Ralph v Police

[2010] SASC 325

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

RALPH v POLICE

[2010] SASC 325

Judgment of The Honourable Justice Vanstone

24 November 2010

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

Appellant convicted in his absence - application for rehearing under s 76A Summary Procedure Act refused by magistrate - purported appeal against that refusal.

Held:  appeal dismissed as incompetent.

Summary Procedure Act 1921 s 76A; Magistrates Court Act 1991 s 42; Road Traffic Act 1961 s 40V, referred to.
Grant v Irrgang (1991) 160 LSJS 334; Laurendi v Police [2010] SASC 324, applied.

RALPH v POLICE
[2010] SASC 325

Magistrates Appeal

1. VANSTONE J:     The appellant was charged with giving false and misleading details to a police officer in response to a direction, contrary to s 40V of the Road Traffic Act 1961.  He failed to appear upon his trial in the Magistrates Court and the matter proceeded ex parte. He was convicted in his absence. He then applied to have the conviction set aside and for a re-hearing pursuant to s 76A of the Summary Procedure Act 1921, but a magistrate declined to make any order.  He now purports to appeal against that latter decision.

2. There is a question as to the competence of such an appeal. If a refusal under s 76A to set aside a conviction or other order is a decision of an interlocutory nature, then it is not, ordinarily, such as to give rise to a right of appeal under to s 42 of the Magistrates Court Act 1991.  I shall return to this issue.

3. On the morning of 27 December 2009 Constable Marriott was performing random breath test duties on the Anzac Highway in Adelaide.  There is no dispute that the appellant, riding a motor cycle, was stopped by Constable Marriott.  There was discussion between the officer and the appellant as to one of the number plates on the motor cycle, which appeared to display handwritten figures.  That led to further conversation between the officer and the appellant.  In the course of that conversation the constable directed the appellant to provide his personal details.  The prosecution claimed that the appellant gave a name, address and date of birth which were not his own, but which were those of his brother.

4. When the matter came to the Magistrates Court, a plea of not guilty was intimated and a trial date was set, being 25 June 2010.

5. On the day prior to the trial date a document was sent by facsimile to the Court.  It contained a request for an adjournment of the trial together with a copy of a certificate of a medical practitioner, Dr De Villiers.  That appeared as a typed document which asserted that the appellant would be unfit for a court appearance from 23 June 2010 to 25 June 2010.  The latter date had been altered by hand from 24 June to 25 June 2010.  The police prosecutor also received part of the facsimile communication, the missing part being the copy certificate.  The fact that the certificate was missing deprived the police prosecutor of early opportunity to make inquiries about the certificate.

6. On the following day the matter came before a magistrate.  The police prosecutor was shown the documents which the court had received.  He immediately arranged for Dr De Villiers to be contacted by Constable Marriott.  When the matter was called on the non-appearance of the appellant was proved.  The prosecution called Constable Marriott, who gave evidence of the inquiry he had made with Dr De Villiers.  He gave evidence that the doctor had told him that the certificate he had given the appellant bore no handwritten alteration and was for 23 and 24 June.  Constable Marriott also gave evidence in proof of the charge.  The magistrate made an order that the trial proceed ex parte and also found the charge proved.

7. I might say that no issue has been taken before me as to the evidentiary basis upon which the magistrate determined to make the order that the trial be heard ex parte.  Strictly, Constable Marriott’s evidence on this issue was hearsay.  However, the point would have been a barren one in any event, because subsequent to the trial, the respondent obtained an affidavit from Dr De Villiers attesting to the fact that the medical certificate was not altered by his own hand and related only to the two days preceding the trial date.  Anyway, I would not wish to be taken as expressing a view that the evidence then available was not adequate.

8. Subsequently, the appellant sought a re-hearing of the matter pursuant to s 76A Summary Procedure Act.  The matter came on before a different magistrate on 22 July 2010.  What occurred before the magistrate was a matter of dispute before me.  I heard oral evidence from both the appellant and the police prosecutor.  While the police prosecutor did not claim a comprehensive memory of all that was said at the hearing, I am satisfied on the basis of his evidence that the appellant told the magistrate that he was not guilty of the offence, that he had been unwell on the trial date and that a re-hearing should be granted.  I am further satisfied that the appellant had opportunity to support his contentions by reference to medical evidence and that he was given an opportunity to explain what his defence to the charge would be were he granted a re-hearing.  I reject the appellant’s evidence to the effect that he was given no opportunity to explain the reasons why he was not at court, or the defence he had wished to put to the court.

9. In his evidence before me the appellant asserted that he did not alter the medical certificate provided by Dr De Villiers.  He said that he could not say who had made the alteration to it.  He said he did not send the two facsimile letters, one to the court and one to the police prosecutor, although he acknowledged that he had asked for them to be sent.  It is apparent to me that no-one apart from the appellant would have had any interest in altering the date on the certificate.  Only the appellant, or someone acting as his agent, would have had any reason to forward the facsimile messages to the court and the police, the one to the police being without the certificate.  I am satisfied that it was the appellant who altered the certificate and sent it, or caused it to be sent, to the Magistrates Court and that the appellant, or someone acting on his instructions, sent the same facsimile message, less the certificate, to the police prosecutor.

10. This finding goes directly to the question of the reasons for the appellant not attending the court for his trial.  There is no proof that he was prevented by a medical condition from attending.  It would not be correct to classify his reasons for not attending as misadventure.  He himself made a decision not to attend.

11. If the second magistrate was to set aside the conviction and order a re-hearing, he needed to be satisfied of the probability that the appellant would suffer an injustice if the conviction were to stand:  Grant v Irrgang (1991) 160 LSJS 334 at 338 (Debelle J). The appellant has failed to establish that probability, both before the second magistrate and before me. As best I can glean from his evidence about his defence, it would be that in the course of the conversation between himself and Constable Marriott, the officer mistakenly took the appellant’s mention of his brother’s name, address and date of birth to be accompanied by an assertion that he was, himself, that person. In my mind that is implausible. Consequently, even assuming that the appeal were competent, I would decline to set aside the conviction.

12. I have today delivered judgment in another matter where the appeal notice purported to raise the correctness of a magistrate’s dismissal of a s 76A application. In that case I heard argument from the respondent going to the competence of the appeal. There, I decided that the appeal was indeed incompetent, because s 42(1a) of the Magistrates Court Act 1991 provides that, in the absence of certain circumstances which do not apply here, an appeal does not lie against an interlocutory judgment; and a magistrate’s refusal to make an order under s 76A is an interlocutory judgment: Laurendi v Police [2010] SASC 324.

13. In that matter I was prepared to treat the appeal notice as if it were directed to the original decision of the magistrate to convict Mr Laurendi in his absence.

14. In the present matter, Mr Soetratma, for the respondent, has not specifically raised the question of the competence of the appeal.  That is probably because his position is that an appeal by Mr Ralph against either decision is doomed to fail.  I agree with that position.

15. Mr Ralph’s failure to attend at his trial was due to neither misadventure nor carelessness.  It was because of a decision that he made, without justification.  That, of itself, would be enough to dispose of any appeal against his conviction.  But, even further, it cannot be said that he has demonstrated that there is a probability of injustice if his conviction is permitted to stand.  He has not demonstrated even an arguable defence.

16. Accordingly, I am not prepared to make any order amending the appeal notice which might have the effect of validating the appeal.

17. The order I make is that the appeal notice is struck out, being incompetent.