PATEL v Police - [2022] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
PATEL v POLICE
[2022] SASC 83
Judgment of the Honourable Justice Kimber
11 August 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY
Appeal against conviction in the Magistrates Court for the offence of Driving Over the Speed Limit contrary to r 20 of the Australian Road Rules 2016. It was alleged that on 3 August 2020 the appellant was driving a vehicle at 77 kilometres per hour when the speed limit was 60 kilometres per hour.
The appellant elected to be prosecuted and was charged on Information. Being aware of the trial date, the appellant failed to appear and his non-appearance was proved. The Magistrate proceeded ex parte and convicted the appellant, utilising s 62BA of the Criminal Procedure Act, 1921 (SA). The appellant filed an application for reconsideration pursuant to s 76A of the Criminal Procedure Act, 1921 (SA). The appellant did not appear on the day set for the hearing of that application and it was dismissed by the Magistrate.
The appellant appeals against conviction on the following grounds:
1.      The Magistrate erred in proceeding in the absence of the appellant;
2.      There was insufficient evidence for the Magistrate to be satisfied of guilt beyond a reasonable doubt;
3.      The appellant did not commit the offence.

Held, per Kimber J:
1.      The Magistrate did not fall into error in proceeding in the absence of the appellant;
2.      There was sufficient evidence for a finding of guilt beyond a reasonable doubt;
3.      The appellant has not established his failure to appear at trial was due to misadventure or that interests of justice require the appeal to be allowed;
4.      The appeal is dismissed.

Australian Road Rules r 20; Road Traffic Act 1961 (SA) s 175(3)(baa); Criminal Procedure Act 1921 (SA) ss 62BA, 76A; Magistrates Court Act 1991 (SA) s 42(1); Supreme Court Criminal Rules 2014 (SA) r 104V(1)(c), referred to.
Johns v Police [2015] SASC 118; Pawlak v Police [2017] SASC 40; Willing v Hollobone (No.2) (1975) 11 SASR 118; Police v Bilaczenko [2018] SASCFC 7; Van Ryswyck v Hicks (1974) 8 SASR 376; Maider v Dancis (1985) 39 ASR 136, applied.

PATEL v POLICE
[2022] SASC 83
Magistrates Appeal: Criminal
KIMBER J:
Overview

This is an appeal against conviction in the Magistrates Court for the offence of Driving Over the Speed Limit contrary to r 20 of the Australian Road Rules.[1]
[1] Australian Road Rules r 20.
The appeal is out of time. The only explanation for the delay is that the appellant asserts he was waiting for material from the Magistrates Court. The respondent did not challenge that assertion. I grant the extension of time but dismiss the appeal.
Background
On 25 November 2020 an Information was filed in the Port Augusta Magistrates Court charging the appellant with a breach of r 20 of the Australian Road Rules. The offence details were:
On the 3RD day of AUGUST 2020 at PORT AUGUSTA in the said State drove a vehicle namely a TOYOTA SEDAN SA RESGISTRATION S684BYJ on a length of road namely EYRE HIGHWAY, to which a speed limit sign applied to you pursuant to rule 21(1) of the Australia Road Rules, over the speed limit of 60 kilometres per hour as indicated on the speed limit sign which was on the said road. Rule 20 of the Australia Road Rules.
It is further alleged you were driving at a speed of about 77 kilometres per hour.
This is a summary offence.
On the prosecution case, on 3 August 2020 the appellant’s vehicle had been detected by a radar device operated by a member of the South Australian Police. An expiation notice was issued on 3 August 2020, but the appellant elected to be prosecuted.
The appellant failed to appear on the date listed for his trial. It is therefore necessary to set out in some detail how the matter proceeded in the Court below.
Having been charged on Information following his election, the appellant failed to appear on 15 February 2021 and 14 April 2021. The appellant appeared by telephone on 8 June 2021 and the matter was listed for a pre-trial conference on 13 August 2021. At the pre-trial conference, the appellant appeared by telephone and the matter was listed for trial on 18 November 2021 at 9.30am.
The appellant did not appear on the day of his trial. His non-appearance was proved at 9.55am. The Magistrate granted leave to proceed ex parte and convicted the appellant. The Magistrate imposed a fine of $406, a court fee of $291, a Victims of Crime Levy of $245 and prosecution costs of $150.
