Sambastian v Police - [2022] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
SAMBASTIAN v POLICE
[2022] SASC 78
Judgment of the Honourable Justice McDonald
3 August 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS
Appeal against conviction imposed in the Magistrates Court. The appellant was charged with 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 2016 (SA). The appellant pleaded not guilty to that charge and the matter proceeded to trial before a Magistrate on 21 January 2021. On 27 January 2021, the Magistrate found the appellant guilty.
Since that time, this matter has been the subject of a successful Supreme Court appeal, a further trial in the Magistrates Court (the second trial) and an application for rehearing in that same court. On 16 November 2021 at the second trial, the appellant failed to appear. The Magistrate recorded a conviction and fined the appellant $810.
By Notice of Appeal dated 7 February 2022, the appellant appeals against his conviction on 16 November 2021 and seeks that the conviction be set aside and the matter be dismissed. The appellant had until 7 December 2021 to commence this appeal. The appeal is therefore out of time and an extension time is required.
Pursuant to r 104G(3) of the Supreme Court Criminal Rules 2014 (SA), the argument as to whether an extension of time should be granted was heard in advance of and separate to the substantive appeal hearing.
Held:
1.      The Notice of Appeal discloses no arguable grounds of appeal.
2.      The appellant has not provided a satisfactory reason for the delay, nor has the appellant demonstrated that there will be a real possibility that a miscarriage of justice might occur by the failure to extend time.
3.      The application for an extension of time is refused.
4.      The appeal is dismissed.
Road Traffic Act 1961 (SA) s 79B(2), s 79B(10), s 175(3)(b), s 175(3)(ba); Magistrates Court Act 1991 (SA) s 42(2)(b); Criminal Procedure Act 1921 (SA) s 76A; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 29; Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) reg 43; Australian Road Rules (SA) r 20, r 178, r 307(2), referred to.
Police v Hill (2005) 93 SASR 307; R v Trotter (1979) 22 SASR 64, applied.

SAMBASTIAN v POLICE
[2022] SASC 78
Magistrates Appeal: Criminal
McDONALD J.

This is a decision as to whether the appellant should be granted an extension of time in which to lodge his Notice of Appeal.
On 18 March 2020, the appellant received an expiation notice alleging that on 9 March 2020, on the Southern Expressway at O’Halloran Hill, his vehicle travelled at 101 km/h, exceeding the speed limit of 80 km/h. Since that time, that expiation notice has led to a Magistrates Court trial, a successful Supreme Court appeal, a further trial in the Magistrates Court and an application for rehearing in that same court. The appellant has been self-represented throughout all of these proceedings.
On 11 February 2022, the appellant filed a further Notice of Appeal in this Court. That notice was filed out of time and as a consequence, the appellant requires an extension of time. Given the nature and history of this matter and the tentative views that I have formed having read the grounds of appeal, the transcript from the various hearings and the correspondence on the Magistrates Court file, I have formed the view that pursuant to r 104G(3) of the Supreme Court Criminal Rules 2014 (SA) (‘Criminal Rules’), this is an appropriate matter in which to hear argument about whether an extension of time should be granted in advance of and separate to the substantive hearing.
Initial proceedings in the Magistrates Court
This matter has a very unfortunate history.
Having been served with an expiation notice for speeding, the appellant elected to proceed to trial and was consequently charged on an Information in the Christies Beach Magistrate Court with driving a vehicle at a speed in excess of the speed limit. It was alleged that he had been captured by a red light camera on 9 March 2020 driving on the Southern Expressway at 101 km/h in an 80 km/h zone contrary to s 79B(2) of the Road Traffic Act 1961 (SA) and r 20 of the Australian Road Rules 2016 (SA) (‘Road Rules’).
The appellant pleaded not guilty to that charge and the matter proceeded to trial before a Magistrate on 21 January 2021. On 27 January 2021, the Magistrate found the appellant guilty.
First appeal
The appellant appealed that decision. On 15 April 2021, the appeal came before David J for argument. The appellant’s main ground appeared to be that he had not been afforded procedural fairness, in that, at trial he had not been aware that he could subpoena the manufacturer’s manual for the speed camera or that it was open for him to apply for an adjournment in order to facilitate that occurring. During submissions it became apparent that there had been a conversation between a police prosecutor and the appellant at a pretrial conference that may have been important to the resolution of the appeal. At the conclusion of that hearing David J made an order that the Crown file further affidavit material about that exchange. It was potentially relevant to an assessment of the appellant’s state of knowledge about the availability of the manual.
