GEORGE MALLIOS In Person via Telephone v COMMISSIONER OF POLICE In Person [2026] SASC 16

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE GILES) MCCRM- 24-029501 Appellant: GEORGE MALLIOS In Person via Telephone Respondent: COMMISSIONER OF POLICE In Person Counsel: MS E DIBDEN - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 05/02/2026 File No/s: SCCRM-25-047044 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates 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. MALLIOS v COMMISSIONER OF POLICE [2026] SASC 16 Judgment of the Honourable Justice Gray (ex tempore) 5 February 2026 TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BREATH TEST AND ANALYSIS MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL This is an application for leave to appeal against orders made in the Magistrates Court declining to strikeout proceedings brought against the applicant pursuant to s 47EAA (9) of the Road Traffic Act 1961 (SA) (‘RTA’) on the basis of double jeopardy. The applicant was issued with a six-month immediate loss of licence (ILOL) pursuant to s 47IAA of the RTA. The applicant challenges the decision of the learned Magistrate on five grounds; (1) that the appellant has already been convicted and sentenced with respect to said offence: (2) that any re-litigation of the same offence, with respect to the same circumstances at the same date and time, amounts to double jeopardy: (3) that notwithstanding any statutory provisions, any re-prosecution of the same offence- amounts to a lacuna or is in effect an abuse of process; (4) that any re-prosecution of the appellant is unlawful and illegal and (5) that the Parliament has specifically legislated that any re- prosecution in these circumstances is void. Held, dismissing permission to appeal: 1. The applicant has not identified unfairness, injustice, prejudice or oppression caused to him in the context of the Magistrates Court proceedings to constitute an abuse of process, and, or to grant a permanent stay: [36] -- 1 of 12 -- 2. The learned Magistrate did not err in dismissing allegations of double jeopardy, re-litigation or re-prosecution. The information was laid properly. It disclosed an offence for adjudication. Subsequently, there is no basis to conclude or draw an inference that there has been an abuse of process: [40]-[41] Road Traffic Act 1961 (SA) s 47EAA(9)(a), s 166, s 166(1), s 47, s 47EAA(1), s 47EAA(16)(a), s 47EAA(16)(a)(i), s 47EAA(9), s 47IAA(1)(ca), s 47IAA(12)(a)(ii), s 47IAA(12)(b)(iv)(A), s 47IAA(2)(b), s 47IAA(4)(b), s 47IAA(9), s 47IAA; Joint Criminal Rules 2022 (SA) r 64.1(1)(b), r 185.1, r 191.1(1)(a)-(b); Magistrates Court Act 1991 (SA) s 42, s 42(1), s 42(1a), s 42(1a)(c), referred to. GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32; Van Reseema v Police [2009] SASC 8, discussed. Boscolo v Secretary, Department of Social Security [1999] FCA 106; De Jong v Police [2010] SASC 191; Dupas v The Queen [2010] HCA 20; Gray v Police [2003] SASC 15; Jackamarra (an Infant) v Krakouer [1998] HCA 27; Jago v District Court (NSW) [1989] HCA 46; Kiparoglou v AZ [2022] SADC 147; Police v Mallios [2025] SAMC 149; R v B, P [2016] SASCFC 30; R v Perre [2019] SASCFC 100; R v Stone [2005] NSWCCA 344; Rogers v The Queen [1994] HCA 42; Sedmak v Police [2008] SASC 307; Shahin v El-Shafei [2018] SASC 167; Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; Walton v Gardiner [1993] HCA 77; White v South Australia [2007] SASC 75; Williams v Spautz [1992] HCA 34, considered. -- 2 of 12 -- MALLIOS v COMMISSIONER OF POLICE [2026] SASC 16 Criminal: Magistrates Appeal 1 GRAY J: This matter concerns an application for leave to appeal against an interlocutory decision of a magistrate. The learned Magistrate declined to strikeout proceedings brought against the applicant, Mr George Mallios by the respondent, the Commissioner of Police. An extension of time is required to bring the application for leave to appeal. 1 2 By notice of appeal filed 18 November 2025, the applicant appeals against that decision on the following grounds:2 1. that the Appellant has already been convicted and sentenced with respect to said offence; 2. that any re-litigation of the same offence, with respect to the same circumstances at the same date and time, amounts to double jeopardy; 3. that notwithstanding any statutory provision, any re-prosecution of the same offence – amounts to a lacuna or is, in effect, an abuse of process; 4. that any re-prosecution of the Appellant is unlawful and illegal; 5. that the Parliament has specifically legislated that any re-prosecution in these circumstances is void. 3 In essence, the applicant contends that double jeopardy principles prevent prosecution of the applicant in circumstances where he has already completed a six-month licence disqualification period in relation to the offence with which he is charged. The applicant is charged with failing to allow an oral fluid or blood sample to be taken, contrary to s 47EAA(9) of the Road Traffic Act 1961 (SA) (‘RTA’). The applicant complains ‘that the learned Magistrate failed to give proper legal consideration and/or treatment’ to his application for strikeout of the proceedings.3 4 The applicant seeks that this Court find that the prosecution in the Magistrates Court was instituted in breach of s 166 of the RTA and that the matter be struck out. Costs of the prosecution are also sought.4 5 The respondent contends on appeal: 1 Interlocutory application dated 18 November 2025 (FDN 5). 