JAMES HICKEY In Person v COMMISSIONER OF POLICE [2026] SASC 37

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SCHULZ) MCCRM-23-010778, [2024] SAMC 23 Appellant: JAMES HICKEY In Person Respondent: COMMISSIONER OF POLICE Counsel: MS A WINRA - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 20/01/2026 File No/s: SCCRM-24-010592 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. HICKEY v POLICE [2026] SASC 37 Judgment of the Honourable Justice McDonald 30 March 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - GENERALLY This is an appeal against conviction. On 12 March 2024 the appellant was found guilty of the offence of failing to comply with the reasonable direction of a police officer. On 13 March 2024 the appellant was sentenced to 20 hours of community service to be completed within six months of the date of the order. The appellant appeals the Magistrate’s decision on a number of grounds. The appellant was granted the opportunity to file further and better particulars. The appellant adopted an approach of focusing on his first five grounds of appeal. There were two interlocutory applications filed. The appellant filed an application for recusal, and the respondent filed an application for summary dismissal. The appellant brought his interlocutory application for recusal upon an assertion of apprehended bias. It was found that nothing arising from the hearings in this matter might lead a fair-minded observer to conclude that anything other than an impartial mind would be brought to determine the appeal. The respondent, in its interlocutory application, contended that the Court did not have before it the properly drawn material which demonstrates any grounds enlivening the Court’s jurisdiction, and none of the grounds of appeal have any reasonable prospects of success. It was found that, whilst the respondent has had the opportunity to argue his appeal in full, no arguable grounds were identified that had any prospect of success. Held: 1. The interlocutory application for recusal is refused. -- 1 of 25 -- 2. The interlocutory application for summary dismissal is granted. 3. No arguable grounds of appeal have been identified to have any prospect of success. 4. The appeal is dismissed Road Traffic Act 1961 (SA) ss 47E(2), 47E(2a), 47E(3), 47(3); Joint Criminal Rules 2022 (SA) rr 201.1, 201.1(2)(e); Statutes Amendment (Drink Driving) Act 2005 (SA) s 9(1); Legislation Interpretation Act 2021 (SA) s 14; Police Act 1998 (SA) s 3, referred to. Whittacker v Police [2005] SASC 61; Lester v Police (2013) 118 SASR 190, applied. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455; Johnson v Johnson (2000) 201 CLR 488; Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218; Miojlic v City of Onkaparinga Council [2025] SASCA 2; Manuel v Police [2010] SASC 169; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Borman v Caldwell (1986) 43 SASR 297; Plenty v Dillon (1991) 171 CLR 635, discussed. -- 2 of 25 -- HICKEY v POLICE [2026] SASC 37 Magistrates Appeal: Criminal McDONALD J. 1 On 12 March 2024, James Hickey was found guilty of the offence of failing to comply with the reasonable direction of a police officer.1 The reasonable direction was for Mr Hickey to “stop walking” in order to enable the police to direct him to submit to an alcotest. This is an appeal against his conviction for that offence. 2 On 20 March 2024, Mr Hickey filed a notice of appeal in relation to the verdict. In that notice Mr Hickey relied on the following grounds of appeal: 1. The learned Magistrate erred in Law. 2. The learned Magistrate erred in findings of Fact. 3. The learned Magistrate erred in Practice and Procedure. 4. The learned Magistrate erred in not considering applicable Law. 5. The learned Magistrate erred in considering non-applicable Law or legal principles. 6. The learned Magistrate erred in finding of facts that were not relevant. 7. The learned Magistrate erred in allowing evidence to be tendered that was inadmissible. 8. The learned Magistrate erred in not allowing evidence that was relevant to be admitted into evidence. 9. The learned Magistrate erred in relying on evidence that was irrelevant to be admitted into evidence. 10. The learned Magistrate erred in not allowing the Appellent [sic] to present relevant evidence. 11. The learned Magistrate erred in Practice and Procedure in consistently and evidently discriminated against Appellent [sic], as self-represented litigant, throughout the trial, by consistently interrupting and speaking over the top of Appellent [sic]. 12. The learned Magistrate undermined the Appellant by consistently and thoroughly disrupting Appellent [sic] by not allowing him to finish his arguments and propositions throughout the trial. 1 Road Traffic Act 1961 (SA) s 47E(2), s 47E(2a). -- 3 of 25 -- [2026] SASC 37 McDonald J 2 13. The learned Magistrate failed to give the Appellant a proper opportunity to object to any admitted evidence or documents, thereby preventing Appellent [sic] from defending himself. 