Pawlak v Police - [2017] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PAWLAK v POLICE
[2017] SASC 40
Judgment of The Honourable Justice Vanstone
24 March 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - CONVICTION ON EX PARTE HEARING
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY
Appeals against four convictions for speeding in the Magistrates Court. Where first charge went to trial and appellant was convicted. Where he was convicted for the other three charges in his absence.
Whether the Judge erred in convicting the appellant of the three charges in his absence. Whether error in the description of the charge on the Certificate of Record vitiated the trial. Whether the Judge erred in accepting the accuracy of the speed detection device. Whether the Magistrates Court is a court of competent jurisdiction under Chapter III of the Commonwealth Constitution. Whether the penalty imposed on the appellant contravenes the International Covenant on Civil and Political Rights. Whether the Road Traffic Act is validly proclaimed.
Held: The appeals are dismissed.
Magistrates Court Act 1991 (SA) s 42; Magistrates Court Rules 1992 s 26; Road Traffic Act 1961 (SA); Summary Procedure Act 1921 (SA) s 62, s 62BA, s 76A, referred to.
Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Grant v Irrgang (1991) 160 LSJS 334; Johns v Police [2015] SASC 118; Laurendi v Police [2010] SASC 32; Millington v Police [2015] SASC 52; Police v Childs (2000) 76 SASR 425; Tomasevic v Travaglini (2007) 17 VR 100; Van Ryswyck v Hicks (1974) 8 SASR 376, considered.

PAWLAK v POLICE
[2017] SASC 40
Magistrates Appeal: Criminal
VANSTONE J.

The appellant faced four charges of speeding in the Magistrates Court. The first charge went to trial and the appellant was convicted. He was convicted for the other three charges in his absence, a Magistrate proceeding pursuant to s 62 of the Summary Procedure Act 1921 (SA). He now seeks an extension of time within which to appeal against all four convictions, taking a variety of grounds.
Background
There are two irregularities in relation to the notice of appeal which should be mentioned. As can be seen from the above, the notice of appeal addresses two separate sets of orders. While the three convictions imposed in the appellant’s absence can be the subject of one appeal, the separate conviction after a trial should have been the subject of a separate notice of appeal. I propose to treat the matter as two appeals.
In addition, the appeal in relation to the group of three convictions purports to be against the decision of a Magistrate made pursuant to s 76A of the Summary Procedure Act refusing to set aside the convictions. There is authority in this Court that such an appeal is incompetent, as the Magistrate’s decision under that section is interlocutory in nature: Section 42 of the Magistrates Court Act 1991 (SA) and

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.

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Details

Case: [2017] SASC 40
Decision Date: 24 March 2017

CaseChat Overview and Summary

The appellant in this case, Pawlak, sought to appeal his convictions for four speeding offences in the Magistrates Court. The first offence was tried and the appellant was convicted, while the other three charges were adjudicated on an ex parte basis and resulted in convictions. Pawlak sought an extension of time within which to appeal against all four convictions, citing various grounds. The appeal was brought to the Supreme Court. The central legal issue in this case was whether the appellant's convictions for speeding, three of which were made in his absence, were valid and whether the appellant's appeal was within the requisite time frame. The court considered whether the appellant's argument that the Road Traffic Act was not enacted in the name of "the Queen’s most excellent Majesty" had merit. Additionally, the court evaluated whether the appeal was properly lodged against the correct orders and whether the appellant's absence during the hearing of the three charges affected the validity of the convictions.

The court found that the appellant's argument regarding the enactment of the Road Traffic Act was without merit, as it had previously been rejected in other cases. The court also determined that the appeal against the convictions made in the appellant's absence was not valid because it was against an interlocutory decision rather than the final order. Furthermore, the court held that the appellant's absence during the hearing did not invalidate the convictions, as the procedures followed were in accordance with the law. Consequently, the court dismissed both appeals and denied the extension of time for appeal. However, the court granted an extension of time to 1 December 2016 and directed the Registrar of the Magistrates Court to correct the certificate of record for the offence on 7 August 2015 at Greenacres.

Orders

Orders of the court

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Background

Background to the litigation

The appellant faced four charges of speeding in the Magistrates Court. The first charge went to trial and the appellant was convicted. He was convicted for the other three charges in his absence, a Magistrate proceeding pursuant to s 62 of the Summary Procedure Act 1921 (SA). He now seeks an extension of time within which to appeal against all four convictions, taking a variety of grounds. Background There are two irregularities in relation to the notice of appeal which should be mentioned. As can be seen from the above, the notice of appeal addresses two separate sets of orders. While the three convictions imposed in the appellant’s absence can be the subject of one appeal, the separate conviction after a trial should have been the subject of a separate notice of appeal. I propose to treat the matter as two appeals. In addition, the appeal in relation to the group of three convictions purports to be against the decision of a Magistrate made pursuant to s 76A of the Summary Procedure Act refusing to set aside the convictions. There is authority in this Court that such an appeal is incompetent, as the Magistrate’s decision under that section is interlocutory in nature: Section 42 of the Magistrates Court Act 1991 (SA) and Laurendi v Police [2010] SASC 324; Johns v Police [2015] SASC 118. The appeal should have been against the original order recording the three convictions. I am prepared to treat the appeal as relating to the recording of those convictions. It will not make any difference so far as evaluation of the appellant’s arguments are concerned. The four charges which the appellant faced arose from incidents in 2015. I shall refer to the first of them as the first offence. I set out its particulars:On the 7TH day of AUGUST, 2015 at GREENACRES in the said State drove a vehicle namely a MOTOR VEHICLE REGISTRATION NUMBER S012AGS on a length of road namely REDWARD AVENUE, to which a speed limit sign applied to you pursuant to rule 21(1) of the Australian Road Rules, over the speed limit of 50 kilometres per hour as indicated on the speed limit sign which was on the said road. Rule 20 of the Australian Road Rules.It is further alleged you were driving at a speed of about 67 kilometres per hour.This is a summary offence.The balance of the charges related to conduct at Greenacres and Gepps Cross on 7 October and 13 October 2015. I shall refer to those as the three charges. The four Complaints initially travelled together in the Magistrates Court. On 14 July 2016 there was a pre-trial conference in which all four were mentioned. The appellant was present and was not legally represented. The Complaint containing the first offence was set down for trial on 22 August 2016 and the three charges were adjourned to another pre-trial conference listed for 22 September 2016. On 22 September 2016 the appellant failed to appear at the pre-trial conference. The Magistrate, Magistrate Sprod, proceeded to deal with the matters utilising sections 62 and 62BA of the Summary Procedure Act. He regarded the allegations contained in the Complaints as sufficient evidence of the matters alleged. The appellant was convicted for all three charges. While he proceeded to impose penalty, in accordance with s 62C of the Act the Magistrate did not impose any license disqualification, or a sentence of imprisonment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J

As I understand the appellant’s argument, it again rests on the contention made under ground four that the Road Traffic Act was not enacted in the name of “the Queen’s most excellent Majesty”. For the same reasons this ground fails.Conclusion For the foregoing reasons I dismiss both appeals. The orders I make are:1The time in which to appeal is extended to 1 December 2016.2The appeal against the conviction for speeding on 7 August 2015 at Greenacres is dismissed.3I direct the Registrar of the Magistrates Court to correct the Certificate of Record for that offence so that the offence appears as:Exceed Speed Limit by 10-19km/hr4The appeal against the convictions for speeding on 7 August 2015 at Greenacres, 13 October 2015 at Gepps Cross and 13 October 2015 at Greenacres is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J

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