2 Notice of Appeal filed 18 November 2025 (FDN 1); Appeal Grounds filed 18 November 2025 (FDN 2). 3 Affidavit of George Mallios affirmed 3 October 2025 (FDN 4). 4 Appeal Grounds filed 18 November 2025 (FDN 2). -- 3 of 12 -- [2026] SASC 16 Gray J 2 1. That the applicant has not demonstrated that the Court should exercise its discretion to grant an extension of time under r 185.1 of the Joint Criminal Rules 2022 (SA); 2. That the applicant has not demonstrated that there are special reasons justifying a grant of permission to appeal under s 42(1a)(c) of the Magistrates Court Act 1991; and 3. That the Magistrate did not err in refusing to grant a strike out, or grant a permanent stay of proceedings. Background and nature of the appeal 6 On 18 March 2024, the applicant, who was driving a motor vehicle, was stopped by police. The applicant submitted to an alcotest, which returned a negative result. Police then directed the applicant to submit to a drug screening test under s 47EAA(1) of the RTA.5 The applicant refused to comply with the direction. The applicant was issued with a six-month immediate loss of licence (suspension) under s 47IAA of the RTA which is referred to an ILOL.6 7 By information dated 29 July 2024, the applicant was charged with an offence of failing to allow an oral fluid or blood sample to be taken, contrary to s 47EAA(9) of the RTA. 8 The applicant contends that on 18 September 2024, the relevant period of the ILOL ended under s 47IAA(12)(b)(iv)(A) of the RTA. 9 On 24 April 2025, the applicant filed an interlocutory application for the Magistrates Court proceedings to be struck out (the interlocutory application).7 The interlocutory application primarily asserted that the proceedings are an abuse of process in that they represent a second punishment for the same conduct to which the ILOL applied (that is, contravened the notion of ‘double jeopardy’ as legislated under s 166 of the RTA). 10 On 1 May 2025, the Magistrates Court ordered that the proceedings be listed for trial on 6 August 2025 with the trial Magistrate to determine the interlocutory application prior to trial. This approach was confirmed at a status conference heard on 19 June 2025.8 11 On 6 August 2025, in written submissions filed with the Court, the applicant indicated that in the alternative to a strike out of proceedings, he sought the proceedings be permanently stayed.9 That same day, Magistrate Giles refused to 5 See Information and Summons (FDN 1) on MCCRM-24-029501; Appeal Book (AB) at 1-2. 6 Road Traffic Act 1961 (SA) ss 47IAA(1)(ca), (2)(b), (4)(b), (12)(a)(ii) and (12)(b)(iv)(A). 7 See Interlocutory application (FDN 12) and Affidavit of George Mallios made on 23 April 2025 (FDN 11) on MCCRM-24-029501; AB pp 5-10. 8 See Affidavit of Joshua Hamish Newman made on 20 January 2026 (Newman Affidavit), paragraphs [13] and [16] (FDN 8) on SCCRM-25- 047044. 9 See Newman Affidavit, Exhibit JHN-1 (FDN 8) on SCCRM-25-047044. -- 4 of 12 -- [2026] SASC 16 Gray J 3 strike out or permanently stay the Magistrates Court proceedings,10 The learned Magistrate granted the applicant’s requested adjournment. The Magistrates Court proceedings are listed for trial on 27 February 2026.11 12 The learned Magistrate delivered reasons refusing the application for strikeout and determined that the matter was to remain listed for trial. Her Honour stated:12 The crux of the defendant’s argument is that the proceedings before the Court amount to double jeopardy pursuant to section 166 of the Road Traffic Act 1961, the reason being that on the date of the alleged offence for which he is now before the Court, he was issued with a six-month licence suspension pursuant to section 47IAA of the Road Traffic Act 1961, which he has now completed. The offence with which he is now before the Court, an offence contrary to section 47EAA(9)(a) of the Road Traffic Act 1961, attracts a penalty of a fine in the range of $900- $1300 as well as a mandatory disqualification period of not less than 12 months pursuant to section 47EAA(16)(a)(i) of the Road Traffic Act 1961. The fine