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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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. 

6. 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.

7. The appellant then made an application…