Weber v Police - [2020] SASC 240

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WEBER v POLICE
[2020] SASC 240
Judgment of The Honourable Justice Peek
18 December 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA
Application for an extension of time within which to appeal.
On 20 July 2017, Mr Steven Weber (Weber), pleaded guilty to two counts of Act Likely to Cause Harm and one count of Fail to Comply With Bail Agreement. On 11 August 2017, the Magistrate sentenced Weber to one period of 10 months imprisonment, to be released after eight months and to enter a bond of good behaviour for 18 months. As Weber had by this time been in custody for eight months, the effect of the Magistrate’s sentence was that he was released that same day.
Some three years, one month and three weeks later, Weber instituted an appeal against conviction.
Held:
1. This is not a case where the Court cannot determine whether an extension of time should be granted without hearing the appeal itself. There is a very substantial delay and the reasons proffered for the failure to comply with the time limit are quite inadequate. In all of the circumstances, including that this is an appeal against conviction following pleas of guilty, the prospects of success are poor. The application for an extension of time should be refused and the appeal proceeding dismissed. Supreme Court Criminal Rules 2014 (SA) s 104G referred. Gikas v Police (1999) 202 LSJS 301; Meissner v The Queen (1995) 184 CLR 132; R v Stewart [2010] SASCFC 72 discussed. R v Brooks (2007) 96 SASR 478; R v Pugh (2005) 158 A Crim R 302 considered.
Supreme Court Criminal Rules 2014 (SA) s 104G, referred to.
Gikas v Police (1999) 202 LSJS 301; Meissner v The Queen (1995) 184 CLR 132; R v Stewart [2010] SASCFC 72, discussed.
R v Brooks (2007) 96 SASR 478; R v Pugh (2005) 158 A Crim R 302, considered.

WEBER v POLICE
[2020] SASC 240
Magistrates Court Appeal
PEEK J:

On 9 December 2016, Mr Steven Weber (Weber) was arrested for offences of offensive and disorderly behaviour, namely exposing his penis and waving it about in a mocking fashion to Mr John Cameron (Cameron) and Mr Clayton Biles (Biles), with whom he had pre-existing grievances. The police granted him bail with a condition not to approach or contact Cameron or Biles.
On the very next day, 10 December 2016, Weber was arrested on a number of offences alleged to have been committed that same day. The charges as they were originally laid in the Information appeared as follows:
Count 1
On the 10^th day of December 2016 at GAWLER SOUTH in the said State, without lawful excuse, drove a motor vehicle at John Cameron, knowing that this act was likely to cause him harm and intending to cause such harm or being recklessly indifferent as to whether such harm was caused.
Section 29(3) of the Criminal Law Consolidation Act, 1935.
Minor Indictable offence
Count 2
On the 10^th day of December 2016 at GAWLER SOUTH in the said State, without lawful excuse, drove a motor vehicle at John Cameron, knowing that this act was likely to cause him harm and intending to cause such harm or being recklessly indifferent as to whether such harm was caused.
Section 29(3) of the Criminal Law Consolidation Act, 1935.
Minor Indictable offence
Count 3
On the 10^th day of December 2016 at GAWLER SOUTH in the said State, without lawful excuse, drove a motor vehicle at Clayton Biles, knowing that this act was likely to cause him harm and intending to cause such harm or being recklessly indifferent as to whether such harm was caused.
Section 29(3) of the Criminal Law Consolidation Act, 1935.
Minor Indictable offence
Count 4
On the 10^th day of December of 2016 at GAWLER SOUTH in the said State,
Drove a vehicle namely a motor vehicle registration number XEZ677 on roads namely Richards Ave and Crosby Ave in a manner which was dangerous to any person.
Section 46 of the Road Traffic Act 1961.
This is a summary offence.
Count 5
On the 10^th day of December 2016 at GAWLER SOUTH in the said State,
Without reasonable excuse contravened a term or condition of a bail agreement entered into by him at ELIZABETH on the 9^th day of December 2016.
Section 17 of the Bail Act, 1985
This is a summary offence
In short, the allegations were as follows. That Weber, on 10 December 2016, and while on bail for the charge concerning his behaviour the previous day, drove a blue station wagon at Cameron in a reserve on several occasions, in circumstances where Cameron thought that Weber was trying to hit him with the car. That Weber then left the reserve, but later that same day, upon seeing Cameron and Biles on the street, drove at Cameron on the incorrect side of the road such that he was clipped with the wing mirror of Weber’s vehicle. That Weber then drove the vehicle towards Biles, swerving onto the incorrect side of the road and mounting the footpath with Biles having to jump out of the way into the garden of a house to avoid being hit by the car.
As later to be summarised by the Magistrate in his sentencing remarks, Weber’s explanation to the police at the time was that “Mr Cameron and Mr Biles had smashed [his] lights and letterbox and [that he was] acting as an agent for the police to apprehend them, using the motor car and [he was] attempting to round them up like a sheep would cattle”.
During the course of the proceedings in the Magistrates Court, Weber was at all times represented by the Legal Services Commission (LSC). He was apparently not satisfied with the services of his first LSC solicitor and on 14 March 2017, C (a solicitor employed by the LSC) took over and acted as his solicitor up to, and including, at the pre-trial conference on 20 July 2017, at which time Weber entered pleas of guilty to downgraded charges.[1] Weber subsequently appeared before Magistrate Smart on 11 August 2017, at which time M (a solicitor also employed by the LSC) appeared and made submissions on behalf of Weber.
[1] Counts 2 and 4 were withdrawn. Counts 1 and 3 proceeded on the basis that the allegation of mens rea was that of recklessness.
On 11 August 2017, Magistrate Smart sentenced Weber to one period of