14. The learned Magistrate imposed a narrative upon the Appellant during the trial that was inconsistent with the Appellant’s Defence. Factual background 3 In the early afternoon of 28 February 2023, two police officers, Senior Constable Torjul and Probationary Constable Schlink, were carrying out patrol duties in a marked police car. They were both in uniform. The vehicle in which they were travelling was fitted with an automatic number plate recognition camera and system. As they were driving in a westerly direction along Seaford Road at Seaford Meadows, the system alerted them to a white Volkswagen (‘VW’) transporter travelling in the opposite direction. The notification that they received was that the owner of that vehicle had an expired driver’s licence. The police drove a further short distance, conducted a U-turn and followed the vehicle heading east along Seaford Road. 4 It was Senior Constable Torjul’s evidence that from the time of conducting the U-turn, it was his intention to require the driver of the vehicle to submit to a random driver alcotest. 5 The VW made a right hand turn at a roundabout and entered the Bunnings carpark at Old Noarlunga. The police continued to follow the vehicle into the carpark. The male driver of the vehicle, Mr Hickey, parked in a car park and the police pulled up parallel with and adjacent to him. 6 Mr Hickey got out of his vehicle and locked his door. The two police officers also got out of the police car and approached Mr Hickey as he was walking away from his vehicle. The events that then followed were captured on the dashcam of the police vehicle and the body worn cameras of the two police officers. 7 Although the police officers gave evidence that was generally consistent with the recordings from the body worn cameras, for the purpose of this summary of the facts I will rely on what was captured on film. 8 The footage records Senior Constable Torjul approaching Mr Hickey while saying “Hey mate” to which he replied “How you going”. Senior Constable Torjul responded “You’re stopped for a driving test mate” and he gestured back towards the parked vehicle with his arm. Mr Hickey and Senior Constable Torjul then spoke over the top of each other during which Senior Constable Torjul repeated “You’re stopped for a driver’s test” to which Mr Hickey responded “No, I’m not driving” whilst continuing to walk forward to the right of Senior Constable Torjul. Mr Hickey then changed directions to walk forwards and to the left of Senior Constable Torjul, while saying “No, I’m not driving”. Senior Constable Torjul responded “You were are you going to submit to a test”, while pointing his left -- 4 of 25 -- [2026] SASC 37 McDonald J 3 index finger back towards the vehicles. At this stage both men appeared to be alongside the front of the police vehicle. 9 Mr Hickey continued to walk forward saying “No this is actually private property” and Senior Constable Torjul again repeated “Are you going to submit to a test mate?” Mr Hickey continued to walk past Senior Constable Torjul and said “excuse me”. It can be seen that by this time they had both moved to an area in front of the Bunnings entrance. Senior Constable Torjul again asked Mr Hickey “Are you going to submit to a driver’s test”. Mr Hickey attempted to walk to the right of Senior Constable Torjul, and continued to assert that it was private property saying “It’s not on a road”. Mr Hickey again reorientated and attempted to walk to the right of Senior Constable Torjul which seemed to prompt him to say “settle down mate”. Mr Hickey responded “I am settled”. It was at that point that Senior Constable Torjul gave the direction that was the basis of the charge. He told Mr Hickey “Well stop walking, I’ve given you a direction alright, submit to that alcotest”.2 As he did so Senior Constable Torjul again pointed to the vehicle behind Mr Hickey. Mr Hickey replied “No thanks”, turned a complete circle away and started to walk to the left of Senior Constable Torjul. It was at that point that Senior Constable Torjul arrested Mr Hickey and told him “You’re under arrest for failing to submit to an alcotest”. The issues at trial 10 Section 47E of the Road Traffic Act 1961 (SA) relevantly provides: 47E – Police may require alcotest breath analysis (1) Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person- (a) is driving, or has driven, a motor vehicle; or … the police officer may require the person to submit to an alcotest or a breath analysis, or both (2) A police officer may direct a person driving a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that a person submit to an alcotest or breath analysis. (2a) A person must forthwith comply with a direction under subsection (2). Maximum penalty: $2 900. 11 At trial there was no dispute that Mr Hickey had already parked his car in the Bunnings carpark when he was approached by the police officers and that prior to 2 Although he was arrested for failing to submit to an alcotest (s 47E(3) of the RTA), the charge that ultimately proceeded to trial was failing to comply with a reasonable direction (s 47E(2) of the RTA). -- 5 of 25 -- [2026] SASC 37 McDonald J 4 this he was not given any directions by police to stop driving his vehicle. Mr Hickey disputed that Senior Constable Torjul was empowered to give him a direction under s 47E(2) because he was no longer in his vehicle and was walking at the time that the police officers approached him. Mr Hickey also challenged the reasonableness of the direction on the basis that at the time that it was given, he was on private property and the direction required him to unreasonably stand in an “active vehicle throughfare”. 