Van Reesema v Police

Case [2009] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

SIEWERTSZ VAN REESEMA v POLICE

[2009] SASC 8

Judgment of The Honourable Justice Bleby

16 January 2009

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

Appeal against ruling of Magistrate on various procedural issues and failure to rule on others – appellant charged with speeding – trial part-heard in Magistrates Court – whether Magistrate had made any judgment or order – whether, if made, orders were interlocutory orders or merely rulings made in the course of the trial – whether special reasons to grant permission to appeal exist.

Held: to the extent necessary permission to appeal refused – in all other respects, appeal is incompetent.

Expiation of Offences Act 1996 (SA) s 8; Australian Road Rules  r 20; Road Traffic Act 1961 (SA) ; Road Traffic (Miscellaneous) Regulations 1999 (SA); National Measurement Act 1960 (Cth); National Measurement Regulations 1999 (Cth); Magistrates Court Act 1991 (SA) s 3, s 42, s 43, s 51; Magistrates Court (Fees) Regulations 2004 (SA) Sch 2, referred to.
Graziano v Graziano [2008] SASC 142; McIlvar v Szwarcbord [2008] SASC 179; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, applied.
R v Watson; ex parte Armstrong (1976) 136 CLR 248; Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337, discussed.
White v South Australia (2007) 96 SASR 581; Police v Dorizzi (2002) 84 SASR 416; Goldsmith v Newman (1992) 59 SASR 404; R v Powch (1988) 14 NSWLR 136; Corporation of the City of Mitcham v Fusco (2001) 115 LGERA 356, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"judgment", "special reasons"

SIEWERTSZ VAN REESEMA v POLICE
[2009] SASC 8

Magistrates Appeal

BLEBY J

Introduction

  1. Mr Siewertsz van Reesema, the appellant, is charged with four counts of speeding, contrary to r 20 of the Australian Road Rules.  The alleged offences occurred on 1 February 2004, 11 February 2004, 27 March 2004 and 19 May 2004.  While these are expiable offences, the appellant has elected to be prosecuted in relation to each.[1]  In his defence he seeks to challenge the accuracy and reliability of the speed detection devices. He is conducting his own defence in the Magistrates Court.

    [1] Expiation of Offences Act 1996 (SA) s 8.

    The Magistrates Court Proceedings

  2. By agreement between the appellant and the South Australian Police, the offence of 27 March 2004 was listed for trial as “the test case” concerning the relevant type of speed detection device. 

  3. The trial is currently part-heard before a Magistrate.  On 26 May 2008, while the prosecution case was under way, the appellant filed an application in the Magistrates Court seeking orders “as set out in annexed Affidavit #12”.  The annexed affidavit was quite substantial and canvassed various factual matters.  It contained a request that the Magistrate make a long list of orders. 

