Ralph v Police - [2006] SASC 296

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RALPH v POLICE
[2006] SASC 296
Judgment of The Honourable Justice Gray
13 September 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE
Appeal against convictions recorded in Magistrates Court in absence of accused - appellant convicted of four driving offences - court records revealed a history of non-attendance on part of appellant - consideration of relevant legal principles - whether it would be contrary to interests of justice to let convictions stand - test for overturning convictions not satisfied - appeal dismissed.
Hird v Keech (1979) 21 SASR 237; Rough v Rix (1982) 30 SASR 301; Grant v Irrgang (1991) 160 LSJS 334; Van Ryswyck v Hicks (1974) 8 SASR 376; Maider v Dancis (1985) 39 SASR 136; Leuschel v Police (1999) 75 SASR 231, considered.

RALPH v POLICE
[2006] SASC 296
GRAY J:

This is an appeal against conviction recorded in the Magistrates Court.
Following a series of non-attendances, Andrew Henry Ralph, the defendant and appellant, was convicted in his absence of four offences – drive unregistered motor vehicle; drive uninsured motor vehicle; drive without licence; drive in excess of speed limit. The appellant was subsequently notified of the convictions and appeared before the court at which time he was fined in respect of each of the offences. In addition, in respect of the drive uninsured motor vehicle charge, he was disqualified from holding or obtaining a driver’s licence for five months.
Background
The history of this matter is set out in the affidavit of Christopher Lanchester, the police prosecutor in attendance at the Magistrates Court on 23 June 2006. Mr Lanchester’s affidavit records that the appellant was reported for road traffic offences on 14 June 2003. The matter was first before a magistrate on 7 November 2003. There was then a delay, apparently owing to difficulties with the service of a summons on the appellant, until 7 July 2005. The appellant was present in court on that day. The matter was adjourned to 19 September 2005. On that date the appellant did not attend and, leave being granted to the prosecutor to proceed ex parte, the appellant was convicted of the offences in his absence. The matter was then adjourned to 26 October 2005 and a notice advising the appellant of the outcome of the proceedings was issued.
On 26 October 2005, the appellant did not appear and a fresh notice was issued, with an order that the notice be served personally on the appellant. The matter was adjourned to 8 December 2005. The appellant did not appear on that occasion and a warrant for his arrest was issued.
The appellant was subsequently arrested on 14 February 2006 and brought before the court. The court granted bail and set a further date for 30 March 2006. The appellant failed to appear on that date and a warrant for his arrest was issued. The appellant was arrested on 9 May 2006 and again brought before the court. On that occasion the court file discloses that the appellant indicated he was not guilty as he was not the driver, but would not nominate the driver. The matter was adjourned to 23 June 2006. As earlier observed, on that occasion the appellant did appear and sentence was imposed.
The Appeal
The appellant filed a notice of appeal to this Court on 26 June 2006, some three days after the conviction and sentence had been recorded in the Magistrates Court. The thrust of his appeal is that the convictions imposed in his absence on 19 October 2005 should be quashed as he was not the driver of the vehicle at the time the offences were detected.
The appellant’s non-attendance
This appeal was initially listed for hearing on Tuesday, 5 September 2006. Mr Ralph was notified by letter of this hearing date. On 29 August 2006, Mr Ralph contacted the Court to request an adjournment of the hearing to a later date. He asserted that he was “not in Adelaide and for reasons beyond my control I may not be able to be present at the hearing on the date listed above”. Mr Ralph’s request for an adjournment was initially refused. If he wished to maintain his application for an adjournment, he was advised that he would need to provide good grounds as to why he would not be able to attend at the hearing on 5 September 2006.
Mr Ralph subsequently claimed that he was unable to attend due to medical reasons and transport problems. On 4 September 2006, the Court received by facsimile a medical certificate from a Dr Malcolm Mackay of Foundation Healthcare Morphettville, Glenelg East. That certificate, signed on 1 September 2006, certified that Mr Ralph was suffering from “a medical condition” and that “he will be unfit for work from 1 September to 8 September 2006”. The certificate did not address the question of unfitness to attend court.
