Ralph v Police

[2008] SASC 359

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

RALPH v POLICE

[2008] SASC 359

Judgment of The Honourable Justice Nyland

17 December 2008

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF

Appeal with respect to charge of giving false name and address - appellant discharged without penalty - multiple applications for re-hearing dismissed - whether applications for re-hearing competent - delay in filing appeal - whether an extension of time should be granted - power of court to set aside a conviction or order under s 76A(1)SPA.

Held:  No substantial miscarriage of justice if conviction allowed to stand - no error by Magistrate in dismissing re-hearing application - no merit in appeal - appellant failed to provide grounds upon which application for extension of time should be granted - appeal dismissed.

Australian Road Rules s 256(1); Summary Offences Act (1953) s 74A(3)(b); Summary Procedure Act  (1953) s 76A, referred to.
Ralph v Police (2008) SASC 95; Ralph v Police (2006) SASC 296; Ralph v Police Number 2 (2006) SASC 374; Ralph v Police (2007) SASC 141 Full Court, considered.

RALPH v POLICE
[2008] SASC 359

Magistrates Appeal

1. NYLAND J:          This appeal arises out of an order made by a Stipendiary Magistrate sitting in the Magistrates Court at Adelaide on 21 January 2008.  The appellant filed the Notice of Appeal in this Court against that decision on 8 May 2008.  It is therefore necessary to consider whether there should be an extension of time as well as considering the appeal itself. 

2. The appellant was unrepresented throughout the course of proceedings in the Magistrates Court and on the hearing of the appeal.  In order to understand the issues that arise for determination on the appeal, it is therefore necessary to set out the history of the matter in some detail. 

   The charges against the appellant

3. The appellant was charged on complaint that on 23 March 2004 at Adelaide, being the rider of a bicycle he did not wear an approved bicycle helmet securely fitted and fastened on his head, contrary to the provisions of Rule 256(1) of the Australian Road Rules. The appellant was further charged with giving a false name and address to Andrew Jones, the member of the Police Force who detained him for the offence of failing to wear a bicycle helmet, contrary to the provisions of s 74A(3)(b) Summary Offences Act (1953). 

   The history of proceedings in the Magistrates Court

4. The summons first came on for hearing in the Magistrates Court on 28 May 2004.  At that time the appellant appeared and intimated that he would be pleading not guilty.  In accordance with the Rules of the Court the matter was then listed for pre-trial conference on 29 July 2004.  On 28 July 2004, it appears that a friend of the appellant contacted the Magistrates Court by phone to advise that the appellant would be unfit to attend Court until after 25 October 2004.   The following day, ie 29 July 2004, the pre-trial conference came on for hearing before a Magistrate.  The appellant did not attend.  The Magistrate then adjourned the pre-trial conference to 7 October 2004 and directed the Registrar to notify the appellant of the adjourned date.  That was done by letter sent to the appellant dated 2 August 2004.

5. On 6 October 2004 however, the appellant sent a facsimile to the Court and also telephoned to advise that he would be unable to appear at the pre-trial conference on 7 October 2004 and asked that the matter be adjourned until 20 January 2005.  On 7 October 2004 the pre-trial conference was again listed in the Magistrates Court.  The appellant did not attend.  The Magistrate further adjourned the pre-trial conference to 20 January 2005.  He directed that the Registrar notify the appellant by email and that notification was emailed to the appellant on 8 October 2004.  In that email the appellant was advised that he was required to attend when the matter next came on for hearing. 

6. On 20 January 2005, the pre-trial conference was listed for 2.15 pm.  The appellant had not attended by 2.40 pm and an order was made that a warrant issue.  The appellant however appeared in court at approximately 2.50 pm.  The warrant was then recalled and the matter adjourned to 27 January 2005.  On 27 January 2005, the appellant attended at Court and an order was made that the matter be listed for a one-day trial to take place on 1 September 2005. 

