GARY CAIN In Person v COMMISSIONER OF POLICE [2026] SASCA 39

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE B DOYLE) SCCRM-25-025496 Applicant: GARY CAIN In Person Respondent: COMMISSIONER OF POLICE Counsel: MS S WILSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 13/04/2026 File No/s: SCCRM-26-003378 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. CAIN v COMMISSIONER OF POLICE [2026] SASCA 39 Judgment of the Court of Appeal (The Honourable President Livesey and the Honourable Justice Stanley) 16 April 2026 TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FOR BIAS IN JUDICIAL PROCEEDINGS This is an application for permission to appeal against the decision of a single judge of the General Division, dismissing the applicant’s conviction appeal. The applicant was convicted by a magistrate for being the owner of a vehicle photographed travelling at 81 kilometres per hour in a 60 kilometre per hour zone, contrary to s 79B of the Road Traffic Act 1961 (SA) and r 20 of the Australian Road Rules. The appeal judge refused an application that he be disqualified from hearing the appeal. The applicant raised 39 grounds of appeal which were refined to six contentions and addressed by the appeal judge in some detail. These included a contention that the magistrate should have been disqualified from hearing the trial. The appeal judge held that the applicant had not demonstrated that his conviction was affected by any material error, nor was there any reason to doubt the soundness or safety of the conviction. Held, refusing permission to appeal: 1. There is no arguable merit in any of the applicant’s five proposed grounds of appeal. 2. There was no error of law made by the appeal judge in connection with the apprehended bias ruling. The appeal judge faithfully applied the governing test by addressing the relevant issues from the perspective of a fair-minded lay observer. -- 1 of 9 -- 3. There is no reason to doubt the conclusion of the appeal judge that the reasons of the magistrate were not inadequate and did not frustrate the appellate function. Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) s 79B; Road Traffic (Miscellaneous) Regulations 2014 (SA) reg 30; Supreme Court Act 1935 (SA) s 50(4)(a)(ii), referred to. Brawn v The King (2022) 141 SASR 465; Brawn v The King (2025) 99 ALJR 872; Cain v Commissioner of Police [2025] SASC 203; Cain v Mount Barker District Council [2026] SASC 7; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Peters v Commissioner of Police [2025] SASCA 95; Police v Mahon (2022) 141 SASR 374; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Rowe & Anor v National Australia Bank [2025] SASCA 86; Shmandiy v Police (No 2) [2024] SASCA 90, considered. -- 2 of 9 -- CAIN v COMMISSIONER OF POLICE [2026] SASCA 39 Court of Appeal – Criminal: Livesey P and Stanley JA THE COURT: Introduction 1 On 9 December 2025, a judge of the General Division dismissed the applicant’s appeal, which had been brought under s 42 of the Magistrates Court Act 1991 (SA).1 The appeal concerned the applicant’s conviction for being the owner of a vehicle photographed travelling at 81 kilometres per hour in a 60 kilometre per hour zone, contrary to s 79B of the Road Traffic Act 1961 (SA) (the Road Traffic Act) and r 20 of the Australian Road Rules.2 2 Following a trial on 21 February 2025, for reasons given on 17 April 2025, a magistrate found the applicant guilty and imposed a fine. The prosecution case was largely documentary, relying on certificates tendered pursuant to the Road Traffic Act. There was an issue about whether one of the certificates had been produced before the trial. The magistrate heard oral evidence about that issue and found that the certificate had been produced to the applicant before the trial.3 3 The appeal judge considered an application made that he be disqualified from hearing the appeal. That application was refused. In so far as the appeal from the magistrate was concerned, 39 grounds of appeal were refined to six contentions which were each addressed in some detail. They included a contention that the magistrate should have been disqualified from hearing the trial on the grounds of apprehended bias and that he should not have refused the applicant’s adjournment application. 4 The appeal judge concluded that the applicant had not demonstrated that his conviction was affected by any material error, nor was there any reason to doubt the soundness or safety of the conviction. The appeal was dismissed. 5 At the hearing on 13 April 2026, the applicant told the Court that he wanted to withdraw his submissions. The applicant said that he had been poorly advised and he wished to resolve this matter quickly and incur the lowest penalty possible. Whilst the applicant’s present attitude is commendable, it remains necessary to determine the application for permission. 