12 The Magistrate found that it was open for Senior Constable Torjul to give Mr Hickey the direction to “stop walking” in order for him to submit to an alcotest pursuant to s 47E(2), even though Mr Hickey was no longer in his motor vehicle. In doing so the Magistrate relied upon the decision of Anderson J in Whittacker v Police.3 13 The Magistrate also found that the direction that the police gave to Mr Hickey was reasonable. The Magistrate rejected Mr Hickey’s argument that the police were precluded from giving a “reasonable direction” because they were on private property. In support of this position the Magistrate again placed reliance on Whittacker. The Magistrate also did not accept Mr Hickey’s contention that the direction was unreasonable because it required him to stand in an “active vehicle thoroughfare”. The Magistrate found that it was a mischaracterisation to describe the area in which Mr Hickey was asked to stop as a thoroughfare. 14 The Magistrate relied upon what could be seen on the body worn footage and observed:4 …while the footage in evidence shows vehicles moving through the thoroughfare, there was no constant stream of traffic and there is no indication that those vehicles were travelling at anything other than a speed appropriate for a public carpark. I do not consider that it was unsafe for SC Torjul to have directed the defendant to stop walking in that environment. 15 The Magistrate also found that it was “disingenuous” for Mr Hickey to suggest that Senior Constable Torjul had required him to stand in the middle of a thoroughfare to undergo the alcotest. She noted that when Probationary Constable Schlink had initially attempted to have Mr Hickey undertake the alcotest, Mr Hickey was standing at the doorway of his vehicle. It was Mr Hickey who walked away. There were then four attempts by Senior Constable Torjul to give Mr Hickey the opportunity to stop walking and submit to the alcotest. Mr Hickey declined to do so and kept walking, ultimately placing himself in the location that he was arrested. 16 The Magistrate determined that at the time of giving the relevant direction to Mr Hickey, Senior Constable Torjul was indicating to him that he should stop 3 [2005] SASC 61. 4 Police v Hickey [2024] SAMC 23 at [27] (‘Magistrate’s Reasons’). -- 6 of 25 -- [2026] SASC 37 McDonald J 5 moving forwards and move back to the edge of the thoroughfare to undergo the alcotest. History of proceedings 17 On 12 March 2024, Mr Hickey was found guilty in the Magistrates Court. The following day, on 13 March 2024, he was sentenced to 20 hours of community service, to be completed within six months of the date of the order, and until such time that the hours were completed, to obey the lawful direction of the Community Corrections Officer assigned to him. 18 On 20 March 2024, the Notice of Appeal was filed with the grounds set out above. On 25 April 2024, the respondent (the Commissioner of Police) filed a Notice of Acting.5 19 On 1 May 2024, Mr Hickey wrote to the Court seeking clarification as to “why the Crown Solicitor’s Office has been invited to attend as proxy for COMMISSIONER OF POLICE?”. 20 On 10 May 2024, Mr Hickey filed an interlocutory application “to discover the identity of the Respondent, disqualify the Crown Solicitor’s Office from representation in this matter and to discover the jurisdiction of the Supreme Court of South Australia”.6 21 On 14 May 2024, a further Notice of Acting was filed by the respondent7 and an order was made for the timetabling of written submissions and argument in relation to Mr Hickey’s interlocutory application. On that occasion Mr Hickey was put on notice that given the nature of his grounds of appeal, in due course it would be necessary for him to provide further particulars. 22 On 4 June 2024, on Mr Hickey’s application, an order was made staying the Community Service Order pending the determination of the appeal.8 23 On 12 July 2024, submissions were made on Mr Hickey’s interlocutory application, and on 27 June 2025, a ruling was delivered on that application.9 The matter was adjourned to a directions hearing on 20 August 2025. 24 In the intervening period, on 14 August 2025, Mr Hickey forwarded an email to chambers advising that he had been arrested on 11 August 2025 in relation to the Community Service Order that I had previously stayed. As a consequence of the stress caused by his arrest in combination with a medical issue, Mr Hickey requested that the directions hearing be administratively adjourned until after 30 September 2025, when he was next due to appear in the Magistrates Court in 5 FDN 4. 6 FDN 5. 7 FDN 6. 8 FDN 9. 9 FDN 16. -- 7 of 25 -- [2026] SASC 37 McDonald J 6 relation to the community service issue. That application was granted and the directions hearing was rescheduled for 7 October 2025. That date was subsequently changed to 8 October 2025. 