7. On 26 July 2005 the appellant sent a facsimile to the Court requesting an adjournment of the court hearing of 1 September 2005 and enclosed a medical certificate which stated that he was unfit for work from 25 August 2005 to 20 September 2005. 

8. On 29 August 2005, the appellant sent a further facsimile to the Court, again requesting an adjournment with respect to the Court hearing of 1 September 2005 and referring to his prior facsimile. 

9. On 1 September 2005, the matter again came on for hearing in the Magistrates Court.  The appellant was not in attendance.  The Court noted a letter in the file from the appellant together with a medical certificate and then adjourned the matter to a pre-trial conference to take place on 29 September 2005.  By letter dated 5 September 2005, the appellant was notified of the date of the adjourned hearing and was advised that he was required to attend. 

10. On 26 September 2005 the appellant sent a facsimile to the Court requesting that he be excused from attending Court on 29 September 2005.  The appellant was not present in Court when the matter was called on before the Magistrate on 29 September 2005.  The Magistrate noted the letter and medical certificate from the appellant but granted ex parte leave to the prosecution to proceed with the case.  The appellant was convicted of both offences.  He was fined the sum of $90 for the offence of not wearing an approved bicycle helmet and was discharged without penalty with respect to the charge of giving a false name and address.

    Applications for re-hearing

11. On 2 January 2007, the appellant filed an application for a re-hearing pursuant to s 76A Summary Procedure Act 1921 (SA) SPA.  That application was listed for hearing in the Adelaide Magistrates Court on 23 January 2007.  On that date, however, the Court received a facsimile from the appellant requesting an adjournment of the application due to work commitments to 1 February 2007 or thereafter.  When the matter was called on on 23 January 2007, the appellant was not in attendance and the matter was adjourned to 1 February 2007.  The appellant was notified of the adjournment date by telephone.

12. On 1 February 2007, the appellant attended Court on the hearing of the re-hearing application.  That application was refused.  There are no grounds available to explain the reason for that refusal, although the delay in lodging the application was undoubtedly a relevant factor.  On 23 October 2007, the appellant filed a further application for re-hearing which was listed for 13 November 2007.  The appellant did not attend on the date fixed for the hearing of that application and the application was dismissed.  That, however, was not the end of the matter.  The appellant filed yet another application for re-hearing of the matter.  The date of filing of the application is unclear but the application was listed for hearing in the Court on 21 January 2008 at 2.15 pm.  By letter dated 18 January 2008, and received by the Court on that date, the appellant requested that the hearing be adjourned to 24 January 2008.  On 21 January 2008 however, the appellant did not attend and the application was dismissed.

13. On 24 February 2008, the appellant endeavoured to file a further application for re-hearing which initially was listed for 26 February 2008.  By letter dated 25 January 2008, however, the Registrar advised the appellant the application for re-hearing had been refused as the time for lodging of the application had lapsed.  He advised the appellant that if he wished to take the matter further, he would need to appeal to the Supreme Court. 

    Section 76A Summary Procedure Act 1921 (SA) (“SPA”)

14. Section 76A SPA provides

    (1)The Court may, on its own initiative or on the application of any party, set aside a conviction or order.

    (2)An application to set aside a conviction or order under this section must be made within 14 days after the applicant receives notice of the conviction or order.

    (3)The Court may set aside a conviction or order under this section if satisfied—

    (a)     that the parties consent to have it set aside; or

    (b)     that the conviction or order was made in error; or

    (c)     that it is in the interests of justice to set aside the conviction or order.

    (4)Where the Court sets aside a conviction or order under this section it may, without further formality—

    (a)           proceed to re-hear the proceedings in which the conviction or order was made; or

    (b)     adjourn the proceedings for subsequent re-hearing.

15. As can be seen from the chronology set out herein (excluding the last application which was rejected by the Court), the appellant filed three applications for re-hearing of the same matter, each of which was substantially out of time.  The present appeal however is only against the decision of the Magistrate made on 21 January 2008, which was the dismissal of the third re-hearing application.  The appellant has not lodged an appeal relating to the conviction itself nor the other re-hearing applications. 