The matter came back before David J on 20 May 2021. On that occasion the Crown conceded the appeal on the basis that it seemed that the appellant had spoken to the police prosecutor about obtaining a copy of the manual and she had failed to advise him about his ability to issue a subpoena.
Subsequent proceedings in the Magistrates Court
On 23 June 2021, the appellant appeared in the Christies Beach Magistrates Court. Leave was granted to file a subpoena “to the manufacturer of Redflex Radar Cam Mobile Dual Radar Digital Camera Systems, regarding operating manuals and technical specifications”, and the matter was listed for a pretrial conference on 21 July 2021.
On 21 July 2021, the appellant failed to attend at the pretrial conference. The Court excused his non-appearance, listed the matter for a status conference on 1 September 2021, and granted the appellant’s application for a subpoena to be issued to the manufacturer of the speed camera.
At the status conference on 1 September 2021, the matter was listed for a one-day trial on 16 November 2021, with leave for both parties to inspect the documents produced in answer to the appellant’s subpoena. The appellant appeared at this hearing.
On 16 November 2021, the appellant failed to appear in Court for his trial. No explanation was provided for his absence. The Magistrate determined to proceed in the appellant’s absence. He appears to have done so based on the appellant’s non-attendance and the fact that it was to be a trial based on the tendering of certificates. The Magistrate was also advised that the manual had been made available to the appellant and that the appellant had been refusing to engage with police prosecutions. At the end of that hearing the Magistrate found the appellant guilty and imposed a fine of $810 and ordered the appellant pay court fees of $286, victims of crime levy of $245, and prosecution costs of $150 (totalling $1,491).
Correspondence on the Magistrates Court file indicates that on 17 November 2021, the Magistrate’s clerk forwarded a copy of the Magistrate’s judgment to the appellant by email.
The appellant responded by email on 19 November 2021 at 3.20 pm with the words “application for rehearing form 19” and attached an application. This is a reference to an Application for a Rehearing in the Magistrates Court pursuant to s 76A of the Criminal Procedure Act 1921 (SA), which reads:
76A—Power to set aside conviction or order
(1)     The Magistrates Court may set aside a conviction or order—
(a)     on its own initiative; or
(b)     on the application of a party made within 14 days after the party receives notice of the conviction or order.
(3)The Magistrates Court may set aside a conviction or order under this section if satisfied—
(a)     that the parties consent to have it set aside; or
(b)     that the conviction or order was made in error; or
(c)     that it is in the interests of justice to set aside the conviction or order.
(4)Where the Magistrates Court sets aside a conviction or order under this section it may, without further formality—
(a)     proceed to re-hear the proceedings in which the conviction or order was made; or
(b)     adjourn the proceedings for subsequent re‑hearing.
At 4.31 pm that same day, the Magistrate’s clerk emailed the appellant and advised him that he was required to lodge his application for rehearing with the Registry. She also advised him that to do this he needed to attend at the front counter of the Christies Beach Magistrates Court to lodge an application and the matter could then be listed.
Seven minutes later at 4.38 pm the appellant sent an email to the Magistrate’s clerk saying:
i have completed form 19 for retrial and have sent it to you
retrial can you confirm receiving my application for retrial[1]
[1] The emails set out in this judgment have been replicated without corrections of grammar or spelling.
It would appear from the email correspondence that I have before me that this email was not answered. That may be because by this stage it was after 5.00 pm on a Friday afternoon.
At 11.29 am on Monday 22 November 2021, the appellant sent a further email saying “Lodged today at Port Adelaide magistrates court”.
The next communication did not occur until 17 January 2022 at 7.52 pm. On that date the appellant emailed the Magistrate’s clerk:
Application was emailed to you from Port Adelaide magistrates. Cort on time
You failed to notify me of rece in it or not now the fine has turned into licence disqualification
The fine and disqualification has been put on hold for 28 days
If not rectified legal action may commence
At 2.40 pm on 31 January 2022, the Christies Beach Supervising Registrar stepped into the fray. He emailed the appellant advising that there had been some sort of communication breakdown between the court registries (‘the registry error’) such that whilst he could see a record of the Port Adelaide Registry forwarding the appellant’s application to the Christies Beach Registry, the Christies Beach Registry had no record of having received it. A copy of the application could not be located so the Supervising Registrar asked the appellant to forward another copy of the notice.
The Supervising Registrar advised that he would process the application as if it had been lodged on 22 November 2021. That would have had the effect that the appellant would be in exactly the same position that he would have been in had no registry error occurred and the initial application had been processed in a timely fashion.
At 4.14 pm that same day the appellant responded by saying that he did not have a copy of the application but that he would check his emails.
