Sambastian v Police - [2022] SASCA 119

Supreme Court of South Australia
(Court of Appeal: Criminal)
SAMBASTIAN v POLICE
[2022] SASCA 119
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
15 November 2022
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
On 16 November 2021, in the Magistrates Court of South Australia, the applicant was convicted of the offence of driving a vehicle in excess of the speed limit contrary to s 79B(2) of the Road Traffic Act 1961 (SA) and r 20 of the Australian Road Rules.
The applicant sought to appeal against conviction in the Magistrates Court but failed to institute the appeal proceedings within 21 days as required under the Supreme Court Criminal Rules 2014 (SA). An extension of time pursuant was required for the appeal to be heard.
On 30 August 2022, in the Supreme Court of South Australia, McDonald J heard the application for an extension of time separately and in advance of the appeal. Her Honour refused the application for an extension of time and dismissed the appeal.
The applicant applied for permission to appeal against that decision on the grounds that the application to appeal was not late (Ground 1); and the grounds of appeal set out in the notice of appeal have “a very strong chance of succeeding” (Ground 2). The hearing proceeded in the applicant’s absence.
The Court, delivering its judgment ex tempore, held:
1.Permission to appeal is refused.
2.The applicant pay the respondent’s costs of the application for permission to appeal, fixed in an amount of $500.

Road Traffic Act 1961 (SA) s 79; Supreme Court Criminal Rules 2014 (SA) s 104; Criminal Procedure Act 1921 (SA); Magistrates Court Act 1991 (SA) s 42, referred to.
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Harradine v The Magistrates Court of South Australia [2021] SASCA 16; Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87; Johns v Police [2015] SASC 1189; Pearce v The Queen (1998) 194 CLR 610; Police v Bilaczenko [2018] SASCFC 7; R v Carroll (2002) 213 CLR 635; Rogers v The Queen (1994) 181 CLR 251; Sambastian v Police (2022) 101 MVR 68, considered.

SAMBASTIAN v POLICE
[2022] SASCA 119
Court of Appeal – Criminal: Livesey P, Bleby and David JJA
THE COURT (ex tempore):
Introduction

On 16 November 2021, in the Magistrates Court of South Australia, the applicant was convicted of the offence of driving a vehicle in excess of the speed limit contrary to s 79B(2) of the Road Traffic Act 1961 (SA) (‘Road Traffic Act’) and r 20 of the Australian Road Rules.
The applicant sought to appeal against conviction in the Magistrates Court but failed to institute the appeal proceedings within 21 days pursuant to r 104G(1) of the Supreme Court Criminal Rules 2014 (SA) (‘Criminal Rules’). Accordingly, an extension of time pursuant to…

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: [2022] SASCA 119
Decision Date: 15 November 2022

CaseChat Overview and Summary

The applicant, Mr Sambastian, sought to appeal a conviction for exceeding the prescribed speed limit, which had been entered against him in the Magistrates Court. The appeal was brought before the Supreme Court of South Australia. The primary issue before the Court was whether the applicant should be granted an extension of time to file his notice of appeal, as it had been lodged significantly out of time.

The legal issues before the Court were whether the applicant had a valid reason for the delay in filing his notice of appeal and whether the grounds of appeal themselves had sufficient merit to warrant an extension of time. The applicant contended that his notice of appeal was not late and that his grounds of appeal had a strong chance of succeeding.

McDonald J refused the applicant's application for an extension of time. Her Honour found that the applicant had not filed his notice of appeal within the prescribed 21-day period following his conviction. The Court determined that the applicant's filing of a "Form 19 - Application for Rehearing" did not constitute a notice of appeal. Furthermore, the Court found that the grounds of appeal raised by the applicant were not reasonably arguable, and therefore, an extension of time was not warranted. Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The Court has determined to proceed, conscious that this matter concerns the failure to obtain an extension of time to contest a speeding fine where the application for permission to appeal is without merit.Background On 18 March 2020, the applicant received an expiation notice alleging that on 9 March 2020, his vehicle travelled 21 km/h in excess of the speed limit on the Southern Expressway at O’Halloran Hill. The applicant pleaded not guilty and on 21 January 2021, the matter proceeded to trial before a magistrate. On 27 January 2021, the applicant was found guilty. On 15 April 2021, this matter came before David JA in the Supreme Court of South Australia. The applicant’s main ground of appeal was that he was not afforded procedural fairness. On 20 May 2021, the Crown conceded the appeal and the matter was remitted to the Christies Beach Magistrates Court for a retrial before a different magistrate. On 16 November 2021, following a retrial before Magistrate Grant, the applicant was convicted of the offence of driving a vehicle in excess of the speed limit contrary to s 79B(2) of the Road Traffic Act and r 20 of the Australian Road Rules. The applicant failed to appear at the retrial and, absent an explanation for his absence, the matter was heard ex‑parte. In accordance with r 104G(1) of the Criminal Rules, the applicant had 21 days to institute an appeal, that is to say he had until 7 December 2021 to file a notice of appeal. It was not until 11 February 2022 that the applicant filed a notice of appeal seeking to have the conviction set aside and the matter dismissed. As the notice was not filed in accordance with the Criminal Rules, the applicant required an extension of time.[1][1] Supreme Court Criminal Rules 2014 (SA), 104G(1). On 3 August 2022, having regard to the nature and history of the matter, McDonald J heard an argument in advance of and separate to the substantive appeal as to whether an extension of time should be granted.[2] Her Honour refused an extension of time and dismissed the appeal.[2] Supreme Court Criminal Rules 2014 (SA), 104G(3). The applicant has been self-represented throughout the proceedings and remains self-represented. The application The applicant contends that the Supreme Court should not have refused his application for an extension of time and dismissed the appeal. He submits that the notice of appeal was not late and that the grounds of appeal set out in the notice have “a very strong chance of succeeding”.Ground 1 – the notice of appeal was not filed late On 16 November 2021, the applicant was convicted in the Magistrates Court.[3] Accordingly, the applicant had until 7 December 2021 to institute an appeal, being 21 days after his conviction was handed down.[4] On 19 November 2021, the applicant filed a ‘Form 19 - Application for Rehearing’ pursuant to s 76A of the Criminal Procedure Act 1921 (SA) (‘Criminal Procedure Act’), but, importantly, he did not attempt to file a notice of appeal until 7 February 2022. Accordingly, an extension of time was required.[5][3] Sambastian v Police (2022) 101 MVR 68, [12], [14].[4] Supreme Court Criminal Rules 2014 (SA), rr 5 and 104G(1).[5] Supreme Court Criminal Rules 2014 (SA), r 104G(1).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 2 is not reasonably arguable.Conclusion Accordingly, permission to appeal is refused.

Ratio Decidendi

Legal Principle Established

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