On 8 December 2021 the appellant filed an application for rehearing in the Magistrates Court. That application was made pursuant to s 76A of the Criminal Procedure Act, 1921 (SA) (CPA). The application was listed on 13 December 2021 at 11.30am before the Magistrate who had convicted the appellant. There was no dispute on appeal the appellant was aware of that hearing date. The appellant did not appear on 13 December 2021. His non-appearance was proved at 2.40pm. The Magistrate dismissed the application for a rehearing.
The following is endorsed on the lower court file, above the signature of the Magistrate:[2]
The defendant has sent numerous emails to the court registry seeking to set aside the ex‑parte conviction entered on 18 November 2021, that as the day set aside for trial. The defendant was present on the telephone on 13 August 2021 when the matter was set down for trial. The Court has tried on numerous occasions (4) to telephone him on the number provided in relation to his application for rehearing. On each occasion there has been a recorded message directing us to a mailbox. In the circumstances there is no appearance by or on behalf of the defendant. Application dismissed.
[2] MCPAU-20-2983.
Grounds of Appeal
The appellant filed a notice of appeal on 4 April 2022. Under the heading ‘Grounds of Appeal’ the following appears:
…Seeking Justice this matter was able to settle outside of court if the judge decide not to contact me. There was offer was given from prosecutor that pay the money and will not reduce any points. I would have taken that on judgement date in trail [sic]. If I had given a chance to talk I would not even have to pay a cent. But no contact has been established I was setting on full network coverage zone and waiting for call.
The statutory declaration was given to magistrate in writing that what is my side of story was no consideration was made or the copy did not delivered [sic] to magistrate from the court registry. Amazing office in Port Augusta.
Having considered the above and the submissions made by the appellant, it is sufficiently clear the appellant has three complaints which I will treat as grounds of appeal. The three complaints and grounds of appeal are:
1.The Magistrate erred in proceeding in the absence of the appellant;
2.There was insufficient evidence for the Magistrate to be satisfied of guilt beyond a reasonable doubt;
3.The appellant did not commit the offence.
Ground 1 - Proceeding in the absence of the appellant
It is necessary to firstly consider whether the complaint relates to the trial or application for rehearing. For the following reasons, the notice of appeal is consistent with the complaint being directed to the dismissal of the application pursuant to s 76A of the CPA.[3] The ground of appeal refers to the appellant waiting for a call. Elsewhere within the notice of appeal is an assertion the appellant was not contacted on either of his mobile phone numbers. There is nothing on the lower court file to suggest the appellant wanted to appear by phone on the day of the trial, nor is there a complaint of a failure to be contacted on the day of trial within the application for re-hearing. As set out above, the lower court file reveals efforts were made to contact the appellant by phone on the date fixed for rehearing.
[3] Criminal Procedure Act 1921 (SA) s 76A.
Section 42(1) of the Magistrates Court Act, 1991 enables a party to a criminal action to appeal any judgment given in the action.[4] However, an appeal does not lie against an interlocutory judgment unless certain conditions are met. Section 42(1a) of the Magistrates Court Act, 1991 provides:[5]
(1a)   An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
[4]     Magistrates Court Act, 1991 (SA) s 42(1).
[5] Ibid s 42(1a).
An order dismissing an application under s 76A of the CPA is an interlocutory order.[6]
[6] Johns v Police [2015] SASC 118, [3]; Pawlak v Police [2017] SASC 40, [3].
An appeal directed to the dismissal of the application pursuant to s 76A of the CPA is incompetent as it does not fall within the purview of s 42(1a) of the Magistrates Court Act, 1991. This ground could therefore be dismissed on that basis. Nonetheless, I will not do that. The respondent conceded this complaint should be treated as being directed towards 18 November 2021, the day of trial. I will proceed on that basis.
As set out above, the lower court file reveals the appellant was present at the pre-trial conference on 13 August 2021 when the trial date and time were fixed. That file also reveals his non-appearance was proved on 18 November 2021. The appellant did not put anything before me (neither evidence nor submissions) to explain his absence on 18 November 2021. No explanation appears in the notice of appeal, nor in an email dated 30 June 2022 sent to the Court in advance of the hearing of the appeal (which can be treated as a written submission of the appellant).
Given the absence of any proper explanation being advanced on the appeal for the appellant not appearing at trial, the Magistrate cannot be criticised for proceeding ex-parte.
