RALPH v Police - [2008] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RALPH v POLICE
[2008] SASC 95
Judgment of The Honourable Justice White
21 April 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeal against dismissal by a magistrate of an application under s76A of the Summary Procedure Act 1921 to have convictions for two traffic offences set aside - application dismissed by magistrate on the basis that it lacked merit, was made outside the statutory limitation period, and was incompetent - whether magistrate's findings were in error - whether application to the magistrate had been made within the relevant limitation period - whether the convictions were entered in error - whether error led to injustice to the appellant through loss of opportunity to assert an available defence - whether extension of time to appeal to the Supreme Court should be granted.
Held: magistrate's finding that the application had been made outside the relevant time limitation not shown to be in error - magistrate correct in finding the application to be incompetent - no error in magistrate's dismissal of the application - no injustice to the appellant - appeal dismissed.
Summary Procedure Act 1921 s 62A, s 62B, s 62BC, s 76A; Road Traffic Act 1961 s 160; Motor Vehicles Act 1959 s 74; Supreme Court Civil Rules 2006 r 283; Limitation of Actions Act 1936 s 47, s 48, referred to.
Moore-McQuillan v WorkCover Corporation (Unreported, Supreme Court of South Australia, Lander J, 6 May 1998, Judgment No S6671); Meverley v Commane (1987) 47 SASR 162, applied.
Bailey v Police (1994) 71 A Crim R 355, distinguished.

WORDS AND PHRASES CONSIDERED/DEFINED
"Receives notice"

RALPH v POLICE
[2008] SASC 95
Magistrates Appeal

WHITE J: On 5 June 2007, a magistrate dismissed an application by the appellant under s 76A of the Summary Procedure Act 1921 (SA) (SPA) by which he sought to have convictions for two traffic offences set aside. The appeal to this Court against that dismissal was filed on 11 December 2007, well outside the 21 day period fixed by r 283 of the Supreme Court Civil Rules 2006. The appellant seeks an extension of time within which to appeal.
The appellant was unrepresented on the appeal as he has been at all times in the Magistrates Court.
Background Circumstances
This is a matter of some history. The appellant was convicted and sentenced in his absence for two pairs of offences committed on 4 and 5 June 2005 which were charged on separate complaints. Each pair comprised the offence of driving a vehicle contrary to the terms of a defect notice, in contravention of s 160 of the Road Traffic Act 1961 (SA) (RTA) as it then was, and the offence of driving when not authorised to do so, contrary to s 74(1) of the Motor Vehicles Act 1959 (SA). The appellant was arrested after the offences committed on 5 June 2005 and granted Police bail to appear in the Magistrates Court on Thursday, 7 July 2005 at 9.30 am. The appellant did not attend at that time. A magistrate issued a warrant for his arrest and ordered the estreatment of his bail. However, the appellant did attend later that morning and, at his request, both the warrant and the estreatment order were revoked.
Both complaints were then adjourned to 19 September 2005. The magistrate noted that he had granted this “longer remand” at the appellant’s request on medical grounds. The appellant did not attend court on 19 September 2005. The magistrate (Mr Ackland SM) apparently held the matter in the list for over two-and-a-half hours to give the appellant an opportunity to arrive. It seems that the magistrate then proceeded under s 62A of the SPA. The court file contains the endorsement: “ex parte leave granted. NAD proved on oath at 12.40 pm”. In the absence of the appellant, the magistrate imposed fines of $100.00 for each of the offences of driving a vehicle contrary to the terms of the defect notice and fines of $200.00 for each of the offences of driving while unauthorised.
Some 16 months later, on 4 January 2007, the appellant filed an application under s 76A of the SPA. That section permits the Magistrates Court, on its own initiative or on the application of any party, to set aside a conviction or order. An application to set aside a conviction or order must be made within 14 days after the applicant receives notice of the conviction or order. The application sought the setting aside of each of the sentences imposed for the contraventions of s 160 of the RTA but not of the sentences imposed for driving while unauthorised. The appellant confirmed that his appeal to this Court concerned only the Magistrates Court orders with respect to the offences of driving a vehicle to which a defect notice was attached.