10 months imprisonment, to be released after having served eight months and entering a bond to be of good behaviour for 18 months. Weber was also fined $900 and disqualified from driving for five years. In addition, Weber voluntarily consented to entering into Intervention Orders concerning Cameron and Biles.
Weber had by this time been in custody for eight months and that is why the Magistrate selected that period of time. The effect of his Honour’s sentence was that Weber was released that very day, Friday, 11 August 2017.
The course of the present appeal proceedings
It was not until 22 October 2020, more than three years after Weber’s sentencing, that he instituted an appeal against his conviction of the above charges. On the Notice of Appeal under the heading “Grounds of appeal” he wrote:

WAS ORIGONALLY TOLD IN YATALA I COULD BE UP FOR a 3 Year wait for a fair trial

My Solicitor [C] tricked me into pleading Guilty!

I have Sufferd ENOUGH AS A VICTIM WHO WAS WRONGFULLY AQUSED

And under the heading “Extension of time” he wrote:

I was made Homeless; I was made un mobile; I was Falsley imprisond; And I was Asking for 3 years befor I found I could still appeal.

The appeal proceeding was originally listed for hearing before Livesey J on Tuesday, 15 December 2020 at 2.15 pm. The matter was later transferred to me and shortly thereafter I convened a Directions Hearing on Tuesday, 8 December 2020 to address procedural issues that arose.
The Directions Hearing on Tuesday, 8 December 2020
On Tuesday, 8 December 2020 at 2.15 pm, the Directions Hearing was held. Weber appeared unrepresented and Ms Agnew appeared for the respondent. During that hearing the following passages of dialogue occurred:
HIS HONOUR: Take a seat Mr Weber, you can stay seated during this directions hearing.
As I think you would appreciate, we are not here to conduct a hearing of the appeal itself today, that is set down for one week from today, next Tuesday at 2.15 p.m., you understand that?
APPELLANT: Yes I do, thank you, your Honour.
HIS HONOUR: Today is what we call a directions hearing, which is simply to talk about and then give directions concerning procedural matters that have to be attended to if your appeal is to proceed. I am going to raise a couple of matters with you and at some stage I’ll give Ms Agnew a chance to talk, but because you’re represented, I’m speaking with you first and trying to explain things as we go on.
APPELLANT: Yes.
HIS HONOUR: I think I said ‘represented’, and of course I meant unrepresented. So, there are a number of issues here and a very important one is that the relevant time limit for an appeal of this sort is three weeks and you are something like three years out of time.
APPELLANT: Sorry, your Honour.
HIS HONOUR: Well that is a very large period indeed, for which you apparently ask an extension of time. In order to have any chance of getting such an extension of time you will need an affidavit setting out exactly why you say that time has gone by without you previously appealing.
APPELLANT: I can easily do that your Honour, thank you.
HIS HONOUR: I take it that you have sworn affidavits from time to time over the years, have you?
APPELLANT: Yes I have, your Honour.
HIS HONOUR: You know how they are to be formulated and how they have to be taken before a Justice of the Peace or a lawyer, or a Commissioner for Taking Affidavits?
APPELLANT: Not one-hundred-per-cent myself, no, but it’s been done through other people.
HIS HONOUR: Right. In any event, you will have to hunt out such a person and that affidavit that you swear before that person will then have to be filed in court and copies also sent to your opponent, Ms Agnew, and to my chambers, but simply file them in court, in the Supreme Court and they will get to me.
