Taskesen v McKellar
[2015] ACTSC 305
•30 September 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Taskesen v McKellar |
Citation: | [2015] ACTSC 305 |
Hearing Date(s): | 30 September 2015 |
DecisionDate: | 30 September 2015 |
Before: | Burns J |
Decision: | The appeal is dismissed. The orders made by the Magistrate are confirmed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – drug offences – driving with a prescribed drug in oral fluid – repeat offender. APPEAL – Appeals From Magistrates – where the appellant failed to take the next step to prepare the appeal for hearing – where the appellant is self-represented – respondent filed strike out application – where the appellant has continuously failed to appear –– appeal dismissed. |
Legislation Cited: | Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 20 (1) |
Parties: | Ali Taskesen (Appellant) The Crown (Respondent) |
Representation: | Counsel No appearance (Appellant) Ms E Beljic (Respondent) |
| Solicitors No appearance (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 34 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 2 April 2015 Case Title: McKellar v Taskesen Court File Number(s): CC15/01445 |
BURNS J:
I have before me an application dated 25 August 2015 by the respondent seeking orders that the appellant show cause as to why the present appeal should not be dismissed for want of prosecution and also, secondly, that if the appellant failed to show such cause that the appeal be dismissed and the orders appealed from confirmed.
The background to the appeal is that on 2 April this year the appellant was charged with an offence contrary to s 20 (1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) alleging that as a repeat offender, on 28 December 2014, having been the driver of a motor vehicle on a road, he did, within the relevant period, have a prescribed drug in his oral fluid.
On that day he entered a plea of guilty and he was convicted and fined $500 and was disqualified from holding or obtaining a driver's licence for a period of two years.
I note, in passing, that the prescribed drug which was detected in the oral fluid of the appellant was methyl amphetamine. A criminal history, which was placed before the Magistrate on 2 April this year, revealed that the appellant had a previous conviction for a drink driving offence in the Magistrates Court on 7 April 2009.
On 15 April this year the appellant lodged an appeal in this Court in which he appealed from the order of disqualification of licence imposed by the Magistrate. It is clear that the appellant was not legally represented at the time that he drafted the Notice of Appeal and, indeed, I note that he was not legally represented at the time that he appeared in the Magistrates Court. In essence, in the Notice of Appeal, the appellant claims that the disqualification period imposed was too harsh.
It is quite clear that since the Notice of Appeal was lodged the appellant has done little to progress these proceedings. On 4 June this year the matter came before the Deputy Registrar at which time there was no appearance on behalf of the appellant. The proceedings were adjourned to 25 June at 2.30 pm and the Registry notified the appellant of the adjournment and also of the need for him to obtain the transcript of the proceedings before the Magistrate.
On 25 June the appellant appeared in person. The record of the proceedings before the Deputy Registrar indicate that the appellant advised that he had applied for legal assistance. The matter was then adjourned to 16 July at 2.30 pm. On 16 July there was no appearance on the part of the appellant and the matter was adjourned until 6 August with the Registry to notify the appellant.
On 6 August there was, again, no appearance by the appellant. The matter was adjourned to 27 August at 2.30 pm and it was noted at that time that a strike out application was foreshadowed. On 27 August there was, again, no appearance of the appellant in the proceedings before the Deputy Registrar and the Deputy Registrar noted that he was advised that there was a strike out application listed before this Court on 16 September. The matter was then adjourned to 17 September at 2.30 pm.
On 16 September the application to strike out the appeal, which had been lodged on 25 August, came before the Chief Justice. At that time the matter was adjourned to 30 September, today, before me. Notice of today's date has been provided to the appellant by the Registry, in accordance with orders made by the Chief Justice on 16 September this year. In addition to which, on 17 September the appellant did appear before the Deputy Registrar.
The proceedings before the Deputy Registrar were adjourned until 8 October at 2.30 pm. I note that no transcript has been obtained by the appellant of the proceedings in the Magistrates Court so that, again, the appeal is in limbo. However, it is clear from the record of the proceedings before the Deputy Registrar on 17 September that the appellant was advised that the proceedings were to be listed before me for a strike out application today.
Ms Beljic, who appears on behalf of the respondent to the appeal and the applicant for the strike out orders, was present in the proceedings before the Deputy Registrar on 17 September. She has advised me that the appellant was advised that he was required to attend today for the hearing of the application to strike out the appeal.
It is now 10 am and the matter was listed at 9.30 am. There has been no appearance today by the appellant, nor has there been any explanation for him failing to attend. Effectively, no steps have been taken by the appellant to bring this appeal on or indeed, even to prepare it for hearing since the appeal was lodged in April this year. In those circumstances I strike out the appeal. It will be dismissed for want of prosecution and the orders made by the Magistrate will be confirmed.
| I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 14 October 2015 |
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