Sambastian v Police - [2024] SASCA 79

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SAMBASTIAN v POLICE
[2024] SASCA 79
Judgment of the Court of Appeal (ex tempore)
(The Honourable Acting Chief Justice Livesey and the Honourable Justice Bleby)
19 June 2024
TRAFFIC LAW - OFFENCES - PROCEDURE
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - OBLIGATION TO DISQUALIFY
The applicant seeks permission to appeal the decision of a single judge, which in turn dismissed his appeal against a conviction by a magistrate for failing to comply with a request to submit to a drug screening test, contrary to s 47EAA(9) of the Road Traffic Act 1961 (SA).
On 3 January 2022, after a road accident, police requested that the applicant submit to a drug screening test. The applicant refused to do so unless, if the test was negative, the testing equipment was given to him. Police did not agree and the applicant did not participate in a drug screening test. The applicant has maintained that he was concerned to deny police his DNA.
The applicant is not legally represented and raised 18 grounds of appeal. He contended that the appeal judge was disqualified from sitting, that pursuant to s 47EAA(10)(c) of the Road Traffic Act 1961 (SA) he had good cause for failing to comply with a reasonable direction, and the judge erred in refusing permission to issue a subpoena and in preventing the applicant from obtaining information in support of his appeal.
In addition, the applicant applied to disqualify an appeal judge from sitting and to adjourn his appeal hearing.
Held (the Court) dismissing the applications to disqualify and adjourn, and refusing permission to appeal:
1.There is nothing in the correspondence or the other matters relied on by the applicant that demonstrates that the judge might not bring an impartial mind to the resolution of the issues the judge is required to decide.
2.The applicant had sufficient time to prosecute his applications for disqualification and an adjournment.
3.To assert an inability to attend court does not, without more, justify a litigant being excused from attending court to prosecute an appeal. The appeal judge did not exhibit ostensible bias when requiring evidence to support an assertion that the applicant was medically unable to attend court. To do so was entirely appropriate.
4.The appeal judge provided careful and extensive reasons for concluding that the applicant failed to establish “good cause” under s 47EAA(10)(c) of the Road Traffic Act 1961 (SA). The applicant’s reliance on the Criminal Law (Forensic Procedures) Act 2007 (SA) is misplaced.
5.There is no reason to doubt the correctness of the appeal judge’s conclusion that seeking documents on subpoena relating to drug swipes and related procedures had no legitimate forensic purpose.

6. The applicant must pay the respondent’s costs, fixed at $750.
Criminal Law (Forensic Procedures) Act 2007 (SA) s 4; Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) s 47EAA; Supreme Court Act 1935 (SA) s 50; Uniform Civil Rules 2020 (SA) r 213, referred to.
Bormann v Coldwell (1986) 43 SASR 297; Bottomley v Symons (1982) 31 SASR 18; Cai v County Court of Victoria [2015] VSC 267; Charisteas v Charisteas (2021) 273 CLR 289; Clarke v Health Care Complaints Commission (NSW) [2024] NSWCA 16; CNY17 v Minister for Immigration (2019) 268 CLR 76; Czerwinski v Hayes (1987) 47 SASR 44; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Gassy v The King [2023] SASCA 90; Martincic v Ethnic Broadcasters [2024] SASCA 33; Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; McFarlane v The King [2023] SASCA 12; Mohareb v State of New South Wales (No 2) [2024] NSWCA 69; Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108; Pastor v Aegis Aged Care Staff Pty Ltd (No 3) [2023] WASCA 128; Police v Ghuede (2007) 99 SASR 280; Police v Mahon (2022) 141 SASR 374; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; R v Carroll (2002) 213 CLR 635; R v Daley [2001] NSWSC 1211; Sambastian v Police [2024] SASC 26, considered.

SAMBASTIAN v POLICE
[2024] SASCA 79
Court of Appeal – Criminal: Livesey A/CJ and Bleby JA
THE COURT (ex tempore):
Introduction

The applicant seeks permission to appeal the decision of a single judge, which in turn dismissed his appeal against a conviction by a magistrate for failing to comply with a request to submit to a drug screening test, contrary to s 47EAA(9) of the Road Traffic Act 1961 (SA) (the Road Traffic Act).[1]
[1] Sambastian v Police [2024] SASC 26 (Kimber J) (the Reasons).
The appeal from the magistrate was governed by s 42 of the Magistrates Court Act 1991 (SA) and, in connection with that appeal by way of re-hearing, it was necessary for the appeal judge to reconsider the materials before the magistrate and make up its own mind without disregarding the judgment under appeal.[2]
[2] Police v Mahon (2022) 141 SASR 374, [81]-[84] (Livesey P, Lovell and Doyle JJA).
