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 r 104G(2) of the Criminal Rules 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 on the following grounds:
1.The notice of appeal disclosed no arguable grounds of appeal;
2.The applicant did not provide any satisfactory reason for the delay; and
3.The applicant did not demonstrate that there was a real possibility that a miscarriage of justice might occur as a result of the failure to extend time.
The application for permission to appeal
The applicant applies for permission to appeal against that decision on the following grounds:
1.The application to appeal was not late (Ground 1); and
2.The grounds of appeal set out in the notice of appeal have “a very strong chance of succeeding” (Ground 2).
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.
The applicant attended the callover before Doyle JA on 26 September 2022 by telephone, indicating he wished to argue “double jeopardy”. The applicant then said he was available today. He was ordered to file his outline by 1 November and has done so. That outline has been considered by the Court.
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).
The applicant submits that he filed an application for rehearing pursuant to s 76A of the Criminal Procedure Act within the required timeframe but contends that a clerk from the Christies Beach Magistrates Court conspired against him by refusing to accept and process the application.
The applicant did attempt to file a Form 19 application by email dated 19 November 2021.[6] The application was subsequently re-filed with the Port Adelaide Magistrates Court on 22 November 2021 after the applicant was advised that he needed to physically file the documents with the Christies Beach Magistrates Court so the matter could be listed.[7]
[6] Sambastian v Police (2022) 101 MVR 68, [14].
[7] Sambastian v Police (2022) 101 MVR 68, [18].
On 31 January 2022, the applicant was informed by the Supervising Registrar at the Christies Beach Magistrates Court registry that the database indicated that his application had been forwarded from the Port Adelaide Magistrates Court Registry, where he had physically filed it, to the Christies Beach Magistrates Court Registry on 22 November 2021 but that the Christies Beach Magistrates Court Registry had no record of receiving it. Consequently, the application was not filed appropriately.
The Supervising Registrar advised the applicant that in light of the confusion between registries, the application could be re-filed as though it had been filed on 22 November 2021. The applicant resubmitted his application on the same day and was advised that the matter was to be listed for a pre-trial conference on 16 February 2022. In response, the applicant alerted the Supervising Registrar that he would be in hospital for three to six weeks. The Supervising Registrar then attempted to contact the applicant to obtain clarity about the applicant’s circumstances and to assist in facilitating the pre-trial conference but was unable to reach the applicant and received no response.
While the miscommunication between the Port Adelaide Magistrates Court Registry and the Christies Beach Magistrates Court Registry is regrettable, it was the product of human error. It was not a conspiracy against the applicant to obstruct the course of justice, nor was it the result of any refusal by the clerk at the Christies Beach Magistrates Court to consider the application. The Supervising Registrar attempted to facilitate the application for rehearing as if it had been filed on 22 November 2021.
On 7 February 2022, the applicant filed appeal papers with the Higher Courts Registry. On 11 February 2022, the applicant was reminded by the Higher Courts Registry that the rehearing remained afoot and was listed for 16 February 2022. It was suggested that the applicant await the outcome of the rehearing before proceeding to file a notice of appeal given at that point the appeal period had lapsed.[8] The applicant proceeded to file an amended notice of appeal later that day.
[8] Supreme Court Criminal Rules 2014 (SA) r 104G(1).
To this end, it appears that there has been some confusion on the applicant's part between an application for a rehearing pursuant to s 76A of the Criminal Procedure Act and an appeal brought under r 104H of the Criminal Rules. Indeed, as the respondent submits, an application for a rehearing under the former provision does not amount to instituting an appeal under the latter, nor did it extend the period of time within which an appeal could be brought under r 104G(1) of the Criminal Rules. It follows that the applicant's notice of appeal was in fact “late”.
Ground 1 is not reasonably arguable.
Ground 2 – the appeal “has a very strong chance of succeeding”
Under the second ground, the applicant contends that:
(1)the defence of double jeopardy applies and therefore the protection from prosecution;
(2) the trial magistrate was biased against the applicant;
(3) the trial magistrate erred in proceeding to hear the matter in the absence of the applicant;
(4) McDonald J erred in finding that because the applicant did not have an adequate reason for delaying in filing his notice of appeal, his extension of time should not be granted; and
(5) the appeal process is an obstruction of justice.
Double Jeopardy
The applicant has raised the rule of double jeopardy and relies on R v Carroll[9] to assert that because his conviction was quashed on the initial Supreme Court appeal he cannot be prosecuted again for the same offence. The applicant appears to rely on the Criminal Code Act 1899 (Qld) and the Human Rights Act 2004 (ACT) neither of which apply in this jurisdiction.
[9] (2002) 213 CLR 635.
To the extent that the applicant is referring to double jeopardy in the wider sense, namely that no person should be punished more than once for the same offence,[10] that rule can only apply where an accused person has been convicted or acquitted of the relevant offence, not where a conviction has been quashed.[11] In R v Carroll, McHugh J said:[12]
It is a fundamental rule of the criminal law ‘that no man is to be brought into jeopardy of his life more than once for the same offence’. If the prosecution attempts to do so the accused may plead that he has been convicted (autrefois convict) or acquitted (autrefois acquit) of the same matter… Consequently, the decision of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct.
