Van Reesema v Police - [2006] SASC 251

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VAN REESEMA v POLICE
[2006] SASC 251
Reasons for Decision of The Honourable Justice Perry
21 August 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - THE HEARING - GENERAL MATTERS - RELEVANT PRINCIPLES, JURISDICTION AND POWERS
The appellant appealed to the Supreme Court against the dismissal of an application brought by him in the Magistrates Court to set aside a conviction on a speeding charge which was recorded in his absence following an ex parte hearing of the complaint – the ex parte hearing was permitted by the presiding magistrate after the appellant had failed to appear at a pre-trial conference – held on appeal that there was no power to permit an ex parte hearing which finally disposed of the matter, when a complaint was listed for a pre-trial conference only – conviction quashed and matter remitted to the Magistrates Court.
Summary Procedure Act 1921 s 27C and s 76A(3)(c); Magistrates Court Rules 1992 r 26, referred to.
Police v Childs (2000) 76 SASR 425, considered.

VAN REESEMA v POLICE
[2006] SASC 251
Magistrates Appeal: Criminal

PERRY J. The appellant appeals against the dismissal of an application brought by him in the Magistrates Court sitting at Adelaide to set aside a conviction recorded against him in his absence, following an ex parte hearing of a complaint alleging that on 16 August 2005 at Thebarton he drove a motor vehicle on Port Road at a speed over the speed limit of 60 kilometres per hour, namely at a speed of 71 kilometres per hour.
The appellant attended in court on 8 March 2006 in answer to the complaint when the matter was adjourned for a pre-trial conference to 20 April 2006.
He did not attend at the pre-trial conference. He admitted during the hearing of the application to set aside the judgment that he had overlooked attending, and that at the time he was distracted by the need to concentrate on other speeding matters which he had to deal with in the Magistrates Court sitting at Holden Hill.
The ability to proceed ex parte in the absence of the defendant arises by reason of s 27C of the Summary Procedure Act 1921.
Having heard the prosecution case ex parte, the presiding magistrate entered a conviction and imposed a fine of $70 plus court fees and costs which brought up an overall total of $232.
On 27 April 2006 the appellant applied for an order that the ex parte conviction and penalty recorded on 20 April 2006 be set aside on the ground that it was in the interests of justice to do so. That ground reflects the provisions of s 76A(3)(c) of the Summary Procedure Act 1921.
The application came on for hearing before another magistrate on 18 May 2006. The magistrate dismissed the application, at the same time delivering short ex tempore reasons. The magistrate held in effect that the appellant had not demonstrated that he…

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 Police

Details

AGLC: Van Reesema v Police [2006] SASC 251
Case: [2006] SASC 251
Decision Date: 21 August 2006

CaseChat Overview and Summary

Van Reesema appealed against the Magistrates Court's dismissal of his application to set aside a conviction for speeding that was recorded in his absence. The conviction followed an ex parte hearing after he failed to appear at a pre-trial conference. The Magistrates Court had permitted the ex parte hearing, leading to the conviction. The Supreme Court was required to determine whether the Magistrates Court had the power to permit an ex parte hearing that finally disposed of the matter when a complaint was listed for a pre-trial conference only.

The Supreme Court found that the Magistrates Court did not have the power to permit an ex parte hearing that disposed of the matter when a complaint was listed for a pre-trial conference only. The court reasoned that the power to conduct an ex parte hearing was limited and could only be exercised under specific circumstances. In this case, the complaint was listed for a pre-trial conference, which meant that the matter should have proceeded to a full hearing before a conviction could be recorded. The court held that the Magistrates Court's decision to permit an ex parte hearing was an error of law, and the conviction was quashed. The matter was remitted to the Magistrates Court for further proceedings.

The Supreme Court quashed the conviction and remitted the matter to the Magistrates Court for further proceedings. The court held that the Magistrates Court did not have the power to permit an ex parte hearing that disposed of the matter when a complaint was listed for a pre-trial conference only. The court emphasised that the power to conduct an ex parte hearing was limited and could only be exercised under specific circumstances. The court's decision highlighted the importance of ensuring that due process was followed in criminal proceedings and that the accused had an opportunity to be heard before a conviction was recorded.

Orders