Ralph v Police (No 2) - [2006] SASC 374

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
RALPH v POLICE (No 2)
[2006] SASC 374
Judgment of The Honourable Justice Gray
12 December 2006
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE
Application for leave to appeal - leave refused.
Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61, considered.

RALPH v POLICE (No 2)
[2006] SASC 374
Civil
Application for leave to appeal
GRAY J:

This is an application for leave to appeal to the Full Court.
On 13 September 1996, I delivered reasons dismissing the applicant, Andrew Henry Ralph’s, appeal against conviction in the Magistrates Court.[1] As I outlined in those reasons, following a series of non-attendances, Mr Ralph was convicted in his absence by a magistrate of four offences – drive unregistered motor vehicle; drive uninsured motor vehicle; drive without licence; drive in excess of speed limit. Mr Ralph 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.
[1] Ralph v Police [2006] SASC 296.
In my earlier reasons, I set out in detail the history of the proceedings before this Court.[2] I there discussed Mr Ralph’s correspondence with this Court and a medical certificate of unfitness for work issued by Dr Malcolm Mackay provided by Mr Ralph. I described Mr Ralph’s consistent and repeated failure to attend Court to present his appeal and his failure to provide any good reason or evidence for his failure to attend. As a result, I ultimately dismissed Mr Ralph’s appeal in his absence and without having heard his submissions in support of his appeal.
[2] Ralph v Police [2006] SASC 296 at [3]-[5].
On 9 October 2006, Mr Ralph filed an application for leave to appeal to the Full Court against my decision dismissing his appeal. In support of his application, Mr Ralph filed a statutory declaration dated 9 November 2006, in which he purported to explain his repeated failure to appear before the Magistrates Court in relation to the charges the subject of this application. In addition, he outlined his defence to the charges, which, in effect, amounts to a claim that he was not the driver and it was not his vehicle.
In relation to his appeal to this Court, Mr Ralph submitted that he had not been given an opportunity to put his case and asserted that he was unable to appear on the dates set for the hearing of the appeal “due to travel difficulties”. He further asserted that he was not the driver of the vehicle involved in the subject offending and that it was not his car.
In addition, Mr Ralph tendered a report of Dr Malcolm Mackay dated 30 October 2006, which stated the following:
I confirm that my medical certificate, which I have copied below, was in fact written as a general sickness certificate. I do not wish to withdraw this document
I feel that what I said to a person whom I believed to be the court clerk has been misquoted in the court summary document.
Yours sincerely
[signed]
Dr Malcolm Mackay
Counsel for the respondent tendered:
-A copy of an offender history report, a record prepared and maintained by the South Australian Police Department, relating to Andrew Henry Ralph.
-A copy of a business record of the South Australian Police Department detailing offences charged against Andrew Henry Ralph.
-A copy of email correspondence between Mr Ralph and court staff regarding Mr Ralph’s request for an adjournment of the hearing date for the appeal.
At the hearing of the application, Mr Ralph was cross-examined by counsel for the respondent. Counsel took Mr Ralph through a number of the items on the offender history report and the further business record of the Police Department. Mr Ralph’s recollection of the contents of the report was vague at best. In some instances, he had no memory at all of the offences described in the report. However, Mr Ralph denied the suggestion that he had a poor memory.
Mr Ralph similarly had difficulty recalling the precise sequence of events leading to his obtaining and subsequently providing to the Court the medical certificate issued by Dr Mackay. After some hesitation, Mr Ralph told the court that he had requested the certificate from Dr Mackay by telephone. He said that he had previously received treatment from Dr Mackay and had been his patient for a number of years. He said that Dr Mackay had provided him with a sickness certificate in respect of the same medical condition on a previous occasion. Mr Ralph said that a friend had collected the medical certificate from Dr Mackay’s rooms and delivered it to the Court. He refused to name the friend.
Counsel for the respondent asked Mr Ralph about his assertion in the email correspondence with the Court as to his being absent from Adelaide at the relevant time. When asked where he was at that time, Mr Ralph told the Court that he was in Indonesia. He said that he went to Indonesia sometime during August 2006 and that he arrived back in Adelaide on Thursday, 14 September 2006, the day after the hearing date. Mr Ralph confirmed that his passport would reflect his departure from and return to Australia on these dates. However, although pressed, he declined to produce his passport to the court.
Although he claimed difficulty remembering precisely, Mr Ralph said that he thought that he was in Indonesia on 1 September 2006 and that he telephoned Dr Mackay from Indonesia to request the medical certificate. He said that he made every effort to get back to Adelaide from Indonesia in time for the hearing date set for the appeal but that he was unable to do so.
Subsequently, the respondent issued a subpoena to Dr Mackay to attend and give evidence before the Court. Dr Mackay recounted in evidence that on 1 September 2006, he conducted a telephone consultation with Mr Ralph, whom he had treated on previous occasions in relation to the medical condition of which he then complained. He stated that he was familiar with Mr Ralph’s medical history, that Mr Ralph told him over the phone that his back pain was causing him difficulty and that he needed a medical certificate for 5 September 2006. Dr Mackay said that Mr Ralph did not inform him that he required the medical certificate in respect of court proceedings.
I formed the view that Mr Ralph’s evidence was neither credible nor reliable. Unsupported by other evidence I am not prepared to accept or act upon it. Mr Ralph was in my view evasive in his answers, using poor memory to avoid having to answer questions, and inappropriately defensive in not answering questions about the provision of the medical certificate to the Court. The evidence did not establish that Mr Ralph was out of the country at any relevant time as suggested.
The principles governing leave to appeal to the Full Court are well established. In Glenauchen Pty Ltd v Circuit Finance Pty Ltd,[3] the Court reaffirmed the practice with respect to applications for leave:[4]
The court’s practice has been to grant leave to appeal only if a question of general principle arises. The court will usually consider whether there is reason to doubt the correctness of the decision under consideration. However, in the end the court must act as the interests of justice require.
No question of general principle arises on this application. The issue then is whether the interests of justice require that leave be granted.
[3] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61.
[4] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3].
One of the considerations relevant to this question is Mr Ralph’s history of non-attendance in relation to these proceedings, his failure to adequately explain, at relevant times, his reasons for non-attendance and his general dilatoriness. It must be remembered that the interests of justice involve a consideration of the effect of proceedings on both parties. In this matter, the respondent has been put to delay and expense, both in this Court and in the court below.
The records of the Police Department tendered by the respondent evidenced Mr Ralph’s lengthy record of attendances in the Magistrates Court with respect to offences of a like nature to those the subject of these proceedings. Mr Ralph has been convicted on nine occasions of driving unregistered, on eight occasions of driving uninsured, on three occasions for driving without a licence, on one occasion for interfering with a motor vehicle, on one occasion for having an unprescribed numberplate and one occasion for driving with an altered registration disc. More recently, Mr Ralph has been convicted of giving a false name and address, driving contrary to a defect notice and driving without a licence. In addition, Mr Ralph is due to appear in the Magistrates Court on 8 December 2006 in relation to charges for fail to truly answer and driving without a licence and driving unregistered and uninsured.
This evidence demonstrates that Mr Ralph has a long familiarity with the Magistrates Court and its processes. By reason of his repeated and consistent failure to attend court on the dates prescribed together with his failure to adequately explain his non-attendance, Mr Ralph has not satisfied me that the interests of justice require that his application for leave to appeal be granted.
This application for leave to appeal to the Full Court is refused.