The appeal judge dismissed the appeal notwithstanding error in the reasoning of the magistrate: the charge was so clearly proven that a finding of guilt was inevitable.[3] The appeal judge dismissed a number of other contentions, including an application that he disqualify himself from sitting on the ground of ostensible bias.[4]
[3] Reasons, [97].
[4] Reasons, [28].
The appeal to this Court is only by permission pursuant to s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) and r 213.1(1)(b) of the Uniform Civil Rules 2020 (SA). In that connection it is necessary for the applicant to demonstrate that the proposed appeal raises a point of law or principle of general importance or, exceptionally, that a clear injustice has occurred.[5] The question of permission must be determined in recognition of the fact that this is a second appeal.
[5] Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108, [39] (Livesey P, Lovell JA and Stanley AJA).
The applicant argued his case over the telephone. As will become clear, the applicant has identified no point of law or principle of general importance, nor has he demonstrated any basis for a contention that there has been any injustice. Indeed, it is clear that the applicant was properly convicted. The application for permission to appeal must be refused.
Two applications before this Court
The applicant has applied to adjourn this hearing and he has also asked that Livesey A/CJ be disqualified from sitting. These applications were argued as one: the appeal had to be adjourned because Livesey A/CJ ought not sit.
This matter was listed for hearing at a callover on 15 April 2024. The applicant appeared by telephone. In the week before this hearing, the applicant sent an email to the Registry, saying that he was giving advance notice that he would appear by telephone and that he would have a medical certificate. The applicant was asked to produce his medical certificate before the hearing.
On 17 June 2024 the applicant produced a medical certificate by email, which said that between 16 and 19 June 2024, inclusive, the applicant would be “unfit to attend Court in person”. No reason or explanation was given, apart from “receiving medical treatment”. The applicant also announced that he wished to make the two applications earlier mentioned. As he said in his email:
… [I] believe [this] is a clear case of procedural unfairness and previous decisions made against me which show discrimination against me with a disability and refusing a doctors [sic] certificate …
Following receipt of the medical certificate on 17 June 2024, the applicant was told that he could present his appeal by telephone, and that he should be prepared to address his two applications and the appeal, failing which the matter may be determined in his absence.
Today, the applicant has also relied on the steps taken in respect of his appeal in 2022, and he has said that he needs more time to develop his submissions.
As to the first of these matters, the applicant said that at the time of the hearing of the previous appeal in November 2022 he had been in hospital for surgery, and the Acting Chief Justice refused his application for an adjournment. That was the subject of the decision in Sambastian v Police, where the Court said this:[6]
There is a certain irony in the fact that this hearing proceeds in the applicant’s absence. The applicant may be in hospital for surgery to his hip. He has been asked on three occasions to supply evidence that he cannot participate by telephone. He has previously participated in a hearing by telephone.
Yesterday, the applicant provided an undated letter from a doctor demonstrating that since 7 November, he has been an inpatient undergoing orthopaedic treatment for “a medical condition”. The letter does not say what the treatment is for or when the applicant will be discharged. The letter does not say that the applicant is unable to participate in this hearing by telephone. His email correspondence, particularly yesterday, is detailed. Despite a number of opportunities, the applicant has not demonstrated that he cannot participate in this hearing. Earlier this morning he was provided with the requisite telephone number so as to participate in today’s hearing.
[6] Sambastian v Police [2022] SASCA 119, [5]-[6] (Livesey P, Bleby and David JJA).
As to the second matter raised by the applicant today, he has not explained why he needs more time, nor what he proposes to do regarding his submissions.
Given the short timeframe, it has been necessary for the Court as a whole to consider the disqualification application, rather than allow it to first be considered by the judge the subject of the application.[7]
[7] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15 (QYFM); Masi-Haini v Minister for Home Affairs (2023) 298 FCR 277; McFarlane v The King [2023] SASCA 12; Clarke v Health Care Complaints Commission (NSW) [2024] NSWCA 16; Mohareb v State of New South Wales (No 2) [2024] NSWCA 69; Pastor v Aegis Aged Care Staff Pty Ltd (No 3) [2023] WASCA 128.
For the purposes of the disqualification application, it may be assumed that the request for information made by the chambers staff of Livesey A/CJ was made with the knowledge and authority of the Court. In addition, the applicant has not identified:[8]
1.the matter which it is said might lead the judge to resolve the issue of permission to appeal, and the associated applications, other than on their legal and factual merits;
2.the logical connection between that matter and the apprehended deviation from deciding the issues on their merits; and
3.an assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
[8] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8]; Charisteas v Charisteas (2021) 273 CLR 289, [11].
