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)

1. The appellant's notice of appeal, although not expressed in accordance with the rules, appears to be an appeal against both conviction and sentence. 

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 at the hearing of this appeal, that the appellant indicated that he had purposefully broken the restraining order so that he could have the opportunity to tell the truth and his side of the story in court, about what he referred to as parental alienation. 

7. The notice of appeal was filed on 29 February 2008, almost one year after the order of the magistrate.  The appellant has no right to appeal unless this Court grants an extension of time within which to file the notice of appeal.

8. At the hearing today the respondent's counsel opposed the granting of an extension of time within which to appeal.  The respondent's submission, in a nutshell, was that this appeal has no merit and the extension of time should not be granted.  It therefore has been necessary to examine the notice of appeal and the appellant's arguments in order to discern whether there are any proper grounds of appeal to be advanced by the appellant.

9. I bear in mind the matters which an appellate court should take into account when considering whether or not to exercise the discretion to grant an extension of time within which to appeal. 

10. The onus is on the applicant in each case to justify why an extension of time should be granted.

11. In considering the appellant's appeal in this case, I take into account the remarks of Gray J in the case of the Police v Warren [2000] SASC 285 where his Honour succinctly summarised the principles on which an appellate court should act in considering an application of this nature.

12. I bear in mind that the appellant was unrepresented at the time he appeared in the Adelaide Magistrates Court, in January and March 2007.  He has  also chosen to be unrepresented at the hearing of this appeal.  Nevertheless, no real explanation has been advanced by him for the delay in bringing this appeal. 

13. I have considered the notice of appeal and the lengthy attachments filed with that notice, together with the appellant's extensive written outline and the oral submissions made by him today.

14. It would appear that the appellant has a long history of grievances with a number of people and with governmental authorities and other instrumentalities.  He does not consider that any of these organisations have dealt appropriately with his allegations and claims in respect of the safety and welfare of his young children.

15. To the extent that any of the material setting out those grievances which has been filed in support of the appellant’s appeal, purports to contain any proper ground of appeal, I regret to say that I am unable to discern any proper ground of appeal emerging from any of that material.  Whilst it is possible to feel some sympathy for a person in the appellant’s position, nevertheless there must be proper grounds based on some error in relation to the approach which the magistrate took. 

16. In this respect I bear in mind that an appellate court should not interfere with the magistrate's decision unless it can be shown that the magistrate has made some error of either fact or law, or has taken into account some irrelevant consideration, or has failed to take into account some relevant consideration, or that the failure to exercise a discretion in favour of the appellant was unreasonable. 

17. Applying these principles to the decision made by the magistrate in this case, none of the matters advanced by the appellant cause me to have any doubt that the magistrate in this case misapprehended his task or made any error of fact or law relevant to the imposition of the sentence.

18. It was the task of the magistrate to impose an appropriate sentence in relation to five breaches of a restraining order which the appellant admitted deliberately breaching in order to bring himself to the attention of the court.

19. I recognise that it is unusual for an appellate court in a matter such as this, particularly where the appellant has been unrepresented throughout, to refuse to grant an extension of time where there are any credible grounds of appeal to be advanced.

20. However, in this matter, after examination of all of the material which has been submitted by the appellant, both orally and in writing, I am satisfied that the interests of justice do not require the exercise of the discretion in the appellant’s favour.  There has been a long delay between the date of the magistrate’s order and the filing of the notice of appeal.  No real explanation despite an invitation to advance one, was given by the appellant for the delay in bringing his appeal.  I can discern no proper ground of appeal in any of the material which has been put before the court.

21. In these circumstances I do not consider that any miscarriage of justice will occur if leave is not granted.

22. In the circumstances I am satisfied that the application for an extension of time within which to appeal should be refused.  The appeal is dismissed.