Now, apart from the affidavit dealing with matters relating to your application for an extension of time, you might also want to put in there some facts upon which you rely, to make out your appeal. So there are those two aspects of the affidavit, do you understand?
APPELLANT: Yes, I’ve already done that.
…
HIS HONOUR: … So Mr Weber, you can stand up again now, get to the microphone. I’m going to give you until 4 o’clock this coming Friday, 11 December 2020 to file what affidavit you wish to file, along the lines I’ve already spoken of.
APPELLANT: Thank you, your Honour.
HIS HONOUR: That has to be filed no later than 4 o’clock on that Friday, and it would be better if it were before then, but that’s the latest -
APPELLANT: Excuse me your Honour, is it okay if I do this today?
HIS HONOUR: - and it also has to be delivered to the office of the DPP and you can get that address from Ms Agnew if you don’t know it already, after we adjourn.
APPELLANT: Thank you, your Honour.
HIS HONOUR: By no later than 4 p.m. this Friday, 11 December. Understood?
APPELLANT: Yes, I do.
HIS HONOUR: The next thing that I was to raise with you, and indeed, Ms Agnew has already mentioned it, is that if you are going to seek to proceed with this matter and that you are going to file an affidavit, then the matter of waiver of privilege raises its head.
That is to say, you would need to waive privilege as between you and your solicitors concerning all that was said as between you concerning this matter that went to court.
APPELLANT: Thank you your Honour.
HIS HONOUR: And that the solicitors would need that waiver of privilege before they could actually sign an affidavit, or give oral evidence in court about what they said to you, and what you said to them, amongst other things.
APPELLANT: Yes your Honour, I understand. …
…
HIS HONOUR: Will you - and you don’t have to tell me now I suppose, but I think you are probably able to - will you be waiving your privilege in relation to this matter?
APPELLANT: Yes, I will your Honour.
…
HIS HONOUR: Now, I want to make it very plain to you that the appeal will in fact proceed next Tuesday. And if your affidavit just does not comply with what’s necessary, if it does not, or if it does not sufficiently justify an extension of the length of three years, then the matter will come to a fairly swift end if I refuse to allow you the extension of time.
APPELLANT: Yes, that’s fair enough your Honour. Can I please interrupt for a second? I just came from a doctor’s appointment, my doctor did sign - I highlighted about eight key points for the actual appeal, that’s all I done, and he signed it for me. But I don’t know if he’s a justice of the peace or not, but if he is I don’t know, because he’s only a doctor in my eyes.
HIS HONOUR: Well, look, I’m just about to finish, I was just making a point to you. That you won’t be getting any second chances next Tuesday. In other words, I will be ruling on the material that is before me then. Do you understand?
APPELLANT: Thank you your Honour, yes.
…
The material filed by Weber after the Directions Hearing
However, despite the clear explanation given to Weber during the Directions Hearing, the only material that he filed between the Directions Hearing and Tuesday, 15 December 2020, was a stack of photocopied documents from the original Magistrates Court proceeding (witness statements, exhibits and other documents including letters from the LSC) and some jumbled handwritten notes in which he wrote that he was told that: he would not get bail; that a trial date would be up to three and a half years away and that he could get seven to 15 years imprisonment if he was found guilty. There was also a new unfiled Notice of Appeal form, upon which Weber wrote under the heading “Extension of time”:

I have been getting the endless run around since my release

On the back of these various documents appears a stamped statement, apparently placed there made by a Justice of the Peace, as follows: “I certify this is a true and correct copy of the original document sighted by me at Berri on 9.12.20” and signed Melissa Sue-Anne Rushby JP. However, nowhere was there to be seen anything approximating an affidavit.
The hearing of the appeal proceeding on Tuesday, 15 December 2020
On Tuesday, 15 December 2020, the appeal came before me for hearing.
At the outset, it was pointed out to Weber that he had not complied with his obligation of filing an affidavit. His response was that he had misunderstood what was required of him.
However, his former solicitors from the LSC had both sworn affidavits addressing Weber’s complaints and expressly denying them; they were present outside the Court waiting to give evidence. It was also notable that amongst the materials filed by Weber, were letters that had been sent by employees of the LSC to him, which demonstrated that the litigation had been conducted quite properly. The most recent was from his then solicitor, C, dated 18 July 2017, (being just before the pre-trial conference on 20 July 2017) as follows:
Date: 18 July, 2017
CONFIDENTIAL LEGAL MAIL
Mr Steven Francis Weber
C/- Yatala Labour Prison
DX147
ADELAIDE SA
Dear Mr Weber,
COURT MATTERS
I refer to your phone call to me on 14 July 2017.
I enclose a copy of the new Information which stipulates the four counts against you. You will see from this that counts 1 and 2 have now been downgraded to acts likely to cause harm pursuant to Section 29(3) of the Criminal Law Consolidation Act 1935. This offence carries a maximum imprisonment of 7 years and a further 5 year disqualification of your driver’s licence.
The matter is next listed for a Pre-trial conference on 20 July 2017 at the Elizabeth Magistrates Court. My understanding is that Prosecution is proceeding with these charges against you. To date, you have continued to maintain your innocence and as such the matters should be listed for trial. However, if you have a further application for bail on that date, you are welcome to inform me of that address and I will make the application.
As I have advised you previously, your instructions to date, do not give rise to a valid defence in law. You cannot claim self defence for these offences nor can you claim that you were assisting the community by attempting to drive these men out of the street.
You have also raised issues in relation to the evidence of Mr John Cameron and Mr Clayton Biles. These issues relate to a number of inconsistencies in their statements. I agree there are inconsistencies in their statements, however, this is not cause for the Prosecution to withdraw this charge at this time. The prosecution will only withdraw this charge if they are of the opinion that there is insufficient evidence to put you on trial.
At this time the Prosecution are proceeding and differences between statements are a matter for credit and a matter for cross examination and submissions at trial.
You have told me that the Prosecution will withdraw the matters at the pre-trial conference. That is not the case. The purpose of the pre-trial conference is to, amongst other things, ensure that both parties are prepared for trial. On 20 July 2017, I will ask the court to set a date for trial.
You have also informed me that you wish to plead guilty to counts 4 and 5 being the summary charges on the Information. Those charges relate to driving a motor vehicle dangerously and breaching your bail. You have suggested that the prosecution should accept those pleas in full satisfaction of the Information. I will not be making that negotiation offer to the Prosecution as it is not an acceptable or proper offer to be made in relation to these matters.
As I advised you on the 14 July 2017, you have been in custody now for some 8 months. My advice to you was that it is important that you consider, should you plead guilty to these charges, that you may have done a large part of your sentence already.
My advice is not for you to enter a plea of guilty for the sake of having the matter finalised soon. My advice to you is that you have been in custody for eight months and if you were to plead guilty to these offences, then those eight months would be taken into consideration. Although it is likely that you will have more time to serve in custody, most of that time would have been served already.
It is entirely your right to proceed to trial and maintain your innocence. You have stated to me repeatedly, that you are innocent of these charges and that you want a trial. As a result of those instructions and without any adequate instructions to enter into a plea negotiation, I will seek to have the matter listed for trial.
However, I again remind you that you do not have a valid defence in law and the issues that you raise go to credit and are matters for trial.
It is important that you now consider the advice I have given you. You need to consider what you want me to do on the next occasion. If you do not provide me with instructions on the next occasion I will continue on the fact that you wish for this matter to be contested and I will ask that this matter be listed for trial.
Yours sincerely,
C
In the absence of an affidavit from Weber, the only way forward appeared to be for Weber to enter the witness box and give sworn evidence, in the first instance concerning his application for an extension of time. That was the course that was taken. His evidence in chief culminated in the following passage:
Q.At the moment I am directing questions to this three year delay in lodging the appeal.
A.    I felt like I was betrayed by [C]. I felt like I was betrayed by my solicitor.
Q.    So did you go back to Legal Services Commission -
A.    I tried.
Q.- and speak to them about getting a new lawyer who could act for you on an appeal. Did you do anything like that.
A.Yes, I’ve tried that. I went through the Elizabeth legal aid system and I tried to ask for [N B] and nobody would help anything in regards to any form of information. I was left in the dark like blind mice. Couldn’t find my way. It took me this long to get to where I am now.
Q.When you went to the Legal Services Commission in relation to a possible appeal, what documents did they give you.
A.    Nothing.
Q.    Nothing.
A.    I actually had to come to the Supreme Courthouse to find out what I could do.
Q.    When did you do that.
A.Only just in the last, I think it was - I tried asking, inquiring about six months before the actual filling out the document papers they did surrender to me.
Q.You mean when you actually instituted this appeal some three years after the magistrate’s sentence.
A.    Yes.
Q.    You didn’t come to the Supreme Court at any other time before then.
A.    No, no.
Q.    No.
A.    No.
Q.    You didn’t go to any court before then.
A.    No, no.
Q.    Anything stopping you from going to a court before then.
A.    Other than being homeless, yeah, I had no transport because of the circumstances.
Q.So then your explanation for not lodging the appeal earlier than you did is because of lack of transport, is that it.
A.    Yes.
Q.    Do you still have that same lack of transport.
A.    Yes.
Q.And you had that lack of transport when you, in fact, successfully instituted this appeal, did you.
A.    I had friends helping me along the way with transport.
Q.    I see. Thank you. …