and mandatory disqualification together amount to the punishment of the offence. While the defendant has served a six-month licence suspension, that is not commensurate to the mandatory minimum punishment for this offence. I further note that pursuant to section 47IAA(9) of the Road Traffic Act 1961, that period of suspension served will be taken into account if the defendant is ultimately convicted of the offence for which he is now before the Court. In the present circumstances, section 166 of the Road Traffic Act 1961 is not infringed by the continuation of the charge before the Court. The charge does not amount to an abuse of process, a second punishment for the same contravention, nor a violation of the double jeopardy protections as submitted by the defendant. The orders sought in the interlocutory application are refused, and the matter will proceed to trial. Statutory basis of the appeal and principles concerning leave to appeal 13 This appeal is to be conducted by way of rehearing, with the Court permitted to draw its own inferences from the evidence adduced in the proceeding at first instance.13 14 The appeal to this Court requires a grant of permission as the decision appealed is interlocutory in nature.14 The Court to grant permission must be satisfied:15 that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial. 10 See Police v Mallios [2025] SAMC 149; AB pp 11-12. 11 See Newman Affidavit, paragraphs [26]-[27] (FDN 8) on SCCRM-25-047044. 12 Police v Mallios [2025] SAMC 149 at 1, [3]-[4] (Magistrate Giles). 13 Magistrates Court Act 1991 (SA s 42(1); Joint Criminal Rules 2022 (SA) rr 191.1(1)(a)-(b). 14 Magistrates Court Act 1991 (SA) s 42(1a). 15 Magistrates Court Act 1991 (SA) s 42(1a)(c). -- 5 of 12 -- [2026] SASC 16 Gray J 4 15 Special reasons may exist where a question of law arises,16 if there is some misunderstanding about, or misapplication of, the correct processes to be employed such that there is a risk that a miscarriage of justice has been occasioned,17 or where the decision has the ability to affect the final determination of the proceedings.18 An arguable case alone, generally, is insufficient to warrant a grant of permission.19 An extension of time 16 The applicant seeks an extension of time in which to appeal. The granting of an extension of time within which to appeal is an evaluative exercise. There are four matters which this Court in the exercise of its discretion must consider. These are:20 1. the length of the delay; 2. the reasons for the delay; 3. whether there is an arguable case on appeal; and 4. the degree of prejudice to the respondent. 17 The applicant submitted that the ruling was delivered on 6 August 2025 but not provided to him until 13 September 2025, and he was unable to obtain legal advice, leading him to self-represent, both of which have meant that preparation of the appeal has taken longer than usual.21 18 The respondent submitted that as there is no special reason to grant permission to appeal and no disclosable error in the Magistrates decision, consequently there is no utility in the grant of an extension of time.22 Submissions as to leave to appeal 19 The applicant submitted that leave to appeal ought to be granted as the decision has the ability to affect the final determination of the proceedings. It was submitted that if this Court intervened and accepted the submissions of the applicant, it ‘would have the effect of finalising the matter without the need for 16 Shahin v El-Shafei [2018] SASC 167; (2018) 132 SASR 126 at 137-8, [48] (Parker J). 17 De Jong v Police [2010] SASC 191; (2010) 201 A Crim R 227 at 241, [46] (Gray J). 18 van Reseema v Police [2009] SASC 8 at [23] (Bleby J). 19 van Reseema v Police [2009] SASC 8 at [23] (Bleby J). See also White v South Australia [2007] SASC 75 at 603-4, [93] (Debelle J), citing French J in Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at 535-6, [18]. 20 Jackamarra (an Infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 520-1, [4] (Brennan CJ and McHugh J). 21 Appeal Grounds filed 18 November 2025 (FDN 2) at 2-3. 