1 Cain v Commissioner of Police [2025] SASC 203 (B Doyle J) (the appeal reasons). 2 This rule is a “prescribed offence” within the meaning of the Road Traffic Act by reason of reg 30 of the Road Traffic (Miscellaneous) Regulations 2014 (SA). 3 Police v Cain (Magistrates Court of South Australia, Magistrate Grant, 17 April 2025), (the trial reasons), [59]. The magistrate went on to find that even if the certificate had not been emailed to the applicant before the trial, a proper case for its admission had been made out. -- 3 of 9 -- [2026] SASCA 39 The Court 2 6 For the following reasons, permission to appeal was refused on 13 April 2026, but no order as to costs was made. The judgment under appeal 7 On the day before the appeal was to be heard in the General Division, the applicant applied for an order that the appeal judge be disqualified from hearing the appeal on the ground of apprehended bias. In the course of detailed reasons, the appeal judge explained:4 The test for recusal on the ground of apprehended bias requires the judicial officer to consider whether a fair minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question that they will be required to decide.5 The ‘double might’ test serves to emphasise that the criterion is concerned with ‘possibility (real and not remote), not probability’.6 It has been said that logically this entails the following steps: (1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair minded lay observer.7 8 In a clear and methodical way, the appeal judge addressed each of the applicant’s complaints, based largely on the way in which the appeal judge managed an appeal from the Environment, Resources and Development Court in litigation involving the Mount Barker District Council and the applicant and his wife. His Honour rejected the contention that a fair-minded lay observer would conclude that a different judicial officer ought to hear the applicant’s appeal. 9 The appeal judge also addressed the further contentions made in written submissions that comments made by him, whether considered individually or cumulatively, demonstrated that he had formed a negative predisposition to the applicant’s litigation generally.8 For example, the judge rejected the proposition that ostensible bias was disclosed where, in a case where the applicant raised 39 appeal grounds, the appeal judge said that he doubted whether in the history of appeals, 39 grounds had all succeeded. Rather, he was merely encouraging the applicant to focus on the most promising grounds.9 4 Appeal reasons, [5]-[6]. 5 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (Ebner) at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 6 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 (QYFM) at [37] (Kiefel CJ and Gageler J), citing Ebner at [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 7 QYFM at [38] (Kiefel CJ and Gageler J), citing Ebner at [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ). 8 Appeal reasons, [19]. 9 Appeal reasons, [21]-[23], citing Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [112] (Kirby and Callinan JJ): “Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that -- 4 of 9 -- [2026] SASCA 39 The Court 3 10 The appeal judge addressed in some detail the statutory aids to proof and the certificates produced before the Magistrates Court,10 before addressing arguments about procedural fairness and the asserted misallocation of the burden of disclosure,11 whether the prosecution should have adduced the underlying tests and documents presumably held by police,12 whether there had been non-compliance with the statutory regime, in particular the efficacy of a certificate given under s 79B of the Road Traffic Act,13 an argument about apprehended bias or unfairness involving the magistrate,14 the magistrate’s refusal to adjourn the trial,15 and an argument about the suggested inadequacy of the magistrate’s reasons.16 The proposed appeal grounds 11 The applicant relies upon the following five proposed grounds of appeal: 1. Error of law: failure to engage with a determinative issue (procedural fairness / disclosure) Particulars : (a) Before the primary judge, the Appellant squarely contended that the Magistrate’s refusal to adjourn the trial, in circumstances where disclosure was acknowledged to be uncertain, denied procedural fairness and occasioned a miscarriage of justice. (b) The Magistrate had accepted that: • the original disclosure email had been deleted, • it was uncertain whether a key certificate was attached, • the police officer could not exclude that it was not attached, and • scanning or transmission errors could have occurred. (c) The Appellant relied on those matters to contend that the inability to test disclosure completeness itself impaired forensic decision-making, including decisions as to subpoenas and trial preparation. (d) The primary judge failed to engage with that determinative contention. Instead, his Honour disposed of the issue by asserting that there was “no reason to think” relevant documents existed and that any prejudice was “speculative” (Judgment §§38–40, 42). is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.” 