At the time that the application under s 76A was filed, it was endorsed with a date and time for hearing, namely 23 January 2007 at 2.15 pm. As the appellant filed the application personally, he must have been aware of that listing. Despite that, he did not attend in the Magistrates Court on 23 January 2007. In his absence, the application was adjourned to 1 February 2007 at 2.15 pm. The appellant did attend on that time. His application was then adjourned to 21 May 2007 so that it could be heard at the same time as other matters involving the appellant. The court endorsement contains the notation “[defendant] to obtain medical evidence in relation to his failure to appear in relation to the charges against him”.
On 21 May 2007 the appellant attended at the appointed time. Only two of the three matters involving him were then listed for hearing (a third matter apparently having been dealt with on an earlier date). The appellant wished to have all three matters considered at the one time. The magistrate (Ms Hribal SM) noted that the appellant had a medical certificate and adjourned the matter to 29 May 2007 so that all three matters could be heard by the same magistrate who dealt with the earlier matter. The court endorsement shows that the appellant had a medical certificate with him, but it does not seem that certificate was provided to the court or retained by it.
The appellant did not attend on 29 May 2007 and, in his absence, Mr Milazzo SM dismissed his application of 4 January 2007.
At some stage after that dismissal, and before 5 June 2007, the appellant filed a further application under s 76A. It appears that a photocopy of the application filed on 4 January 2007 was used for this purpose as the only difference between the two documents (apart from the appellant’s further signature) is that a hearing date of 5 June 2007 was substituted for the original hearing date of 23 January 2007. Nevertheless, the application was accepted by the Magistrates Court and the Court’s seal was placed on it. This application too sought the setting aside of the sentences concerning the breaches of s 160 of the RTA on 4 and 5 June 2007.
It was that application which was heard and dismissed by another magistrate (Mr Bennett SM) on 5 June 2007. The appellant now appeals against that dismissal. I refused the appellant permission to amend the notice of appeal so as to include an appeal against a similar decision made by a different magistrate in another matter on a different occasion.
The Magistrate’s Reasons
Section 76A of the 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.
Mr Bennett SM identified three difficulties with the appellant’s s 76A application. First, even accepting that the appellant had been absent interstate with health problems on 19 September 2005, it would still have been possible for him to have informed the Court that he was unable to attend because of medical reasons. I infer that the magistrate considered that the appellant should accept responsibility for the matter having been dealt with in his absence.
Secondly, the magistrate was not satisfied that the application filed on 4 January 2007 had been filed within 14 days of the appellant receiving notice of the orders made on 19 September 2005, as required by s 76A(2).
Thirdly, even if wrong in that view of the matter, the magistrate noted that he was dealing with the application filed after 29 May 2007, which was well outside the 14 day limitation period fixed by s 76A(2).
The Institution of the Appeal
As noted at the outset, the appellant needs a substantial extension of time for the commencement of his appeal. He claims that he did attend at the Registry of this Court within 21 days of 5 June 2007 and attempted to file a notice of appeal. At the hearing, he tendered a letter which he had received from a member of the Court’s Registry staff dated 10 July 2007 stating that the Registry was returning the “proposed” documents which he had “filed” and pointing out deficiencies in those documents. The appellant also claimed that his notice of appeal had been misplaced by this Court’s Registry. It is not clear whether the appellant was referring in this respect to the notice of appeal which he originally proposed filing and which was regarded as deficient, or to some further document. It is also unclear how a notice of appeal could have been filed without either payment of the Court filing fee (of which there would be a record) or a waiver of those fees (which the appellant apparently did not seek until 7 December 2007).
I do not regard the circumstances of the commencement of the appeal, or of the attempts to commence the appeal within time, as having been satisfactorily proved. However, as it seems that the appellant had, at least by 10 July 2007, made some attempt to file a notice of appeal, I regard it as preferable to consider first the merits of the proposed appeal.