22 Respondent’s Written Submissions (FDN 9) at [15]. -- 6 of 12 -- [2026] SASC 16 Gray J 5 any trial,’ in turn saving the costs and resources associated with hearing the matter for trial.23 20 The respondent submitted that the applicant has not identified any special reasons with his filed affidavit material, nor has he pointed to any material before the Magistrate that would be sufficient to provide special reasons. Further, the respondent submits, the applicant has not established that the Magistrate erred in her reasoning. There is no proper basis that would qualify as special reasons for concluding that it is in the interests of the administration of justice to hear and determine the appeal prior to the commencement of completion of the trial. To do so would unduly fragment the trial process, particularly noting that the original trial date on 6 August 2025 was adjourned and has been relisted on 27 February 2026 to accommodate this appeal. The respondent also submits there is nothing preventing the applicant from ventilating his arguments before the trial Magistrate.24 Consideration 21 The decision to refuse to strike out, or to stay proceedings, is an interlocutory decision. The applicant must satisfy s 42(1a)(c) of the Magistrates Court Act 1991, namely, that there are special reasons as to why it would be in the interests of justice to have the appeal determined before commencement or completion of the trial. 22 The expression “special reasons” is not defined in the Magistrates Court Act 1991. In the matter of Van Reesema v Police, Bleby J held:25 … It is an expression that “must always be interpreted in light of its context”. Section 42(1a) permits appeals from interlocutory judgments only in limited circumstances. The purpose of limiting the right of appeal from interlocutory orders and judgments is to prevent summary proceedings from being delayed and fragmented. If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final, substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of the interlocutory order is not yet known. I consider that, for there to be “special reasons” to grant permission to appeal under s 42(1a)(c), there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases. An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal. (citations omitted) 23 The question of what could amount to special reasons in the context of a refusal to stay an abuse of process was considered by Doyle CJ in Sedmak v Police.26 In that case, the application for permission resulted from a decision made 23 Appeal Grounds dated 18 November 2025 (FDN 2) at 3. 24 Respondent Written Submissions (FDN 9) at 5, [22]. 25 van Reesema v Police [2009] SASC 8 at [23] (Bleby J). 26 [2008] SASC 307 at [23]. -- 7 of 12 -- [2026] SASC 16 Gray J 6 refusing the stay before any evidence had been heard at trial. The Chief Justice considered that any challenge to the Magistrate’s ruling should be made and decided based on the evidence. His Honour went on to note that the application for a stay for an abuse of process could be renewed at trial, or the refusal of the application prior to trial could be a ground for an appeal concerning any conviction. 24 The interlocutory application brought by the applicant in the Magistrates Court sought to strike out the charge on the information pursuant to r 64.1(1)(b) of the Joint Criminal Rules 2022 (SA). The applicant contended an abuse of process of the Court because: 1. The Magistrates Court proceedings arose from the same incident on 18 March 2024, and also formed the basis for the issuing of the ILOL (that the applicant had completed); and 2. This contravened s 166(1) of the RTA, which provides that: “A person may be punished only once in relation to the same contravention of a particular provision of this Act, even if the person is liable in more than one capacity”. 25 The applicant also alleged that as he was unrepresented, he required time and a trial would be oppressive and aggravate his trauma.27 26 The licence disqualification issued to him was issued pursuant to s 47IAA of the RTA, which empowers police to impose a disqualification where there is reasonable belief that certain offences have been committed, including the offence with which the applicant is charged.28 In the event of a conviction, the sentencing court is then required to take into account the period of time for which the applicant has been disqualified when passing sentence.29 27 The effect of the relevant statutory provisions is that if a person has previously been the subject of an ILOL and a court convicts them of the offence to which the notice relates, then the court must order the person be disqualified from holding or obtaining a driver’s licence. Despite any other provision of the RTA, the Court must, in determining the period of disqualification, take into account the period of the ILOL and may, for that purpose, impose a period that is less than the mandatory period of disqualification provided it is not less than the difference between the mandatory minimum and the period of the ILOL. If the person is the holder of a driver’s licence, the licence will be taken to have been cancelled from the commencement of the period of disqualification ordered by the court. 28 The application of these provisions to the applicant’s circumstances is that: 27 Appeal Book at 9, affidavit of George Mallios (FDN 11) in Magistrates Court proceedings MCCRM- 24-029501. 28 Road Traffic Act 1961 (SA) s 47IAA(1)(ca) and (2)(b). 