The appellant again emailed at 4.23 pm saying:
this was form i emailed to christies beach court
which christies beach rejected
i then took it to port adelaide and it was amended by the clerk bottom section was liquid papered out and signed and sent
An image of the application was attached to the email.
At 5.24 pm the Supervising Registrar forwarded the appellant a copy of the application for rehearing and an affidavit sworn by him. In the affidavit the Supervising Registrar set out his reasons for accepting the appellant’s application. He deposed:
I am a Registrar of the Magistrates Court, records in our database indicated that on 22 November 2021 the Port Adelaide Registry of the Magistrates Court accepted from the defendant an application for re-hearing (form 19) in this matter and forwarded that application to Christies Beach Registry.
The form 19 forwarded from the Port Adelaide Magistrates Court failed to be received by the Christies Beach for filing and as such the time in which to lodge an application for rehearing lapsed.
Due to the facts above I today the 31 January 2022 accepted the form 19 for filing despite the time for lodgement being expired.
In his email to the appellant the Supervising Registrar also advised that the matter was to be listed on 16 February 2022 for a pretrial conference. At 11.19 pm the appellant replied “In hospital for 3-6 weeks”.
The following afternoon at 4.12 pm the Supervising Registrar emailed the appellant in an attempt to obtain some clarity and enquired whether the appellant was wishing to attend via telephone or whether there were certain dates that he was not available. The appellant did not respond.
Notice of appeal
On 7 February 2022, the appellant attempted to file appeal papers in this Court.
It is not clear to me why this occurred, particularly given how accommodating the Supervising Registrar had been in facilitating the appellant’s application for a rehearing. The Higher Courts Registry declined to process the initial Notice of Appeal and supporting affidavit on the basis of errors in the notice. The appellant was advised of this by email dated 11 February 2022. Importantly, in that email the Registry advised the following:
As to your Notice of Appeal, the court record for MCMUB 20-3076 indicates that the matter is listed for a Re-hearing Application pursuant to s76A of the Criminal Procedure Act on the 16^th of February 2022.
Given that the appeal period has already lapsed, I suggest to you that you may wish to await the outcome of the Re-hearing application before lodging an appeal. …
(Emphasis added)
It follows that upon receipt of this email, the appellant was made aware that not only was he out of time for an appeal in the Supreme Court but also that the rehearing in the Magistrates Court was still afoot.
On 11 February 2022, the appellant successfully filed a Notice of Appeal in this Court.
Further communications in the Magistrates Court
On Monday 14 February 2022 at 3.19 pm the appellant sent the following email to the Christies Beach Magistrates Court:
notice of non attendance
Armand luke sambastian 7th aug 71
hearing on the 16th criminal
non attending due to injuries
sustained on motorcycle accident 3 january
been in hospital for over amonth qeh hospialwoodville
cannot walk now have suspected broken foot
having trouble sleeping affecting my judgment
also did not make application to this court for this rehearing
This last entry appears to be a reference to the fact that the application for rehearing before the Magistrates Court was not the application that was initially filled out by the appellant but the copy that had been submitted by the Supervising Registrar on his behalf. It is difficult to see why this was an issue to the appellant when the Registrar was doing no more than attempting to assist the appellant so that he would not be disadvantaged because of the registry error.
The Supervising Registrar responded to this email on Monday 14 February 2022 at 4.34 pm:
Good afternoon
Your message has been placed on the court file for the court to consider on 16 February 2022. Please contact the court after the hearing date to ascertain the outcome.
Regards
…
On Tuesday 15 February 2022 at 11.48 am, the appellant sent a further email to the Christies Beach Magistrates Court:
admitted to the qeh hospital last night have broken foot is diagnosis last night after xray mri
Pictures taken in qeh today feb 15th 2022
I am also non load bearing on left leg after operating last month knee reconstruction with metal plates
Cannot use crutches due to 5 kg load bearing of right arm
I have lodged an appeal to the supreme court over this matter
As to the ultimate paragraph, again, there is no indication as to why that occurred when the appellant’s application for rehearing was still before the Magistrates Court.
On 16 February 2022, the appellant failed to appear at the pretrial conference, however, he appears to have advised the Court at 8.40 am that morning that he was unable to attend due to medical reasons.
The next communication occurred on 18 February 2022 at 10.20 am. At that time another Christies Beach Registry staff member emailed the appellant and advised him that his hearing had been adjourned to 10.00 am on 23 March 2022. That email also advised the appellant that on this occasion he was required to provide proof of the reason for his non-attendance at the hearing on 16 February 2022.
