Police v Slobodian - [2009] SASC 147

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
POLICE v SLOBODIAN
[2009] SASC 147
Reasons for Decision of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Layton)
26 May 2009
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal against decision of single Judge of Supreme Court - single Judge allowed appeal against the decision of a Magistrate dismissing two criminal charges against applicant - single Judge recorded a conviction on one count and ordered a retrial of the other count.
HELD: applicant wished to challenge factual issues addressed by the Judge and decided adversely to the applicant - Full Court does not ordinarily grant permission to appeal to enable factual issues to be reargued before the Full Court - no apparent error in the reasoning of the Judge - not an appropriate case for a grant of permission to appeal - application refused.
Supreme Court Act 1935 (SA) s 50(4)(a)(ii) ; Supreme Court Civil Rules 2006 (SA) r 282(2)(b), r 283(1), r 285(1)(a), r 285(2), r 295(1); Summary Offences Act 1953 (SA) s 6(2), s 17A(1), referred to.
Police v Slobodian [2008] SASC 69, discussed.

POLICE v SLOBODIAN
[2009] SASC 147
Full Court: Doyle CJ, Bleby and Layton JJ

THE COURT: Mr Slobodian has applied for permission to appeal to the Full Court against a decision by a Judge of this Court.
Permission to appeal is required because the decision by the Judge is a judgment on appeal from a judgment of the Magistrates Court: see Supreme Court Act 1935 (SA) s 50(4)(a)(ii).
Mr Slobodian filed a Notice of Appeal, including a request for permission to appeal. This course is permitted by r 285(1)(a) of the Supreme Court Civil Rules 2006 (“the Rules”).
The Judge’s decision was given on 11 March 2008. Mr Slobodian had 21 days to file his Notice of Appeal: r 283(1) of the Rules. The Notice of Appeal should have been filed by 1 April 2008.
The Notice of Appeal was not filed until 17 July 2008. Accordingly, Mr Slobodian needed to obtain an order extending the time for the filing of the Notice of Appeal, which order he sought in the Notice of Appeal.
According to a written submission filed by counsel for Mr Slobodian, the delay in filing the Notice of Appeal is attributable to delays in obtaining a grant of legal assistance.
Once an appeal is on foot, the appeal is taken to have been discontinued unless it is set down within six months of its institution: r 295(1) of the Rules.
It is not clear whether that Rule applies to Mr Slobodian’s Notice of Appeal, as the appeal is conditional on a grant of permission to appeal: r 285(2) of the Rules.
Mr Slobodian now applies for orders extending the time for filing the Notice of Appeal, extending…

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 Slobodian

Details

AGLC: Police v Slobodian [2009] SASC 147
Case: [2009] SASC 147
Decision Date: 26 May 2009

CaseChat Overview and Summary

In the case of Police v Slobodian, the applicant sought permission to appeal against a decision made by a single Judge of the Supreme Court of South Australia. The single Judge had allowed an appeal against the decision of a Magistrate, who had dismissed two criminal charges against the applicant. The single Judge subsequently recorded a conviction on one count and ordered a retrial of the other count. The applicant wished to challenge the factual issues addressed by the Judge and decided adversely to the applicant.

The primary legal issue before the court was whether the Full Court should grant permission for an appeal to enable the factual issues to be reargued. The court noted that the Full Court does not ordinarily grant permission to appeal to allow factual issues to be reargued before the Full Court. Furthermore, the court found that there was no apparent error in the reasoning of the Judge and that this was not an appropriate case for a grant of permission to appeal.

The court examined the grounds of appeal and found that they primarily focused on challenging the factual findings made by the single Judge. The court held that such challenges are not typically grounds for an appeal to the Full Court, as it is not the role of the appellate court to reassess the facts of the case. The court also considered whether there had been an error in the Judge's reasoning, but found none. Therefore, the application for permission to appeal was refused.

In summary, the court found that the applicant's appeal did not meet the criteria for permission to appeal, as it primarily sought to challenge factual findings rather than identifying any apparent error in the Judge's reasoning. The application for permission to appeal was therefore refused, and the decision of the single Judge stood.

Orders