Having considered the material and the application, we reject the proposition that the exchange in correspondence with the applicant over the last week or so gives rise to the requisite apprehension of bias. In particular, there is nothing in the request to produce the medical certificate foreshadowed by the applicant in advance of the appeal hearing that could demonstrate the claimed procedural unfairness or discrimination. Moreover, the applicant’s certificate was not “refused”. It was requested and, when it was produced, the application to appear by telephone was granted.
Similarly, as to the correspondence before the previous appeal concerning the applicant's hospitalisation in November 2022, here again he does not identify why the judge might determine this application on anything other than its merits.
Finally, we are satisfied that the applicant has had sufficient time to prosecute his applications for disqualification and an adjournment. The applicant has not established that a fair-minded lay observer might reasonably apprehend that Livesey A/CJ might not bring an impartial mind to the resolution of the issues the judge is required to decide.[9]
[9] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[7]; Charisteas v Charisteas (2021) 273 CLR 289, [11]; QYFM, [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [119] (Edelman J), [193] (Steward J), [219] (Gleeson J), [274] (Jagot J).
The applications to disqualify and to adjourn are dismissed.
Relevant background
On 3 January 2022, the applicant fell from his motor scooter and was injured. Police attended. The applicant submitted to a breath analysis or alcotest which gave a negative result. Police then requested that the applicant submit to a drug screening test. The applicant refused to do so unless, if the test was negative, the testing equipment was given to him. Police refused to agree to that condition and the applicant did not submit to a drug screening test.
The applicant has consistently maintained that he was concerned to deny police his DNA. There was and is no evidence that police intended to, or would, collect the applicant’s DNA.
Although a blood test was taken when the applicant went to hospital, there was ultimately no attempt made to demonstrate that there was any physical or medical condition which permitted the taking of a blood sample in lieu of a drug screening test pursuant to s 47EAA of the Road Traffic Act.
The applicant’s case at trial and before the appeal judge was that he had good cause for refusing to comply with a reasonable direction, see s 47EAA(10)(c) of the Road Traffic Act.
A number of the matters now agitated by the applicant were considered and rejected by the Court of Appeal in an earlier decision involving the same applicant on unrelated charges.[10]
[10] Sambastian v Police [2022] SASCA 119 (Livesey P, Bleby and David JJA).
The trial before the magistrate was a re-trial, the applicant having earlier succeeded with an appeal before Nicholson J, who quashed the applicant’s convictions, entered an acquittal on one charge and remitted this charge to the Magistrates Court.
The course of the hearing before the appeal judge was punctuated by delays and interruptions associated with the applicant’s failure to attend or request to attend by telephone. These were relied on by the applicant in connection with his application to the judge that he disqualify himself on the ground of ostensible bias. That application was dismissed and that is one of the decisions the subject of the present application for permission to appeal.
The proposed grounds of appeal
The proposed grounds of appeal are:
1.Magistrate errored in her findings dismissed my DNA concerns.
2.Magistrate Errored failing to see that the Drug swipe kit did not have the legal right to collect skin.
3.Magistrate failed to acknowledge my claims of Double jeopardy.
4.Magistrate failed to see that the Directions of the police were unreasonable.
5.Magistrate was in a conversation with prosecution during a lunch break.
6.Magistrate has severe issues with men, white men or something issuing a certified warrant for my arrest for missing a verdict hearing, this was disproportionate and uncalled for and shows bias.
Supreme court Judge
1.judge failed to recognise that the taking of a DNA sample was un warranted was not required to conduct a drug test therefore unreasonable.
2.Judge failed to allow me to subpeona police with the manual for the drug swipe kit and the proccedures bias.
3.judge failed to acknowledge my application to have himself reculed.
4.judge insisted that i produce a doctors certificate on short notice when it clear that my disability was of the long term nature, this was abuse of process.
5.failed to apply the rule of double jeopardy.
6.failed to acknowledge the common law rights to specamins of myself.
7.failed to see that the Drug testing procedure also could and has been used in the illegal collection of dna.
8.failed to acknoledge my concerns with illegal Dna collection.
9.failed to acknoledge or apply the forensic proccedures act with regard to DNA collection.
10.failed to take into account the statement of Police officer lumsden who admitted on body cam footage that they collect DNA through the blood sample and therefore even more likely throught the drugscrean test.
11.failed to aknowledge privacy rights of an individual.
12.unfair trial as i was not allowed to request information for my defence.
(As appears in Notice of Appeal.)
As may be apparent, the applicant is not legally represented. The first six proposed grounds address errors by the magistrate without identifying whether they were raised before the appeal judge and, if they were raised, whether their disposition was associated with any relevant error by the appeal judge. Some are repeated in connection with the final 12 grounds the subject of the application for permission to appeal from the appeal judge. None of them warrants a grant of permission to appeal.