The appellant emailed the Christies Beach Registry on Tuesday 22 February 2022 at 12.16 pm:
I have been instructed to inform you
that the matter listed for 23/3/2022 10am criminal ,
had now been listed for a hearing in the adelaide supreme court
in april the exact date had not been published yet
i am sure you will be informed when the exact date will be published
i therefore ask to vacate the listing for hearing on the 23/3/2022 at 10am as it will no longer be required
thanks
At 4.34 pm on 24 February 2022 the Supervising Registrar again attempted to obtain some clarity around the appellant’s position in relation to the application for a rehearing. In an email he asked the appellant if he was in fact seeking to withdraw his application for a rehearing, such that it would no longer be considered by the Magistrates Court.
On Thursday 24 February 2022 at 10.11 pm the appellant responded:
I did not make that application
I lodged my application on time not late
That was my application resubmitted without my consent I had already appealed to the supreme Court.
That was not true. The application was resubmitted on 31 January 2022 and the first attempt to file a Notice of Appeal was not made until 7 February 2022.
The Supervising Registrar responded at 11.55 am on Friday 25 February 2022:
To Mr Sambastian
The application remains before the court you options are:
1.You request the application be withdrawn and it will be withdrawn
2.If you imply that on 23 March 2022 you will be seeking an adjournment of the re-hearing application to allow the Supreme Court appeal to be determined you can appear before the court on 23/3/22 via telephone.
3.Attend the re-hearing application in person on 23 March 2022
Should you wish for the second option you need to provide a valid telephone number and be available to take the call when the court calls you. If you do not respond or advise your preference to the options above the court will proceed with the hearing on 23 March 2022 and failure of you to appear within 15 minutes of the hearing may result in the application be determined in your absence.
Regards
…
At 12.12pm on Friday 25 February 2022, the appellant provided a very unhelpful response:
i did not make the application for re hearing therefore i dont believe i have the authority to withdraw the application
The appellant failed to appear at the pretrial conference on 23 March 2022. His non-attendance was proved at 10.31 am, after which the Magistrate dismissed the rehearing application.
As a consequence, the appellant effectively abandoned the most cost effective, timely and practical avenue for having the judgment of 16 November 2021 set aside.
Second appeal
Pursuant to r 104A(2)(a) of the Criminal Rules and s 42(2)(b) of the Magistrates Court Act 1991 (SA), the appellant seeks to appeal the verdict of the Magistrate delivered on 16 November 2021. An appeal brought under this rule must be instituted within 21 days of the judgment.[2] The appellant had until 7 December 2021 to file a Notice of Appeal. The appellant is clearly out of time and requires an extension of time.[3]
[2] Supreme Court Criminal Rules 2014 (SA) r 104G(1).
[3] Supreme Court Criminal Rules 2014 (SA) r 104G(2).

The matter came before this Court on 28 March 2022. On that occasion I set a timetable allowing the appellant sufficient time to prepare himself for the argument. I also advised the parties that in my view this was an appropriate matter in which, pursuant to r 104G(3) of the Criminal Rules, to hear the argument about whether an extension of time should be granted in advance of the substantive hearing.
Extension of time – Legal Principles
The Criminal Rules provide time limits which parties must comply with unless they can convince the court that they are entitled to an indulgence.
Factors to be taken into consideration in granting an extension of time in which to file an appeal include the length of and explanation for the delay, whether there is any prejudice suffered by the respondent and whether there are some prospects that the appeal will be successful.[4]
[4] Police v Hill (2005) 93 SASR 307 at [11].
The discretion to extend time for compliance with the Criminal Rules exist for the sole purpose of doing justice between the parties.
Where a party is not able to proffer a satisfactory explanation for failing to observe a time limit, or where another party might suffer prejudice by reason of the delay, an extension of time will only be granted if the party seeking the extension can point to the real possibility that a miscarriage of justice might occur by the failure to extend time.[5]
[5] R v Trotter (1979) 22 SASR 64 at 65.
I turn then to the matters relevant to determining the issue in this case.
Delay
The delay in this matter is not particularly long nor is there any suggestion that the respondent has suffered any embarrassment or prejudice arising out of the delay. Those factors in this case, particularly the absence of prejudice, would tend to weigh in favour of an extension of time.
Alternative remedy available
There is also an additional matter in the unusual history of this case that should be factored into the exercise of the discretion. That is that the appellant had an alternative remedy available to him that he chose to disregard. Not only did he have the right to apply to review the decision of the Magistrate in that Court, but he had been given considerable assistance in doing so.
On my reading of the email correspondence and the court outcomes, the Supervising Registrar and the various staff in the Christies Beach Magistrates Court who became involved in this matter went out of their way to accommodate and provide the appellant with more than sufficient time and multiple opportunities to have the review determined. It is regretful that there was the registry error in November 2021, however it is my assessment that since the time that the issue was identified, court staff did all that they could to ensure that the appellant was not disadvantaged.