Weber then left the witness box and returned to the Bar Table. After some brief cross-examination by Ms Agnew and discussion as to procedure, the following dialogue then occurred:
HIS HONOUR: The evidence has now been heard in relation to the matter of delay. I now ask you whether you have any legal submission to put to me in relation to that evidence you have given in the witness box today but I make it very plain that it is not for you to start going into the facts again because you have had that chance.
APPELLANT: True your Honour.
HIS HONOUR: So is there any succinct legal submission you want to make to me now about the granting of an extension of something over three years within which you can appeal?
APPELLANT: I really find it hard to come up with one off the top of my head, your Honour.
HIS HONOUR: I am giving you the chance.
APPELLANT: I was made homeless as a first consequence, it forced me to move to the Riverland.
HIS HONOUR: You have told me that, the evidence has finished. I am simply asking you if you have got any legal submissions in relation to me granting you an extension of time on the basis of the evidence you have already given.
APPELLANT: To give me a chance to get some affidavits made like you suggested with numbers.
HIS HONOUR: No, you have had every chance.
APPELLANT: Sorry, yes, your Honour.
HIS HONOUR: You have had more than three years and I gave you every chance a week ago.
APPELLANT: You did, your Honour.
HIS HONOUR: I told you then that the evidence that would be adduced on those affidavits would be the evidence upon which I would be ruling, didn’t I?
APPELLANT: Yes, you did your Honour.
HIS HONOUR: So do you have anything further to say in the way of a legal submission?
APPELLANT: I’m sorry, I don’t your Honour.
HIS HONOUR: No?
APPELLANT: No sorry I don’t.
HIS HONOUR: So that completes your case?
APPELLANT: I think so.
Appeals against conviction following a plea of guilty
Pursuant to s 104G of the Supreme Court Criminal Rules 2014, an appeal such as this is to be commenced no later than 21 days after the decision subject to the appeal and therefore should have been commenced by about 1 September 2017. An appeal instituted on 22 October 2020 was therefore about three years, one month and three weeks out of time.
It is important, in the present case, to address that unusually long period of delay very much in conjunction with the fact that here the nature of this appeal is itself highly unusual; it is an appeal against conviction following the appellant pleading guilty to the charges.
Further, Weber personally pleaded to those charges at a pre-trial conference on 20 July 2017, at which he was represented by his solicitor, C. The matter was accordingly adjourned to 11 August 2017 for submissions on sentencing. During that period of about three weeks, Weber had plenty of time to change his mind and seek to withdraw his pleas if they had been forced out of him in some way. However, on 11 August 2017, Weber adhered to his pleas of guilty and in his presence detailed submissions were made by M as to the facts. The result was that Weber was released forthwith, rather than having to wait in custody until he had a trial at which, if he were unsuccessful, he would have been be sentenced without any discount for pleading guilty.
The severe limitations to such appeals against conviction following guilty pleas have been made clear in various cases. Thus, in the decision of the High Court in Meissner v The Queen, Brennan, Toohey and McHugh JJ observed:[2]
… A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence. … [Citations omitted; Emphasis added]
[2] (1995) 184 CLR 132, 141.
And Dawson J stated:[3]
… It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. … [Emphasis added]
[3] (1995) 184 CLR 132, 157.
The Full Court of this Court has dealt with the matter comprehensively on a number of relatively recent occasions, including in R v Pugh,[4] R v Brooks[5] and R v Stewart.[6] In R v Stewart, Doyle CJ stated:[7]
44. For obvious reasons, the Court approaches appeals of this kind with great care. It would not be in the public interest to allow a plea of guilty to be set aside because of second thoughts or late regrets. They are not circumstances that can ordinarily give rise to a miscarriage of justice.
45. A plea of guilty is an admission of all of the elements of the offence. [His Honour referred to the decision of the High Court in Meissner v The Queen and then continued] …
One also must bear in mind that the presence or absence of a genuine consciousness of guilt on the part of the accused may be a relevant matter, but is not necessarily decisive. A person might be held to a plea of guilty even though the plea was entered by the person in question without any consciousness of or belief in guilt. Another matter to consider is the relevance of erroneous legal advice. In Brooks I said at [77]:
