Van Reesema v Police - [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

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 on 27 May 2008. On that day, the Magistrate delivered a ruling on various procedural issues raised by the appellant. In relation to the orders sought in Affidavit #12, the Magistrate indicated that it was not appropriate to deal with the application in the form in which it was presented, but that the appellant could make an oral application for the orders he sought. The Magistrate said:
I indicate formally… from the outset of this matter I have not received nor read any of [the appellant’s] “affidavit material” that he has sought fit from time to time to lodge with the court. I have made it clear to him that much of the contents appear to be assertions or evidence on his behalf, that I am obliged to hear that material if he decides to call it in the course of his evidence but it would be quite improper for me to receive it in written form without hearing [from the] prosecution and with the risk of me being prejudiced by something that I might see in that material. Mr van Reesema was anxious that he was wanting to get a number of orders as a result of material in that affidavit and I then extended to him the opportunity to make any oral application that he deemed appropriate. …
The trial was then adjourned to 30 May for mention. No oral application was made. On 30 May, the appellant informed the Court that he had filed a notice of appeal against the Magistrate’s ruling of 27 May. The Magistrate granted an adjournment to enable this appeal to be heard.
The appeal to this Court
The appellant was not legally represented in this appeal. It is apparent that he did not have legal assistance in drafting his notice of appeal. The notice of appeal tends to confuse identification of the decisions appealed against with the grounds of appeal, and the orders sought from this Court. It emerged from the way in which the appeal was argued that the appellant complains of six separate procedural aspects of the trial.
First, the appellant seeks an order from this Court that the Magistrate be disqualified from further hearing the matter.
Secondly, he complains that the Magistrate refused to make orders for the provision by the prosecution of hard copies of certain documents, and for the production of certain other documents. The appellant seeks either an order that those documents be produced and provided or, in the alternative, an order dismissing the complaints unless those documents are produced and provided.
Thirdly, the appellant says that the Magistrate ought to have referred a question of law to the Supreme Court of South Australia, seeking to establish what is meant by the words “certificate” and “accuracy” in the Road Traffic Act 1961 (SA) and the Road Traffic (Miscellaneous) Regulations 1999 (SA).
Fourthly, the appellant seeks an order that the respondent pay his costs of attending to his defence from 1 February 2004 to 11 February 2008.
Fifthly, the appellant claims that the Magistrate ought to have made an order restraining the respondent from providing further oral evidence in support of the complaints unless it can 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).
Finally, the appellant seeks an order that the fee for transcript of the Magistrates Court proceedings be waived.
Some other matters were raised in the notice of appeal but not pressed in argument. I will therefore proceed on the basis that the appellant appeals only against the Magistrate’s refusal to make the orders sought in relation to the six issues identified above.
During argument on the appeal I indicated that there was, in my view, an issue as to whether the decisions appealed against were interlocutory orders or whether, on the other hand, they were merely rulings made in the course of the trial. At the conclusion of the hearing I invited the parties to provide further written submissions on this issue, with particular reference to the recent decisions of this Court in Graziano v Graziano[2] and McIlvar v Szwarcbord.[3]Both parties provided additional written submissions on that topic.
[2] [2008] SASC 142.
[3] [2008] SASC 179.
Competency of the appeal
A preliminary issue that arises is whether this is a competent appeal under s 42 of the Magistrates Court Act 1991 (SA). Section 42 provides:
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a)    An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is 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 and grants its permission for an appeal.
If the decisions appealed against are “interlocutory judgments”, one of the conditions in s 42(1a) must be satisfied in order for an appeal to lie to this Court. The only relevant consideration applicable in this case is that set out in paragraph (c). A further question that arises is whether these decisions are “judgments” or merely incidental rulings. If they are not judgments, then the appeal is incompetent and the question of granting permission to appeal does not arise.
Interlocutory judgments
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].