Section 62BA of the CPA empowers a Magistrate to adjudicate on the Information in the absence of a defendant in certain circumstances. That section provides:[7]
[7]     Criminal Procedure Act, 1921 (SA) s 62BA.
(1)     If in any proceedings under this Act—
(a)     an information has been laid against a defendant; and
(b)     the defendant has been duly served with a summons but—
(i)does not appear at the time and place appointed for the hearing or determination of the information or at a time and place at which the information is subsequently heard or determined; or
(ii)in the case of an information and summons served under section 57A—the defendant neither appears nor pleads guilty in the manner provided under that section,
the Magistrates Court may proceed to adjudicate on the information in the absence of the defendant in accordance with section 62, and in so doing regard any allegation contained in the summons, or information and summons, (as served on the defendant) as sufficient evidence of the matter alleged.
(2)     If the Magistrates Court finds the charge proved, the prosecution may recite to the Court any relevant matters alleged against the defendant in the same way as if the defendant had personally appeared and pleaded guilty.
(3)     For the purposes of subsection (1), allegations are contained in a summons, or information and summons, if they are contained in, annexed to, or accompany, the summons or information and summons.
(4)     The allegations referred to in subsection (1) may include particulars of the alleged offence and of the circumstances in which it is alleged to have been committed.
(5)     The provisions of this section are supplementary to, and do not derogate from, any other statutory provision regulating the hearing and determination of an information.
In this case, before the Magistrate could proceed in the absence of the appellant, the Magistrate needed to be satisfied that:
1.An Information under the CPA had been laid against the defendant;
2.The defendant had been served with the summons; and
3.The defendant had not appeared at the time and place for the hearing.
The lower court file establishes the Information was signed by the informant on 25 November 2020 and stamped by the Magistrates Court. The date on which that stamp was applied does not appear. There is no summons on the lower court file. Nonetheless, the file establishes the appellant appeared twice before trial on 8 June 2021 and 13 August 2021. As set out above, 13 August 2021 was the day that the trial date was fixed. If there was an irregularity in the service of the summons, I am satisfied it is cured by the appearance of the appellant at the two hearings before the trial date.[8]
[8] Willing v Hollobone (No.2) (1975) 11 SASR 118, 125, 132-133.
There is no dispute the appellant was aware of the trial date but failed to appear. On the day of trial, the appellant’s non-appearance was proved. As I have said, the appellant has not sought to advance any explanation for his non‑attendance and the Magistrate’s decision to proceed ex‑parte cannot be criticised. This ground must be dismissed.
However, as a matter of completeness, I will deal with some other material which is before me on the appeal. That material only further confirms the approach of the Magistrate was correct.
On the hearing of the appeal there was no objection to me receiving an affidavit from the police prosecutor dated 23 June 2022 (the prosecutor’s affidavit). The appellant did not challenge any matter set out in the prosecutor’s affidavit nor submit it should not be received. I am satisfied it is in the interests of justice to receive the prosecutor’s affidavit.[9]
[9] Supreme Court Criminal Rules 2014 (SA) r 104V(1)(c).
Among other things, the prosecutor’s affidavit sets out communications between him and the appellant before trial. On 2 November 2021 the appellant advised the prosecutor he wanted the trial postponed because he would be interstate. The prosecutor told the appellant that if he did not attend, the matter could be dealt with in his absence. There is no evidence the appellant then applied for the trial date to be changed. If the appellant was interstate, as he had told the prosecutor he intended to be, there is no evidence of why.
Ground 2 – Insufficient evidence for the Magistrate to be satisfied the appellant committed the offence
The endorsement on the lower court file made on 13 August 2021 sets out the appellant’s non-appearance was proved; leave was granted to proceed ex parte and the appellant was convicted. The lower court file does not contain any reasons for the conviction, nor any reference to s 62BA of the CPA.[10] In my view, there is no other reasonable conclusion for the endorsement on the lower court file other than that the Magistrate utilised s 62BA of the CPA.[11]
[10] Criminal Procedure Act, 1921 (SA) s 62BA(1).
[11] Ibid s 62BA.
