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).…

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 95
Case: [2008] SASC 95
Decision Date: 21 April 2008

CaseChat Overview and Summary

The appellant sought to appeal a decision of a magistrate who dismissed an application under s 76A of the Summary Procedure Act 1921 (SA) to set aside convictions for two traffic offences. The magistrate dismissed the application on the basis that it lacked merit, was made outside the statutory limitation period, and was incompetent. The appellant argued that the magistrate's findings were in error, that the application was made within the relevant limitation period, that the convictions were entered in error, and that the error led to an injustice through the loss of an opportunity to assert an available defence. The appellant also sought an extension of time to appeal to the Supreme Court.

The court found that the magistrate's determination that the application had been made outside the relevant time limitation was not in error. The court held that the magistrate was correct in finding the application to be incompetent. The court found no error in the magistrate's dismissal of the application. The court concluded that no injustice had resulted to the appellant from the magistrate's decision. The appeal was dismissed.

The court determined that the magistrate's findings were correct and that the appeal was without merit. The court found that the appellant had not shown that the magistrate's decision was in error. The court held that even if the extension of time to appeal was allowed, the appropriate order would be that the appeal be dismissed. The court's order was that the appeal be dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.