  4. The prosecution closed its case…

Continue reading Van Reesema v Police

Sign in free to access the full text

Details
AGLC
Van Reesema v Police [2009] SASC 8
Case
[2009] SASC 8
Decision Date

CaseChat Overview and Summary

In Van Reesema v Police, the appellant, Van Reesema, sought to appeal various procedural decisions made by the Magistrate during the part-heard trial of a speeding charge. The key issues before the court were whether the Magistrate's decisions constituted interlocutory judgments or were merely incidental rulings made in the course of the trial, and if the latter, whether special reasons existed to grant leave to appeal these rulings. The court found that the Magistrate's decisions regarding the refusal to order the respondent to cease providing oral evidence, the refusal to waive the fee for a transcript, and the refusal to order a transcript to be provided, were all incidental rulings made during the trial rather than interlocutory judgments. These rulings did not decide substantive questions but were part of the procedural management of the trial, and as such, they were not appealable under the Magistrates Court Act 1991 (SA). The court also concluded that there were no special reasons to grant leave to appeal these rulings, as they did not present any exceptional circumstances that would justify an appeal before the trial's completion. Consequently, the appeal was dismissed as incompetent.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In any event, it would have been entirely within the Magistrate’s discretion, and probably more appropriate to do so, to decline to make any such order until the conclusion of the trial when the Magistrate is in a much better position to assess the question of costs of all aspects of the trial.Allowing the respondent to continue to provide further evidenceThe fifth decision the appellant purports to appeal against is the refusal of the Magistrate to order that the respondent could not continue to provide oral evidence unless it could show that the speed measurements relied upon have been taken in accordance with the National Measurement Act 1960 (Cth) and the National Measurement Regulations 1999 (Cth). In Graziano v Graziano,[15] I considered whether a trial judge’s decision to refuse leave for the plaintiff to re-open his case was an interlocutory judgment. After reviewing the authorities,[16] I concluded that this was, in essence, a ruling on evidence made in the course of the trial.[17] Similarly, I consider that the order sought by the appellant in this case is a ruling on the evidence that the prosecution may lead. It is well established that such a ruling is an incidental decision made in the course of the trial, and not an interlocutory order or judgment.[18] This aspect of the appeal is therefore incompetent. In any event, it is a matter for the prosecution how it presents its case. Subject to the evidence being admissible, it is not for another party or the Court to dictate what evidence it may or may not lead.[15] [2008] SASC 142.[16] Ibid [30]-[38].[17] Ibid [45].[18] R v Powch (1988) 14 NSWLR 136; Corporation of the City of Mitcham v Fusco (2001) 115 LGERA 356; [2001] SASC 164; Police v Dorizzi [2002] SASC 356; (2002) 84 SASR 416; Graziano v Graziano [2008] SASC 142.The fee for transcript The final decision against which the appellant appeals is the Magistrate’s refusal to order that the fee for transcript be waived. However, this ground of appeal also seems to include a complaint that a transcript was not made available to the parties. The appellant requested, in his “Affidavit #12”, that the transcript be provided to him and that the fee be waived. The Magistrate refused to make that order for a number of reasons set out in the ruling of 27 May. First, it was not the Magistrate’s usual practice to make orders that a party be provided with transcript. Secondly, the Magistrate saw this matter as “a simple, straight‑forward speeding offence” in which there was “no purpose nor reason for the transcript to be called for”. Thirdly, the appellant had discussed this matter with the Registrar who had declined to waive the fee and the Magistrate saw no reason to interfere with this decision. Finally, the request for transcript was made at a very late stage in proceedings when it had not been produced in readable form. The decision not to require transcript to be printed was a ruling by the Magistrate in the course of the trial. It was not an interlocutory order and cannot be the subject of an appeal. Because there was no transcript there was no fee payable.

Decision

Reasons for decision

Section 42 of the Magistrates Court Act 1991 (SA) creates a right of appeal against “any judgment” of a magistrate in a criminal action. “Judgment” is defined in s 3:judgment means a judgment, order or decision and includes an interlocutory judgment or order. Not all decisions made by a magistrate will fall within the definition of “judgment” for the purposes of s 42. It is necessary to distinguish between, on the one hand, interlocutory orders or judgments and, on the other hand, rulings made in the course of a trial. Rulings made in the course of a trial are not judgments and, thus, no appeal lies under s 42 of the Magistrates Court Act against such a ruling, even with leave. If a litigant is dissatisfied with a ruling made in the course of a trial and is dissatisfied with the judgment at the conclusion of a trial, the only redress is to appeal against the judgment, alleging as a ground of appeal, the error in the ruling. The question of what constitutes a “judgment” or “order” was considered by the Full Court in Legal Practitioners Complaints Committee v A Practitioner.[4] King CJ said:A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing.[5][4] (1987) 46 SASR 126.[5] Ibid 127-128. Whether a decision is an incidental ruling or an order depends largely on the context in which the decision is made.[6] It is therefore necessary to consider each of the decisions appealed against to determine whether each is an incidental ruling or an interlocutory judgment.[6] Graziano v Graziano [2008] SASC 142, [32].Special Reasons and Permission to Appeal If any of the decisions appealed against is an interlocutory judgment there is no automatic right to appeal. Under s 42(1a)(c) of the Magistrates Court Act, before granting permission to appeal I would have to be “satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial”. The phrase “special reasons” is not defined in the Magistrates Court Act. It is an expression that “must always be interpreted in light of its context”.[7] Section 42(1a) permits appeals from interlocutory judgments only in limited circumstances. The purpose of limiting the right of appeal from interlocutory orders and judgments is to prevent summary proceedings from being delayed and fragmented.[8] If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final, substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of the interlocutory order is not yet known. I consider that, for there to be “special reasons” to grant permission to appeal under s 42(1a)(c), there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases.[9] An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal.[10] [7] White v State of South Australia (2007) 96 SASR 581, 592; [2007] SASC 75, [48]; Goldsmith v Newman (1992) 59 SASR 404, 409.[8] See, eg, Police v Dorizzi (2002) 84 SASR 416, 419; [2002] SASC 356, [19].[9] See the consideration of the meaning of “special reasons” in other contexts in, eg, Jess v Scott (1986) 12 FCR 187, 195; Goldsmith v Newman (1992) 59 SASR 404, - 409; White v State of South Australia (2007) 96 SASR 581, 592; [2007] SASC 75, [49] - [50].[10] See White v State of South Australia (2007) 96 SASR 581, 592; [2007] SASC 75, [49].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.