Walker v Police No. Scgrg-00-625

[2000] SASC 277

WALKER v POLICE
[2000] SASC 277

Magistrates Appeal:  Criminal

1................ DEBELLE J.  (ex tempore)        This is an appeal against two convictions for breaching a bail agreement.

1. On 6 August 1997 the appellant pleaded guilty in the Berri Magistrates Court to two offences of breaching a bail agreement at Renmark. He was convicted without penalty but ordered to pay court fees, levies and other costs totalling $165.

2. By notice of appeal dated 28 June 2000, he has appealed against both the conviction and the monetary penalties. It is immediately apparent that the notice of appeal has been filed well out of time. It is some two years and 10 months late. In the papers which accompany the appeal the appellant applies for an extension of time within which to appeal.

3. The appellant’s failure to institute the appeal within the prescribed time has the consequence that he has lost his right of appeal: R v Trotter (1979) 122 SASR 64 at 65. However, the court has a discretion to extend the time within which to appeal and so reinstate the appeal. The relevant principles governing the exercise of that discretion are well settled and have been restated by Lander J in R v Foster (1996) 187 LSJS 135 at 139 – 140, and more recently in Gikas v Police (1999) 202 LSJS 301. In Foster, Lander J said:

   “Where the delay is significant, an applicant must give a proper and detailed explanation for the delay. However, the court will usually not extend the time within which to appeal or the time within which an application for leave to appeal may be brought unless the applicant can establish that the delay itself was caused through exceptional circumstances or some untoward vicissitude of life which prevented the applicant from applying his or her mind to the question of appeal, or if the delay was otherwise caused, that on the merits the appeal would be likely to succeed (R v Balchin (1974) 9 SASR 64 at 65; Reg v Armstrong (1963) 35 SASR 356 at 367).

   To put it another way, the court will ordinarily need to be persuaded, where the delay is significant, that there exists, by refusing to extend time, an apprehension that a miscarriage of justice might occur (R v Balchin at 65; R v Trotter [1979] 22 SASR 64 at 65).”

These are not arbitrary rules or principles. They stem from the public policy reason that there must be an end to litigation. If a party has an opportunity to present his case and does not avail himself of it, the party is, generally speaking, bound by that decision.

1. The appellant is aware, in a general way, of the fact that there are time limits within which an appeal must be instituted. On 4 November 1998, Cox J heard an appeal by the appellant seeking to set aside convictions for certain street offences alleged to have been committed at Renmark. Those convictions were also entered on 6 August 1997 by the same magistrate, again in the Berri Magistrates Court. That appeal was about one year out of time. Cox J refused to grant an extension of time within which to appeal and dismissed the appeal. Notwithstanding the fact the time limit had been clearly brought to the attention of the appellant, he did not institute this appeal for a further 18 months.

2. The delay in instituting this appeal is so lengthy that the appellant has an obligation to give a detailed explanation of his failure to institute the appeal within time. No satisfactory explanation has been offered. No doubt, as is apparent from the appellant’s written submissions, and as Cox J observed on the earlier appeal, the appellant is upset by his dealings with the police and others in authority. He has also spent some time in seeking to have forensic evidence to support the allegations he makes. Making all due allowances for those facts, they are not sufficient explanation for the extremely long delay in instituting this appeal. This conclusion is even further reinforced by the fact that the appellant was reminded in November 1998 of the operation of the time limits. Nevertheless, he did not then take any steps towards institution of this appeal.

3. There is nothing which suggests that a miscarriage of justice will occur if an order is not made extending the time within which to appeal. There is nothing in the papers which suggests that the conviction was wrongly entered. Indeed, it must be noted that on 6 August 1997 the appellant was represented by Mr B Tremaine, an experienced solicitor. It is reasonable to infer that the appellant was advised by Mr Tremaine and entered his plea of guilty upon receipt of that advice.

4. Furthermore, it is especially well established that while this Court has jurisdiction to entertain an appeal against a conviction founded upon a plea of guilty, the court will not lightly set aside such a conviction: Rainbird v Samuels (1972) 4 SASR 187 and Hinton v O’Dea (1977) 16 SASR 234 at 235. Speaking generally, the court will do so only where it has been established to its satisfaction that the making of the plea has been induced by a material mistake, or by some improper threat or promise on the part of a police officer or other person in authority and that, but for the inducement, the plea would not have been made: Hinton v O’Dea (supra) at 235. Plainly, this case does not come within those principles. Indeed, the fact that the appellant received legal advice takes the matter out of those principles.

5. The events leading to these charges are as follows. On 27 May 1996 the appellant was charged with the offence of using a telecommunications service in an offensive way. The charge was later amended to threatening life. It was alleged that he had telephoned and spoken to a Mr Glen Cooper, the Chief Executive Officer of the Renmark and Paringa District Hospital, in a menacing manner. He was released on bail. The bail agreement contained conditions, including a condition that he telephone the hospital only for the purpose of making appointments. It was alleged that, on 30 May 1996 on two occasions and for reasons unconnected with making appointments, he telephoned and spoke to employees of the hospital. He was, therefore, charged with breaching the terms and conditions of his bail agreement. On 6 August 1997 he appeared before a magistrate of the Berri Magistrates Court in relation to those and other matters. He was represented on all those matters by Mr Tremaine. He pleaded guilty and was convicted without penalty in relation to the two offences the subject of this appeal.

6. The appellant has sworn a long 36 page affidavit in support of this appeal. The purposes of the document are stated at the beginning of the document. Its purposes include other purposes than this appeal. Nevertheless, the affidavit is sworn also in support of the appeal. It refers to a number of events which are unrelated to the appeal. The purpose of the document is to seek to establish:

7. that the appellant did not have a trial or hearing;

8. that he had never been given details of the alleged breaches;

9. that the police and prosecution blackmailed him into pleading guilty; and

10. that the bail agreement he is alleged to have breached is a forgery.

It is quite apparent the appellant did have a hearing. He was represented at that hearing by a solicitor. The solicitor was heard on the appellant’s behalf. I do not, therefore, accept the appellant’s assertion that the police and prosecution blackmailed him into pleading guilty. It is reasonable to infer that he pleaded guilty only after receiving advice from Mr Tremaine.

1. The allegations that the bail agreement is a forgery were not accepted by Cox J. I am not satisfied that there is anything which points to the conclusions that it is a forgery. For that reason, I am not satisfied that there is anything which points to a possible miscarriage of justice.

2. I bear in mind that the appellant is not represented on this appeal. However, he has, in an articulate manner, expressed his submissions in the affidavit to which I have referred and in his submissions to this Court. There is nothing either in his affidavit or in his submissions which persuade me that it is appropriate to extend the time within which to appeal. The application to extend the time is therefore refused.

3. I should add that there is nothing on the merits of the appeal which would persuade me that it should be allowed. The appeal must also be dismissed. As I have said, the court will not lightly set aside a conviction entered in consequence of a plea of guilty where the appellant has received advice before entering his plea. There will, therefore, be orders:

4. Refusing the application for an extension of time within which to appeal.

5. Dismissing the appeal.

6. No order as to costs.