Police v Warren

[2000] SASC 285

POLICE v WARREN

[2000] SASC 285

Magistrates Appeal

Civil  ex tempore

1................ Gray J ............. The respondent, Barry Glen Warren was charged on complaint that on 1 March 1999 at Elizabeth South he assaulted Anthony Colin Starr contrary to section 39 of the Criminal Consolidation Act 1935 (SA). He was further charged that on the same day he failed to comply with a domestic violence restraining order, contrary to section 15 of the Domestic Violence Act 1994 (SA). He was further charged that on 1 March 1999 at Elizabeth South he drove a motor vehicle in a manner which was dangerous to the public, contrary to section 46 of the Road Traffic Act 1961 (SA). The driving charge matter came on for hearing on Tuesday 1 February 2000, before Ms McInnes SM. The respondent was present in court and was represented by Mr Petraccaro.

2      The respondent had been convicted on 11 July, 1997 of the offence of driving at a speed which was dangerous to the public.  On that occasion, he was fined $300.00 and his licence was disqualified for six months as of 19 July 1997. 

3      The learned magistrate conducted a pre-trial conference. She indicated that if a plea of guilty were entered, then she would impose a suspended sentence of imprisonment for the breach of restraint of the domestic violence order. She considered  that the penalty to be imposed on the driving charge should have "limited effect" on the respondent's driver's licence. The learned magistrate urged the withdrawal of the driving charge but the prosecutor informed her that she was instructed to proceed.

4      Mr Petraccaro advised the respondent that as a result of the earlier driving offence, he faced a licence disqualification of up to three years for the offence of driving in a manner dangerous to the public. Given that advice, the respondent instructed Mr Petraccaro that he would plead guilty to the driving charge and requested that Mr Petraccaro do what he could to charge keep his licence disqualification under three years. 

5      The matters were then called on and the respondent pleaded guilty to the charge of failing to comply with the domestic violence restraining order and the driving charge.  The complaint of assault was withdrawn. 

6      During the course of submissions on penalty, Mr Petracarro became aware that the advice that he had given to the respondent was incorrect.  When informed, the respondent said that he wished to withdraw his plea of guilty to the driving charge. The learned magistrate then intimated that in the unusual circumstances of the matter, as she considered the offence to be trifling, she would impose a licence disqualification for 12 months.  Once that intimation was given, the respondent instructed Mr Petraccaro to proceed with the plea of guilty to the driving charge.

7      The prosecutor did not agree to the course that the learned magistrate was taking but was given no opportunity to make submissions.  She says that had she been given the opportunity, she would have strenuously opposed that course.

8 It is common ground that the learned magistrate did not have power to order disqualification for only 12 months. She was obliged by the terms of section 46 of The Road Traffic Act to impose a minimum licence disqualification of three years. 

9      Had this been known at the time, the plea of guilty by the respondent, would not have been entered, and having been entered, he would have sought to withdraw the plea.

10 On 15 February 2000, the police appealed. It was said that the learned magistrate erred in finding the offence of driving in a manner dangerous to the public to be trifling and in imposing a period of licence disqualification of 12 months for a "subsequent offence" under section 46 of the Road Traffic Act .

11     On 16 February 2000, the respondent whilst riding his motorcycle to work was involved in a collision. He was severely injured. On admission, to the  Royal Adelaide Hospital a diagnosis was made of a closed head injury and of a brachial plexus traction injury to his right upper limb.  On admission he was confused and aggressive.  A scan confirmed haemorrhages within the brain stem.  He was treated by intubation and ventilation.  He was impulsive, aggressive and confused.  He remained at the Royal Adelaide Hospital until 2 March 2000 and was then transferred to the Julia Farr Centre.  On that date, he was assessed as still being impulsive and aggressive.  His behaviour at Julia Farr was erratic.  He was both argumentative and threatening.

12     The longterm prognosis of his right upper limb injury is poor.  It is feared that he may never obtain full function of that limb.  Treatment of this injury is ongoing. 

13     According to a letter from the Registrar of Motor Vehicles of 11 August 2000, the respondent has surrendered his current driver's licence and his licence has been suspended on medical grounds.

14     The matter came before this court on 6 April 2000.  Counsel appeared as amicus curiae and obtained an adjournment as the respondent was unable to give any meaningful instructions. The matter was next before the court on 14 June 2000 when the court indicated that medical evidence should be obtained regarding the respondent's condition. 