[77] To say this is not to deny the potential relevance of the question of whether an accused who pleads guilty has had proper legal advice … However, the adequacy of the advice given to the accused is but one factor to consider in deciding whether or not there has been a miscarriage of justice. The adequacy of the advice given is not, of itself, determinative of the question of whether there has been a miscarriage of justice. For example, in R v Murphy [1965] VR 187 Herring CJ and Adam J accepted that the advice on the basis of which a plea of guilty was entered might have been unduly pessimistic in one respect, and unduly optimistic in another, but still concluded that there was no miscarriage of justice (at 189). [Citations omitted; Emphasis added]
[4] (2005) 152 A Crim R 302.
[5] (2007) 96 SASR 478.
[6] [2010] SASCFC 72.
[7] [2010] SASCFC 72.
Consideration of the application for an extension of time
In Gikas v Police,[8] Lander J considered in depth the matter of an extension of time in a normal Magistrates Appeal. His Honour stated:[9]
[8] (1999) 202 LSJS 301.
[9] Gikas v Police (1999) 202 LSJS 301, 304-305.
Of course, the Court will not extend the time within which to appeal if the appeal is bound to fail. However, it is not the case that any appeal which is likely to succeed must attract an extension of time where such is necessary. Whether or not an extension of time will be granted depends upon a number of factors. First the length of the delay. Secondly the explanation for the delay. Thirdly whether there is any prejudice suffered by the opposing party and fourthly whether there are some prospects that the appeal will be successful.
In Ratnam v Cumarasamy [1964] 3 All ER 933 at 935 the Privy Council said:
“The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion.”
In my opinion no party is entitled to an extension of time within which to appeal unless that party explains, with appropriate frankness and candour, the reasons why the party did not observe the Rules of Court and in particular the time limits imposed by those rules: Hall v Nominal Defendant (1966) 117 CLR 423 at 435. The longer the delay the better the reasons need to be to explain that delay; R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; Armstrong v R (1983) 35 SASR 356.
A relatively short delay of a few days will ordinarily, even with a perfunctory explanation, allow for an extension of time for the institution of an appeal. However, where the delay is substantial the application for an extension of time needs to be supported by a full disclosure of the reasons for the plaintiff’s failure to comply with the time limits.
When there has been a substantial delay the applicant will be entitled to an extension of time if the applicant can point to a satisfactory explanation for that delay.
If there is no satisfactory explanation for the delay then an applicant may still be entitled to an extension of time if the applicant can show that the absence of an extension of time might lead to a miscarriage of justice.
On hearing an application for an extension of time, in the absence of an appropriate explanation, the Court is not required to hear the appeal and first decide that the appeal must succeed and that therefore the extension of time should be granted.
In R v Trotter (1979) 22 SASR 64 at 65 Walters J said:
“In dealing with the application, the court will consider whether there is any substantial point of law to be argued on appeal, and whether there exist any substantial grounds for apprehending a miscarriage of justice. And if the proposed notice of appeal or application for leave to appeal discloses no sufficient grounds of appeal, the application for extension of time will not be granted.”
On an application for an extension of time within which to appeal the Court is not required to go into the appeal on the merits because otherwise an application to extend time for an appeal will turn into the hearing of the appeal itself. [Emphasis added]
His Honour later summarised the position as follows:[10]
In summary, any application for an extension of time within which to appeal must be supported by an explanation for the failure to comply with the time limits prescribed by the statute or any Rules of Court regulating the time limit. When the delay is very short and there is no obvious prejudice to any party the explanation need not be in great detail. Where the delay is lengthy or prejudice may be suffered by some other party then there is an obligation on the party seeking the extension of time to give a detailed explanation for the party’s failure to comply with the prescribed time limit.
