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

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.
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
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
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…

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 Ralph v Police

Details

AGLC: Ralph v Police [2008] SASC 359
Case: [2008] SASC 359
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the case of Ralph v Police, the appellant contested the decision of the Magistrates Court to dismiss his third application for a re-hearing of his charge of giving a false name and address to police. The appellant was additionally charged with riding a bicycle without a helmet, to which he did not take issue. The appeal was heard by the Supreme Court of South Australia. The primary legal issues the court had to decide were whether the applications for a re-hearing were competent and whether the appellant's delay in filing the appeal should result in an extension of time.

The court held that the appellant was treated generously by the Magistrates Court in allowing multiple adjournments and re-hearing applications. The court found no error in the Magistrate's decision to dismiss the third re-hearing application as it was filed substantially out of time. The court also found that the appellant had not provided sufficient grounds to warrant an extension of time for the appeal. The appeal was dismissed, and the conviction for giving a false name and address was allowed to stand.

The court concluded that the appellant had ample opportunity to present his case in the Magistrates Court and had not shown that he would suffer a substantial miscarriage of justice if the conviction was allowed to stand. The court also noted that the minor nature of the offence and the fact that no penalty was imposed meant that it was unlikely to affect the appellant's employment prospects. The appeal was dismissed, and the application for an extension of time was refused.

No further orders were made by the court.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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