Van Reesema v Flavel - [2004] SASC 421

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
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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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Van Reesema v Flavel

Details

AGLC: Van Reesema v Flavel [2004] SASC 421
Case: [2004] SASC 421
Decision Date: 16 December 2004

CaseChat Overview and Summary

In the case of Van Reesema v Flavel, the appellant appealed against the Chief Magistrate's decision to dismiss his application under section 76A of the Summary Procedure Act 1932 (SA) to set aside sentences imposed in 1992. The appellant, who had been convicted in 1991 of 12 offences under the Companies (South Australia) Code, failed to appear in court for sentencing and subsequently left Australia. He returned in 2000 and applied to set aside the 1992 orders, which was refused by the Chief Magistrate. The appellant then appealed this decision, and the appeal was allowed. The appellant was sentenced in 1992 for offences under section 227(1) of the Code rather than the offences under section 227(2) of which he had been convicted. This resulted in a miscarriage of justice as the appellant was imprisoned for offences of which he had not been convicted. The appeal against the sentences imposed in 1992 was allowed.

The legal issues before the court were whether the Chief Magistrate's decision to dismiss the appellant's application to set aside the 1992 orders was correct and whether the appellant's imprisonment for offences of which he had not been convicted amounted to a miscarriage of justice. The court also had to determine whether the appeal was time-barred and whether an extension of time should be granted. The court found that the Chief Magistrate's decision was incorrect as the appellant was sentenced for offences under section 227(1) of the Code rather than the offences under section 227(2) of which he had been convicted, which amounted to a miscarriage of justice. The court granted the appellant leave to amend the notice of appeal to include an appeal against the 1992 orders and allowed the appeal against the sentences imposed in 1992. The court also granted an extension of time to institute the appeal against the sentences imposed in 1992.

The court held that the Chief Magistrate's decision to dismiss the appellant's application to set aside the 1992 orders was incorrect as the appellant was sentenced for offences under section 227(1) of the Code rather than the offences under section 227(2) of which he had been convicted, which amounted to a miscarriage of justice. The court found that the appellant's imprisonment for offences of which he had not been convicted amounted to a miscarriage of justice. The court granted the appellant leave to amend the notice of appeal to include an appeal against the 1992 orders and allowed the appeal against the sentences imposed in 1992. The court also granted an extension of time to institute the appeal against the sentences imposed in 1992. The appeal against the decision of the Chief Magistrate was not necessary to determine as the appeal against the sentences imposed in 1992 was allowed.

The final orders of the court were to grant the extension of time, allow the appeal and set aside the sentences of imprisonment imposed by the Magistrate on 4 September 1992. The court also directed the parties to be heard as to further orders. The appeal against the decision of the Chief Magistrate was not necessary to determine as the appeal against the sentences imposed in 1992 was allowed.

Orders

Orders of the court

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Background

Background to the litigation

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”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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