Police v BROWN - [2008] SASC 358

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
POLICE v BROWN
[2008] SASC 358
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice David)
19 December 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Applicant sought permission to appeal decision of single Judge - under r 283 Supreme Court Civil Rules 2006, appeal to be commenced within 21 days of decision subject to appeal - affidavit in support of application filed nearly ten weeks after decision of Judge - affidavit included an application for an extension of time within which to file the notice of appeal - by oversight, notice of appeal not filed at the same time - delay in filing affidavit attributable to both applicant and her solicitors - notice of appeal filed five months after decision, after applicant's solicitors realised that a notice of appeal had not been filed - Judge allowed appeal against decision of Magistrate dismissing charges against applicant - applicant charged with driving a motor vehicle while there was present in her blood the prescribed concentration of alcohol contrary to s 47B Road Traffic Act 1961 (SA) (RTA) - applicant underwent test on breath analysing instrument operated by an authorised person - s 47G (renumbered 47K) RTA made provision for use in evidence of certificates signed by authorised person - operator of breath analysing instrument ceased to be a member of the police force prior to signing certificates - Judge held that certificates signed by operator of breath analysing instrument were admissible - whether extension of time for seeking permission to appeal should be granted.
Held: explanation for delay not convincing, even though only part of delay attributable to applicant - proposed appeal raises question of law - question of law one of limited application only - answer given by Judge a convincing one - extension of time refused.
Supreme Court Act 1935 (SA) s 50(4); Supreme Court Civil Rules 2006 r 283, r 285; Road Traffic Act 1961 (SA) s 47B, s 47G, s 47G(1), s 47G(3), s 47G(7), s 47K, referred to.

POLICE v BROWN
[2008] SASC 358
Full Court: Doyle CJ, White and David JJ

THE COURT: This is an application for permission to appeal to the Full Court against a decision by a single Judge.
Permission to appeal is required by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA), the judgment of the single Judge being a judgment on appeal from a judgment of the Magistrates Court. The Judge’s decision was given on 1 May 2008.
An affidavit by Ms Creasey‑Evans, the solicitor for the applicant, filed on 8 July 2008, outlines the process of obtaining instructions to appeal and preparing a Notice of Appeal. In the affidavit, application is made for an extension of time to file a Notice of Appeal. It appears that when the affidavit was filed, a Notice of Appeal was not filed at the same time due to an oversight.
Next the applicant’s solicitors filed a Summary of Argument on 22 July 2008 in support of the application for permission to appeal.
The Notice of Appeal was not filed until 2 October 2008. It was filed after the applicant’s solicitors realised that a Notice of Appeal had not been filed earlier.
However one views the matter, the applicant is substantially out of time.
By r 285 of the Supreme Court Civil Rules 2006 application for permission to appeal could have been made to the Judge within 14 days after the date of judgment. Subject to that, the applicant had 21 days within which to commence her appeal: r 283.
As the above summary indicates, the process of obtaining instructions to appeal and to prepare a Notice of Appeal was not completed until the time for an appeal had well and truly expired.
It is clear from the affidavit of Ms Creasey-Evans that the delays were attributable to a combination of events. In part the delays are due to the failure of the solicitors to attend to the matter. However, it appears also that the applicant took some time to make a decision in relation to a possible appeal.
When the first affidavit was filed (8 July 2008), almost 10 weeks had passed since the decision.
All that can be said in support of an application for an extension of time is that the delay was not entirely the personal fault of the applicant, and that there is no reason to think that the respondent would suffer any particular prejudice if an extension of time were granted.
The case for an extension of time is not strong, even if one treats 8 July 2008 as the occasion when this application was made.
We turn to the merits of the proposed appeal.
The applicant was charged with driving a motor vehicle while there was present in her blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the RTA”). The Magistrate dismissed that charge. On appeal, the Judge set aside that order and substituted an order convicting the applicant.
The outcome of the appeal turns on the admissibility of certain certificates under s 47G of the RTA. That section has now been renumbered as s 47K.
Section 47G(1) of the RTA provides for the giving of evidence of the concentration of alcohol indicated as being present in the blood of a person by a breath analysing instrument. Such evidence may be given by “a person authorised to operate the instrument by the Commissioner of Police …”.
Section 47G(3)(b) of the RTA and s 47G(7) of the RTA each provide for the giving of a certificate in aid of proof of certain matters “purporting to be signed by a person authorised under subsection (1) …” of s 47G of the RTA.
In the case in question, the applicant underwent a test on a breath analysing instrument, which at the time was operated by a person authorised to operate the instrument by the Commissioner of Police. There was no dispute about that. However, by the time of the proceedings the relevant person was no longer a member of the police force. Certificates were tendered under s 47G(3)(b) and 47G(7), those certificates having been signed by the former member of the police force. The person in question had left the police force between the time of administering the breath test and the time of signing the certificates.
The Magistrate before whom the matter came had rejected the certificates. The Judge held that the Magistrate was wrong, and that the certificates should be admitted.
The Judge ruled that for the purposes of the relevant subsections, it sufficed that the person in question was authorised to operate the instrument at the time that the instrument was used to analyse the applicant’s breath. In the Judge’s opinion it was not necessary that the person remain an authorised person at the time of signing the certificates in question. In the Judge’s opinion the resignation of the member from the police force did not affect his authority to sign the certificates.
This is the issue sought to be raised on appeal.
The proposed appeal raises a clear question of law. However, it is one of limited practical application.
The first issue is whether the Court should extend the time within which the appeal or application for permission to appeal might be filed. This requires consideration of the delay, of the explanation for the delay, and of whether the proposed grounds of appeal have any merit.
As the Court has indicated, the explanation for the delay is not convincing. The delay appears to be the result of a leisurely approach to the matter on the part of the applicant and on the part of her solicitors. As to the proposed grounds of appeal, while they raise a clear question of law, as has already been noted, it is one of limited practical application. Moreover, there is no reason to doubt the correctness of the Judge’s decision. The point at issue is a very short one. The answer that the Judge gave is a convincing one, having regard to the language of the section and having regard to the apparent purpose of the provisions in question.
Accordingly, having regard to the substantial delay, the explanation offered for the delay, and having regard to the fact that there is no apparent reason to doubt the correctness of the Judge’s decision, the Court is unanimously of the opinion that the application for an extension of time within which to apply for permission to appeal, or within which to commence the appeal, should be refused.