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…

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.

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Details

Case: [2024] SASCA 79
Decision Date: 19 June 2024

CaseChat Overview and Summary

This matter concerned an application for permission to appeal against decisions made by a magistrate and a judge of the Supreme Court of South Australia. The applicant had been charged with an offence under the Road Traffic Act following an incident where he fell from his motor scooter. The core of the dispute revolved around the applicant's refusal to submit to a drug screening test, which he conditioned on receiving the testing equipment if the result was negative. The applicant maintained this refusal was due to concerns about police collecting his DNA, although there was no evidence to support such an intention.

The legal issues before the court included whether the applicant had good cause for refusing to comply with the police direction to submit to a drug screening test, and whether the magistrate and the appeal judge had erred in their findings regarding the applicant's concerns about DNA collection, the reasonableness of police directions, and the application of principles such as double jeopardy. The applicant also raised grounds concerning alleged bias of the magistrate and the appeal judge, including a magistrate's conversation with the prosecution and the judge's handling of the applicant's attendance and medical condition.

The court dismissed the applications, finding no substance in the complaints raised by the applicant. It was held that the applicant's concerns about DNA collection were unfounded and not a lawful basis for refusing the test. The court noted that the applicant had been afforded significant assistance by the appeal judge, including leave to issue a subpoena and permission to call further evidence. The court concluded that the applicant had not been denied a proper opportunity to present his case.

Consequently, the application for permission to appeal was dismissed, and costs were fixed at $750.

Orders

Orders of the court

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Background

Background to the litigation

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 Judge1.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.)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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