed in the ‘Special Statutory Jurisdiction’ of the Magistrates Court. Rule 6.1(1) provides that subject to subrule (2) (which is not presently relevant), the statutory jurisdictions the subject matter of the Rules are assigned to the Criminal Division of the Court.
Accordingly, it would appear that the proceeding in the Magistrates Court was a ‘criminal action’ for the purposes of the Rules, with the result that s 42 applies. That said, the rules governing the proceeding (and some aspects of this appeal) are governed by the Uniform Special Statutory Rules 2022 (SA).[29] In any event, whether s 40 or s 42 applies, the appeal is by way of rehearing and, if the judgment is interlocutory, leave to appeal is required.
[29] See, eg, Rules 3.1 and 371.2 of the Uniform Special Statutory Rules 2022 (SA).
I have not received any detailed submissions about whether the judgment is ‘interlocutory’. In one sense, the decision to grant, or refuse, an application under s 47IAB may bring to an end the proceeding in which it is made, but the question is whether it ‘finally settles the controversy which is the subject of the action’.[30] I would conclude, having regard to the number of the matters that can be raised in an action pursuant to s 47IAB (which include that no charge has been laid after the passage of a ‘reasonable time’), that an unsuccessful applicant could, subject only to abuse of process principles, bring a second application under s 47IAB. In these circumstances, I would conclude that a decision to refuse an application under s 47IAB is interlocutory.
[30] Hardel Pty Ltd v Burrell and Family Pty Ltd (2009) 103 SASR 408 at [35] (Kourakis J, Nyland J and David J agreeing)
As I have earlier observed, the applicant has himself sought leave to appeal. Ordinarily, the question of leave to appeal involves three inter-related questions: whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal; whether the decision raises an issue of principle or general importance; and whether allowing the decision to stand would work a substantial injustice to the applicant.[31] Where the decision or orders under challenge have ceased to have ongoing effect or have been overtaken by other events or circumstances, that may militate against a grant of leave to appeal.[32]
[31] McDonald v Attorney-General for the State of South Australia [2022] SASCA 43 at [21] (Livesey P and Bleby JA).
[32] Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36 at [16]-[20] (Livesey P and Lovell JA).
I would not grant leave, because I do not consider that the grounds raised by the applicant in his submissions are sufficiently arguable to justify a grant of leave. There are other matters here which might also be said to militate against a grant of leave, relating to the way in which the applicant has prosecuted the application (or, rather, not prosecuted the application) together with the circumstance that there is at least a question as to the practical utility of any appeal (given the period of suspension has elapsed), but I need not, and do not, rely upon those considerations.[33]
[33] Further, there is some awkwardness in applying the criterion in s 42(1a)(c) given there will be no trial within the action.
Merits of the proposed appeal
If, however, leave to appeal is not required, or if I am wrong in not being prepared to grant leave, I should consider the merits of the appeal. The applicant’s appeal grounds contain a number of complaints about the conduct of the proceeding by the magistrate, which may be summarised as follows.
First, the applicant asserts that the magistrate failed to consider relevant evidence and considered irrelevant evidence. Noting that this appeal is by way of rehearing, I have treated these contentions as the applicant’s submissions as to why an order pursuant to s 47IAB(1) should be made that his driver’s licence is (or was) not suspended.
I have already summarised the affidavit material filed by the applicant in the Magistrates Court. Those affidavits do not, in my view, identify any relevant matter which demonstrated that the applicant had a reasonable prospect of acquittal of a charge against him for refusing to comply with the direction he was given.
That is because his ignorance as to or about the legal authority of the police officer to give the direction does not, in my view, amount to ‘good cause’ for refusing to comply with the direction.
In Ostrowski v Palmer,[34] Gleeson CJ and Kirby J said:[35]
Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is not excuse when a person is charged with an offence. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.
…
Ignorance of the legal consequences that flow from the existence of the facts that constitute an offence is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute.
[34] (2004) 218 CLR 493.
[35] (2004) 218 CLR 493 at [1]-[2] (references omitted).
As I have earlier observed, s 47EAA(10) does recognise a ‘good cause’ defence which has been recognised as having potentially wide import. I do not exclude the possibility that in a particular case a police officer might conduct themselves in a way that provides a positive and reasonable basis for the person to consider that the direction to submit to a test is not lawfully made or is not made pursuant to some legal authority.
