Van Reesema v Flavel
[2004] SASC 421
•16 December 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VAN REESEMA v FLAVEL
Judgment of The Honourable Justice White
16 December 2004
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - MISCARRIAGE OF JUSTICE
In 1991 appellant was convicted of, and sentenced for, 12 offences against s 227(2) of the Companies (South Australia) Code - An appeal against sentence only was allowed in 1992 - Appellant left Australia and failed to appear at the hearing of his appeal - Appellant failed to appear in Magistrates Court for resentencing in 1992 on five occasions - Appellant sentenced in his absence on fifth occasion - Warrant of Commitment issued - Appellant returned to Australia in 2000 - Warrant of Commitment executed in 2004 - Appellant applied under s 76A of the Summary procedure Act to set aside orders made in 1992 - Application refused by Chief Magistrate - Appellant appealed against decision of Chief Magistrate - Appellant granted leave to amend notice of appeal so as to include an appeal against the 1992 orders - Appellant was sentenced in 1992 for offences against s 227(1) of the Code rather than the offences against s 227(2) of which he had been convicted - Imprisonnment for offences of which appellant had not been convicted amounted to miscarriage of justice - Application for extension of time to institute appeal against sentence granted - Appeal against sentences imposed in 1992 allowed - Unnecessary to determine appeal from decision of Chief Magistrate.
Summary Procedure Act 1921, s 62C, s 76A; Companies (South Australia) Code 1981, s 227, s 555; Supreme Court Rules 1987, Rule 97.04, referred to.
Jackamarra v Krakouer (1998) 195 CLR 516; Boomalli Ltd v Hake [1985] WAR 7; In re Coles and Ravenshear [1907] 1 KB 1; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405; Christie v Harvey and Hayward (1900) 2 WALR; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; [1985] 2 All ER 517; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Police v Warren [2000] SASC 285, considered.
VAN REESEMA v FLAVEL
[2004] SASC 421-
Magistrates Appeal
WHITE J: On 27 August 2004, the Chief Magistrate dismissed applications brought by the appellant pursuant to s 76A of the Summary Procedure Act 1921. By that decision, the Chief Magistrate refused to set aside the “conviction/order” made by another Magistrate in the Adelaide Magistrates Court in August and, or in the alternative, in September 1992. I have italicised the words “conviction/order” because there is some uncertainty as to precisely what it was that the appellant sought to have set aside.
These proceedings commenced as an appeal by the appellant from the Chief Magistrate’s order of dismissal of the s 76A applications. At the commencement of the hearing of the appeal, I granted the appellant leave to amend the Notice of Appeal so as to include an appeal against the “convictions entered on 12 August 1992 and 4 September 1992 and sentences imposed on 4 September 1992.” I will identify more precisely below the “convictions” and “sentences” against which the appellant wishes to appeal. In the amended Notice of Appeal, the appellant sought an extension of time for the institution of the appeal against the 1992 convictions and orders.
Background History
This is a matter with a considerable history. The conviction or order (or convictions or orders) which the appellant seeks to have set aside were made in the Magistrates Court approximately 12 years ago.
On 8 February 1988 the appellant was convicted of two offences under s 555 of the Companies (South Australia) Code 1981 (“the Code”). A consequence of that conviction was that the appellant was prohibited from being a director of a corporation for a period of five years without the leave of the Court. Non-compliance with that prohibition was an offence punishable by a fine of $5,000 or imprisonment for one year or both (s 227(2) of the Code).
On 8 May 1991, after a trial, a Magistrate found the appellant guilty of 12 separate contraventions of s 227(2), each charged in a separate summons. The Magistrate then conducted a disputed facts hearing in relation to the submission made by the appellant in mitigation, before sentencing the appellant on 16 May 1991. Convictions were entered on each of the 12 summonses. The appellant was sentenced to a period of imprisonment in relation to each contravention. Some of the terms of imprisonment were ordered to be served concurrently and others cumulatively. The total period of imprisonment to be served was 24 months. The Magistrate fixed a non-parole period of 12 months.