Was Section 76A Application Filed in the Magistrates Court in Time?
Section 76A(2) requires an application under that section to be made within 14 days after the applicant “receives notice” of the conviction or order. In Bailey v Police[1] Nyland J held that the notice to which s 76A(2) refers is the formal court notification of the order in question. Accordingly, even if an applicant becomes aware of the conviction or order by some other means, the application under s 76A may still be instituted within 14 days from the receipt of the formal court notification.
[1] (1994) 71 A Crim R 355.
Mr McDonald, who appeared for the Police, submitted that Bailey had been wrongly decided and invited the Court to reconsider it. I do not consider that it is necessary to consider the correctness of Bailey in the present case. Bailey concerned an application to set aside a conviction imposed in the absence of the appellant in the exercise of the Court’s powers contained in s 62C of the SPA. Subsection (2) of s 62C stipulates that written notice in the prescribed form must be given to the defendant before any licence disqualification or sentence of imprisonment can be imposed. In this case, on 19 September 2005 Mr Ackland SM proceeded under s 62A of the SPA. Neither s 62A nor any other provision of the SPA contains any stipulation for written notice to be given to a defendant of the Court’s order. Bailey can therefore be distinguished.
In the case of an application to set aside an order made under s 62A of the SPA, I consider it appropriate to construe the words “receives notice” in s 76A(2) as equivalent to “becomes aware”. The application under s 76A will be outside the stipulated 14 day period if it is not made within 14 days after the defendant becomes aware of the conviction or order made by the Court proceeding under s 62A. It is, of course, incumbent upon an applicant to establish that the application is made within the 14 days period. That involves an applicant establishing, to the satisfaction of the magistrate, the date upon which he or she first did become aware of the conviction or order.
Mr Bennett SM was plainly correct in holding that the application filed on or after 29 May 2007 was made well after the relevant 14 day period. At the very least, the appellant had notice of the sentences imposed on 19 September 2005 by 4 January 2007. The period of 14 days could not be extended as ss 47 and 48 of the Limitation of Actions Act 1936 (SA) have no application to it.[2] This ground by itself was sufficient to warrant the magistrate’s dismissal of the application.
[2] Moore-McQuillan v WorkCover Corporation (Unreported, Supreme Court of South Australia, Lander J, 6 May 1998, Judgment No S6671); Meverley v Commane (1987) 47 SASR 162.
In any event, the applicant was not entitled to institute successive applications under s 76A in respect of the orders made on 19 September 2005. His application filed on 4 January 2007 was determined by Mr Milazzo SM’s order of 29 May 2007. While that order stood, that was the end of the matter. The second application filed on or after 29 May 2007 was incompetent and it was appropriate for Mr Bennett SM to dismiss the application for that reason as well. I take that to be the third of the “difficulties” which he identified.
The appellant’s submissions tended to treat the application of 4 January 2007 and the application filed on or after 29 May 2007 as the one application. They were not. But even if one considered only the application filed on 4 January 2007, the magistrate has not been shown to be in error in regarding that application also as having been filed outside the 14 days period.