(Citations omitted.)
[10] Pearce v The Queen (1998) 194 CLR 610, [9] per McHugh, Hayne and Callinan JJ; R v Carroll (2002) 213 CLR 635, [128] per McHugh J.
[11] R v Carroll (2002) 213 CLR 635, [128] per McHugh J; Rogers v The Queen (1994) 181 CLR 251, 276 per Deane and Gaudron JJ.
[12] R v Carroll (2002) 213 CLR 635, [128] per McHugh J.
In the present case the applicant has not been acquitted, rather the conviction was quashed and the matter was remitted to the Magistrates Court for retrial before a different magistrate in accordance with s 42(5) of the Magistrates Court Act 1991 (SA). The principle of double jeopardy does not apply.
Bias
The applicant contends that the trial magistrate was biased against him because the prosecutor was permitted to miss a hearing with no ramifications but he was not afforded the same leniency when he was unable to attend the trial. However, as the respondent notes, this assertion is contrary to the court record which establishes that a police prosecutor was present at every hearing.[13]
[13] Certificate of Record for MCCHB-20-3076.
It is well-established that bias, whether actual or apprehended, concerns the absence of impartiality.[14] Actual basis exists where a decision-maker has adopted a pre-existing state of mind and is in fact not open to alternative persuasion.[15] Apprehended bias exists where a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the determination of the matter.[16]
[14] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ.
[15] Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87, 104 per French J, cited with approval in Minister for Immigration and Multicultural Affairs (2001) 205 CLR 507, [72] per Gleeson CJ and Gummow J.
[16] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[7]; Harradine v The Magistrates Court of South Australia (2021) 138 SASR 122, [28].
The test for establishing an apprehension of bias requires two steps: first, identification of what it is that is said might lead a decision-maker to decide a case other than on its legal and factual merits; and, second, articulation of the logical connection between that and the feared deviation from the course of deciding the case on its merits.[17]
[17] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6]-[7]; Harradine v The Magistrates Court of South Australia (2021) 138 SASR 122, [28].
In this matter there is no factual basis for a submission of actual bias nor is there any basis for a submission of apprehended bias. Even if the applicant's allegations are correct and the Magistrate may have excused a particular prosecutor from attending a previous hearing (contrary to the Court record) the trial Magistrate had no prior involvement in this matter before presiding over the trial. Further, the differential treatment of parties does not, of itself, constitute bias. More must be shown for it depends entirely on the circumstances of each case. No basis has been disclosed to support the complaint of actual or apprehended bias.
Proceeding in the applicant’s absence
The applicant contends that the trial Magistrate erred in hearing the matter ex‑parte and in proceeding to convict the applicant in his absence on 16 November 2021. The applicant complains that he was not provided an opportunity to explain his reasons for his absence or to present his case. He asserts that this was a violation of his human rights.
McDonald J found that this course was reasonably open to the trial Magistrate given the applicant had been present at Court when the matter was listed for trial and he provided no explanation for his absence prior to trial.[18] Her Honour noted that the trial Magistrate adjourned the commencement of the trial for approximately 20 minutes in case the applicant appeared.[19]
[18] Sambastian v Police (2022) 101 MVR 68, [74] per McDonald J.
[19] Sambastian v Police (2022) 101 MVR 68, [74] per McDonald J.
For the respondent, reliance is placed on s 62BA of the Criminal Procedure Act1921 (SA) which permits a Magistrate to adjudicate on an Information in the absence of the defendant in accordance with s 62 of the Act.[20] The respondent also refers to the trial Magistrate’s judgment which, as the respondent submits, establishes that it was open to him to proceed in the absence of the applicant.[21]
[20] Criminal Procedure Act 1921 (SA) s 62BA(1).
[21] Police v Sambastian MCCHB-20-3076, [3]-[5] per Magistrate Grant.
The governing principle when considering an appeal where a conviction has been entered in absentia is whether the interests of justice require that the appeal be allowed.[22] That determination is based on the following considerations:[23] the explanation for the appellant’s failure to attend and whether it was due to misadventure; whether the person had previously indicated an intention to plead not guilty and defend the matter and whether the court is satisfied that the appellant will suffer injustice if the conviction is allowed to stand.
[22] Johns v Police [2015] SASC 118, [10], [13] per Stanley J.
[23] Johns v Police [2015] SASC 118, [13], [15] per Stanley J.
It is for the applicant to establish more than the mere possibility of injustice; he must show that injustice will actually be suffered.[24] To this end, it is not enough for the applicant to merely express his desire to defend the charge or to assert that he is not guilty. The applicant's failure to attend the trial because he “had somehow got [his] times mixed up”[25] does not constitute genuine misadventure, given he attended the status conference on 1 September 2021 when the matter was listed for trial on 16 November 2021.