Immediately after the sentences were imposed, the appellant applied for bail pending the determination of an appeal to this Court. Upon being satisfied that an appeal had been duly instituted, the Magistrate released the appellant from custody upon his entering into bail agreements in the sum of $1,000 in his recognizance and subject to terms. Each of the bail agreements was in the same form and contained the same conditions.
In each of the bail agreements, the appellant’s address was noted as 31 Myrtle Avenue, Myrtle Bank. By each of those bail agreements, the appellant agreed “to be present at the Supreme Court of South Australia at Adelaide on the 1st day of July 1991 at 10.00 am or at any other time when called upon, and to be present throughout all proceedings relating to this matter until the matter is disposed of”. Further, the appellant agreed to comply with all of the conditions of bail listed in the agreement. Those conditions included requirements that the appellant not leave the State for any reason without lawful permission under the Bail Act 1985, that he reside at 31 Myrtle Avenue, Myrtle Bank, that he surrender any passport which he possessed and that he “prosecute [the] appeal with due diligence and if in consequence of the appeal he [was] required to serve any period of imprisonment that he [would] surrender himself to [the Magistrates Court] within 24 hours after the determination of [the] appeal”.
The appeal was eventually heard on 11 June 1992. The appeal was against sentence only. The Court was told expressly that there was no appeal against the convictions. By reason of an error by the Magistrate in directing himself as to the appropriate onus of proof, the appeal was upheld.[1] The formal order of the Court recites:
“IT IS ORDERED that the appeal be allowed for the purpose of setting aside the sentences imposed by the said Court of Summary Jurisdiction in respect of each count upon which the appellant was found guilty and that the complaint be remitted to the said Court of Summary Jurisdiction for sentence by another Magistrate.”
[1] The decision is Van Reesema v Flavel (1992) 57 SASR 590 (Duggan J).
The appellant was not present at the hearing of the appeal on 11 June 1992 at which he was represented by counsel. The appellant has sworn and filed an affidavit on 23 August 2004 in which he says that he left Australia on 17 May 1992. His failure to appear on 11 June 2002 was a breach of the bail agreements. Furthermore, it appears that the appellant had ceased residing at 31 Myrtle Avenue, Myrtle Bank at least by April 1992. That too was a breach of the respective bail agreements.
Following the order by Duggan J, each of the 12 summonses was listed for sentence only again in the Magistrates Court. There were five hearings.
The summonses were first listed before the Magistrates Court on 22 July 1992. The appellant did not attend then or at any of the subsequent hearings in the Magistrates Court in 1992. The summonses were adjourned to 5 August 1992. On 22 July 1992 the Acting Registrar of the Magistrates Court posted a letter to the appellant at the Myrtle Bank address advising him of the outcome of the hearing on 22 July and that the matters had been adjourned to 5 August 1992.
On 5 August 1992, the appellant was represented by Mr Mellor from the firm then known as “Mellors”. That firm had also instructed counsel to appear for the appellant at the hearing of the appeal before Duggan J. All matters were adjourned to 12 August.
On 12 August 1992 Mr Mellor again appeared but was granted leave to withdraw. The Court was informed that the appellant was overseas. On that occasion, the Magistrate adjourned each of the 12 summonses to 27 August 1992 making orders that, by way of a notice pursuant to s 62C of the Summary Procedure Act, the Court notify the defendant of the adjourned date and that a penalty of imprisonment may then be imposed.
