N, P v Police

[2019] SASC 3

Supreme Court of South Australia

(Civil: Permission to Appeal)

N, P v POLICE

[2019] SASC 3

Judgment of The Honourable Justice Vanstone (ex tempore)

16 January 2019

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT

The applicant was convicted of five offences including three aggravated assaults in the Magistrates Court and sentenced to 10 months imprisonment, to be suspended after five months.

The applicant appealed to the Supreme Court against the convictions and sentence.  The Chief Justice dismissed the appeals.  The applicant then sought permission to appeal to the Full Court.  He also applied for bail pending appeal.

Held:  The applications for permission to appeal against conviction and sentence are refused.  The grounds are not reasonably arguable.

N, P v POLICE
[2019] SASC 3

Application for Permission to Appeal to the Full Court.

1. VANSTONE J (ex tempore):             Subsequent to the Family Court of Australia ordering a division of property held by the applicant and his wife and issuing a writ of possession, sheriff's officers attended at his home for the purpose of taking possession.  A series of violent interactions occurred.  Arising from that, the applicant was charged with five offences including three aggravated assaults.  He was convicted of all the charges in the Magistrates Court and sentenced to 10 months imprisonment.  The sentence was to be suspended after five months.

2. The applicant appealed to this Court against both the convictions and the sentence.  At this time he was represented by counsel.  His appeals were heard by the Chief Justice.  With respect to the conviction appeal, the grounds came down to an argument that the Magistrate's findings of guilt were unsafe and unsatisfactory.  Within that, he also questioned the validity of the writ.  The Chief Justice's reasons for dismissing both appeals were comprehensive.  In relation to the sentence, the Chief Justice found that a longer sentence with no suspension might well have been imposed.

3. The applicant now seeks permission to appeal to the Full Court against both the convictions and the sentence.  He purports to raise some new grounds going to the actions of the sheriff's officers, which he claims were fraudulent, as well as to the integrity of the trial itself.  Some of the new grounds appear to me to be vexatious and scandalous.  I asked the applicant whether he had any explanation for not raising these grounds earlier, in the first appeal.  He explained that he had raised some of these grounds after the time when the appeal was argued before the Chief Justice, but before judgment was delivered.

4. It is true that the applicant attempted to expand the ambit of his grounds after the appeal had been argued.  The Chief Justice allowed the matter to be called on, the date being 7 September 2017.  By this time, the applicant was no longer represented.  Having heard his submissions, the Chief Justice refused to allow the applicant to expand the basis of his appeal.

5. In order to secure a grant of permission to appeal, an applicant needs to demonstrate, at least, that there is an arguable case and usually that a question of general principle is at stake.  The applicant attempts to dress up some of his newer allegations as allegations embodying assertions of fraud, arguing that this would obviate the need to obtain permission.  I do not agree with his characterisation of his claims as being allegations of fraud, in any event.

6. I have read the various papers filed by the applicant in support of this application, papers filed, I might say, without permission.  I have listened to his oral submissions.  Essentially, the applicant seeks to reagitate his defence at trial, with embellishments.  I am not persuaded that the applicant should be permitted to argue new grounds, or that his appeal is reasonably arguable.  On the contrary, I respectfully agree with the Chief Justice's findings with respect to both the appeals against conviction and sentence.

7. Therefore, I refuse permission to appeal against conviction and against sentence.

8. The applicant has also applied in an affidavit and orally, today, for bail pending appeal.  Having refused permission to appeal, it would be quite inappropriate to grant bail pending appeal.