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…

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] SASC 78
Decision Date: 3 August 2022

CaseChat Overview and Summary

Sambastian has appealed against his conviction and sentence for exceeding the speed limit. The appeal is to the Supreme Court of South Australia. The appellant argued that he was not properly notified of the offence and did not receive adequate time to prepare his defence. The court was required to decide whether the appellant had provided a satisfactory reason for the delay in filing the appeal and whether there was a real possibility of a miscarriage of justice due to the delay.

The court found that there was no evidentiary foundation for the appellant's claim of insufficient notification and that the appellant had not provided a satisfactory reason for the delay in filing the appeal. The appellant also did not demonstrate that there was a real possibility of a miscarriage of justice due to the delay. The court noted that the appellant's argument was speculative and did not provide any specific details or evidence to support his claim.

The court concluded that the appellant had not demonstrated any arguable grounds of appeal and that the appeal should be dismissed. The court refused the appellant's application for an extension of time to file the appeal and dismissed the appeal. The court found that the appellant had not provided a satisfactory reason for the delay and had not demonstrated that there was a real possibility of a miscarriage of justice due to the delay. The court noted that the appellant's argument was speculative and did not provide any specific details or evidence to support his claim.

The court made two orders. Firstly, it refused the appellant's application for an extension of time to file the appeal. Secondly, it dismissed the appeal. The court found that the appellant had not provided a satisfactory reason for the delay and had not demonstrated that there was a real possibility of a miscarriage of justice due to the delay. The court noted that the appellant's argument was speculative and did not provide any specific details or evidence to support his claim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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