I note that on that occasion, in addition to the address at Myrtle Bank, the Court also had an address for the appellant at The Hague in the Netherlands as well as a facsimile number. There is nothing on the Magistrates Court files to indicate how that address was provided to the Magistrates Court. The appellant has sworn an affidavit in which he says that prior to leaving Australia he had provided to the Magistrates Court an address in the Netherlands as well as a facsimile number. By its very nature, that claim is surprising. There is nothing on any of the Magistrates Courts files to confirm it. The appellant has not provided any evidence to corroborate his claim. It is unlikely that the Magistrates Court had a Netherlands address or facsimile number on 22 July 1992. If it did, it is unlikely the Acting Registrar would that day have sent correspondence to the appellant at the Myrtle Bank address. It is more likely, in my opinion, that it was Mr Mellor who provided the Netherlands address and facsimile number to the Magistrates Court at the time of his withdrawal from the matters on 12 August 2002. Furthermore it seems unlikely that the appellant would have left an address in the Netherlands with the Magistrates Court at a time when he was about to breach his bail, when he was due next to appear in the Supreme Court and not the Magistrates Court and at a time when he was represented by solicitors. The respondent did not object to my receiving the affidavit on the appeal but made it plain that it did not accept the truth of its contents. The appellant did not seek to give evidence orally, nor did he seek to adduce any other evidence in the light of the appellant’s expressed attitude. In all the circumstances I am not prepared to accept the appellant’s claim in this respect. Ultimately, however, there is not much which turns on this issue.
The then Acting Registrar of the Magistrates Court posted a copy of a notice, using the form appropriate for notices pursuant to s 62C of the Summary Procedure Act, to the appellant at the Myrtle Bank address and purported to do likewise to the address at The Hague. This was done on 20 August 1992. The Acting Registrar tried, but was unable, to effect a transmission to the facsimile number referred to in the Court’s Order.
It is not clear to me whether a notice was sent in relation to each of the charges or whether one only relating to all summonses was sent. The notice which had been sent stated, incorrectly, that the appellant had been convicted of an offence of contravening s 227(1) of the Code, rather than s 227(2). In addition the appellant makes a number of other complaints about the notice posted on 20 August 2002.
The appellant did not appear before the Magistrates Court on 27 August 1992. On that day, the 12 summonses were further adjourned to Friday 4 September 1992.
On 4 September 1992, the Magistrate hearing the matter proceeded ex parte. Terms of imprisonment were imposed in relation to all 12 offences. All terms were made concurrent. It is sufficient, for present purposes, to record that the effect of the Magistrate’s orders was that the appellant was sentenced to a total of 11 months imprisonment. There is an issue as to whether the Magistrate also entered convictions in relation to each charge on 4 September 1992.
A Warrant of Commitment was issued by the Magistrate on 21 September 1992. That warrant recorded the offences for which the appellant had been sentenced as contraventions of s 227(1) of the Code.
In about December 2000, the appellant returned to Australia. The Warrant of Commitment was executed on 16 June 2004 with the arrest of the appellant. He has been in custody since that date.
Application for Setting Aside
Section 76A of the Summary Procedure Act provides:
“(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.”
The appellant filed his first application pursuant to s 76A on 29 June 2004. A second application was filed on 19 July 2004. Although each application refers to the 12 offences with which the appellant was charged, neither identifies clearly the conviction or order which the appellant sought to have set aside.
The Chief Magistrate dismissed both applications. First, the Chief Magistrate considered that the application filed on 19 July 2004 had been lodged outside the 14 days period stipulated by s 76A(2). Secondly, the Chief Magistrate considered that the use of s 76A was not appropriate to set aside a conviction or order where there had been a hearing in the Magistrates Court, an appeal, and a remittal of the matter to the Magistrates Court. Thirdly, insofar as the appellant sought to rely upon the erroneous reference in the Warrant of Commitment to s 227(1) of the Code, the Chief Magistrate considered that s 76A did not provide an avenue of relief. Finally, the Chief Magistrate considered that, in any event, the discretion vested in the Court pursuant to s 76A should not be exercised in the appellant’s favour.
Appeal to this Court
Two Notices of Appeal were filed in this Court. Like the applications pursuant to s 76A, both were filed by the appellant personally. One Notice was filed on 9 September and the other on 10 September. These Notices of Appeal were substantially, but not completely, identical. I was asked to treat the amended Notice of Appeal filed pursuant to the leave I granted on 6 October 2004 as taking the place of each of the Notices of Appeal filed on 9 and 10 September 2004 respectively.
It is convenient to consider first the appeal against the orders made in 1992.