The Police prosecutor who attended on 5 June 2007 deposed that the appellant told the magistrate that he had become aware of the convictions and penalties sometime in 2006 but was “unsure exactly when” and that he “knew of the court result approximately one month before lodging the application for re-hearing”. In his affidavit filed in this Court in relation to the appeal, the appellant said that he had made his application as soon as he became aware of the convictions, and, in any event, within the 14 day period. The appellant was cross-examined on his affidavit. He denied making the statements attributed to him by the Police prosecutor. However, he was not able to identify the date when he first had notice of the orders of 19 September 2005. The appellant maintained simply that he had instituted his application within 14 days of becoming aware of what had occurred. I considered the appellant’s answers in this respect to be unconvincing. I do not accept that the appellant is unaware of when he first learnt of the orders made on 19 September 2005. The appellant was told of the orders when, at some time in 2006, he attended in the Magistrates Court and was given information about his outstanding fines on this and on other matters. Given that the appellant instituted proceedings in relation to the other fines, I would have thought that the date (or at least an approximate date) when he learnt of the orders was ascertainable. I considered the appellant’s evidence generally to be somewhat cagey and very much influenced by his appreciation of the significance of his answers. His repeated assertion that the application was made within 14 days of learning of the orders had a self-serving tenor. The statement of the appellant to the magistrate indicated that he had learnt of the convictions approximately one month before he made his application under s 76A. The magistrate was entitled to act on that statement. In my opinion, the appellant has failed to demonstrate any error in the magistrate’s conclusion that his application to set aside the order of 19 September 2005 was made out of time.
Did the Orders of 19 September 2005 Involve Error?
I turn to a further matter. Under s 76A(3)(b) and (c) of the SPA, a magistrate is empowered to set aside a conviction or order if satisfied that either was made in error or that it is otherwise in the interests of justice to do so. The appellant’s submissions did not identify any error by Mr Ackland SM on 19 September 2005.
Mr McDonald alerted the Court, quite properly and fairly, to the possibility that the orders of 19 September 2005 were made in error. As previously noted, it seems that on 19 September 2005 Mr Ackland SM proceeded in the absence of the appellant under s 62A of the SPA. He could not have proceeded under s 62, s 62BA or s 62C as those provisions apply when a defendant who has been served with a summons fails to appear. The appellant had not been served with a summons at all. Section 62A entitled the magistrate to hear the complaint in the absence of the appellant and “to adjudicate thereon as fully and effectively to all intents and purposes as if the [appellant] had appeared”. Mr McDonald accepted that s 62A nevertheless required the magistrate to proceed on proper evidence. Unlike s 62BA(2) the magistrate was not entitled to regard the allegations in the complaint as sufficient evidence of the matters alleged.
It is not clear from the Magistrate’s Court files whether Mr Ackland SM did hear evidence before entering the convictions and imposing the fines. Mr McDonald submitted, however, that even if the magistrate had proceeded in error, no injustice had occurred. That was because the appellant did not in any event have a good defence to the charges of driving a vehicle to which a defect notice was attached.
Section 160(6) of the RTA provides that a person must not drive a vehicle on a road contrary to the terms of a defect notice. In the appellant’s case, the defect notice was issued on 2 May 2005. The defect notice stated that the vehicle could be driven for 72 hours from the time and date of its issue “then forthwith to a place of repair”.
The appellant claimed that on each of 4 and 5 June 2005 he was driving his car to a place of repair. It is not easy to understand how a driving of the car approximately one month after the defect notice was issued could be regarded as a driving of the car forthwith to a place of repair. In any event, however, I do not accept the appellant’s evidence on this topic. An affidavit from the apprehending Police officer, which I received on the appeal, showed that the offence on 4 June 2005 was committed at 10.55 pm on a Saturday night and the offence on 5 June 2005 at 5.25 pm on a Sunday evening. At those dates and times, any place of repair is likely to have been closed. I regard it as highly improbable that on both those dates and at both those times the appellant was driving his vehicle to a place of repair so as to leave it for repair. I regarded the appellant’s evidence about those matters as quite unconvincing and, as I have indicated, do not accept it. Even if the original complaints had proceeded to trial, I consider that the prosecutions were bound to succeed.

Accordingly even had the appellant’s s 76A application been instituted within time, it would still have been appropriate for the magistrate to have dismissed it on its merits.
Conclusion
For the reasons given above, I do not consider that the appellant has shown that the magistrate’s decision of 5 June 2005 was wrong. That makes it unnecessary to consider further the application for the extension of the time within which to appeal. Even if the extension was allowed, the appropriate order would be that the appeal be dismissed.
The order of the Court is that the appeal is dismissed.