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 8Magistrates Appeal
BLEBY J
Introduction
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
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.
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.
The prosecution closed its case…
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