29 Road Traffic Act 1961 (SA) s 47IAA(9). -- 8 of 12 -- [2026] SASC 16 Gray J 7 1. If, after a trial or a plea of guilty, the Magistrates Court convicts him of an offence contrary to s 47EAA(9) of the RTA the minimum period of disqualification (cancellation) that the applicant is required to serve is 12-months. 2. However, in determining the period of disqualification, the sentencing Magistrate must consider the six months the applicant completed on the ILOL, and may impose a period less than the mandatory minimum so long as that period is not less than the difference between the 12-month mandatory minimum and the six-month ILOL, which is a difference of six months. 3. As a result, the minimum disqualification period that the applicant would be required to serve (if convicted) is six months. 29 The minimum penalty for the offence with which the applicant is charged is a licence disqualification period greater than the period imposed on him on 18 March 2024.30 It follows that, to the extent that the applicant complains that the learned Magistrate’s decision is in breach of s 166 of the RTA, that complaint has not been made out. 30 A decision whether to permanently stay proceedings on the basis that the proceedings constitute an abuse of process is a decision to which there is one legally permissible answer. In GLJ v Trustees of Roman Catholic Church for Diocese of Lismore (GLJ), Keifel CJ, Gageler and Jagot JJ held that when such decisions are appealed, even if the answer involves an evaluative judgment, the “correctness standard” applies.31 31 A decision whether to strike out proceedings (in part or full) is a question of law that results in a binary outcome: either the proceeding is struck out or it is not. The answer to the question turns on the proper construction of the relevant provisions in the RTA and subsequent consideration of whether the Magistrates Court proceedings amounted to an abuse of process. As the strike out application was based on an alleged abuse of process, applying the High Court’s reasoning in GLJ, the correctness standard applies. 32 The Magistrates Court has power to stay criminal proceedings permanently where the prosecution will result in a trial that is unfair and an abuse of process of the Court. The power to order a permanent stay is only exercised in the most exceptional circumstances. What constitutes an abuse of process is not closed. However, there are broadly two categories of case. First, where proceedings are vexatious or oppressive and cause unfairness to a party. Second, where the matter 30 See Road Traffic Act 1961 (SA) s 47EAA(9) and (16)(a). 31 [2023] HCA 32; (2023) 280 CLR 442, [16]-[17]. -- 9 of 12 -- [2026] SASC 16 Gray J 8 brings the administration of justice into disrepute or would otherwise diminish public confidence in the Court as an institution.32 33 The onus is on the accused who seeks the permanent stay to demonstrate the existence of facts which enliven the discretion to order a stay. It is generally required that, in all the circumstances, a stay is the only remedy available to prevent the abuse.33 In determining whether to grant a permanent stay the Court should consider whether there is no realistic prospect of a fair trial for the accused.34 There are generally two steps involved in a court assessing whether a stay of proceedings should be granted: 1. The Court must consider whether any unfairness, injustice, prejudice or oppression has been established to enliven the power to grant the stay.35 The Court must also consider the mechanisms that will be available to address or neutralise the potentially unfair consequences.36 2. The Court is required to balance the interest of justice.37 This will include considerations such as the legitimate public interest in the determination of serious charges, the conviction of those guilty of crimes, fairness to the accused, and the maintenance of public confidence in the administration of justice. The Court is required to balance and weigh relevant factors, and the interest of the accused cannot be considered in isolation.38 34 To justify a permanent stay of proceedings there must generally be such a fundamental defect that there is nothing that a trial judge or Magistrate can do in the conduct of the trial to relieve against any unfair consequence.39 35 Similar considerations arise when deliberating an application to strike out because of an abuse of process. The power to strike out a criminal prosecution is not foreclosed, however, it would only be exercised in the most extraordinary circumstances, being the most serious and obvious of circumstances. A court will always apply extreme caution in the exercise of any such discretion, noting the broad powers of amendment to address errors of both substance and form. Instances where the court may exercise such a discretion include where the counts 32 Nicholas v The Queen [1998] HCA 9 at [74] (Gaudron J). 