Ralph v Police

[2007] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

RALPH v POLICE

[2007] SASC 141

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kelly)

2 May 2007

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA

Application to the Full Court for permission to appeal to the Full Court from the decision of a single Judge of the Supreme Court - single Judge dismissed an appeal against conviction entered by the Magistrates Court and subsequently refused permission to appeal to the Full Court - application filed out of time - permission to extend time for making an application - commencement of Supreme Court Civil Rules 2006 (SA) in the time between application to a single Judge and application to the Full Court - fresh consideration of the matter by the Full Court - no compelling reason for applicant's consistent failure to attend at the Magistrates Court or before a single Judge of the Supreme Court.

Held:  permission to appeal refused.

Supreme Court Act 1935 (SA) s 50; Supreme Court Civil Rules 2006 (SA) r 8; Supreme Court Rules 1987 (SA), referred to.
Ralph v Police [2006] SASC 296; Ralph v Police (No 2) [2006] SASC 374, considered.

RALPH v POLICE
[2007] SASC 141

Full Court:  Doyle CJ, Layton and Kelly JJ

1. THE COURT:  This is an application to the Full Court for permission to appeal to the Full Court.

2. Mr Ralph wishes to appeal against a decision by a Judge of this Court.

3. Permission to appeal is required because the judgment was given by the Judge on appeal from a judgment of the Magistrates Court: see s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA).

4. The appeal from the Magistrates Court was instituted before the commencement of the Supreme Court Civil Rules 2006 (SA).  Accordingly, the appeal to the single Judge was governed by the Supreme Court Rules 1987 (SA).

5. The application for permission to appeal to the Full Court was instituted after the commencement of the Supreme Court Civil Rules 2006.  It is arguable that the application is governed by those Rules:  see r 8(1)(c).

6. As it happens, the Judge in question heard the application, referring to it as an application for leave to appeal, and refused it.  The Judge appears to have treated the application as governed by the Supreme Court Rules 1987.

7. To avoid any injustice, it is appropriate to treat the application now made to the Full Court, for permission to appeal, as an application made directly to the Full Court.  The Court should consider the matter afresh.  The Court can have regard to the material before the single Judge, on the application to him for leave to appeal.

8. The application for permission may be a few days out of time, allowing for the Christmas holidays.  It is appropriate to extend the time for the making of the application to 4 January 2007, the date when it was made.

9. The appeal to the single Judge was against a conviction for motor vehicle offences.  The convictions were entered in Mr Ralph’s absence, he not having attended the Magistrates Court when the matter came on for hearing.  The history of the matter is summarised by the Judge in his reasons:  Ralph v Police [2006] SASC 296.

10. The appeal was also decided by the Judge in Mr Ralph’s absence, although the Judge had before him material submitted by Mr Ralph.  The Judge decided to proceed with the appeal in Mr Ralph’s absence.  On the material before him he was satisfied that Mr Ralph had failed consistently, without good reason, to appear before the Magistrates Court and before the Judge.  There was nothing to support a credible defence.  He dismissed the appeal.

11. On the application to the Judge for leave to appeal the Judge heard oral evidence from Mr Ralph.  Mr Ralph had the opportunity to explain his failure to appear before the Magistrates Court and before the Judge.  He provided material to support his contention that he was in Indonesia and that he returned to Australia the day after the hearing before the Judge.  He declined to produce his passport.  Mr Ralph was also cross-examined.

12. The Judge found that Mr Ralph was familiar with the Magistrates Court and its procedures, and that he had failed to explain adequately his non-attendance.  That was his reason for refusing leave to appeal:  Ralph v Police(No 2) [2006] SASC 374.

13. Mr Ralph has provided written submissions to the Court in support of his application for permission to appeal to the Full Court.  In those written submissions he again seeks to explain his failure to appear before the Magistrates Court and, on the hearing of the appeal, before the Judge.  He also encloses what appears to be an extract from his passport containing a visa and an arrival date in Indonesia.  The extract does not include a departure date from Indonesia nor an arrival stamp for entry into Australia.  There is therefore no further information provided to support his claim that he arrived back in Australia after 13 September 2006 when the hearing before Gray J took place.

14. The Court refuses permission to appeal.  The case raises no point of general significance.  Mr Ralph revisits issues on which findings have already been made.  No point of particular importance raised.  If permission to appeal is granted, the Court will be asked to examine, yet again, the reasons for Mr Ralph’s failure to attend before the Magistrates Court and, to a lesser extent, before the single Judge.  Mr Ralph has had his opportunity to make out his case on these matters.  It is not appropriate for the Court to grant permission to appeal to the Full Court to re-examine issues such as those.

15. For those reasons permission to appeal is refused.