Counsel for the respondent informed the Court that he had spoken with Dr Mackay. Dr Mackay informed counsel that he signed the certificate on the basis that Mr Ralph was not fit for work and that he was not aware that it would be used as justification for not attending court. Dr Mackay said that the basis of the certificate was that Mr Ralph has a chronic back injury, which makes him “unfit for heavy work involving lifting etc”.
The matter came on for hearing on 5 September 2006. Mr Ralph was not present at the hearing. I raised with counsel the issue of the appellant’s application for an adjournment and the medical certificate that he had provided to the Court in support of his application. The matter was adjourned to 13 September 2006.
Directly after the hearing, the appellant was contacted by the Court and informed that his application for an adjournment had been granted and that the matter would now be heard on 13 September 2006. The appellant was informed that if he wished to seek further adjournment, his application would have to be supported by evidence.
The Court heard nothing further from the appellant until 12 September 2006, at which date the appellant contacted the Court and requested a further adjournment until after 18 September 2006. The appellant did not provide any reason as to why he needed a further adjournment, much less any evidence in support. The appellant was subsequently advised that the matter had been listed for, and that the hearing would proceed on, 13 September 2006 at 9.30am.
This appeal came on for hearing on 13 September 2006 at 9.30am. The appellant was formally called but did not appear. The appellant did not submit any written submissions nor file any affidavit material.
The hearing proceeded in the absence of the appellant. Counsel for the prosecution urged the Court to dismiss the appeal in the appellant’s absence. Counsel submitted there was no reason why, in the interests of justice, the appellant’s convictions should be quashed.
Legal principles
There are a number of authorities relating to the factors that are relevant to the question of whether a conviction imposed in a defendant’s absence should be overturned. For example, where an applicant has been prevented by “genuine misadventure” from attending court, the court will ordinarily lean towards exercising its discretion in favour of the defendant.[1] Or, even when carelessness prevented attendance, the court may set aside the conviction in exceptional circumstances, or if there is shown to be a probability (as opposed to a possibility) of injustice if the conviction is not set aside.[2] An applicant would also need to show a clearly evident defence to the charge.[3]
[1] Hird v Keech (1979) 21 SASR 237; Rough v Rix (1982) 30 SASR 301; Grant v Irrgang (1991) 160 LSJS 334.
[2] Van Ryswyck v Hicks (1974) 8 SASR 376; Rough v Rix (1982) 30 SASR 301.
[3] Van Ryswyck v Hicks (1974) 8 SASR 376; Rough v Rix (1982) 30 SASR 301; Grant v Irrgang (1991) 160 LSJS 334.
However, Cox J in Maider v Dancis[4] after reviewing the authorities concluded that in this area there cannot be any hard or fast rules and that dicta from ad hoc cases, however useful, could not be applied “like the words of a statute”:[5]
…convictions and orders are not to be set aside on grounds that are unmeritorious or otherwise inadequate. The rights and interest of the respondent are to be considered, not only those of the applicant. There will be times when it will be appropriate to have regard to the substantial merits of a proposed defence, and times when it will not. There may be other useful ways of probing the merits of an application. But in the end…it will be a matter of doing what the justice of the case in hand requires.
[4] Maider v Dancis (1985) 39 SASR 136.
[5] Maider v Dancis (1985) 39 SASR 136 at 142.
A more recent decision of this Court supports the approach advocated by Cox J. Leuschel v Police involved an appeal from a Magistrates Court, the issue being whether a conviction should be overturned to allow alibi evidence not led during a trial to be led at a retrial. Doyle CJ, while acknowledging that usually a court will not set aside a conviction on the basis of fresh evidence if, with reasonable diligence it could have been led at trial, said that:[6]
This approach is not required by a rule of law. The ultimate issue for an appellate court is whether there has been a miscarriage of justice.
