Police v Slobodian
[2009] SASC 147
•26 May 2009
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 147Full 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 the time for setting down the appeal (if required), extending the time for filing a written summary of argument and such other orders as to the Court seems fit.
The single Judge was not prepared to grant permission to appeal. Accordingly, the application for permission to appeal and the related applications have been referred by the Judge for determination by the Full Court: r 282(2)(b) of the Rules.
This matter began with a decision by a magistrate. Mr Slobodian was charged with trespassing on premises contrary to s 17A(1) of the Summary Offences Act 1953 (SA). We will refer to this as count 1. He was also charged with resisting a police officer in the execution of her duty, contrary to s 6(2) of the same Act. We will refer to this as count 2. The Magistrate dismissed both counts. The Police appealed against the order of dismissal.
As to count 1, the Judge found that the Magistrate erred in law in treating a belief by Mr Slobodian that he was, in the particular circumstances, entitled to re‑enter the relevant premises, as providing a basis for a possible defence. The Judge found that no such defence was available in law. The Judge also found as a matter of fact that the charge was proved beyond reasonable doubt: Police v Slobodian [2008] SASC 69 at [37] and [50]. The Judge set aside the order dismissing this charge, and recorded a conviction.
As to count 2, the Judge found that the Magistrate’s reasons did not deal with crucial issues of fact. The issues of fact were not matters that the Judge considered could be decided on appeal: Police v Slobodian at [58]-[59]. The Judge set aside the order dismissing the charge the subject of count 2, and ordered a retrial.
Mr Slobodian wishes to challenge the Judge’s decision. He wishes to argue that on the occasion in question the police did not give Mr Slobodian an unequivocal direction to leave the premises in question, and that accordingly the Magistrate rightly found that Mr Slobodian was not proved to have known that he was a trespasser.
This is an argument the Judge has addressed and dealt with, deciding it adversely to Mr Slobodian: Police v Slobodian at [43] and at [48].
Mr Slobodian also wishes to argue that the Magistrate accepted Mr Slobodian’s belief that force used by the police when arresting Mr Slobodian was excessive, giving rise to a defence to count 2. But in a different way this argument, which also relates to an issue of fact, has been dealt with by the single Judge. He found that the Magistrate had not made necessary findings of fact to support the conclusion that count 2 should be dismissed: Police v Slobodian at [57].
Accordingly, the application for permission to appeal is made with a view to rearguing questions of fact, being questions already determined by the single Judge. The Full Court does not ordinarily grant permission to appeal to enable factual issues to be reargued before the Full Court. In the present case, there is no apparent error in the reasoning of the Judge that is identified in the submissions in support of the application for permission to appeal.
Moreover, there has been a lengthy delay on the part of Mr Slobodian. His explanation for the delay in filing the Notice of Appeal (Mr Slobodian unsuccessfully applied for a grant of legal assistance) may be acceptable, but that takes matters only to mid-July 2008 when the Notice of Appeal was filed. The explanation offered for the passage of time, from mid-July 2008 until the filing of the application for orders necessary to get the appeal on foot on 7 January 2009, is that Mr Slobodian had difficulty raising the money required to attain legal representation. His latest affidavit suggests that still he has not raised enough money to obtain legal representation.
Meantime, it appears that nothing has been done about a retrial on count 2.
However, we note that the respondent has not chosen to make any submission on the question of delay, and has not raised any question of prejudice.
Having regard to the fact that the issues to be argued are issues of fact, and to the circumstance that no apparent error by the single Judge is pointed to, the Court is not persuaded that this is an appropriate case for a grant of permission to appeal. For that reason, the Court refuses to extend the time for the filing of the Notice of Appeal. As a result, the appeal lapses: r 285(2).
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