In such circumstances this Court should proceed with some caution before arriving at a decision to grant an extension of time. There was at the very least the spectre of forum shopping arising from the appellant’s conduct.
In submissions the appellant provided an explanation for the filing of the notice out of time. Given the time frame over which these events occurred, and the multiple emails involved, it is necessary to descend into some detail of the appellant’s account.[6]
[6] Given that the appellant was unrepresented and the nature of the hearing, I did not require the appellant to give sworn evidence but rather permitted him to provide his explanation from the bar table.
The appellant explained that he only first became aware of the registry error on 17 January 2022 when he became aware that the fine that had been imposed by the Magistrate on 16 November 2021 had been converted into a period of driver’s licence disqualification. It was that event that prompted the appellant to make contact with the Registry. This led to the appellant providing the Registry with a copy of the lost form 19 upon which the Supervising Registrar subsequently made a number of endorsements.
The appellant appears to accept that on 31 January 2022, he received the Supervising Registrar’s affidavit explaining the registry error and the basis for receiving the form 19 out of time, although he is uncertain of whether he read it. He put to the Court that the reason for that uncertainty was that at that time he was in hospital for injuries that he had sustained in a motorcycle accident. That accident occurred on 3 January 2022 and the appellant remained in hospital until 4 February 2022.
The appellant also appears to accept that he must have received the email with the affidavit advising that the matter was to be listed on 16 February 2022 for a pretrial conference because he replied on that same day at 11.19 pm “in hospital for 3-6 weeks”. He also accepts that he received a further email from the Supervising Registrar the following day in which he attempted to clarify whether the appellant would prefer another date or the option of attending by telephone, although the appellant claimed not to remember it. He put to the Court:
… I don’t remember it though, and I was in hospital. I was under a lot of medication and I was having operations. I had two operations.
The appellant told the Court that he then made contact with Legal Aid, and it was Legal Aid who advised him to appeal to the Supreme Court. It would seem that while rehabilitating from his injuries, the appellant managed to successfully file a Notice of Appeal in this Court on 11 February 2022. The appellant also appears to accept that on that same date he received an email from the Supreme Court Registry acknowledging his Notice of Appeal and suggesting to him that he may wish to await the outcome of the rehearing before lodging an appeal. The following exchange then occurred in relation to that email:[7]
[7]     T16-17.
HER HONOUR:        The email includes the bottom paragraph: ‘Given that the appeal period has already lapsed, I suggest to you that you may wish to await the outcome of the re-hearing application before lodging an appeal. If you do wish to lodge an appeal and an application for fee remission, please ensure the fee remission application is amended as above’.
MR SAMBASTIAN:    Yes.
HER HONOUR:        So you accept that in that email you had been told then that the appeal period had lapsed in the Supreme Court?
MR SAMBASTIAN:    Yeah, I don’t recall reading that, I just - I just, I believe I just saw it was rejected and I applied straightaway to make sure it wasn’t. I just read up to the part that says it was rejected because I had mistakenly put the wrong person in for the deponent. So I just re-submitted it and then corrected that part.
HER HONOUR:        It also says there: ‘I suggest to you that you may wish to await the outcome of the re-hearing application before lodging an appeal.’
MR SAMBASTIAN:    Yeah. Well, the reason why I wasn’t prepared to await the re-hearing application was because the re-hearing application was submitted as a late application to the Magistrates Court.
HER HONOUR:        The registrar made it plain to you through his email, and through the affidavit, that it had been lodged and you were going to be granted a re-hearing.
MR SAMBASTIAN:    Yes, but - no, it didn’t say - he said that he lodged it. If you look at No.8, I think it was, if you read No.8.
HER HONOUR:        Yes.
MR SAMBASTIAN:    That’s what he said on 31 February, but on the - but No.8 says, after the first paragraph ‘You will note that the attached application is an application by myself at my - the application has been accepted outside the 14 days’. So, in other words, the application for a re-hearing at the Magistrates Court is now not within time, they are claiming it’s out of time.
HER HONOUR:        But they were going to grant you a hearing still.
MR SAMBASTIAN:    I don’t know, the application was made, I don’t know if I was granted a hearing. There would have been a directions hearing or something to find out if it was granted, and at that stage they are saying I was already - they are saying that the application was going to be submitted out of time, and it shouldn’t have been submitted out of time, it should have been submitted as is or in time. That’s when I appealed to the Supreme Court. That’s when I rang up the Legal Aid and they told me to appeal to the Supreme Court.