10 Appeal reasons, [29]-[33]. 11 Appeal reasons, [35]-[40]. 12 Appeal reasons, [41]-[42]. 13 Appeal reasons, [43]. 14 Appeal reasons, [44]-[46]. 15 Appeal reasons, [47]-[48]. 16 Appeal reasons, [49]-[51]. -- 5 of 9 -- [2026] SASCA 39 The Court 4 (e) The failure to address whether acknowledged uncertainty in disclosure, combined with the Appellant’s self-represented status, deprived the Appellant of a fair opportunity to defend the charge constitutes appealable error. 2. Error of law: misapplication of the appellate function Particulars : (a) The appellate task required the primary judge to determine whether the Magistrate’s approach to disclosure and adjournment miscarried, not whether the Appellant had proved that undisclosed material would ultimately have assisted the defence. (b) The primary judge instead: • treated the absence of proof of undisclosed material as determinative, • accepted speculative reasoning that relevant documents did not exist, and • resolved the appeal on the basis that any miscarriage was “speculative” (Judgment §§38–40, 48). (c) By determining the appeal on that basis, the primary judge failed to assess whether the process itself was fair and misapplied the appellate function. 3. Error of law: misstatement or reversal of the disclosure burden Particulars : (a) The primary judge held that “the onus of demonstrating that the interests of justice required some step to be taken … lay on the appellant” (Judgment §48). (b) That formulation was erroneous in circumstances where: • the existence and control of disclosure material lay exclusively with the prosecution, • the Appellant was self-represented, and • the complaint concerned whether a fair trial could proceed at all, not mere adjournment convenience. (c) The primary judge failed to address the Appellant’s submission that requiring an SRL to identify missing documents he had never seen impermissibly reversed the disclosure burden. (d) This constituted an error of law as to the nature and operation of prosecution disclosure obligations and procedural fairness. 4. Error of law: apprehended bias (failure to apply the Ebner test correctly) -- 6 of 9 -- [2026] SASCA 39 The Court 5 Particulars : (a) The Appellant applied for the primary judge’s recusal on the basis of apprehended bias, relying on: • prior judicial comments concerning the Appellant’s litigation conduct, and • remarks made in a separate proceeding involving the same litigant shortly before the appeal, viewed cumulatively. (b) Although the primary judge correctly identified the Ebner / QYFM test, his Honour erred in its application by: • resolving contested characterisations of prior remarks by reference to his own assessment, • considering incidents in isolation rather than cumulatively, and • failing to address whether a fair-minded lay observer might reasonably apprehend a lack of impartiality notwithstanding his Honour’s subjective view (Judgment §§15–25). (c) The primary judge thereby misapplied the governing legal test for apprehended bias. 5. Inadequate reasons at the appellate level Particulars : (a) The Appellant contended that the Magistrate’s reasons were inadequate because they asserted that disclosure “appeared complete” without explaining why, and without engaging with identified categories of missing material. (b) The primary judge rejected that contention but did so by: • asserting that the Magistrate regarded undisclosed material as irrelevant, • without explaining how relevance could be assessed without knowing whether the material existed, • and without addressing why acknowledged uncertainty did not itself require explanation (Judgment §§49–51). (c) The reasons do not expose the logical pathway by which the determinative contentions were rejected, frustrating meaningful appellate review. The determination of the application for leave to appeal 12 The applicant requires permission to appeal pursuant to s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). The test to be applied when determining permission has been considered in a number of cases.17 No issue of principle is raised. The key question in this case is whether the proposed appeal grounds have 17 Police v Mahon (2022) 141 SASR 374, [81]-[84] (Livesey P, Lovell and S Doyle JJA); Rowe & Anor v National Australia Bank [2025] SASCA 86, [31] (Livesey P and Stanley JA); Peters v Commissioner of Police [2025] SASCA 95, [20]-[21] (Livesey P and Stanley JA). -- 7 of 9 -- [2026] SASCA 39 The Court 6 arguable merit. As the applicant is pressing a second opportunity to appeal, it is necessary for him to be astute to clearly identify real doubt about the decision under appeal.18 13 Proposed appeal ground 1 proceeds on the misconception that the magistrate was in doubt about whether disclosure had been made before the trial. In addition, it confuses the documents which it was necessary for the prosecution to disclose,19 with those which the applicant could have obtained, if he had wished, by means of a subpoena. Although the applicant had obtained leave to issue a subpoena, he did not issue one. The appeal judge found that the magistrate accepted the evidence from the prosecution that proper disclosure had been made and it was speculative to suggest that any further documents needed to be disclosed or that there was any prejudice caused. There is no merit in this proposed appeal ground. 14 Proposed appeal ground 2 largely falls with proposed appeal ground 1. The applicant failed to establish any basis for the contention that proper disclosure had not been made by the prosecution. The appeal judge rejected the contention that the magistrate had impermissibly reversed any relevant burden concerning the obligation in the prosecution to make proper discovery. It was in that context that the appeal judge found that it was speculative to conclude that there was any material available to the prosecution that might reasonably have been expected to assist the case for the defence.20 There is no merit in proposed appeal ground 2. 15 Proposed appeal ground 3 is also without merit. The applicant failed to demonstrate that there was any reason to question the adequacy of the disclosure made by the prosecution. In so far as the applicant relied upon the assertion that underlying documents had not been produced, the appeal judge found that there was no obligation to make production of those documents and the magistrate was right in declining to adjourn the trial in circumstances where there had been six earlier hearings and the application to adjourn was made late. The adjournment application seems to have been directed to obtaining the documents which the applicant could have obtained by subpoena. The applicant did not explain his failure to issue a subpoena even though he had been given leave to do so. 16 The suggested error of law associated with apprehended bias in the appeal judge under proposed appeal ground 4 must be rejected as being without merit. The appeal judge closely addressed the governing test and applied it faithfully. He did not resolve the matter by reference to his own assessment but rather, instead, by addressing the issues from the perspective of the fair-minded lay observer. 18 Shmandiy v Police (No 2) [2024] SASCA 90, [35] (Livesey ACJ and David JA); Rowe & Anor v National Australia Bank [2025] SASCA 86, [32]-[33] (Livesey P and Stanley JA). 19 As an adjunct of its duty to the court, Brawn v The King (2022) 141 SASR 465, [36]-[38] (Livesey P, Bleby and David JJA). The High Court allowed the appeal on whether the failure to make discovery caused a material miscarriage of justice, cf Brawn v The King (2025) 99 ALJR 872, [33]-[34] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). 20 Appeal reasons, [38]. -- 8 of 9 -- [2026] SASCA 39 The Court 7 17 Proposed appeal ground 5 concerns the suggested inadequacy of the magistrate’s reasons. Again, the appeal judge addressed this issue with care, explaining:21 In my view it is tolerably clear that the magistrate concluded that, unless the documents were to be relied upon by the prosecution or might by reason of their content assist the appellant in defending the charge, they were not required to be disclosed, and that there was no reason to think that any documents of that kind existed. The magistrate noted that the appellant could have, but chose not to issue, a subpoena seeking some of the documents. Documents of the kind raised under ground 2 do not appear to have been raised before the magistrate. For the reasons I have given they would have been irrelevant. 18 There is no reason to doubt the conclusion of the appeal judge that the reasons of the magistrate were not inadequate and did not frustrate the appellate function. Proposed appeal ground 5 is also without merit. Conclusion 19 In circumstances where each of the applicant’s proposed grounds of appeal is without merit, permission to appeal must be refused. 20 For these reasons, the order of the Court is that permission to appeal is refused. 21 Appeal reasons, [50]. -- 9 of 9 --