33 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 34 (Mason CJ); Gray v Police [2003] SASC 15; (2003) 85 SASR 1, [21] (T Gray J). 34 R v B, P [2016] SASCFC 30, [38] (Kourakis CJ, Kelly and Bampton JJ agreeing) 35 R v Perre [2019] SASCFC 100, [40], [58] and [84] (Parker J, Nicholson and Doyle JJ agreeing) 36 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 519-520 (Mason CJ, Dawson, Toohey and McHugh JJ); R v Perre [2019] SASCFC 100, [40], [57] and [84] (Parker J, Nicholson and Doyle JJ agreeing). 37 R v Perre [2019] SASCFC 100, [40], [58] and [84] (Parker J, Nicholson and Doyle JJ) 38 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 33 (Mason CJ); Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 395-396 (Mason CJ, Deane and Dawson JJ); Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 256 (Mason CJ). 39 Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 34 (Mason CJ); Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, [18] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 266 CLR 325, [106] (Kiefel CJ, Bell and Nettle JJ). -- 10 of 12 -- [2026] SASC 16 Gray J 9 as pleaded are not capable of rectification in that they are irredeemably bad in form and substance.40 36 The applicant has not identified any unfairness, injustice, prejudice or oppression caused to him in the context of the Magistrates Court proceedings in a manner which would establish an abuse of process or justify the grant of a permanent stay. Simply disagreeing with the conduct of a matter is not an abuse of process, nor is it a ground for a stay of proceedings. 37 The learned Magistrate’s reasons are an orthodox application of the relevant legal principles. There is no complaint about the learned Magistrate’s reasoning insofar that it can be said there is a complaint about misunderstanding as to the correct processes to be employed. What is complained about is an outcome error. There is for the reasons identified no error in the outcome. 38 Whilst in this case the application for strikeout is capable of disposing of proceedings insofar that this decision can be said to have an ability to affect the final determination of the proceedings, there is no error identified in the reasoning of the learned Magistrate that warrants intervention, nor has an outcome error been identified considering matters on this rehearing. 39 The application before the learned Magistrate was interlocutory in nature and the applicant is not prevented from reagitating an application of this nature. There is no prejudice occasioned to the applicant in the conduct of his defence by the outcome of the interlocutory application. 40 To the extent that the applicant alleges double jeopardy, re-litigation or re-prosecutions (see grounds 1, 2, 3, 4 and 5); those grounds have not been made out. A police officer issuing the ILOL does not constitute a conviction (or indeed imposition of a sentence) in the necessary sense. Whilst the ILOL is an immediate and protective response to the dangers posed to the community by drink and drug driving, it is not a determination of guilt.41 To issue an ILOL, a police officer only need “reasonably suspect” a relevant offence has been committed. This is an administrative act based on a suspicion of a particular circumstance, rather than a judicial act adjudicating criminal guilt of a crime. The exercise of prosecutorial discretion to lay an Information with a criminal charge contrary to the provisions of the RTA is a separate process. There is also no basis upon which to assert that the Information as laid does not disclose an offence. 41 Further to the extent that the applicant asserts unlawfulness of the Magistrates Court proceedings,42 the Information was properly laid and disclosed an offence for adjudication and, there is no basis upon which to conclude, or draw an 40 Kiparoglou v AZ [2022] SADC 147, [258]-[259] (Slattery J) 41 R v Stone [2005] NSWCCA 344; (2005) 64 NSWLR 413, 429 [57] (Hunt AJA, Hislop J agreeing at 433 [73]) and 439 [121] (Smart AJ) 42 See Ground 4. -- 11 of 12 -- [2026] SASC 16 Gray J 10 inference, that there has been an abuse of process in the bringing or conduct of those proceedings. Conclusion and orders 42 The applicant has not demonstrated any reason that leave to appeal ought to be granted in this case. As such, leave to appeal is refused. The application for an extension of time is refused on the basis that there is no utility in the grant of an extension of time. 43 The order of this Court is: 1. The application for leave to appeal is refused. 2. The application for an extension of time is refused. I will hear the parties as to any further orders. -- 12 of 12 --