The appellant told the Court that he had sent the email to the Magistrates Court on 14 February 2022 advising that he would not be able to attend the hearing on 16 February 2022 because of his injury, and in doing so acknowledged that he was aware at that time that his application for a review was still proceeding in the Magistrates Court. The appellant went on to elaborate and provide a further explanation:[8]
HER HONOUR:        Aren’t you sending an email for that very purpose, of saying you can’t attend the hearing?
MR SAMBASTIAN:    Then I got a notice saying I have got a hearing on the 16th and I’m saying I can’t attend because I’m in hospital. I was under a lot of pain killers and I was going through surgery and all sorts of stuff at the hospital.
HER HONOUR:        I appreciate that.
MR SAMBASTIAN:    I was doing this on my mobile phone, so it was quite hard to read. I’ve also got concussion and blurred vision, so I was finding it - and I’ve still got a bit of blurred vision from the accident. And they said that’s a symptom of the accident, it should go away. But, yeah, I was having a lot of difficulty in reading emails due to being in hospital and due to having concussion. So I obviously misread Popplewell’s email, I didn’t realise he was going to submit it on my behalf. That’s why I said I obviously did not authorise or, you know - I wasn’t expecting him to submit it for me, I didn’t think he could actually, but I didn’t read the email properly.
[8]     T19-30.
The appellant told the Court that he did not remember receiving the Supervising Registrar’s response later that afternoon in which he advised that the appellant’s email would be placed on the court file to be considered by the Court on 16 February 2022, however the appellant accepted that he appears to have responded to that email the following day.
When asked about the email dated 18 February 2022 in which the Supervising Registrar advised that the hearing on 16 February 2022 had been adjourned until 23 March 2022, the appellant again said that he could not recall reading it. The appellant accepted that he sent an email to the Christies Beach Magistrates Court Registry on 22 February 2022 advising that he had filed appeal papers in the Supreme Court and requesting that the hearing on 23 March 2022 be vacated on the basis that it would no longer be required.
When asked about why the appellant had asked for the hearing in the Magistrates Court to be adjourned, he explained:[9]
[9]     T22.
HER HONOUR:        So you were asking the court to vacate your hearing in the Magistrates Court -
MR SAMBASTIAN:    Yes.
HER HONOUR:        - for an application for a retrial?
MR SAMBASTIAN:    Yes.
HER HONOUR:        Why?
MR SAMBASTIAN:    Because my application for a retrial was deemed as a late application, and I just don’t know the ramifications for that, and I think that was detrimental, it might not have been right on the application because it was said to be out of time.
HER HONOUR:        Do you raise that anywhere in the correspondence with the registrar, or anyone from the Magistrates Court?
MR SAMBASTIAN:    No, I didn’t think I had to because I had lodged it to the Supreme Court.
And then later:[10]
[10] T24-25.
MR SAMBASTIAN:    … And my application says that that was not my application, submitted without my consent, I wasn’t aware that by sending him a copy of the application I was consenting to it being re-submitted.
HER HONOUR:        Didn’t you want it to be re-submitted?
MR SAMBASTIAN:    No, not once I saw that the application was out-of-date, out of time. Once Popplewell sent me the email saying that my application is now - he’s accepted my application, not the court. He has accepted my application as being out of time by 14 days.
HER HONOUR:        I understand.
MR SAMBASTIAN:    So now my application is out-of-date, out of time. It’s an out of time application which is - it’s not the same as being an on time application, which mine originally was.
HER HONOUR:        You’d also been told by this time though that your application in the Supreme Court was also out of time?
MR SAMBASTIAN:    No.
HER HONOUR:        I’m going back to the email from the registrar of the Supreme Court.
MR SAMBASTIAN:    I didn’t read that part. I didn’t realise that.
I found the appellant’s explanation for how these events unfolded to be inconsistent and implausible. Whenever there was an email that undermined the narrative that the appellant was attempting to present to the Court, he reverted to an absence of memory, a claim of a failure to read the emails and the impact of his hospitalisation. Whilst I do not underestimate the impact of the appellant’s injuries, I find his explanation that this was the reason that he was unable to read emails in the context of being capable of filing a Notice of Appeal in the Supreme Court inconsistent to say the least.
I do not know the reason why the appellant attempted to manipulate the process in the manner in which he did, however, I do not accept his claim that he did not appreciate that he had a remedy open and available to him in the Magistrates Court.
It is my view that a far more likely explanation and obvious inference from the communications is that the appellant became frustrated with the manner in which events were unfolding in the Magistrates Court. That frustration or dissatisfaction resulted in him pursuing an alternative remedy in this Court, perhaps in the knowledge of his expedient success in this jurisdiction in the past.