    The facts alleged with respect to the conviction

16. In the course of argument on the appeal, the appellant indicated that he did not dispute the conviction with respect to the charge of riding a bicycle without a helmet, but he wished to dispute the conviction recorded with respect to giving a false name and address.  The circumstances of that conviction are set out in the affidavit of Andrew Jones, the arresting officer, sworn on 24 April 2005.  It is not clear whether that affidavit was tendered to the Magistrates Court in the course of those proceedings, but it was received by me on the hearing of the appeal.  In his affidavit, Constable Jones says that he stopped a male cyclist on the corner of Pulteney and Carrington Streets outside the premises of the Earl of Aberdeen Hotel at about 11.22 am on Tuesday, 23 March 2004.  He informed the man that it was an offence to ride a bike without a helmet and requested identification.  He said that the male searched through a backpack and then produced a Commonwealth Bank card bearing the name of Marc C Schramm.  Constable Jones said he then had the following conversation with the male, recording the name and address details on an Expiation Notice.

    I said,        What is your full name Marc?

    He said,     Marc Chris SCHRAMM.

    I said,        Where do you currently live?

    He said,     16 Alan Street, Glenelg 5035.

    I said,        Do you have a phone you can be reached on?

    He said,     No it’s not connected.

    I said,        A mobile?

    He said,     Um, yes it’s personal but it’s 0431 570 700.

    I said,        When were you born?

    He said,     12, 12, 70.

17. The police (via police radio) then conducted checks on the details that had been supplied, following which Constable Jones asked to see a plastic medical identification bracelet, which was attached to the man’s left wrist.  There was some dispute about that matter, but the man subsequently complied by producing the bracelet which displayed the name of Andrew Ralph.  Checks confirmed that the description matched the appellant via police records.  The man then told the police that he had forgotten he had his friend’s card and that it was a mistake that he had produced the card to police and used his friend’s name. 

18. The appellant has never filed an affidavit in response to that of Constable Jones, but on the hearing of the appeal, indicated that at a re-hearing of the matter, he would dispute the evidence of the conversation he purportedly had with the police.  He did not however dispute that he had provided the police with an ATM card in the name of Mr Schramm.  He said that he had had a bad night’s sleep, he wasn’t talking much and when the police asked details, he said, “That’s the name on the card.”  He said police later asked him who he was and he told them.  He said he had no intention to give an incorrect name to the police.

    The delay in filing the appeal

19. On the hearing of the appeal it was not possible to obtain any coherent explanation from the appellant as to the reasons for the delay in filing the notice of appeal.  In the notice of appeal, however, the appellant, in seeking an extension of time, stated that the application had been lodged within time, but he had been advised that processing might take a while.  The Notice of Appeal is however clearly stamped with the date of receipt in the Supreme Court Registry of 9 May 2008.  That is about four and a half months, after the decision of which the appellant complains, namely the order of the Magistrate dismissing the third application for a re-hearing made on 21 January 2008.  It appears, however, that this is not the first occasion on which the appellant has claimed that an appeal filed out of time has been filed within time[1]. 

    [1]    Ralph v Police (2008) SASC 95 at [15]-[16], White J. See also the history set out in Ralph v Police (2006) SASC 296, Gray J; Ralph v Police Number 2 (2006) SASC 374, Gray J; Ralph v Police (2007) SASC 141, Full Court; Ralph v Police (2008) SASC 95, White J.

    Should an extension of time be granted?

