Tew v Police - [2013] SASC 75

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
TEW v POLICE
[2013] SASC 75
Judgment of The Honourable Justice White (ex tempore)
13 May 2013
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
TRAFFIC LAW - OFFENCES - GENERALLY
The appellant was convicted and sentenced in his absence for the offence of entering a level crossing while lights and warning bells were operating - he did not attend the hearing because of a misunderstanding as to the date fixed for the trial - respondent conceded that the appeal should be allowed in the interests of justice.
Held (allowing the appeal):
(1) The appellant's misunderstanding provides an adequate explanation for his non-attendance at trial.
(2) The appellant established plausible grounds on which to defend the charge and he had evidenced his intention to do so.
(3) Matter remitted for retrial.
Summary Procedure Act 1921 (SA) s 62, s 62BA, s 76A; Australian Road Rules r 123, referred to.
Maider v Dancis (1985) 39 SASR 136; Grant v Irrgang (1991) 160 LSJS 334, considered.

TEW v POLICE
[2013] SASC 75
Magistrates Appeal

WHITE J. On 10 December 2012 the appellant was convicted and sentenced in his absence in the Magistrates Court for the offence of driving a vehicle into a level crossing at a time when warning lights and warning bells were operating.[1]
[1] Contrary to r 123(a) of the Australian Road Rules.
The appellant, who is unrepresented, appeals against the conviction and sentence. There are two grounds of appeal. The appellant asserts that he did not commit the offence and, perhaps more fundamentally for present purposes, that the reason he did not attend the Magistrates Court on 10 December 2012 was that he understood his trial was to take place on 19 December 2012.
The appellant did not commence his appeal in this Court until 28 February 2013. This was outside the 21 day period allowed for such appeals. Accordingly, the appellant seeks an extension of time in which to commence the appeal.
The prosecution consents to the grant of an extension of time and concedes that the appeal should be allowed. For the reasons which follow, I agree that orders to that effect should be made.
The alleged offence was committed on 25 August 2011 but the prosecution was not commenced until 5 June 2012. The appellant appeared unrepresented in the Magistrates Court on 9 July and 8 August 2012 before attending the pre‑trial conference on 3 October 2012. On that day, according to the Magistrates Court records, the matter was listed for trial on 10 December 2012.
When the appellant did not appear at the trial on 10 December, the Magistrate proceeded under ss 62 and 62BA of the Summary Procedure Act 1921 (SA). After hearing evidence from the reporting police officer, he found the charge proved beyond reasonable doubt, recorded a conviction and imposed a fine of $400 in addition to costs and the victim of crime levy.
The appellant then made an application under s 76A of the Summary Procedure Act to have the conviction and sentence set aside. That application was heard on 5 February 2013. The Magistrate who heard that application (not the Magistrate who imposed the conviction and sentence) took the view that an order could not be made under s 76A in the circumstance that the trial had proceeded in the appellant’s absence. He suggested to the appellant that his proper recourse was an appeal to this Court. The appellant then commenced the present appeal on 28 February 2013.
The correctness or otherwise of the view of s 76A taken by the Magistrate on 5 February 2013 was not in issue on this appeal.[2]
[2] Cf Maider v Dancis (1985) 39 SASR 136.
The appellant contends that he had a good defence to the charge, asserting that he did not enter the level crossing until the warning lights and warning bells had ceased operating. He intended to give evidence to that effect at the trial and to lead similar evidence from his front seat passenger. The appellant exhibited to his affirmation in support of the appeal a statement from that passenger which, on its face, confirms the appellant’s account. In addition, the appellant asserts that other vehicles had entered the level crossing before he did, and contends that this too provides evidence that the bells and warning lights had ceased operating when he entered the crossing.
Counsel for the respondent accepted, without requiring formal proof, that the appellant may have had a misunderstanding about the date upon which the trial was to take place. That misunderstanding may have resulted from him mishearing the date for trial fixed by the Magistrate presiding at the pre‑trial conference, or perhaps from some misunderstanding as to the effect of the discussion which the appellant had with that Magistrate about his availability to attend on 10 December. It is not necessary in light of the respondent’s concession for me to reach a final conclusion about that.
The Magistrate on 10 December 2012 was justified in proceeding in the appellant’s absence. It must have seemed to him that the appellant was aware of the trial being listed that day; he had waited some 30 minutes after the scheduled commencement time of the trial before calling the matter on to allow for the possibility the appellant had been running late; and the appellant’s non‑attendance was proved.
However, this is a case in which the interests of justice require that the appeal be allowed.
The governing principle is similar to that stated by Cox J in Maider v Dancis[3] in relation to the exercise of a court’s power under s 76A of the Summary Procedure Act to set aside a conviction or order:
Certainly, convictions and orders are not to be set aside on grounds that are unmeritorious or otherwise inadequate. The rights and interests of the respondent are to be considered, not only those of the applicant. There will be times when it will be appropriate to have regard to the substantial merits of a proposed defence, and times when it will not. There may be other useful ways of probing the merits of an application. But in the end, ... it will be a matter of doing what the justice of the case in hand requires.[4]
[3] Ibid.
[4] Ibid at 142.
Many of the principles governing the exercise of the Magistrates Court jurisdiction to set aside convictions and orders under s 76A of the Summary Procedure Act were reviewed by Debelle J in Grant v Irrgang.[5] It is not necessary to review those principles in detail for the purposes of the present appeal.
[5] (1991) 160 LSJS 334 at 337-9.
In deciding that the interests of justice in the present case require the appeal to be allowed, I take account of the following matters. First, the respondent does not dispute the appellant’s explanation for not attending at Court on 10 December 2012. His misunderstanding as to the date provides an adequate explanation for that non‑attendance. Secondly, the Magistrates Court records show that the appellant had intended to deny his guilt of the charged offence, as evidenced by his participation in the pre‑trial conference and by his seeking a trial. There is no reason to suppose that he had abandoned that intention. Thirdly, the appellant has established that he has plausible grounds for defending the charge, although I am not thereby to be understood as making any assessment at all of the merits of the prosecution case or of the defence. Fourthly, it is apparent that the appellant took reasonably prompt action after being notified of the conviction to seek to have it set aside by invoking s 76A of the Summary Procedure Act.
The appellant has also provided a satisfactory explanation for the appeal to this Court being commenced out of time.
Accordingly, I make the following orders:
1.I grant the appellant an extension of time to 28 February 2013 for the commencement of the appeal.
2.     I allow the appeal.
3.     I set aside the orders of the Magistrate made on 10 December 2012.
4.I remit the matter to the Magistrates Court for hearing before another Magistrate.
5.     By consent, I make no order as to costs of the appeal.