I will return to the question of special reasons in relation to any identifiable interlocutory judgment against which the appellant appeals. However, there is one matter which may conveniently be dealt with at this point. Although the appellant did not expressly advance this as special reasons, throughout the appeal he expressed concern that the Magistrate had not read his affidavits filed in the Magistrates Court. These affidavits contain statements of fact, some of which are not within the appellant’s own knowledge, submissions on matters of law, and requests for various orders and directions. In his ruling of 27 May, the Magistrate explained why he had not read or received the affidavits. Those reasons are set out above, at paragraph [4]. The Magistrate had good reason to decline to read the appellant’s affidavits, including “Affidavit #12”. In addition to the matters mentioned above, the affidavits had not been tendered; it was not clear that they had been seen by the prosecution; and in any event the case for the prosecution was still being presented. In so far as “Affidavit #12” contained applications for various orders sought by the appellant, the Magistrate invited the appellant to make such applications orally. None were made. In the course of the trial, the appellant will have ample opportunity to make submissions and to lead evidence. The Magistrate has taken an appropriate course of action in refusing to read the affidavits. This cannot constitute special reasons to grant permission to appeal.
Against that background I turn to consider each of the alleged refusals to make orders of which the appellant complains.
Disqualification of the Magistrate
On 3 September 2007, the Magistrate disqualified himself from hearing the trial because he had heard the pre-trial matters. Neither the respondent nor the appellant requested the Magistrate to disqualify himself. The Magistrate elected to do so out of an abundance of caution. However, on the day the trial was to begin, no other magistrate was available to hear the matter. Rather than having the trial date lost, the Magistrate commenced to hear the matter. At no stage since then has either party applied for the Magistrate to disqualify himself from hearing the trial.
I therefore consider that there has been no decision at all from which it is possible to appeal. The appeal in relation to this issue is incompetent.
In any event, even if there had been a formal decision of the Magistrate not to disqualify himself, that would not constitute an interlocutory judgment or order. It would be an incidental ruling given in the course of the hearing and could not be appealable at that stage. In R v Watson; ex parte Armstrong[11] a majority of the High Court[12] held that a judge who continues to sit after having been asked to disqualify himself does not make a “decree, judgment or order”, and therefore no appeal lies until after final judgment. That does not mean to say that, in an appropriate case, judicial review proceedings could not be brought at any time.
[11] (1976) 136 CLR 248, 266.
[12] Barwick CJ, Gibbs, Stephen and Mason JJ.
The decision in Ebner v Official Trustee in Bankruptcy[13] confirms that the failure of a judge to recuse on the ground of apprehended bias can properly be the subject of an appeal against the final judgment delivered by the judge.
[13] (2001) 205 CLR 337.
A judge or magistrate is only disqualified from hearing and determining a matter if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[14] A magistrate would not normally be disqualified from conducting a trial merely because he has dealt with some interlocutory proceedings in the same matter. In this case, the court record only shows the Magistrate as sitting in this case for the first time on 3 September 2007, the date on which he announced that he was disqualified. There was nothing in the record or in the Magistrate’s reasons delivered on 27 May 2008 to suggest that the Magistrate was disqualified by what had transpired on that day or on any other day. There is nothing to indicate that the Magistrate acted inappropriately in deciding to hear the trial. When announcing that he would do so, the Magistrate gave the parties the opportunity to object and they elected not to do so.
[14] Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337, 344, Gleeson CJ, McHugh, Gummow and Hayne JJ.
Even if it were an appeal against an interlocutory order, there is no substance in this ground, and permission to appeal would inevitably be refused.
Disclosure of documents
On 24 October 2006, Magistrate Harry, another magistrate, made an order that the Commissioner of Police produce certain documents for inspection by the appellant relating to the performance and operation of the speed detection device. Pursuant to the order, the appellant was allowed, by an agreed arrangement, to view the documents in a conference room at the Crown Solicitor’s office, and to take hand written notes of the contents of the documents.
On 26 October 2006, the appellant, in accordance with the arrangement, attended at the Crown Solicitor’s office and inspected a box of documents.
Among the orders that the appellant requested in his application of 26 May 2008 was an order that the respondent provide hard copies of certain documents relating to the operation of the speed detection device and that, if the respondent failed to comply with the order, the complaints would immediately be dismissed. In the alternative the appellant requested an order that the complaints be dismissed on the ground that, among other things, the respondent had not complied with the order of Magistrate Harry.
As outlined above, the Magistrate refused to deal with the application in the form that it was filed. In addition, on the matter of disclosure of documents the Magistrate said:
I make it clear and formally record the fact that I do not consider and will not order that any further documents or materials sought by Mr van Reesema be made available to him through the Crown Solicitor’s office on behalf of the Commissioner of Police. I am well satisfied that prosecution have discovered and made available to Mr van Reesema everything that they are relying upon in this case.