Proposed appeal ground 5 in the final 12 grounds may be dismissed at the outset. There is no substance in the complaint that the rule against double jeopardy was not applied. This issue was previously rejected following another retrial following quashed convictions[11] and, here again, the applicant’s case gains no support from the citation of R v Carroll.[12]
[11] Sambastian v Police [2022] SASCA 119, [27]-[29] (Livesey P, Bleby and David JJA).
[12] R v Carroll (2002) 213 CLR 635.
The remaining grounds can be addressed in the following way:
1.The appeal judge failed to disqualify himself from sitting on the ground of ostensible bias (ground 3).
2.The appeal judge failed to address the applicant’s concerns regarding the collection of his DNA (grounds 1, 2, 6, 7, 8, 9, 10 and 11).
3.The appeal judge refused to allow the applicant to issue a subpoena or request information for his defence (ground 12).
Ostensible bias application
It is plain from the reasons of the appeal judge that the application was based on the applicant’s concern about the way in which the appeal judge managed the appeal, before ultimately addressing the application to disqualify and the appeal in a final hearing.
An appeal judge has great latitude and a broad discretion regarding the management of a hearing where it is necessary to assist an unrepresented litigant. The judge must identify the proper issues for determination whilst, at the same time, ensure fairness and justice to all parties in the dispute before the court.[13] To assert an inability to attend the court does not, without more, justify a litigant being excused from attending in court to prosecute an appeal. It was entirely appropriate that the appeal judge require evidence to support any assertion that the applicant was medically unable to attend in court.
[13] Gassy v The King [2023] SASCA 90, [33]-[34] (Livesey P, David JA and Stein AJA); Martincic v Ethnic Broadcasters [2024] SASCA 33, [21]-[24] (Livesey P).
Respectfully, his Honour identified the relevant authorities and legal tests concerning ostensible bias and applied them in an orthodox manner.[14]
[14] Reasons, [7]-[27], citing, amongst others, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 (Gleeson CJ, McHugh, Gummow and Hayne JJ) and CNY17 v Minister for Immigration (2019) 268 CLR 76, 98 (Nettle and Gordon JJ).

There is nothing in the criticisms made of the appeal judge, whether these be in the Notice of Appeal or the written and oral submissions of the applicant, which warrants the grant of permission to appeal against the decision made by the appeal judge.
Concerns about DNA
The appeal judge upheld the magistrate’s preference for the evidence of the police officer over the evidence of the applicant. That evidence extended to the proposition that requiring the applicant to undergo a drug screening test was not intended to procure DNA from the applicant, nor would that be the result of it.
The appeal judge gave careful and extensive reasons for his finding that the applicant had failed to establish the “good cause” defence under s 47EAA(10)(c) of the Road Traffic Act. The appeal judge considered the usual cases on the topic and applied them appropriately.[15]
[15] Bottomley v Symons (1982) 31 SASR 18, [19] (King CJ), [23] (Wells J), Bormann v Coldwell (1986) 43 SASR 297, 305-306 (von Doussa J), Czerwinski v Hayes (1987) 47 SASR 44, 45 (King CJ), Police v Ghuede (2007) 99 SASR 280, 284-285 (Vanstone J), as well as R v Daley [2001] NSWSC 1211, [130]‑[142] (Simpson J).
The applicant’s reliance on the Criminal Law (Forensic Procedures) Act 2007 (SA) is misplaced: the note to s 4(1)(a) demonstrates that forensic procedures authorised under other laws (as in this case) are not the subject of that Act.
Refusal to permit a subpoena or otherwise obtain information
Insofar as the applicant criticises the decision to refuse leave to issue a subpoena, permission to appeal that interlocutory decision was not sought within time.
In any event, there is no reason to doubt the correctness of the appeal judge’s conclusion that seeking documents relating to drug swipes and related procedures had no legitimate forensic purpose. The citation of Cai v County Court of Victoria does not assist the applicant.[16] In that case the relevant speed camera manual was, on an application for judicial review, found to have been properly sought on subpoena. The court there held that there was “a legitimate forensic purpose to justify production of the manual”, and it was not merely speculative fishing, because it was proposed to challenge the annotation displayed in a time lapse photograph.
[16] Cai v County Court of Victoria [2015] VSC 267, [46] (Ginnane J).
Otherwise, the applicant was given significant assistance by the appeal judge in this case. He was granted leave to issue a subpoena to the Queen Elizabeth Hospital to obtain documents which were tendered on the appeal. He was also permitted to call further oral evidence, over objection. There is no substance in the complaint that the applicant was denied any proper opportunity to request information in support of his appeal.
Conclusion
The application for permission to appeal is dismissed, with costs. Costs are fixed at $750.