OLDENBURGER v Police - [2008] SASC 117

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
OLDENBURGER v POLICE
[2008] SASC 117
Judgment of The Honourable Justice Kelly (ex tempore)
17 April 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against conviction and sentence - appellant convicted and fined $500 for five counts of breaching a domestic violence restraining order - notice of appeal filed almost one year after sentence imposed in the Adelaide Magistrates Court - respondent opposed the granting of an extension of time within which to appeal, as appeal has no merit.
Held: - application for an extension of time within which to appeal refused - no real explanation advanced for delay in filing notice of appeal - no proper ground of appeal identified - proposed appeal without merit - appeal dismissed.
Domestic Violence Act 1994 s 15, referred to.
Police v Warren [2000] SASC 285, considered.

OLDENBURGER v POLICE
[2008] SASC 117
MAGISTRATES APPEAL
KELLY J (Ex Tempore)

The appellant's notice of appeal, although not expressed in accordance with the rules, appears to be an appeal against both conviction and sentence.
The appellant was charged on complaint with five counts of breaching a domestic violence restraining order contrary to Section 15 of the Domestic Violence Act 1994. Those breaches were allegedly committed between 9 July 2006 and 30 August 2006.
The learned magistrate had before him the circumstances of the offences detailed as follows.
Count 1 which occurred on 9 July 2006 was committed when the victim received a 6 page intimidating letter from the appellant at her home address. The letter also included 19 pages of banking information related to a civil matter between the victim and the appellant.
Count 2 occurred on 18 July 2006 when the victim again received an intimidating letter from the appellant.
Count 3 on 20 July 2006 occurred when the victim received an email message on her home computer from the appellant.
Count 4 occurred on 24 August 2006 when the victim received a further 7 page intimidating letter from the appellant.
Count 5 occurred on 30 August 2006 when the victim again received a letter from the appellant containing 2 pages of information concerning witnesses in court in relation to a civil matter between the victim and the appellant.
The appellant was subsequently arrested by police on 12 September 2006 for breaches of a restraining order. The appellant was aware that the restraining order was active on the date of the offences.
The appellant eventually pleaded guilty to the five offences on 8 March 2007. The learned magistrate convicted the appellant on all five charges and imposed one fine of $500. There was also an order for payment of all court and related fees.
The magistrate had before him, for the purposes of sentence, a report from the Central Violence Intervention Program Assessment Team. That report was dated 7 March 2007. I note in that report, and it was admitted again today…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading OLDENBURGER v Police

Details

AGLC: OLDENBURGER v Police [2008] SASC 117
Case: [2008] SASC 117
Decision Date: 17 April 2008

CaseChat Overview and Summary

The matter in Oldenburger v Police involved an appeal against the conviction and sentence handed down by the Adelaide Magistrates Court. Oldenburger was found guilty of five counts of breaching a domestic violence restraining order and was fined $500. The appeal was lodged almost one year after the sentence was imposed. The respondent, Police, opposed the granting of an extension of time to file the notice of appeal, arguing that the appeal had no merit.

The court was tasked with determining whether the appeal should be allowed to proceed despite the significant delay in filing the notice of appeal. Additionally, the court needed to assess whether there were any grounds for the appeal that could potentially be successful. The court's reasoning focused on the absence of a real explanation for the delay and the lack of a proper ground of appeal. The court also concluded that the proposed appeal was without merit, leading to the dismissal of the appeal.

The appeal was dismissed on the basis that the applicant did not provide a satisfactory explanation for the delay in filing the notice of appeal. The court found that no proper ground of appeal had been identified, and the proposed appeal was deemed to be without merit. Consequently, the appeal was dismissed, and no extension of time was granted for the appeal to proceed.

No further orders were made beyond the dismissal of the appeal. The court's decision emphasised the importance of timely filing of appeals and the need for a valid explanation for any delay, as well as the necessity of identifying proper grounds for an appeal to succeed.

Orders