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Police v BILACZENKO

Police v BILACZENKO

Case [2018] SASCFC 7 9 February 2018

Statutory Interpretation

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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

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.
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.
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…

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 Police v BILACZENKO

Details

AGLC: Police v Bilaczenko [2018] SASCFC 7
Case: [2018] SASCFC 7
Decision Date: 9 February 2018

CaseChat Overview and Summary

This matter concerned an appeal to the Supreme Court of South Australia by the Police Commissioner against a decision of a magistrate. The dispute arose from an application made by the Police Commissioner to the Magistrates Court for an order under s 114 of the *Controlled Substances Act 1984* (SA) for the forfeiture of property seized under a search warrant. The magistrate had refused to make the forfeiture order.

The central legal issue before the Supreme Court was whether the magistrate had erred in law by refusing to make the forfeiture order. Specifically, the Court had to determine whether the magistrate had correctly applied the provisions of s 114 of the *Controlled Substances Act 1984* (SA) in assessing the evidence before them and in reaching their conclusion that the property was not forfeited.

The Court analysed the nature of the forfeiture provisions under s 114, noting that it is a remedial provision designed to prevent the use of property in connection with drug offences. The Court found that the magistrate had misconstrued the statutory test for forfeiture, particularly in relation to the requirement that the property be "used in or in connection with" a controlled substance offence. The Court held that the magistrate had applied an overly strict interpretation of this phrase, requiring a direct or immediate connection that was not mandated by the legislation. Instead, the Court clarified that a broader, more purposive approach was required, considering whether the property had a sufficient nexus or relationship to the commission of the offence.

The Supreme Court allowed the appeal, quashed the magistrate's order refusing forfeiture, and remitted the matter to the Magistrates Court for redetermination in accordance with the principles laid down by the Supreme Court.

Orders