Police v FARAGUE - [2014] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v FARAGUE
[2014] SASC 129
Judgment of The Honourable Justice Peek
5 September 2014
TRAFFIC LAW - TRAFFIC REGULATION - LIGHTS AND WARNING DEVICES
MAGISTRATES - HEARING - NON-APPEARANCE OF ACCUSED AND EX PARTE PROCEEDINGS
MAGISTRATES - ORDERS AND CONVICTIONS - SETTING ASIDE OR AMENDMENT OF ORDERS OR CONVICTIONS - ORDERS - SETTING ASIDE EX PARTE ORDERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - RELEVANT PRINCIPLES, JURISDICTION AND POWERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Application for extension of time within which to appeal.
Police alleged that the applicant failed to indicate before turning whilst driving a motor vehicle contrary to r 46(2) of the Australian Road Rules. He declined to pay the expiation notice and was prosecuted. After the first return date of 31 January 2013 specified in the complaint and summons, there were numerous failures by the applicant to attend the Magistrates Court, convictions in his absence, and applications for re-hearings. When he failed to appear without explanation on 27 September 2013, the prosecutor applied to the Magistrate to proceed ex parte, and orders were made convicting the applicant and imposing monetary penalty. He now appeals to the Supreme Court for an extension of time within which to appeal against those orders.
Held per Peek J (dismissing the application):
1.      The interests of justice do not require that an extension of time within which to appeal be granted.
2.      The applicant has been given ample opportunity to appear in the Magistrates Court and argue his case.
3.      The asserted defence that momentary mechanical failure prevented the turn signals illuminating outside the vehicle despite the indicator mechanism “clicking” inside the vehicle has very poor prospects of success at a trial.
4.      The Magistrate had power to proceed ex parte and the orders made convicting the applicant and imposing monetary penalty were valid.
5.      The application is dismissed.
Australian Road Rules s 46(2); Magistrates Court Act 1991 s 49; Magistrates Court Rules 1992 r 8; Summary Procedure Act 1921 (SA), referred to.
Van Reesema v Police [2006] SASC 251, distinguished.
Proudman v Dayman (1941) 67 CLR 536, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"re-hearing", "failure to indicate", "turn signal"

POLICE v FARAGUE
[2014] SASC 129
Magistrates Appeal

PEEK J. Application for extension of time within which to appeal.
The subject offence and the laying of the charge
In 2012 the applicant received an expiation notice which alleged that while driving a motor vehicle on 31 January 2012, he failed to indicate before making a left turn, contrary to Rule 46(2), AustralianRoad Rules. He declined to pay the expiation notice, and on 4 December 2012 a complaint and summons was issued requiring him to appear at the Holden Hill Magistrates Court (the Magistrates Court) on 31 January 2013 at 10am.
The proceedings in the Magistrates Court
Following the first return date of 31 January…

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 FARAGUE

Details

AGLC: Police v FARAGUE [2014] SASC 129
Case: [2014] SASC 129
Decision Date

CaseChat Overview and Summary

In the case of Police v Farague, the applicant challenged a decision made by a Magistrate in the Magistrates Court of South Australia. The applicant argued that the Magistrate had improperly proceeded with the hearing in his absence, leading to an ex parte determination. The application was heard by a judge who had to consider the legality of the Magistrate's actions in the absence of the applicant, particularly in light of a precedent set in Van Reesema v Police. The respondent, represented by counsel, highlighted the Van Reesema case, which established that actions taken by a Magistrate during a pre-trial conference were invalid. The applicant, despite being granted permission to make further written submissions limited to the Van Reesema issue, submitted irrelevant material and failed to address the core legal issue.

The legal issues before the court were whether the Magistrate's actions were valid and whether the applicant's absence invalidated the proceedings. The court had to determine if the Magistrate's decision to proceed with the hearing and make judicial determinations in the applicant's absence was lawful, considering the powers granted under the Summary Procedure Act 1921 and the Magistrates Court's rule-making authority. The court also had to consider whether the applicant's non-attendance justified a different outcome and if the Magistrates Court's practice of warning defendants about potential consequences for non-attendance was adequate.