The matters relied on by the appellant on this part of the appeal can be summarised as follows:
1.that he was convicted and sentenced in August and September 1992 for offences contrary to s 227(1) of the Companies (South Australia) Code whereas he had been charged with offences contrary to s 227(2) of that Code;
2.that the procedure adopted by the Magistrate in proceeding to sentence the appellant in his absence was not a procedure authorised by Division 3 of Part 4 of the Summary Procedure Act;
3.that the sentences of imprisonment were manifestly excessive.
The 1992 Orders Appealed Against
For the appeal against the 1992 orders, the appellant requires an extension of time for a very substantial period. Before coming to consider the application for the extension of time, it is appropriate to identify more precisely the orders made in 1992.
As already noted, the appellant seeks to appeal against “convictions” entered on 12 August 1992 and on 4 September 1992. The Certificate of Record from the Magistrates Court in respect of one of the summonses shows that on 12 August 1992 the order made was “convicted and adjourned”. The letter dated 12 August 1992 and sent to the appellant on 20 August 1992 from the Magistrates Court recorded that the appellant had, in his absence, been “convicted” of offences pursuant to s 227(1) of the Companies Code. Further, the Certificate of Record shows as the outcome of the hearing on 4 September 1992 that the appellant was “convicted” and the terms of imprisonment of varying lengths were imposed in relation to each of the charges.
These facts led the appellant to submit that a conviction had been entered against him in relation to each charge on 12 August 1992 and, or in the alternative, on 4 September 1992.
I do not accept that convictions were entered against the appellant on either date. In the first place, the entry of such convictions would have been entirely otiose. Convictions had been entered by the Magistrate who had heard the trial and the sentencing submissions in March and May 1991. The appellant did not appeal those convictions. On 11 June 1992, Duggan J was told expressly that there was no appeal against those convictions. The order of the Court on 11 June 1992 made it plain that the appeal was allowed only for the purpose of setting aside sentences which had been imposed. This would have been quite apparent to the Magistrate when the matter was remitted to the Magistrates Court. It is not readily to be supposed in these circumstances that the Magistrate, in August and September 1992, would have thought it necessary, as a separate step, to impose additional convictions.
Secondly, the handwritten fiat signed by the Magistrate himself on 12 August 1992 does not refer to convictions being entered. If the Magistrate had recorded convictions on that day, it is highly likely that he would have recorded that fact in the handwritten fiat which he made.
It is true that the handwritten fiat signed by the Magistrate on 4 September 1992 reads “Conviction. Deft. Sentenced to 11 months imprisonment”. However, in context, I read that as being a record of the outcome in the Magistrates Court of the charges against the appellant: that is, a conviction (entered on 16 May 1991) and the sentence (imposed on 4 September 1992) rather than recording that a conviction had been entered on 4 September 1992.
In my view therefore, the purported appeal against “convictions” entered on 12 August 1992, or in the alternative on 4 September 1992, is misconceived. There were no convictions entered on either day. It is not now open to the appellant to appeal against the convictions entered against him on each of the 12 summonses on 16 May 1991. By his counsel, the appellant told this Court on 11 June 1992 that he was not appealing against those convictions.
I therefore treat the amended Notice of Appeal as seeking an extension of time in which to appeal against the sentences imposed on 4 September 1992.
The Application for the Extension of Time
An appeal against a sentence imposed by a Magistrate should be instituted within 14 days of the Magistrate’s decision (SCR 97.04). That means that an appeal against the Magistrate’s decision of 4 September 1992 should have been instituted by no later than 18 September 1992. The appeal was instituted, relevantly, on 6 October 2004 when I granted leave to the appellant to amend the Notice of Appeal which had been filed in respect of the Chief Magistrate’s refusal to make an order pursuant to s 76A. That is to say, the appellant seeks an extension of time of just over 12 years.
The very length of the extension sought by itself makes this application extraordinary.
