SAMBASTIAN v Police

[2010] SASC 46

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

SAMBASTIAN v POLICE

[2010] SASC 46

Judgment of The Honourable Justice Duggan (ex tempore)

9 February 2010

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT - CONVICTIONS - SETTING ASIDE AND REVOCATION

Appeal against refusal of Magistrate to set aside conviction for speeding offence – appellant informed of incorrect date for hearing and did not appear at hearing – conviction recorded and fine imposed in appellant's absence – appellant claimed that he had been misinformed as to date of hearing and did not appear as a consequence – prosecution contested appellant’s version but discovered after the hearing that police records contained incorrect date for hearing – this information not available to Magistrate – whether seriousness of the offence relevant to determining the interests of justice pursuant to s 76A of the Summary Procedure Act.

HELD: appeal allowed – the dismissal of the appellant's application to set aside the conviction will be set aside – conviction set aside in light of fresh evidence and in the interests of justice – minor nature of offence not relevant to interests of justice assessment – matter remitted to Adelaide Magistrates Court for trial.

Summary Procedure Act 1921 (SA) s 76A, referred to.

SAMBASTIAN v POLICE
[2010] SASC 46

Magistrates Appeal:   Criminal

1. DUGGAN J (ex tempore):             The appellant has appealed against the refusal of the Chief Magistrate to set aside a conviction for a speeding offence.

2. The appellant intimated a plea of not guilty to the charge which was heard on 12 November 2009.  He did not appear at the hearing and leave was granted by the Chief Magistrate for the matter to be heard ex parte.  The Chief Magistrate recorded a conviction and fined the appellant the sum of $227.

3. The appellant subsequently applied for the conviction to be set aside and the matter reheard pursuant to s 76A of the Summary Procedure Act 1921 (SA).  At the hearing of this application the appellant advised the court that he had been mistakenly informed by the police that the trial was listed for 13 November 2009.  The application was opposed.  The police prosecutor told the Magistrate that the appellant had been advised by letter dated 26 October 2009 that the trial would be held on 12 November 2009.

4. At the hearing of the application to set aside the conviction the appellant advised the Chief Magistrate that he had telephoned the Eastern Adelaide Criminal Justice Section in relation to the matter and was told that the trial was listed for hearing on 13 November 2009, not 12 November 2009.  He said that this was the reason why he did not attend on 12 November 2009.  He also said that he attended on 13 November 2009 and was advised that the trial had taken place on the previous day.

5. In the light of the letter which the prosecutor advised the Chief Magistrate had been sent to the appellant, the application to set aside the conviction was opposed. The Chief Magistrate, acting on the information before her, refused the application.

6. However, in an affidavit dated 2 February 2010, the prosecutor stated that when he returned to his office on 1 December 2009, after the hearing of the application to set aside the conviction he discovered that the South Australia Police records had incorrectly recorded the trial dates. He stated in the affidavit that the appellant had been charged with another offence and the trial dates for the offences had been reversed.  He said that the charge of speeding was incorrectly recorded as being listed for trial on 13 November 2009 instead of 12 November 2009.

7. In an email sent to this Court prior to the hearing of the appeal, the appellant set out in some detail the circumstances in which he said he contacted the Eastern Adelaide Criminal Justice Section and was advised that the trial was listed for 13 November 2009.  The email has been accepted by the Court without opposition from the respondent.

8. The appellant said that after he was told on 13 November that the trial had taken place on the previous day, he contacted the Criminal Justice Section and was told that the date of the hearing on the computer was wrong.  The computer record indicated that the date fixed for the trial was 13 November when it should have been 12 November. 

9. It is clear that the Chief Magistrate was unaware of the information which has now come to light and which would have had obvious relevance to the merits of the application before her.

10. In my view it is no coincidence that the police records were wrong. It quite clearly tends to support the appellant’s version that he did make some inquiries and, if the inquiries had been answered by reference to the computer record, then he would have been given the wrong date.

11. Section 76A of the Summary Procedure Act provides as follows:

    76A—Power to set aside conviction or order

    (1)The Court may, on its own initiative or on the application of any party, set aside a conviction or order.

    (2)An application to set aside a conviction or order under this section must be made within 14 days after the applicant receives notice of the conviction or order.

    (3)The 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 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.

12. Mr Williams, for the respondent, has addressed me on the matters which I should take into account in determining whether it is in the interests of justice to set aside the conviction.  He agreed that this was not a particularly serious offence and that I should take that into account.  However, it does not matter how serious or how minor the offence was.  It is fundamental that a person who pleads not guilty is entitled to have the merits of the matter decided by a court.

13. Mr Williams pointed out that the appellant had failed to attend on two previous occasions and that this should have some bearing on the decision as to whether to set aside the conviction.  However, the applications to set aside convictions recorded in the appellant’s absence were successful and it must be inferred that there were good reasons for setting aside the convictions.

14. If the information which is now available, had been put before the Chief Magistrate, it would have been appropriate to set aside the conviction in the interests of justice.  The appellant has provided an acceptable explanation as to why he did not attend on 12 November.  He was unwittingly misinformed as a result of an incorrect entry in the records which were consulted when he made the telephone inquiry as to when the case was listed.

15. In these circumstances the appeal will be allowed. The dismissal of the appellant’s application to set aside the conviction will be set aside. In lieu thereof the application to set aside the conviction will be allowed.  The matter is remitted to the Adelaide Magistrates Court for trial.