Sewell v Police No. Scgrg-98-1376

[2000] SASC 134

SEWELL v POLICE
[2000] SASC 134

Full Court:  Doyle CJ, Duggan and Lander JJ (ex tempore)

1. DOYLE CJ:       The applicant, Dennis Christopher Sewell, has applied by application dated 5 April 2000 for an order extending the time within which he may make application for leave to appeal, and if that order is granted for leave to appeal against the judgment of Millhouse J in this matter delivered on 9 November 1998. 

2. By that judgment, Millhouse J dismissed the applicant’s appeal against the decision of the Magistrates Court, by which decision the applicant was convicted of the offence of assault occasioning actual bodily harm. 

3. There is no record of any application having been made to Millhouse J for leave to appeal.

4. An application for leave to appeal is to be made within 14 days from the date of delivery of the judgment.  The present application for leave to appeal, subject to the making of an order extending time, is made some 17 months after the delivery of judgment by Millhouse J. 

5. The application for an extension of time and for leave to appeal are, to some extent, intertwined.  The application for leave to appeal would be made, if permitted, upon the basis that the applicant wishes to tender fresh evidence in support of the appeal.  The fresh evidence relates to the incident as a result of which the applicant was convicted.  The extension of time within which to appeal is sought on the basis that obtaining that evidence, and obtaining legal representation, adequately explained the delay that has occurred.  The relevant circumstances are set out in an affidavit by the applicant, and other affidavits filed in support of the application. 

6. The application has been considered by the Full Court in private pursuant to Rule 94.03 of the Supreme Court Rules.  The application was considered by the Full Court, comprising me, Duggan J and Lander J. 

7. We are unanimously of the opinion that the application for an order extending time within which to appeal should be refused.

8. We are of that view because, in our opinion, there is no reasonable prospect of the application to tender fresh evidence on the appeal succeeding. 

9. As to the proposed evidence from Mr Oates, that evidence goes only to the credit of two prosecution witnesses.  The affidavit evidence does not adequately explain the failure to call Mr Oates at the trial.  Nor is the delay in obtaining the relevant evidence from Mr Oates adequately explained. 

10. The applicant also seeks to call evidence from his brother.  As to that evidence, the court is again of the view that the failure to call the applicant's brother at trial is not adequately explained, nor is the delay in the obtaining of the relevant material from the brother. 

11. In short, for those brief reasons, the court is of the view that an application on the hearing of the appeal to tender this further evidence has no reasonable prospect of success.  It reaches that view having regard in part to the weight of the evidence, and in part to the inadequate explanation for the failure to present the evidence at trial. 

12. As to application for extension of time, the court is of the view that explanation for the substantial delay is inadequate in any event. 

13. For those reasons the order of the court is that the application for an extension of time be refused.