Police v BILACZENKO

[2018] SASCFC 7

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

POLICE v BILACZENKO

[2018] SASCFC 7

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Nicholson)

9 February 2018

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS

Application for permission to appeal a judgment of this Court allowing a Magistrates Appeal against an ex parte conviction.

The respondent’s hearing in the Magistrates Court was initially scheduled for 14 April 2016 but was brought forward to 11 April 2016 and proceeded in his absence. There was no evidence that a copy of a letter informing him of the changed date was received on the Magistrates Court File.

An appeal was granted from a single Judge of this Court on the ground that the respondent had been denied the fundamental right to be present and to hear the evidence led against him, even though he had not demonstrated any reasonable prospect of successfully defending the charge. The applicant now contends that there is some uncertainty as to the circumstances in which the Magistrates Court should proceed ex parte and that the judgment below is inconsistent with pre-existing authority.

Held per Curiam, refusing permission to appeal:

1.  The contention of the applicant, namely the uncertainty of pre-existing authority on the statutory powers of the Magistrates Court in proceeding ex parte, is rejected. Rather, a distinction should be drawn where there is a failure to give notice of the day on which a hearing is heard, as was the case here.   

Summary Procedure Act 1921 (SA) s 62BA, referred to.

POLICE v BILACZENKO
[2018] SASCFC 7

Full Court:      Kourakis CJ, Peek and Nicholson JJ

1. THE COURT:       This is an application for permission to appeal from a decision of Stanley J allowing a Magistrates Appeal against an ex parte conviction.

2. The respondent was charged with causing an unregistered motor vehicle to stand on a road.  He appeared in answer to the summons on the first return date and attended a pre-trial conference on which occasion the trial was set for 14 April 2016.  The hearing was brought forward to 11 April 2016 but there was no evidence that a copy of a letter informing the respondent of the changed date was received by him on the Magistrates Court file.  Indeed, the police prosecutor saw the respondent at court on 14 April and heard him become very angry when told that the trial had proceeded on 11 April 2016 in his absence.  

3. Section 62BA of the Summary Procedure Act 1921 (SA) (the Act) relevantly provides:

   62BA—Proceedings where defendant neither appears nor returns written plea of guilty

   (1)     Where in any proceedings under this Act—

   (a)     an information has been laid by a public authority or public officer within the meaning of section 57A of this Act; and

   (b)     the defendant has been duly served with a summons but 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, in the case of an information and summons served under section 57A of this Act, he neither so appears nor pleads guilty in the manner provided by that section,

   the court may proceed to adjudicate on the information in the absence of the defendant in the manner provided by, and subject to the conditions in, section 62 of this Act, but may in so doing regard any allegation contained in the summons, or information and summons, (as served upon the defendant) as sufficient evidence of the matter alleged.

4. Stanley J allowed the appeal on the ground that the respondent had been denied the fundamental right to be present and to hear the evidence led against him, even though he had not demonstrated any reasonable prospect of successfully defending the charge.  For reasons which are not clear, Stanley J did not advert to a line of authorities in this Court on the statutory powers of the Magistrates Court to proceed ex parte.[1]  A common feature of those cases is that an appeal should be allowed only if there has been a miscarriage of justice and a critical consideration on that issue is whether or not there is any meritorious defence to the prosecution.  Those cases recognise that the reason for the non‑appearance, and in particular whether it was due to misadventure, is also a relevant consideration. 

   [1]    Hird v Keech (1979) 21 SASR 237; Rough v Rix (1982) 30 SASR 301; Grant v Irrgang (1991) 160 LSJS 334; Laurendi v Police [2010] SASC 324; Pawlak v Police [2017] SASC 40; Sambastian v Police [2010] SASC 46; Van Ryswyck v Hicks (1974) 8 SASR 376; Hanckel v Police [1998] SASC 6664; Tew v Police [2013] SASC 75; Batten v Police [1988] SASC 6588; Ralph v Police [2010] SASC 325; Johns v Police [2015] SASC 118; Best v Police [2015] SASC 190; Maider v Dancis (1985) 39 SASR 136; Leuschel v Police (1999) 75 SASR 231.

5. The applicant contends that there is now some uncertainty on the circumstances in which the Magistrates Court should proceed ex parte because of the tension between the decision of Stanley J and the pre-existing line of authority which his Honour did not consider.  However, it is far from clear whether those authorities were intended to apply to a case in which there has been a failure to give notice of the day on which the hearing is heard.  The distinction is an important one.  Indeed, on a proper construction of s 62BA(1) of the Act the power conferred by it may be impliedly conditioned on the defendant having notice of the time and place appointed for the hearing of the Information.  We therefore reject the applicant’s contention that the decision of Stanley J renders the line of authorities earlier referred to in any way uncertain.

6. The result in this case is not attended by sufficient doubt to justify a grant of permission.