Apart from the length of the extension sought, the Court will have regard to the explanation for an appeal not being instituted within time, the conduct of the appellant in the intervening period, the prejudice to the respondent if an extension is granted and to whether an extension is required to avoid a miscarriage of justice. The Court should, in a case such as the present, have regard to the public interest in the finality of litigation but at the same time should not adopt an overly rigid approach. In Jackamarra v Krakouer (1998) 195 CLR 516 at 539 [66], Kirby J said:
“The first rule is that there are no rigid rules. Procedural discretions, such as those in question here, are typically expressed in very wide language[2]. In the exercise of such discretions, courts should not be trammelled by a rigid set of rules, whether called guidelines or principles, which would impede the application of rules of court with the flexibility needed to do justice in the particular case[3]. This is why it is impossible to lay down fixed and binding rules for the exercise of discretions to enlarge time. Of necessity, each case must depend upon its own particular circumstances[4].”
[2] Boomalli Ltd v Hake [1985] WAR 7 at 9.
[3]In re Coles and Ravenshear [1907] 1 KB 1 at 4; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412.
[4]Christie v Harvey and Hayward (1900) 2 WALR 146 at 148; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 947; [1985] 2 All ER 517 at 521; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 167.
The Explanation for the Lapse of Time
Apart from the consideration of avoidance of a miscarriage of justice, there is very little to be said for the appellant. I have already noted the length of the extension of time which is sought. The appellant has not provided a satisfactory explanation for the lapse of time. He claims that he was not aware of the sentences imposed by the Magistrate until the execution of the Warrant of Commitment on 16 June 2004. I regard that claim, at least insofar as it concerns his knowledge that sentences of imprisonment had been imposed, with a good deal of scepticism. Even if it be true, in my opinion, the appellant could have been ignorant of the orders only by his own conduct in refraining, deliberately, from ascertaining what had occurred. However, I do not consider that he was ignorant.
As already noted, the appellant, in breach of his bail agreements, did not attend the hearing in the Supreme Court on 11 June 1992. The appellant has sworn an affidavit in which he admits being informed by his then solicitor, Mr Mellor, that the appeal to this Court had been successful and that the matter would be called back on in the Magistrates Court. The appellant also admits that he was told later (on 4 August 1992) that Mr Mellor was not prepared to continue acting for him. He does not depose to making any attempts prior to 4 September 1992 to find out when the matters would be dealt with in the Magistrates Court and I infer that none were made.
The appellant submitted that his failure to attend in the Magistrates Court at any of the hearings in July, August and September 1992 was not a breach of the bail agreements into which he had entered on 16 May 1991. I reject that submission. By each of those agreements, the appellant agreed, amongst other things, “to be present throughout all proceedings relating to this matter until the matter is disposed of”. The expression “all proceedings” included proceedings in the Magistrates Court as well as proceedings in the Supreme Court. Had the appellant not breached his bail, he would have been present when sentenced and would have known the outcome.
The appellant deposed to having asked, late in 1992, Mr Roger Wilson, then a partner in the firm of Piper Alderman Lawyers, to ascertain what had happened to the Magistrates Court matters. He said that he was informed that a warrant for his arrest had been issued. He claims that he understood this to be a warrant issued for the purpose of having him brought before the court to be sentenced, rather than a Warrant of Commitment. No evidence from Mr Wilson was led to confirm that conversation. Again, I treat this claim with a good deal of scepticism.
The appellant returned to Adelaide on 23 December 2000. He does not depose to having made any inquiry on or before his return, or subsequently, about the status of the Magistrates Court matters, or of the warrant for his arrest about which he says he was informed by Mr Wilson. However, the Magistrates Court file contains a letter from Mellor Olsson addressed to the Registrar of the Magistrates Court in which Mellor Olsson state that they have been contacted by the appellant and request advice from the Court as to the outcome of the summonses in 1992. Mellor Olsson sought information as to the dates upon which the matters had been dealt with in the Magistrates Court, the nature of the charges dealt with, the orders made and the nature and status of any warrants which had been issued. The Magistrates Court file contains a notation “Response sent 8.11.99” but the content of that response is not known. It is reasonable to infer that Mellor Olsson were then informed of the outcome on 4 September 1992. It is also reasonable to infer that that information was passed on to the appellant. It does not serve the appellant’s credit at all well that he did not himself depose to his contact with Mellor Olsson, nor to the instructions which he gave them, nor to any information which he may have received from them. There is an obligation on an applicant for an extension of time to be candid and frank with the Court: Police v Warren [2000] SASC 285 at [16].
