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 had a reasonably arguable defence.
Neither the appellant, who appeared in person on 18 May 2006, nor the police prosecutor, APP S. Stokes, raised a more fundamental reason why the conviction and sentence should be set aside. Furthermore, the matter was not adverted to by the magistrate dealing with the appellant’s application.
There is clear authority for the view that on the hearing of a pre-trial conference, there is no jurisdiction to make an order disposing of proceedings.
Pre-trial conferences are conducted pursuant to r 26 of the Magistrates Court Rules 1992. That rule provides:
26.01Prior to any matter being listed for summary trial the parties must have ascertained the precise matters in issue both as to fact (in detail) and law so as to:
(a)     fully explore the possibility of disposing of the charge other than by way of trial;
(b)     enable the duration of the hearing to be estimated as accurately as possible;
(c)     determine what evidence if any may be provide by affidavit;
(d)     facilitate the course of the trial,
and shall inform the court as to each of the above.
26.02To the extent necessary to comply with this Rule the parties must confer fully and frankly.
26.03Prior to a matter being set down for hearing the defence must give notice to the prosecution if evidence of alibi may be called. The notice must give details of the proposed evidence including the name and address of the witness.
26.04Insufficient compliance with this rule must be taken into account on the question of costs.
26.05To ensure compliance with Rule 8 and this Rule the Court may on notice to the parties require that they attend a pre-trial conference.
26.06A pre-trial conference may be presided over by such person as the Court may nominate.
In Police v Childs[1] Bleby J, with whom I respectfully agree, said with reference to the rule:
The rule [MCR r 26] does not and cannot confer judicial power on the officer conducting the conference. His purpose is purely procedural, to assist in the proper processes of case flow management.
It is clearly not intended that any orders disposing of proceedings should be made during the course of a pre-trial conference. Such a conference need not even be presided over by a magistrate. However, this conference was presided over by a magistrate, and it appears that the conference was at least able to resolve matters concerning count 1. It was no doubt convenient there and then for the charge to be formally read and the plea taken and the matter dealt with. However, that could not have been done as part of a pre-trial conference. The inference to be drawn from the brief outline of the proceedings deposed to in the prosecutor’s affidavit is that the prosecutor, the respondent and the magistrate agreed that the court should convene forthwith to deal with count 1 in the manner agreed to in the conference. That could only have been done with the consent of the parties.
[1] (2000) 76 SASR 425.
In that case, when the respondent indicated at a pre-trial conference, a willingness to plead to one of the counts on the complaint, the magistrate hearing the matter agreed that the court should convene forthwith to deal with that count, upon which a plea was then taken.
Such a course may be followed by consent, and no doubt it is convenient to do so, rather than order that a trial proceed for such a formality then to be followed on another date.
But here the appellant was not present at the pre-trial conference and there was no consent by him that the matter proceed as though it was a trial in open court.
In those circumstances, the procedures in the Magistrates Court were irregular and resulted in an order which should never have been made.
On the appeal coming on for hearing before me, I intimated to Mr Van Reesema, who appeared in person, and to Ms Riddle, who appeared for the respondent, that the conviction was entered irregularly and that I felt obliged to set it aside.
I gave Ms Riddle a short time to consider her position, after which she very properly conceded the point.
The notice of appeal, as framed, was not worded appropriately. Indeed, insofar as it was directed towards quashing the order dismissing the application to set aside the conviction, it was an appeal against an interlocutory order, which could give rise to other complications.
In those circumstances, I ordered that the notice of appeal be treated as an appeal against the conviction. I then ordered that the appeal be allowed, the conviction set aside, and that the matter be returned to the Magistrates Court accordingly.
I reserved the right to publish reasons later.