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 2013, there were various failures of the applicant to attend at the Magistrates Court, convictions in his absence, and, later, applications by the applicant for re-hearings. That series of non-appearances may be summarised as follows.
On 31 January 2013 the matter was listed for first mention before Magistrate Sprod. The applicant did not attend but had previously written to the Magistrates Court seeking an adjournment. The matter was adjourned to 5 March 2013. On 5 March 2013 the matter was listed before Magistrate Schammer. The applicant appeared, unrepresented. The matter was adjourned to a pre-trial conference on 17 May 2014.
On 17 May 2013, that pre-trial conference was listed to be held before Magistrate Sprod. However, on 17 May 2013, the applicant did not appear. The police prosecutor applied for the matter to be heard ex parte which application was granted. Magistrate Sprod convicted the applicant and ordered a $75 fine together with court fees of $214, victims of crime levy of $160, and prosecution costs of $100 (a total o $549).
On 22 May 2013, the applicant filed an application for re-hearing with an attached certificate of sickness dated 17 May 2013; together, that material asserted that he had been sick on the hearing date of 17 May 2013 and unable to attend. That application was listed for hearing before Magistrate Sprod on 16 July 2013. However, on 16 July 2013, the applicant did not appear. Accordingly, the application was dismissed.
On 19 July 2013, the applicant filed a second application for re-hearing; he asserted that he had believed that the hearing scheduled for 16 July 2013 was scheduled for 18 July 2013. That application was heard by Magistrate Deland on 5 August 2013 when the applicant appeared, unrepresented. The re-hearing application was granted and the orders made by Magistrate Sprod on 17 May 2013 were set aside. The matter was then adjourned to a pre-trial conference to be held on 27 September 2013. However, on 27 September 2013, the applicant did not appear. The police prosecutor applied for the matter to be heard ex parte which application was granted. Magistrate Deland convicted the applicant and made the same orders as Magistrate Sprod had previously made: on 17 May 2013, namely, a $75 fine together with court fees of $214, victims of crime levy of $160 and prosecution costs of $100 (a total of $549). These orders pronounced on 27 September 2013 form the subject matter of the present application before me.
On 1 October 2013, the applicant filed a third application for re-hearing; he asserted that he had missed the hearing of 27 September 2013 due to illness. That application was listed for hearing on 21 October 2013. The applicant then advised the Magistrates Court that he was unable to attend on 21 October 2013 by filing yet a further application for re-hearing and requesting a hearing in early November. The matter was administratively adjourned to 14 November 2013. On 14 November 2013 the application for a re-hearing was listed to be held before Magistrate Tracey. However, on 14 November 2013, the applicant did not appear and her Honour dismissed the application.
On 18 November 2013, the applicant filed a fourth application for re-hearing; he asserted that he had been unable to attend the 14 November 2013 hearing due to recurrent illness and that medical certificates were available if required. He subsequently supplied a certificate of sickness dated 13 November 2013. The application was listed to be heard on 23 January 2014 before Magistrate Sprod. However, on 23 January 2014, the applicant did not appear. Accordingly, his Honour dismissed the application. (It appears that on 22 January 2014 the applicant had sent a facsimile on an “Application For Rehearing Form” to the Court stating that he would be “unable to attend court tomorrow 23/01/2014” due to a need to be with his elderly parent in hospital. It is highly likely that that facsimile, sent so late, did not come to the attention of the Magistrate before the hearing on 23 January 2014 at 10am.)
On 3 March 2014, the applicant made a fifth application for a re-hearing; he referred to the facsimile he had sent on 22 January 2014 and stated “I did not receive a response back”. On 5 March 2014 the Magistrates Court by letter advised the applicant that the Magistrates Court refused lodgement of the applicant’s purported “fresh application”. On 16 April 2014, the applicant made a sixth application for a re-hearing. On 22 April 2014 the Magistrates Court advised the applicant that his application for a re-hearing had been refused and no further applications could be made.
Application to the Supreme Court for an extension of time within which to appeal against the orders of Magistrate Deland made on 27 September 2013
On 6 May 2014, the applicant filed a notice of appeal seeking an extension of time within which to appeal to a single Judge of this Court against the orders of Magistrate Deland on 27 September 2013 whereby her Honour convicted him.
The charge and the applicant’s prospects of success at a trial
The offence is a minor one as indicated by the fine in the amount of $75. No driving disqualification was imposed. The applicant made no submissions that the conviction would result in demerit points such as to result in driving disqualification due to other accumulated points and he has not brought any application for an order for a reduction of demerit points.
As to prospects of success at a trial, I consider that the prosecution case is a strong one. The main prosecution witness, Constable Leahy, provided an affidavit during the Magistrates Court pre-trial process (a copy of which was supplied to the applicant) and relevantly deposed as follows:
At about 2.11am on Tuesday the 31^st of January 2012, I was on mobile uniform patrol in company with Constable MINGE travelling North of Beaven Avenue BROADVIEW in single lane approaching junction with Watson Avenue. I observed a White TAXI also travelling North on Beaven Avenue about 30 metres in front of the Police vehicle. I observed there to be nil other traffic in the area at the time.
I observed the TAXI vehicle to make a right hand turn at the Junction with Watson Avenue and begin travelling east. I observed the vehicle did not indicate when making this right hand turn. I followed the TAXI vehicle and observed it to travel East on Watson Avenue for a short time before making a left turn onto Olive Avenue BROADVIEW. I again observed that the vehicle did not display any signal or indication when changing direction and travelling onto a separate side street.