I am prepared to accept however that the appellant may not have been aware until after the execution of the Warrant of Commitment that he had been sentenced for breaches of s 227(1) of the Code, rather than s 227(2).
In short, the explanation for the lapse of time was the absconding by the appellant in 1992, his remaining overseas until 23 December 2000, and his failure to take action, either to inform himself of the outcome, or having been so informed, to take any action to appeal the orders. It is only the execution of the Warrant of Commitment which has prompted the appellant to take any action.
Prejudice to the Respondent
Mr Perrotta, who appeared for the respondent, submitted that the respondent would be prejudiced if the appeal was allowed, and the appellant was to be re-sentenced. He pointed to the fact that, because of a dispute about the appellant’s explanation for acting as a company director when prohibited from doing so, there had been a disputed facts hearing before the Magistrate in May 1991. If a similar hearing was required before re-sentencing (as seemed likely on the appellant’s own submission) that disputed facts hearing would relate to events occurring approximately 15 years previously. It would be inevitable, Mr Perrotta submitted, that the witnesses memories would not be as good now as they were in 1991.
I accept the force of that submission. However, Mr Perrotta did not suggest, and there is in any event no evidence to suggest, that each of the witnesses will not still be available. Presumably each witness will be able to refresh his or her memory from the statements prepared at the time and from the transcript of evidence at the Disputed Facts Hearing. In those circumstances, I do not think that the prejudice to which Mr Perrotta referred is likely to be great.
Whilst I accept that the quality of the evidence available to the respondent may not be as good now as it was in 1991,[5] I do not consider this consideration to be fatal to the application for the extension of time.
[5]Cf Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 per McHugh J.
Miscarriage of Justice
The decisive consideration must be the avoidance of a miscarriage of justice. In the circumstances of this case, unless I am satisfied that an extension is required to avoid a substantial miscarriage of justice, it would be appropriate to refuse the extension.
I turn then to consider the submissions of the appellant on this aspect. That involves a consideration of the substantive appeal, the hearing of which occurred at the same time as the application for the extension of time.
Some matters can be mentioned and then put to one side. At the hearing on 6 October 2004, Mr Edwardson, who appeared for the appellant, informed me that the appellant abandoned his complaint that the sentences imposed were manifestly excessive. However, when the hearing resumed on 26 October 2004, I was informed that the appellant wished to withdraw that abandonment. However, the submissions on this ground were quite limited and the ground seemed to be argued only faintly and at a level of considerable generality. There were limited submissions only with respect to the actual circumstances of each offending, as to the appellant’s explanation for the offending, and as to why the sentence imposed for each offence was said to be inappropriate to the circumstances of the offending.
The maximum penalty for a breach of s 227(2) was $5,000 or imprisonment for one year or both. There was material which indicated that the appellant’s offending in this case was deliberate and contumelious. Further, the appellant had prior court appearances for offences involving dishonesty and for breaches of the applicable companies legislation.
The Magistrate imposed sentences of imprisonment of 11 months in respect of five offences and sentences of three months imprisonment in respect of seven offences. All sentences were made concurrent. There are no sentencing remarks available.
In my opinion, the appellant has not established that the sentences imposed were unduly severe. On the contrary, they seem to be within the range of acceptable sentencing discretion, and, in some respects, the making of each sentence concurrent was merciful to the appellant. I do not consider that this ground of appeal would be made out.
In the light of the decision to which I come in relation to the next ground, it is unnecessary for me to express any concluded view about the procedure adopted by the Magistrate. It is sufficient to say that even if there were procedural irregularities (about which I express no opinion) that has not, in my opinion, resulted in a miscarriage of justice in the circumstances of this case. The appellant chose to absent himself. It is not really open to him, 12 years later, to complain of shortcomings in the procedure adopted by the Magistrate in sentencing him in his absence.