Prospects of a successful appeal
That then brings me to the final factor to be considered on an application for an extension of time and that is whether there are some prospects that the appeal will be successful.
Even if there is no satisfactory explanation for the delay, the appellant may still be entitled to an extension of time if the appellant can show that the absence of an extension of time might lead to a miscarriage of justice.
In R v Trotter,[11] Walters J said:
In dealing with the application, the court will consider whether there is any substantial point of law to be argued on appeal, and whether there exist any substantial grounds for apprehending a miscarriage of justice. And if the proposed notice of appeal or application for leave to appeal discloses no sufficient grounds of appeal, the application for extension of time will not be granted.
[11] (1979) 22 SASR 64 at 65.
In Police v Hill,[12] Debelle J outlined the approach in similar terms:
The court has a discretion whether to grant an extension of time within which to appeal. That discretion exists for the sole purpose of doing justice between the parties… When exercising that discretion it will have regard to the length of the delay, the reasons for it, whether there is an arguable case and the extent of any prejudice suffered by the intended respondent… A distinction is to be drawn between an application for an extension of time within which to appeal and an application for an extension of time to set down an appeal which has been already instituted... This application is obviously an instance of the former.
When considering whether an appellant has an arguable case, the court does not go into “much detail on the merits”… An appellant will not have an arguable case if it is clear that the appeal will fail and in that sense is not “arguable” or not “fairly arguable”…
[12] (2005) 93 SASR 307 at [11]-[12].
I turn then to the application of these principles to the current matter.
Grounds of appeal
The appellant set out his grounds of appeal as follows:
1.i was not present for trial applied for rehearing application was ignored
2.do not believe i was speeding
3.camera van redfex was parked in a emergency vehicles only parking space
4.proper calculation of speed were not used
5.sinage was inappropriate inaffective possibly
6.insificient notification of exceesing speed limit was given, making defence difficult
Ground 1: i was not present for trial applied for rehearing application was ignored
There is no dispute that the trial proceeded in the appellant’s absence. That was a course reasonably open to the Magistrate given that the appellant had been present at Court when the matter was listed for trial and no explanation had been given for his absence.[13] The Magistrate in fact adjourned the commencement of the trial for approximately 20 minutes in case the appellant was running late.[14]
[13] This is to be contrasted with the numerous other occasions when the appellant had failed to attend Court but had provided an explanation.
[14] T2.
As is apparent from the detailed history of this matter, limb two of ground 1 is incorrect. It was the appellant who abandoned the application for a rehearing. I have formed the view based on the objective evidence of the email communications that the appellant’s explanation that he believed that his application for a rehearing was being ignored by the Court is disingenuous. There is no merit to this ground of appeal.
Ground 2: do not believe i was speeding
In submissions the appellant further elaborated on this ground of appeal. He said:[15]
Once you come off the ramp from the minor road to the southern expressway, the speed limit’s 100 km/hr, and I did not see any other sign after that, that indicated that I was supposed to be going 80 km/hr. So I was following what I was the speed limit. I’m not sure if I was going 80 or 100. I’m not too sure.
…
They’ve got, after going to the Christies Beach courthouse, I proceeded on the same road a number of times and they had illuminated 80 kilometre signs up, but not all the time. Sometimes the signs weren’t illuminated at all, there was no sign at the top. But they did have really small signs on either side of the road which indicated 80 ks an hour, and if I was in the third lane, they could have been obstructed. Any vehicle in the other lane would have obstructed a view of my side. So that’s a possibility, there was a high possibility that the signs weren’t illuminated that day.
[15] T27-T28.
Curiously in that submission the appellant appeared to admit that he has no memory of whether he was speeding or not and that it was no more than a possibility that the signs were not illuminated that day.
Regardless, there is also no merit to this ground of appeal. This Court has previously held, on numerous occasions, that speeding offences are offences of absolute liability and, therefore, the defence of honest and reasonable mistake of fact is not available. It does not matter whether the appellant believed at the time of driving or now with retrospect, that he was speeding. He is still guilty of the offence.
Ground 3: camera van redfex was parked in a emergency vehicles only parking space
In this ground the appellant appears to be asserting that the evidence from the speed camera was obtained illegally because the relevant police vehicle was parked in an emergency stopping lane. The appellant contends that as a consequence the evidence should be excluded.
This ground falls at a number of different hurdles.
The first is that there is no evidentiary basis for this submission. There is no evidence that the appellant can point to that establishes that the police vehicle was parked as alleged. Indeed, photographs A and B of Exhibit P6, photographs that were taken by the speed camera, show that the vehicle in which the camera was located was parked off to the side of the road.