20. It is clear that in order to proceed with this appeal, the appellant will require an extension of time.  That extension was opposed by the respondent on a number of grounds which include the length of delay, the failure to provide any adequate explanation for the delay in filing of the appeal.  The respondent also submitted that it was not reasonably arguable that the decision to dismiss the third application for re-hearing was attended by error and that the appellant had failed to provide any reason to doubt the correctness of the conviction which he sought to set aside.  There was therefore no prospect of a substantial miscarriage of justice.  Further, there was a public interest in summary proceedings being finally disposed of in a timely fashion, a policy which was reflected in the provisions of the SPA. 

21. The respondent also submitted that the appellant’s regular practice of failing to attend Court hearing dates, seeking to re-open determined matters, delaying the resolution of summary proceedings for extended periods of time and prosecuting frivolous appeals to the Supreme Court should be discouraged.  The respondent submitted that it would have been open to the appellant to appeal directly to this Court against the conviction initially entered by the Magistrate on 29 September 2005, but if he now adopted that course, he would require an extension of time of more than two years. 

22. In light of the minor nature of the offences, the lack of explanation for the delay, the failure to establish reason to doubt the appellant’s guilt and the public interest in finality and the timely conclusion of summary criminal proceedings in particular, it was submitted that such an extension should be refused and I agree with those submissions.

    Was the application for re-hearing competent?

23. There are in any event further problems attendant upon the processing of this appeal.  Although s 76A SPA enables the Court to re-hear proceedings in which a conviction or order has been made, it does not include provision enabling a defendant to institute successive applications in respect of the same conviction or order.  This was also the view expressed by White J in a similar case involving the same appellant.[2]

    [2]    Ralph v Police [SASC] 95 at [21] per White J.

24. Accordingly, once the first application for a re-hearing was refused by the Court on 1 February 2007 no further application with respect to that matter could be instituted.  As a result, both the second and third applications for re-hearing were incompetent.  The third application for a re-hearing simply sought to re-agitate issues which had already been determined by the dismissal of both the first and second re-hearing applications.  In those circumstances there was no basis upon which the Magistrate could have heard and determined the application listed on 21 January 2008 and he was correct in dismissing that application.  Even if that had not been the case, the third re-hearing application was lodged substantially out of time as the conviction was recorded on 29 September 2005, yet the third application for re-hearing was not lodged until 23 October 2007. 

    Is it in the interests of justice to set aside the conviction?

25. Notwithstanding each of these matters, s 76A(1) SPA enables the Court, on its own initiative, to set aside a conviction or order.  The Court may only do so, however, if it is satisfied that the parties consent to the order, or it was made in error, or that it is in the interests of justice to take that course. 

26. The offence which is the subject of this dispute, in the scheme of things, is quite minor and resulted in the Court discharging the appellant without imposing any penalty.  The conviction for failing to wear an approved safety helmet, which is not the subject of dispute, was dealt with by the imposition of a $90 fine.  The appellant argued, however, that if the conviction was allowed to stand it could affect any application for employment he might make in the future.  The respondent conceded that judicial notice could be taken of the fact that convictions can affect prospects of employment and I accept that in many cases an employer would be reluctant to employ someone with a criminal history.  Nevertheless, I have some difficulty in accepting that a conviction of the type which is the subject of this appeal, and which did not result in any penalty being imposed, would have any effect on an application for employment and the appellant did not produce any evidence to the contrary.

    Conclusion

27. In my opinion, the appellant was treated with undue generosity by the Magistrates Court with respect to the number of adjournments provided to him with respect to his defence of the charges and the hearing of the various re-hearing applications.  He has had ample opportunity to agitate those matters in that Court.  The appellant has not provided any, or any sufficient, reason to show that he would suffer a substantial miscarriage of justice if the conviction is allowed to stand.  In my view, there is no merit in this appeal.  The order made by the Magistrate on 21 January 2008 has not been shown to be made in error.  In view of the earlier re-hearing applications which were dismissed, the third application was incompetent and in any event was filed substantially out of time.  No good reason has been shown to explain that delay and the appellant has failed to demonstrate any grounds upon which the application for an extension of time to appeal should be granted.  That application is refused and the appeal is dismissed.