Of more significance, however, is the appellant’s first complaint. The offences with which he was charged were breaches of s 227(2) of the Code, viz., acting as a director of various companies within the period of five years of his conviction of offences under s 555 of the Code, when the effect of those convictions was to prohibit him from doing so.
However, the Magistrate appears to have sentenced the appellant for offences contrary to s 227(1) of the Code, viz., acting as a director of a company, or taking part in the management of a company, at a time when he was insolvent. The offences under s 227(1) and 227(2) are related, and the maximum penalties for each were the same. But the conduct constituting each offence is different.
There are two facts which indicate that the appellant was sentenced for breaches of s 227(1) and not, as he should have been, for breaches of s 227(2). The first is that on 20 August 1992, the Registrar of the Magistrates Court sent a notice (pursuant to s 62C(2) of the Summary Procedure Act) to the appellant at his Myrtle Bank address, the relevant part of which stated:
“You have been convicted in your absence by the Adelaide Magistrates Court (Criminal) of the following offence and the maximum penalty for that offence is:
1Companies Code
Section 227(1) Companies (South Australia) Code
A fine not exceeding $5,000 or imprisonment for one year or both.” (Emphasis added.)
Whilst the reference to s 227(1) in this letter could possibly be regarded as an administrative slip, of more significance is the Warrant of Commitment. That details the offences for which the appellant was sentenced to imprisonment as offences contrary to s 227(1) of the Code. The Warrant of Commitment is signed by the Magistrate himself. A Warrant of Commitment is an important document. It is the authority to the police to apprehend the offender. It is the authority to the Executive Director of the Department of Correctional Services to detain the offender in custody. The Magistrate’s signature on the Warrant confirms the accuracy of the details shown in the Warrant. In this case, by his signature, the Magistrate certified that the offences for which he had sentenced the appellant were breaches of s 227(1) of the Code. In those circumstances, the reference to s 227(1) cannot be regarded as a mere administrative slip. Both documents indicate that the Magistrate believed he was sentencing for breaches of s 227(1) of the Code.
That has a number of consequences in the present context. It means that the appellant has not been sentenced for the 12 offences contrary to s 227(2) of the Code for which he was convicted on 16 May 1991 and which were remitted to the Magistrates Court for sentence by the Supreme Court order on 11 June 1992. It means that the appellant has been sentenced for offences with which he has not been charged, let alone convicted. It means that the appellant is presently being held in custody pursuant to a Warrant of Commitment issued in respect of sentences imposed for offences with which he has not been charged. In short, in my opinion, it means that a miscarriage of justice of a substantial kind has occurred in this case.
I have already rejected the submission that the sentences imposed were manifestly excessive. That is to say, that sentences imposed were within a reasonable range of sentencing discretion for the appellant’s offending against s 227(2). It may well be that if re-sentenced, the appellant would be sentenced to imprisonment for similar terms. No doubt, account would be taken of the time he has spent in custody already. The fact that the sentences imposed may be appropriate for his offending does not mean, however, that the sentences should be allowed to stand. If the appellant is to spend time in custody it should be pursuant to sentences imposed in respect of the offences which he has committed and not other offences.
But for the fact that the appeal is out of time, this Court would intervene in these circumstances to set aside the sentences. Although, as noted above, there is otherwise little to be said for the appellant in relation to the application for the extension of time, and the period of the extension sought is extraordinary, it is appropriate in my opinion to allow the extension of time in order to avoid the miscarriage of justice which has occurred.
I will therefore grant the extension of time, allow the appeal and set aside the sentences of imprisonment imposed by the Magistrate on 4 September 1992. I will hear the parties as to further orders.
The Appeal against the Chief Magistrate’s Decision
My decision on the appeal against the sentences imposed on 4 September 1992 makes it unnecessary for me to consider further the appeal against the refusal of the Chief Magistrate on 27 August 2004 to set aside the sentences imposed by the Magistrate on 4 September 1992.