Further, whilst r 178 of the Road Rules creates an offence for a driver to stop in an emergency stopping lane unless certain conditions are met, r 307(2) creates an exception to that rule. It sets out that r 178 does not apply to a driver who is an authorised person driving a vehicle in the course of his or her duty as an authorised person if, in the circumstances, the driver is taking reasonable care and it is reasonable that the provision should not apply.

Regulation 43 of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) states that a person engaged in, amongst other things, the operation of a traffic speed analyser or photographic detection device for or on behalf of the South Australian Police Department, is an authorised person for the purpose of r 307(2) of the Road Rules. It is a matter of logic, as well as inference based on the exhibit photographs, that the driver of the police vehicle was taking reasonable care. It follows that even if the police vehicle was parked in the emergency stopping lane (and there is no evidence of this) their conduct was not unlawful. This ground has no merit.
Ground 4: proper calculation of speed were not used
This ground relates to the issue that the appellant has taken since the time of the first trial about the failure of the prosecution to demonstrate the means by which the speed at which his car was travelling was calculated.
As mentioned previously, the appellant’s trial comprised of a series of evidentiary certificates pursuant to the Road Traffic Act 1961 (SA). The relevant portion of the transcript follows:[16]
[16] T3-4.
APP DICKER: Certificate tendered pursuant to s 79B(10)(b) and (c) of the Road traffic Act 1961, which in the absence of proof to the contrary establishes that the Redflex Radarcam Mobile Dual Radar Digital Camera System was a photographic detection device pursuant to s 29 of the Road Traffic (Miscellaneous) Regulations 2014 and the device has been operated and tested in accordance with the Act and Regulations. Also the device was designed and set up to operate according to a specified system during that period.
EXHIBIT #P3 CERTIFICATE TENDERED BY APP DICKER. ADMITTED.
APP DICKER: Certificate tendered pursuant to s 175(3)(ba) of the Road Traffic Act 1961, signed by an officer of police proves in the absence of proof to the contrary that the traffic speed analyser, known as the Redflex Radarcam Mobile Dual Radar Digital Camera System has been tested on 9 March 2020 by comparison with a speedometer attached to a police vehicle, registration number S533BWC and shown to be accurate.
EXHIBIT #P4 CERTIFICATE TENDERED BY APP DICKER. ADMITTED.
APP DICKER: Certificate tendered pursuant to s 175(3)(b) of the Road Traffic Act 1961, this establishes that the speedometer attached to police vehicle registration number S533BWC was tested on 24 January 2020. The speedometer on that vehicle was shown to be accurate to the extent it indicated the actual speed was 76 kilometres an hour, indicated the speed was 80 kilometres an hour.
EXHIBIT #P5 CERTIFICATE TENDERED BY APP DICKER. ADMITTED.
APP DICKER: Lastly, tendered under s 79(B)(10)(a) of the Road Traffic Act 1961 which allows for admission into evidence a series of photographs if produced from an exposure taken or electronically recorded by a photographic detection device and the requirements of the Act and Regulations re operating and testing had been complied with. The notation as to the date, time and location on the photographs accepted as proof in absence of the proof to the contrary of the date, time and location where the exposure was taken electronic records were made. So that’s P6, A, B, C and D being four photographs.
EXHIBIT #P6 FOUR PHOTOGRAPHS TENDERED BY APP DICKER.
Against these statutory presumptions, there is no evidential basis for this ground or the supposed error.[17] There is no merit to this ground of appeal.
Ground 5: sinage was inappropriate inaffective possibility
[17] That is despite the appellant having been provided with access to the manufacturer’s manual.
It would appear that in relation to this ground the appellant raises no more than it was “a possibility” that the signage was inappropriate or ineffective. The wording of the ground itself demonstrates the absence of any evidentiary basis for this ground of appeal. Absent any foundation in the evidence, this ground is clearly doomed to fail.
Ground 6: insificient notification of exceesing speed limit was given, making defence difficult
In this ground the appellant appears to assert that he was given insufficient notification that he had exceeded the speed limit.
It is not clear what sort of notification that the appellant claims that he should have received. Given that it is now over two years since the commission of the offence, it is difficult to see what disadvantage or prejudice the appellant has suffered as a consequence, even if he did initially receive insufficient notification. There is no evidentiary foundation for this ground and it is without any merit.
Conclusion
The Notice of Appeal discloses no arguable grounds of appeal. The appellant has not provided a satisfactory reason for the delay, nor has the appellant demonstrated that there will be a real possibility that a miscarriage of justice might occur by the failure to extend time.
I make the following orders:
1. The application for an extension of time is refused.
2. The appeal is dismissed.