I activated the Police vehicle’s emergency lights and stopped the vehicle, South Australia registration TAXI.2405 on Olive Avenue, about 20 metres north of the junction with Watson Avenue BROADVIEW. I had clear and uninterrupted observations of the fail to indicate left from Watson Avenue onto Olive Avenue from about 20 metres with their being nil other traffic in the area at the time.
I approached the driver’s side of the vehicle and spoke to the driver, now known to me as Abraham FARAGUE. I obtained the driver’s license of FARAGUE and observed the photograph to resemble FARAGUE. Client number W67273 refers. I had a conversation with FARAGUE, notes of which I made while the facts and conversation was still fresh in my memory.
I/S: “Hi, how are you? The reason I stopped you is you didn’t indicate the last two (2) streets”.
H/S: “I did indicate”. FARAGUE then continued to state that the indicators may not have worked due to a battery fault with the vehicle.
I then followed [sic - allowed] FARAGUE to turn each indicator on and I observed both indicators to operate correctly. FARAGUE then stated that the vehicle battery affected the indicators. I allowed FARAGUE to drive North on Olive Avenue BROADVIEW and activate each indicator. Again, both indicators worked correctly when used. I observed nil exterior damage to the indicators and they were clearly visible when used during these tests.
Constable Leahy further deposed that the applicant was later permitted to drive from the scene and his turn signal was again observed to be working perfectly (that is, illuminating when activated from inside the taxi):
I observed FARAGUE to drive off and indicate right at the Junction with Collins Street BROADVIEW. I observe the indicator to again be operating correctly.
On the hearing of the application, the applicant asserted his position as follows. Earlier that morning, while at the cab rank at the Hilton Hotel at Victoria Square, he had experienced a battery failure when attempting to start his taxi; he was later able to start the car with jumper leads. He stated that he then drove the taxi, activating the turn signals when required and heard the indicators click normally on each occasion. He states that he did activate the turn signals on the two particular occasions complained of by Constable Leahy and that he heard the indicator mechanism clicking normally on both of those occasions.[1] The applicant did not dispute the evidence of Constable Leahy as to his various observations, made after stopping the applicant, that the turn signals on the taxi were then working perfectly well (that is, illuminating externally when activated from inside the taxi).
[1] Constable Leahy chose to charge only the second of the unindicated turns he observed, the turn to the left.
I will assume in favour of the applicant (without deciding) that at a trial one could call in aid a Proudman v Dayman[2] defence in circumstances where traffic indicators give a positive indication by audible clicking to the driver that they are working inside the car, but in fact are not illuminating externally when activated. However, it is clear that the prospects of a Magistrate not rejecting such a defence beyond reasonable doubt in the present circumstances are very poor.
[2] (1941) 67 CLR 536.
Success for the applicant would require acceptance of the possibility that the following circumstances occurred. First, at the time Constable Leahy observed the applicant’s taxi make the two turns complained of, the vehicle was in all respects functioning normally (including the powering of the head lights and the mechanism that created the clicking apparently then audible during the operation of the turn signals when the indicator was activated by the applicant) except that the turns signals did not illuminate. And, second, that immediately after the applicant was stopped by Constable Leahy, the turn signals immediately returned to normal operation (that is, illuminating externally when activated) when the indicators were tested while the taxi was stationary after being pulled over, tested while it was moving, and indeed a little later when the applicant drove away from the scene and observed by police.
It also is to be noted that the applicant did not suggest that this problem of the indicators clicking, but the turn signals not illuminating, ever returned at any later time that morning (or at any other time), and nor did he suggest that he had later had the indicators inspected or repaired. The applicant did not suggest that he had obtained any expert evidence (or any other evidence at all) that would assist him at a trial. I assess the prospects of success of the applicant at a trial as very poor.
The applicant’s failures to attend the Magistrates Court
The applicant did not file any affidavit material as to his various failures to attend the Magistrates Court. He asserted on the hearing of the application for an extension of time that he missed the various hearings scheduled in the Magistrates Court for various reasons including failure to remember the correct dates and ill health.
As to his failures to remember the correct dates, his assertions during the hearing before me were inconsistent, contradictory and unsatisfactory. As to ill health, the medical certificates relied upon were in the most nebulous of terms. The applicant told me that he is affected by a general debilitating condition which comes and goes, and is associated with his long working hours; it results in stress and, once he has fallen asleep, he finds it difficult to wake up and attend to matters such as court appearances.
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
The complaint and summons served on the applicant is in that standard form and the applicant was on notice that the matter might proceed in his absence.
Conclusion
The applicant is in excess of six and a half months out of time to appeal.[6] It is the case that during that six and a half month period the applicant was making various applications to the Magistrates Court for re-hearings and for changes to scheduled dates and times in the circumstances described above, but it must also be appreciated that he elected to do so rather than to appeal to the Supreme Court at that time. In making those applications to the Magistrates Court as from 27 September 2013, he failed to appear on court dates on a further two occasions as noted above. I consider that the Court and the various Magistrates were more than generous to the applicant throughout this long saga; but that generosity had to come to an end at some time and some may say that it continued for longer than it should have.
[6] Being from 27 September 2013 to 6 May 2014, taking into account a 21 day time limit.

The exercise of the power to proceed to convict the applicant in his absence on 27 September 2013 was appropriate in all of the circumstances and that conviction was within power and valid. The subsequent refusals by the Magistrates to exercise the power to set aside the conviction of the applicant were appropriate in all of the circumstances. The offence is a minor one and the applicant asserts no adverse effect upon him other than payment of the monetary amounts ordered. The prospects of success by the applicant at a trial are, and have always been, very poor.
I conclude that the interests of justice do not require an extension of time within which to appeal and the present application is refused.