[24] Johns v Police [2015] SASC 118, [16] per Stanley J citing Van Ryswyck v Hicks (1974) 8 SASR 376, 379 per Hogarth ACJ.
[25] Applicant’s Submissions, p.1.

In any event, the applicant has not established that there is any meritorious defence to the prosecution. In Police v Bilaczenko,[26] the Full Court considered the statutory powers of a Magistrates Court to proceed in the absence of the defendant. McDonald J found that none of the grounds of appeal raised by the applicant had merit.[27] The applicant has not challenged these findings. In any event, no error has been demonstrated in relation to any of those findings.
The bases for declining to grant an extension of time
[26] [2018] SASCFC 7, [4] per Kourakis CJ, Peek and Nicholson JJ.
[27] Sambastian v Police (2022) 101 MVR 68, [75], [83], [86]-[87], [89]-[90] per McDonald J.
The applicant complains that McDonald J expressed only one basis for refusing to grant an extension of time to file a notice of appeal being because the applicant did not provide an adequate reason for filing late. In considering whether an extension of time should be granted, her Honour turned her mind to all of the relevant factors to be taken into consideration, namely: the length and reason for the delay; whether there would be any prejudice suffered by the respondent; and whether there are prospects that the appeal will be successful.[28] In relation to the first two points her Honour did not consider the respondent would suffer any prejudice and that the delay was not particularly long.[29]
[28] Sambastian v Police (2022) 101 MVR 68, [48] per McDonald J.
[29] Sambastian v Police (2022) 101 MVR 68, [52] per McDonald J.
Relevantly, her Honour considered the “unusual history of [the] case” where the applicant had the option of a rehearing available to him but chose to abandon it despite the efforts of the Magistrates Court Registry staff to facilitate a rehearing.[30] Her Honour considered, in detail, email correspondence between the applicant and the Magistrates Court Registry staff between 17 January 2022, when the applicant claims he first became aware that his application for a rehearing had not been forwarded to the Christies Beach Magistrates Court Registry, and 22 February 2022, when the applicant advised the Christies Beach Magistrates Court Registry that the rehearing listed for 23 March 2022 could be vacated on the basis that it was no longer required.
[30] Sambastian v Police (2022) 101 MVR 68, [53] per McDonald J.
McDonald J found the applicant’s explanation as to how these events transpired to be “inconsistent and implausible”.[31] Her Honour did not accept the applicant’s claim that he did not appreciate that he had a remedy open and available to him in the Magistrates Court,[32] and found that the applicant’s reason for filing a Notice of Appeal late was because he became frustrated with the manner in which the events were unfolding in the Magistrates Court. Her Honour proceeded to find that the applicant’s grounds of appeal lacked merit and had no likelihood of success.
[31] Sambastian v Police (2022) 101 MVR 68, [65] per McDonald J.
[32] Sambastian v Police (2022) 101 MVR 68, [66] per McDonald J.
Upon a reading of the whole of the judgment, it is readily apparent that in refusing an extension of time McDonald J did not confine her consideration to the applicant’s reasons for filing a late Notice of Appeal. Rather, she also considered the underlying merits of that appeal and whether the applicant will suffer an injustice if the conviction were allowed to stand.
The appeal is an obstruction of justice
The applicant claims the appeal process is an “obstruction of justice” because: he is not a legal practitioner and lay people do not have an adequate understanding of the legal process or the law in general; the time restrictions in lodging an appeal do not allow an opportunity for applicants to access legal aid or obtain legal advice; legal advice is only worth its face value; and registry staff hinder the pursuit of justice.
For the respondent it is submitted that the applicant has not articulated how this matter was unfair or resulted in a miscarriage of justice because of his lack of legal knowledge or legal representation. The respondent submits that the applicant's failure to file the Notice of Appeal in time was because of his strategic decision to file an application for rehearing pursuant to s 76A of the Criminal Procedure Act.
It is apparent from the history of this matter that the applicant has some familiarity with the relevant legal processes. On 22 November 2021, the applicant filed his application for rehearing.[33] While there was an unfortunate error in communication between the Christies Beach Magistrates Court Registry and the Port Adelaide Magistrates Court Registry, resulting in a failure to process the application for rehearing, upon being made aware of this error on 31 January 2022, the Supervising Registrar resubmitted the application as though it had been filed in time. Upon being made aware of the confusion between registries and that the application had to be resubmitted, the applicant immediately sought legal advice which was to file a Notice of Appeal in the Supreme Court.[34] He did so in February 2022. This history shows that the applicant was capable of both seeking legal advice and filing a notice of appeal when he wished to do so.
[33] Criminal Procedure Act 1921 (SA) s 76A.
[34] Sambastian v Police (2022) 101 MVR 68, [60] per McDonald J.
There is no basis to find that the applicant’s lack of legal knowledge or need for legal advice has resulted in a miscarriage of justice.
Ground 2 is not reasonably arguable.
Conclusion
Accordingly, permission to appeal is refused.