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…

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 PATEL v Police

Details

AGLC: PATEL v Police [2022] SASC 83
Case: [2022] SASC 83
Decision Date: 11 August 2022

CaseChat Overview and Summary

The appellant, Mr. Patel, appealed a conviction for exceeding the speed limit on the Eyre Highway in Port Augusta, South Australia, as charged in the Magistrates Court. The appellant was detected by a police radar device on 3 August 2020, driving at approximately 77 km/h in a 60 km/h zone. An expiation notice was issued, but Mr. Patel chose to contest the charge in court. Despite being listed for trial on multiple occasions, Mr. Patel failed to appear, leading the Magistrate to convict him in his absence and impose fines and costs. Mr. Patel subsequently applied for a rehearing, which was also dismissed when he failed to appear.

The key legal issues in this appeal were whether the appellant's non-appearance justified the conviction in his absence, whether there was sufficient evidence for the conviction, and if there was any meritorious defence to the offence. Mr. Patel argued that there was insufficient evidence for the conviction and that he did not commit the offence. The respondent argued that the conviction was justified under the circumstances and that the evidence was sufficient.

The Court found that the Magistrate was justified in proceeding ex parte and convicting Mr. Patel due to his non-appearance. It was noted that Mr. Patel had been given multiple opportunities to appear and had failed to do so. The Court also found that there was sufficient evidence for the conviction, as the Information provided adequate details of the offence. Regarding the appellant's defence, the Court determined that it was not necessary to consider whether Mr. Patel actually committed the offence because the appeal should only be allowed if there was a miscarriage of justice, and there was no evidence of such a miscarriage. The appeal was dismissed, and the conviction upheld.

The Court dismissed the appeal and affirmed the conviction and penalties imposed by the Magistrates Court.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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