However, for this ground, identification of the way the Magistrate proceeded is unnecessary. This ground is directed to there being insufficient evidence to permit the Magistrate to convict. This complaint requires me to examine whether it was open on the material before the Magistrate to convict the appellant. For reasons already given, it was appropriate for the Magistrate to proceed ex-parte. That decision having been made, pursuant to s 62BA of the CPA, the Magistrate was able to ‘regard any allegation contained in the summons, or information and summons, (as served on the defendant) as sufficient evidence of the matter alleged’. [12] As set out above, the summons is not on the lower court file. However, as also set out above, any irregularity in the service of the summons is cured by the appearance of the appellant after the Information must have been filed and before the trial date. In those circumstances, the Magistrate would have been entitled to regard what was set out in the Information as sufficient evidence of what was alleged.
[12] Ibid s 62BA(1).
The Information set out the appellant was the defendant and the balance of the relevant details within the Information are set out at [3] above. Pursuant to s 62BA of the CPA,[13] what was set out in the Information provided sufficient evidence that on 3 August 2020 the appellant drove on a road at about 77 km/h when the speed limit was 60 km/h. It follows there was sufficient evidence for the Magistrate to convict.
[13] Ibid s 62BA.
This ground must be dismissed.
Ground 3 – The appellant did not commit the offence
It is helpful to commence with the principles which must be applied when a Magistrate proceeds ex-parte. In that event, an appeal should be allowed only if there has been a miscarriage of justice. A relevant consideration is the reason for the non-appearance and, in particular, whether it was due to misadventure.[14] A critical consideration is whether or not there is any meritorious defence to the prosecution.[15] The governing principle is whether the interests of justice require the appeal to be allowed. Convictions are not to be set aside on grounds which are unmeritorious or otherwise inadequate.[16]
[14] Police v Bilaczenko [2018] SASCFC 7, [4].
[15] Ibid.
[16] Van Ryswyck v Hicks (1974) 8 SASR 376, 379; Maider v Dancis (1985) 39 ASR 136, 142; Johns v Police [2015] SASC 118, [13]-[17].
No misadventure
As I have said, the appellant has not provided any reason for his non‑appearance at trial. There is no suggestion it was due to ‘misadventure’ and it is not open to me to find that it was. It is therefore unnecessary for me to consider any of the additional material provided by the respondent on the hearing of the appeal. Nonetheless, I will do so as a matter of completeness. The only evidence before me on this issue is the affidavit of the prosecutor. That establishes the appellant had in mind to be interstate on the day of trial. Assuming that to be the explanation, and there is no other, there is nothing before me as to why the appellant was interstate, let alone any evidence it was due to ‘misadventure’.
Any meritorious defence?
I turn to whether there is any meritorious defence and whether it is probable the appellant will suffer injustice if the conviction is not quashed.
Whether the appellant has a meritorious defence must be discerned from his submissions. Those submissions, at least in part, rely upon his account as to what occurred at the time of the offence. On the hearing of the appeal, the appellant did not give evidence, but provided photographs and a map of the area where the driving took place, the position of the police and where he ultimately stopped his vehicle having been directed to do so.
To prove the offence, the prosecution had to prove the following elements beyond a reasonable doubt:
1.The appellant was driving on a length of road;
2.A speed limit of 60 km/h applied to that length of road; and
3.The appellant’s speed exceeded that speed limit.
From the appellant’s submissions it is clear only the third element is disputed.
As to what might be regarded as particulars of this ground, the appellant contends that: had he been exceeding the speed limit, he would not have been able to stop as rapidly as he did once requested to do so; other vehicles were in his vicinity and were speeding (giving rise to the possibility his vehicle was mistakenly identified) and the certificate of the device said to have detected his speed had expired.

In response to the contentions above, the respondent provided the affidavit of the prosecutor, annexed to which were affidavits from the two officers involved in the detection of appellant’s vehicle on the day of the offence. The affidavits of the officers involved in detecting the appellant were prepared before the trial and the prosecutor’s affidavit establishes both officers were present at Court on the day of trial. The appellant made no submission contrary to me receiving this material and other material attached to the prosecutor’s affidavit. I am satisfied that in evaluating this ground, it is in interests of justice to receive the prosecutor’s affidavit and all annexures.[17] The affidavits of the officers present at Court on the day of trial can be treated as the evidence each would have given.
[17] Supreme Court Criminal Rules 2014 (SA) r 104V(1)(c).