[6] Leuschel v Police (1999) 75 SASR 231 at [10] (Doyle CJ.)
In the present case, if the appellant is to succeed in having the convictions overturned there will need to be convincing evidence given on oath to explain hitherto unexplained failures to attend court hearings and to convince this Court that, because of a credible defence, the interests of justice require that the convictions be quashed and a fresh hearing ordered. As Cox J remarked, it is not only the interests of an appellant that are relevant to the interests of justice, but those of a respondent as well.
The case of Grant v Irrgang[7] involved similar circumstances to those presently under consideration. The appellant was convicted, in her absence, of the offences of drive an unregistered motor vehicle, drive uninsured motor vehicle and drive whilst unlicensed. The appellant consistently failed to attend court in relation to the charges. Debelle J set out the following principles as those guiding the exercise of the court’s discretion to set aside convictions:[8]
[7] Grant v Irrgang (1991) 160 LSJS 334.
[8] Grant v Irrgang (1991) 160 LSJS 334 at 337-339.
Where the applicant has been prevented by genuine misadventure from being present at the court to present his case, the court will ordinarily lean toward the exercise of its discretion in favour of the applicant: Hird v Keech @ 238; Rough v Rix @ 309.
Thus, convictions have been set aside where the applicant has been prevented from attending the court because his motor vehicle has broken down and he is unable to communicate with the court: Hird v Keech; Foggo v Berry [1964] SASR 110; or where the applicant has been involved in a mishap on his way to court; Aston v Hincks; vice Fitzgerald [1950] SASR 182.
The epithet “genuine” indicates that, if there are compelling reasons to suspect manoeuvring, or deliberate dilatoriness or inaction, the court will be slow to exercise its discretion in favour of the applicant: Hird v Keech @ 238.
If the applicant demonstrates genuine misadventure, the court will not canvass the merits of the defence: Hird v Keech @ 238; Rough v Rix @ 309.
The court may be the more ready to grant the application if the applicant has initially attended and pleaded not guilty: Hird v Keech. An attendance at the court to plead not guilty on a prior occasion is not a prerequisite for the exercise of the discretion but it may encourage the court to exercise its discretion in the applicant’s favour.
Where the applicant has failed to attend the hearing because of carelessness, the court may, in exceptional circumstances, set the conviction aside or if there is shown to be a probability of injustice if the conviction is not set aside: Van Ryswyck v Hicks @ 379; Rough v Rix @ 309-310 and the cases there cited.
In either case, the court will have regard to the degree of carelessness and will canvass the strength of the case the applicant seeks to assert: Rough v Rix @ 309-311.
The cases emphasise that the court will need to be satisfied of the probability that the applicant will suffer injustice if the conviction is allowed to stand: the applicant will not succeed if he does no more than establish the possibility of injustice: Van Ryswyck v Hicks @ 379; Hughes v Conn (unreported, Williams AJ, 26 June 1979), Rough v Rix @ 309-311. It is clear that the onus which the applicant must discharge is no light one. In Van Ryswyck v Hicks @ 379, Hogarth ACJ said that the facts must “show clearly” that the applicant was innocent .
…
Regard must be had to the rights and interests of the respondent as well as to those of the applicant: Van Ryswyck v Hicks @ 379; Maid v Dancis @ 142. There cannot, of course, be any hard and fast rules.
Conclusion
The affidavit of Mr Lanchester and the history of the appellant’s contact with the Magistrates Court and this Court demonstrate an unacceptable course of conduct by the appellant. He has consistently failed, without providing good reason, to appear before the court in relation to these proceedings. He has not provided any evidence to support a credible defence. There is nothing to indicate that it would not be in the interests of justice to let the convictions stand.
In these circumstances, this appeal is dismissed.