Where a party is not able to proffer a satisfactory explanation for failing to observe a time limit, or where another party might suffer prejudice by reason of the delay, an extension of time will only be granted if the party seeking the extension of time can point to the real possibility that a miscarriage of justice might occur by the failure to extend time.
That will not necessarily allow that party to fully argue the matter for which the extension of time is sought. That party must be able to point either in the notice of appeal or in the documents supporting the appeal to some evidence which will suggest a real possibility that a miscarriage of justice will occur.
In determining whether an extension of time should be granted the Court will ordinarily not hear the appeal out in full. There may, however, be some circumstances where the Court cannot determine whether an extension of time should be granted without hearing the appeal itself. [Emphasis added]
[10] Gikas v Police (1999) 202 LSJS 301, 306.
Conclusion
While it may be that a mediocre case for an extension of time may, in some circumstances, be bolstered by a strong showing of prospects of success of the proposed appeal, such is not the situation here.
Here, the delay is very long and the case for an extension of time is very poor. And when looking at the prospects for success of the proposed appeal, the overall position is not improved, since the fact that this is an appeal against conviction following pleas of guilty makes Weber’s position all the more difficult.
Further, while I do not take into account the affidavits sworn by the solicitors C and M as proving the truth of that deposed to (because we did not reach the stage of them being tendered and the deponents being cross-examined by Weber), I may take into account that the respondent informed the Court that its position was that the complaints of Weber are untrue; that the solicitors C and M would be called to give evidence on oath in support of that position; and that the letters from the LSC solicitors (amongst the papers filed by Weber himself) only serve to make Weber’s asserted position the more unlikely.
Thus, Ms Agnew submitted in written submissions filed prior to the hearing date:
29. Included in the documents provided by the appellant is a letter dated 18 July 2017 from his lawyer, [C], to the appellant. That letter appears to summarise previous discussions between the appellant and his lawyer, including the lawyer’s advice on the instructions that had been provided by the appellant and noting that they did not amount to a valid defence. The letter sets out the options open to the appellant. It was made clear in that letter that it was the appellant’s choice whether he wished to plead guilty or whether he wished to continue to contest the charges. The appellant was also advised that if he had a further application for bail that he wished to make, he should advise his lawyer, who would make the application on his behalf.
30. The appellant had been provided with copies of the statements of witnesses and would have understood the allegations against him. Those statements were capable of establishing each element of the charges laid against the appellant.
At the risk of plagiarism concerning the above emphasised passages in Lander J’s judgment in Gikas v Police, I consider that an extension of time of more than three years must be refused in all of the circumstances, including that:
-The delay is very substantial.
-The application for an extension of time was not the subject of an appropriate explanation and was not supported by full disclosure of the reasons for the appellant’s failure to comply with the time limits as was required in the circumstances.
-In the case of substantial delay where there is an absence of an appropriate explanation, the Court is not required to hear the proposed appeal and first decide whether the appeal must succeed before determining whether or not the extension of time should be granted.
-In determining whether a long extension of time should be granted, the Court will ordinarily not hear the appeal out in full. While there may be some circumstances where the Court cannot determine whether an extension of time should be granted without hearing the appeal itself, that is not the present case. Indeed, the fact that this is an unusual case of an appeal against conviction following pleas of guilty, taken together with all of the other circumstances here, indicates that the prospects of success are quite poor.
The application for an extension of time is refused. The appeal proceeding is dismissed.