An order with respect to disclosure by the Police and inspection of documents is an “interlocutory order”. It is therefore an appealable judgment, subject to obtaining permission to appeal. In this case the Magistrate simply expressed the view that the Commissioner had complied with the order made by Magistrate Harry. That was not an appealable decision.
To the extent that the Magistrate declined to order the production of further documents, I am prepared to assume that that was an interlocutory order and therefore appealable. However, the Magistrate was satisfied that no further documents would assist the appellant. That view appears to be justified. The appellant appears to intend to rely on expert evidence by way of defence to suggest that the equipment was inaccurate or could not be relied on, such as to raise a reasonable doubt on the prosecution case. He either has that evidence or he does not. If he does not, the Court is not obliged to assist him with what would otherwise be properly characterised as a fishing expedition. In any event it was inappropriate to interrupt and delay the part-heard trial. There are no special circumstances which would justify granting permission to appeal.
Referral of a question of law to the Supreme Court of South Australia
Amongst the orders that the appellant sought in his “Affidavit #12” was an order that a question of law be referred to the Supreme Court pursuant to s 43 of the Magistrates Court Act 1991 (SA). For the reasons discussed above the Magistrate considered it inappropriate to receive or read that affidavit. There is no evidence that an oral application was made or argued. The Magistrate’s ruling of 27 May 2008 does not contain any express reference to this issue and there is no record on the court file of a decision having been made on the issue. I therefore do not consider that any order or judgment was made or refused. The appeal is incompetent for that reason.
In some circumstances a decision on the referral of a question of law to the Supreme Court might constitute an interlocutory order. In this case, however, I consider that, if a decision had been made, it would have been an incidental ruling in the course of the trial and not an interlocutory order, and therefore not appealable.
In any event, a reference of a point of law in the terms suggested is devoid of merit. This Court cannot and will not entertain references on the abstract meaning of words un-associated with any relevant factual findings.
Costs
The appellant appeals against the Magistrate’s refusal to make an order for costs in his favour for the period between 1 February 2004 and 11 February 2008. The basis for seeking this order is that, on 11 February 2008, the respondent withdrew the evidentiary certificates on which it originally intended to rely. This is another of the orders that the appellant sought in his application and affidavit of 26 May 2008. There is no evidence that the appellant made an oral application for costs, or that the magistrate ever considered the merits of the application. There is no record on the court file of the application for costs being refused. In my view there is no order against which to appeal.
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 evidence
The 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.
However, s 51(1) of the Magistrates Court Act 1991 (SA) provides that the Court must, on application by any member of the public, allow the applicant to inspect or obtain a copy of certain documents, including a transcript of evidence taken by the Court in any proceedings. The Court may charge a fee, fixed by regulation, for inspection or copying of material under s 51.[19] The fee for transcript is currently fixed at $10.40 per page.[20] It might be possible for the appellant to apply under that section for a copy of the transcript upon payment of the appropriate fee. Sub-section 51(4) provides:
A decision by the Court on an application under this section is administrative and is final and not subject to any form of review.
[19] Section 51(5).
[20] Magistrates Court (Fees) Regulations 2004 (SA) sch 2.
If and to the extent that the Magistrate was acting under s 51, the decision not to waive the fee is, therefore, not appealable.
It follows that the appeal against this decision is incompetent.
Conclusion
This matter has been ongoing for over four years. The trial was stayed to allow this appeal to be heard. I am not satisfied that, even if any of the decisions appealed against are interlocutory orders, there is any special reason to grant permission to appeal.
If I have any criticism of the Magistrate’s actions, it is that the procedural rein on the applicant has been held too loosely. The trial has been plagued by attempts by the appellant at ineffectual procedural manoeuvrings rather than focussing on the real issues in the trial. Apart from what I have identified as a possible interlocutory order, there was no appealable decision. In respect of the one possible refusal to make an interlocutory order in relation to the disclosure of documents, there appears to have been a strong element of obfuscation on the part of the appellant, and no real prospect of any successful appeal. The trial should not have been interrupted to allow further obfuscation in what has already been an unnecessarily drawn out proceeding. As the prosecution case has now closed, the appellant should now be required to make any oral application that he wishes to make. Any such application should be ruled on and the appellant required to lead any evidence on which he proposes to reply.
The formal orders of the Court are:
1.To the extent that the appellant purports to appeal against an interlocutory judgment, permission to appeal is refused.
2. In all other respects the appeal is dismissed as being incompetent.