15     Counsel for the respondent was unable to take further instructions until mid June. At that time the respondent still suffered serious memory loss.  During July 2000, further instructions were taken,  Mr Petracarro was consulted about the unusual history of the matter, and legal aid was obtained.  By early August 2000, these matters were completed and the respondent sought an extension of time to appeal against conviction.  It was said that the plea of guilty had been unfairly induced and that in the interests of justice the conviction should be set aside.  Counsel for the appellant did not oppose the application for an extension of time.  It was accepted that this was a most unusual case. 

16     The following rules guide the court in considering an application to extend time:

(1)The discretion exists for the sole purpose of doing justice between the parties.[1]

[1]               Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257; Gallo v Dawson (1990) 93 ALR 479

(2)Some material must be advanced upon which the court can exercise its discretion.[2]

(3)There is an obligation to explain with frankness and candour the reason for delay.[3].

(4)The longer the delay the more exceptional or substantial the explanation required.[4]

(5)If  no sufficient grounds of appeal are disclosed an extension will not be granted[5].

(6)The court is not obliged to consider the merits in detail.[6].

(7)The court will consider whether any substantial grounds exists for apprehending a miscarriage of justice.[7]

(8)Absent satisfactory explanation about delay an applicant is still entitled to an extension if otherwise there will be a miscarriage of justice.[8]

[2]      Ratnam v Cumarasamy (1964) 3 All ER 933 at 935

[3]      Hall v The Nominal Defendant (1967-68)) 117 CLR 423 at 435

[4]               R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64;  R v Armstrong (1983-84) 35 SASR 356

[5]      R v Trotter  (1979) 22 SASR 64

[6]      Jackamarra v Krakouer (1998-99) 195 CLR 516

[7]      Gikas v Police (1999) 202 LSJS 301 at 306

[8]      Gikas v Police (1999) 202 LSJS 301 at 306

17     The above rules are subservient to the overriding principle that the court should grant of extension of time to avoid a miscarriage of justice.   As Kirb J said in Jackamarra v Krakouer[9] at [66]:

"Procedural discretions, such as those in question here, are typically expressed in very wide language.  (Boomalli Ltd v Hake [1985] WAR 7 at 9.) In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case. (In re Coles and Ravenshear [1907] 1 KB 1 at 4; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.)  This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time.  Of necessity, each case must depend upon its own particular circumstances (Christie v Harvey and Hayward (1900) 2 WALR 146 at 148; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947; [1985] 2 All ER 517 at 521; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 167.)

... Nevertheless, it is useful to keep in mind a number of considerations which have commonly been taken into account."

[9] (1998-99) 195 CLR 516 at 539

18     In this matter the serious injury sustained by the respondent provides a satisfactory explanation for delay. Further, I am satisfied that the respondent has raised a point of substance. Prima facie the respondent was unfairly induced to plead.  An extension of time to appeal against the conviction should be granted.

19     Counsel for the appellant did not oppose the appeal against conviction being allowed.   In my view this was an appropriate concession. The interests of justice require that the conviction be set aside. Both the learned magistrate and counsel for the respondent misunderstood the mandatory requirements of the law. The respondent was induced to plead and to maintain his plea,  thereby misunderstanding the consequences of that plea.  The prosecution was not given an opportunity to address in regard to the finding that the offence was trifling or that the disqualification was for a period less than the statutory minimum. 

20     Both parties accepted that the suspended sentence imposed with respect to the domestic violence charge was appropriate and did not wish to have the matter re-opened.  Accordingly that sentence remains.

21     I make the following orders:

(1)the time for the respondent to lodge an appeal against the conviction for driving in a manner dangerous to the public is extended to 8 August 2000.

(2)leave is granted to the respondent to amend the notice of appeal as advised.

(3)the appeal is allowed, the conviction for driving in a manner dangerous to the public is set aside, and the matter is remitted for hearing of the charge of driving in a manner dangerous to the public before another magistrate. Otherwise the conviction and sentence with respect to the charge of the failure to comply with the domestic violence order remains in place.

(4)the appeal by the police against sentence is dismissed.

LIST OF CITATIONS APPEARING IN JUDGMENT

LISTED AS THEY APPEAR IN THE JUDGMENT

1Hughes v National Trustees & Executors Agency Co of Australasia [1978)] VR 257; Gallo v Dawson (1990) 93 ALR 479

2 Ratnam v Cumarasamy (1964) 3 All ER 933 at 935

3 Hall v The Nominal Defendant (1967-68) 117 CLR 423 at 435

4R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; R v Armstrong (1983) 35 SASR 356

5 R v Trotter (1979) 22 SASR 64

6 Jackamarra v Krakouer (1998) 195 CLR 516

7 Gikas v Police (1999) 202 LSJS 301 at 306

8 Gikas v Police (1999) 202 LSJS 301 at 306

9 (1998-99) 195 CLR 516 at 539