The court reasoned that the circumstances of Van Reesema, where the impugned order was made during a pre-trial conference, were markedly different from the present case. Here, the applicant's failure to attend meant that a pre-trial conference could not have commenced. The Magistrate proceeded in open court, exercising judicial powers under the Summary Procedure Act 1921, which allowed for the hearing to proceed ex parte. The court found no irregularity or invalidity in these actions. The Magistrates Court's practice of warning defendants about potential consequences for non-attendance, as outlined in the Magistrates Court Rules, was deemed sufficient. The applicant's submissions did not alter the court's decision, and the application was dismissed.

The court did not find it necessary to delve deeply into the Van Reesema case in this instance, given the distinct circumstances. The applicant's absence and failure to comply with court orders were the primary reasons for the dismissal. The court's decision was based on the principle that the Magistrates Court has the authority to proceed with hearings in the absence of a defendant if proper notice and warnings are given, and the applicant did not contest these points effectively.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

The applicant asserted on the hearing of this application that he was feeling quite well at that particular time; he did not appear to be other than lucid and in good health.The decision in Van Reesema v Police At the hearing of the application, counsel for the respondent very properly drew my attention to the decision in Van Reesema v Police[3] where Perry J found that an action taken by a Magistrate during the course of a pre-trial conference was invalid. [3] [2006] SASC 251. At the conclusion of the hearing, the parties were given permission (but were not required) to make further written submissions, specifically limited to the Van Reesema issue.[4] That limited ambit was made very clear to the applicant at that time. However, on 20 August 2014, the applicant submitted written submissions to this Court which purport solely to relate to and largely repeat the circumstances in which the applicant failed to attend the Court on various occasions and in no way whatsoever address the Van Reesema issue. Those submissions have been supplied in direct conflict with the basis upon which permission was granted to supply further written submissions. In any event, they make no difference to my decision. [4] The time for the applicant was later extended to 20 August 2014. The applicant has elected not to make any submission in relation to the Van Reesema decision. Although the holding in that case may have to be considered in greater detail at some future time, in the circumstances of the present matter, such consideration is neither necessary nor appropriate. It suffices to say that the circumstances in Van Reesema were very different to those here. In Van Reesema, it was established that the impugned order was made in the course of a pre-trial conference, whereas, here, a pre-trial conference could never have commenced on either of the occasions they were scheduled and at which the Magistrate proceeded ex parte because the applicant failed to attend. There is simply no evidence before me that Magistrate Deland on 27 September 2013 did anything other than to proceed as a Magistrate in open court and, pursuant to the powers bestowed by the Summary Procedure Act 1921, make a judicial order that the complaint be heard ex parte and then make further judicial determinations that the offence was proven, that a conviction should be recorded, and that orders as to monetary amounts should be made. No irregularity, let alone invalidity, is established in such circumstances. I note in passing that the Magistrates Court has broad rule-making powers under s 49, Magistrates Court Act 1991 to govern the business, practice and procedure of the Magistrates Court, and may exercise those powers having regard to the objects expressed under rule 8 (Caseflow Management) of promoting the just determination of litigation; disposing efficiently of the business of the Court; maximising the efficient use of available judicial and administrative resources; and facilitating the timely disposal of business at a cost affordable by the parties.[5] The Magistrates Court has adopted the practice of positively warning defendants that their matter(s) may proceed if they fail to attend any hearing by including in the standard form of a complaint and summons prescribed by the Magistrates Court Rules a section entitled “Important Notice to Defendant”. This states:“[i]f you fail to appear on the hearing date set out below or on any day to which this matter is adjourned the Court may:- proceed in your absence or issue a warrant for your arrest”. (Emphasis added)[5] Magistrates Court Rules 1992

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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