As the appellant did not appear on the day the trial was listed and has provided no explanation for his absence at trial, his failure to appear at trial was due to his own default. In Van Ryswyck v Hicks Hogarth ACJ held that in that circumstance the Court: [18]
…should not quash a conviction brought about by the appellant’s own carelessness unless justice clearly calls for this to be done; as, in the case of a grossly careless appellant, if the facts before this Court show clearly that, although careless, he was nevertheless innocent. In such a case, it would not be enough that he should say in general terms merely that he wanted to defend the charge, or that he is not guilty of the charge. Justice must be done to both parties, and a complainant respondent is not to be put to the expense and trouble of a further hearing in the court below in the case of such an appellant, unless he makes it clearly appear that he will suffer injustice if the conviction is not quashed…. (an appellant) therefore bears the onus of establishing at least a probability that he will suffer injustice if the convictions are allowed to stand.
[18] Van Ryswyck v Hicks (1974) 8 SASR 376, 379.
The appellant made more than one submission relevant to this ground, but all were directed to the same two issues. First, in the appellant’s submission, he was not speeding and second, there was reason to doubt that he was. However, the appellant did not seek to put any evidence before me on the appeal and as such there is no evidence which establishes the necessary probability of injustice if the conviction is allowed to stand.[19] This ground must be dismissed on that basis. However, as a matter of completeness, I will nonetheless consider the appellant’s submissions against the background of the evidence contained in the affidavits.
[19] Ibid.
Presence of other vehicles and the stopping of the vehicle
The appellant raises the possibility of the detection device picking up the speed of another vehicle. Consistent with the submissions of the appellant, the officer operating the laser detection device has deposed in his affidavit to there being two other vehicles on the road at the time the appellant’s speed was detected. However, that officer also deposes he directed the speed detection device (the device) at the numberplate of the vehicle being driven by the appellant. That officer also says the device detected the appellant’s vehicle travelling at 77 km/h when 196.7 metres away from the police car and the device. This places into context photographs and a map provided by the appellant on the hearing of the appeal. The appellant seeks to call into aid the photographs and map in asserting he stopped a relatively short distance beyond the police car. The appellant contends he would not have been able to do that had he been speeding as alleged.
Assuming for the moment the appellant stopped a relatively short distance beyond the police car, that does not cast doubt upon whether he was exceeding the speed limit almost 200 metres before the police car. The issue is not what speed the appellant was doing when it became necessary to stop. Rather, the issue is what speed he was doing almost 200 metres before the police vehicle.
As to that issue, at trial, there would have had to have been a doubt about whether the officer did direct the device at the numberplate. Had the appellant given evidence, all he could say was that he was not exceeding the speed limit and other vehicles were on the road. There is no dispute other vehicles were on the road, so the real issue is whether the device was directed to the numberplate of the appellant. It is clear the appellant could not have given direct evidence contrary to that. The appellant could only give evidence he was not speeding. In short, had the appellant given evidence, the issue would have been whether the evidence of the officer proved the appellant was speeding, bearing in mind the evidence of the appellant. In all the circumstances, that the appellant might have given the evidence the subject of his submissions, in the face of the evidence of the relevant officer that the device was directed at the numberplate of the vehicle driven by the appellant, that the appellant might have given the evidence the subject of his submissions does not establish it is probable the appellant will suffer injustice if the appeal is dismissed.
As for the contention the certificate for the laser device had ‘expired a long time ago’,[20] the only evidence before me is that the relevant device was accurate when it recorded the appellant’s vehicle speeding. Within the affidavit material is a certificate setting out the laser device used had been tested on 22 June 2020 and was accurate within +2 or -3 km/h. Section 175(3)(baa) of the Road Traffic Act1961 (SA)[21] provides the certificate constitutes, in the absence of proof to the contrary, proof of the facts certified and that the relevant device was accurate to that extent on the day it was tested and for the purpose of measuring the speed of any motor vehicle, during the period of one year immediately following that day. The appellant has not provided any proof to the contrary.
[20] Appeal Transcript, 6 July 2022, p. 4.
[21] Road Traffic Act 1961 (SA) s 175(3)(baa).
In short, the affidavits of the two officers involved on 3 August 2020 and the certificate of accuracy contradict every relevant assertion by the appellant in his oral and written submissions. In the face of that evidence, the appellant has not established it is probable he will suffer injustice if the appeal is dismissed. The appellant has not established it is in the interests of justice for the appeal to be allowed.
This ground must be dismissed.
Orders
1.The appeal is dismissed.
2.I will hear the parties as to costs.