That, however, is not this case. On the applicant’s evidence before the magistrate, he does not attribute his lack of awareness as to the police officer’s authority to require him to submit to a test to the conduct of the police officer. Rather, the capacity of a police officer to issue a direction to submit to a drug screening test was something he was simply unaware of. He does say that he was taken aback by the officer’s direction, but I do not consider this, in combination with the applicant’s ignorance of the law, amounts to a ‘good cause’. Essentially this is no more than an expression of surprise consequent upon his ignorance of the law.
If I were to have regard to the material in the affidavits that I have determined not to receive, I would not conclude that they establish a reasonable prospect of demonstrating that the applicant was unable to comprehend that he was being given a direction to submit to a drug screening test. Further, if I were to have regard to the affidavit of Senior Constable Torjul, the applicant was given a clear instruction and explanation of what was required of him, and putting to one side any possible medical reasons, I would not accept that there was any exogenous circumstance which made the applicant’s refusal to comply with the direction reasonable.
To the extent that the applicant’s evidence suggests that he had a concern about the medical consequences of submitting to a drug screening test, this does not amount to a ‘good cause’ because he did not avail himself of the statutory facility to request a blood test.
I do not consider that the magistrate erred by concluding that the matters raised in the applicant’s affidavits would not have established a reasonable prospect of acquittal in the relevant sense. It is not apparent that the magistrate had regard to any extraneous or irrelevant matters in deciding that the application should be refused.
Next, the applicant asserts that the magistrate was biased and was acting as a de facto prosecutor during the hearing. On my review of the transcript of 27 March 2024, this is an inaccurate characterisation of the hearing. The ground is without foundation.
Relatedly, the applicant asserts that the magistrate failed to afford him procedural fairness. The grounds of appeal assert that the magistrate ‘consistently interjected’ and failed to provide him with the guidance he required as an unrepresented litigant.
Remembering that the magistrate initially adjourned the hearing of the application to permit the applicant to obtain legal advice, I do not consider that the conduct of the hearing on 27 March 2024 involved a failure to afford procedural fairness. The magistrate identified the statutory grounds that were relevant and explained that the matters sought to be raised did not support a finding that there was a reasonable prospect of an acquittal. The magistrate explained that another application could be made if he subsequently raised something that would tend to show he would not be found guilty of a charge of failing to comply with a requirement to submit to a drug screening test contrary to s 47EAA(9). I do not consider the magistrate was required to go further.[36]
[36] See,eg, Martincic v Ethnic Broadcasters Inc [2024] SASCA 33 at [21] (Livesey P), citing Gassy v The King [2023] SASCA 90 at [33]-[34] (Livesey P, David JA and Stein AJA).
In written submissions filed on 15 August 2024,[37] the applicant contends, variously, that ‘there has been no trial’ and that there was no ‘substantive hearing’ before the magistrate, and that the magistrate did not publish reasons for the decision. He also complains that it remained to be proved that the officer ‘justly’ exercised his ‘discretion’.
[37] FDN 16.
In my view there is no substance to these submissions. The hearing was brief and, it is true, did not constitute a trial of the underlying offence; but it was not required to be. The conduct of the hearing was appropriate to the statutory task the magistrate had to undertake.
There was no need for the magistrate to publish written reasons for refusing the application. The magistrate explained the reasons for his decision clearly enough in declining to accede to the application.
Further, I am not persuaded that the question whether the police officer appropriately exercised his discretion is a basis that can be raised to avoid a conviction in the offence proceedings. The applicant has not demonstrated an absence of power to give a direction and I do not consider that any relevant question of discretion arises.
Even if I were persuaded that the conduct of the hearing in the Magistrates Court was relevantly procedurally unfair, given that an appeal to this Court would be by way of rehearing, it would not automatically follow that the appeal should be allowed.[38]
[38] See, eg, EA Stevens Pty Ltd v Deloitte Growth Solutions Pty Ltd [2009] SASC 364 (Bleby J).
Further, if I were persuaded on a rehearing of the matter, including by way of the additional evidence, that there is a reasonable prospect that the applicant may be found not guilty of an offence against s 47EAA(9), it would be necessary to consider whether it is open to me and appropriate to order that the notice of disqualification or suspension issued on 18 March 2024 be ‘quashed’ (as the applicant’s notice of appeal seeks), notwithstanding that the period of suspension has elapsed. That raises some potentially difficult questions and I prefer to express no concluded view about them.
Events subsequent to the hearing
As has been mentioned, the hearing of this matter took place on 11 November 2024, following my having acceded to a further application for an adjournment following the disposition of the applicant’s interlocutory application at a hearing on 7 November 2024. The applicant did not appear on 11 November 2024, nor did he answer or respond to telephone calls made to him between 10.15 am and approximately 11.00 am that morning. I proceeded in the applicant’s absence and reserved my decision.
On 12 November 2024, at 6.22 am, the applicant sent an email to my chambers attaching an email sent on 8 November 2024 at 11.00 pm which he noted was unfortunately sent to the Registrar instead of my chambers or the respondent. The attached email was sent to two email addresses associated with the Court’s registry, and stated:
Dear Registrar
I apologise for the late communication
I received notice of the cancellation late last evening, and on the strength of that I committed to work away this week, as it appears the matter was CANCELLED in the Listings as well
I will not be available from Monday but will be in brief attendance at AMC on 18th
Further to what would appear to be confusion regarding the events of the future "Appeal"
I am still unsure as to the currency of the Appeal, however I am entitled to the opportunity to seek advice following events from Thursday’s hearing instant.
In addition and for avoidance of doubt, I have requested the urgent production of the transcripts of Thursday's events, and a copy of the "audio".
Without said transcripts, I am unable to obtain advice and I believe I'm entitled to a formal written OUTCOME of Thursday's hearing.
Finally, on the basis of notice from the registrar that the appeal date had been vacated and my travel away for work, I will be unavailable to attend on Monday in any event as I'm manifestly out of pocket and I need to work to support my family, my contractors and their families.
The applicant is correct to note that a cancellation of hearing was sent by Registry on 7 November 2024 but, by the time he sent his email late in the evening on 8 November 2024, he had been sent a clarificatory email by my chambers at around 12.30 pm that day. That email explained that the cancellation notice had been issued in error and that the hearing remained listed on 11 November 2024 at 10.15 am, as the applicant had been advised at the conclusion of the hearing on 7 November 2024.
It seems clear the applicant had received and read that clarificatory email when he wrote to the Registry (but not to my chambers or the respondent) later that evening. Indeed, that appears to be why he stated that it was ‘on the strength of’ the earlier communication that he ‘committed to work away this week’ and stated that he would ‘not be available from Monday’ save for a brief attendance in the Magistrates Court, which was presumably a reference to the underlying prosecution which was listed for a hearing during that week.
It is unsatisfactory that the applicant should have simply stated that he would not be in attendance, without in fact seeking an adjournment of the hearing. At all events, by email from my chambers shortly after the receipt of the applicant’s email, he was advised as follows:
Dear Mr Mallios,
This matter was listed and called on at the appointed time yesterday morning.
After attempts had unsuccessfully been made to contact you, and having not received any notice from the Registry in relation to your intentions, the Court proceeded to hear submissions from the respondent and judgment was reserved.
In those circumstances if you wish to make application to re-open the proceeding you will need to take steps to do so urgently. Unless the application is consented to by the respondent, you should make any such application by filing an affidavit.
Subject to the availability of the respondent’s counsel, any such application could be heard at 3.30 pm on 14 November 2024.
A responding email from the respondent made clear that such application would not be by consent.
No response has been received from the applicant to that email. No application whether by way of affidavit or otherwise has been made. Out of an abundance of caution, noting the applicant’s assertion that he would be travelling for work from 18 November 2024, I refrained from finalising this judgment for a further week after the week commencing 11 November 2024. It remains that no affidavit has been provided nor application to re-open made.
The time has come to bring finality to this matter.
Conclusion

I would not grant leave to appeal. In any event, if leave to appeal is not required, or if leave to appeal were to be granted, I would dismiss the appeal.
In view of the fact that there have been some nine hearings in this matter, the respondent has sought an order other than that the applicant pay costs fixed in the amount of $750.[39] The respondent seeks an award of $2,250.
[39] That is the standard costs award under both Rule 371.2 of the Uniform Special Statutory Rules 2022 (SA) and Rule 191.3 of the Joint Criminal Rules 2022 (SA).
Whilst there were numerous hearings in this matter, including four hearings at which the respondent made substantive submissions, I do not consider that the total time and resources required by the respondent to be devoted to this proceeding could be said to be three times what would ordinarily be associated with an appeal of this kind.
Exercising the broad discretion available to me, I would order that the applicant pay the costs of the respondent of and incidental to the proceeding (which includes the application for ‘stay’ before Bampton J, the application for recusal and to restrain the Crown Solicitor’s Office from representing the respondent, and the application for leave to appeal and the appeal itself) fixed in the sum of $1,500.