25 By the time that the matter came before the Court, Ms Winra, who appeared for the respondent, had made some enquiries about the basis on which Mr Hickey had been arrested, given the stay of the community service order. Ms Winra advised the Court that the reason for Mr Hickey’s arrest related to his conduct between being sentenced on 13 March 2024 and the stay of the order on 4 June 2024. It was alleged that between those dates Mr Hickey had failed to attend appointments with his community correction officer for supervision. It was as a consequence of that conduct preceding the stay that he had been charged and arrested. 26 Satisfied that there had been no contempt in respect of the court order, I determined that the role of this Court in relation to the new allegations was complete. 27 On this occasion the issue of the need for further and better particulars was revisited and an order was made that further particulars of the appeal grounds be filed by 7 November 2025. An additional order was made that the Crown file any application arising out of the particulars provided by Mr Hickey. 28 On 7 November 2025, Mr Hickey filed a summary of argument,10 which appears to be an attempt to better particularise his appeal grounds. On 21 November 2025, the respondent filed an interlocutory application for the summary dismissal of the appeal,11 with an accompanying written submission. 29 The matter came on for a further directions hearing on 28 November 2025. On that occasion I made an order that Mr Hickey file any written submissions in response to the application for summary dismissal prior to close of business on 15 December 2025. On 16 December 2025, Mr Hickey filed his written submission,12 along with a further interlocutory application that I recuse myself from hearing and determining the appeal.13 30 The matter was listed for submissions on both interlocutory applications on 20 January 2026. Interlocutory applications 31 It follows that there are currently two interlocutory applications to be determined. These are an application for summary dismissal and an application for recusal. Although the application for summary dismissal was filed first in time, 10 FDN 20. 11 FDN 21. 12 FDN 24. 13 FDN 23. -- 8 of 25 -- [2026] SASC 37 McDonald J 7 it is logical that I first determine the application that I recuse myself from continuing to preside over this appeal. Application for recusal 32 Mr Hickey’s application for recusal is based upon an assertion of apprehended bias. In support of that argument, Mr Hickey relies upon the compendious effect of a number of matters. These are:14 1.3.1. The issuance of a legally ineffective and ambiguous Stay Order (FDN 9) which acted as a “procedural trap”, exposing the Appellant to arbitrary arrest while purporting to protect him. 1.3.2. Failure to disclose a material conflict of interest regarding prior professional associations and the subsequent mischaracterization of primary evidence to avoid adjudicating substantive issues. 1.3.3. “Descending into the arena” by tactically inviting the Crown Solicitor to file for summary dismissal (FDN 21), thereby steering the litigation. 1.3.4. Demonstrating unequal treatment (“inequality of arms”) during hearing by silencing the Appellant, leading the Respondent, and wrongfully excluding relevant documentary evidence. (Footnotes omitted) The legal test for apprehended bias 33 Before coming to Mr Hickey’s various complaints, it is convenient to say something about the legal test for apprehended bias. 34 It is well settled that the test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the resolution of the issues to be decided. 35 As the High Court explained in Ebner v Official Trustee in Bankruptcy:15 … That principle gives effect to the requirement that justice should both be done and seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about 14 FDN 23. 15 (2000) 205 CLR 337 at [6]-[7]. -- 9 of 25 -- [2026] SASC 37 McDonald J 8 what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror. 36 The application of the criterion was identified to involve a three step process that has been reiterated in the most recent High Court exposition of the principles applying to a consideration of the question of apprehended bias in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.16 It requires: … (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. 37 In their joint judgment, Kiefel CJ and Gageler J emphasised the importance of the analysis being undertaken from the perspective of a lay person. They explained:17 In undertaking that assessment, “it is the court’s view of the public’s view, not the court’s own view which is determinative”. The hypothetical fair-minded lay observer is a deliberate and necessary construct which tethers the court’s analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system. The construct provides the “standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system”. (Citations omitted) 38 Attributes of a hypothetical fair-minded observer have been the subject of much judicial consideration. 39 The hypothetical fair minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made,18 as well as to have knowledge of the circumstances leading up to the decision.19 The observer is assumed to have “knowledge of the relevant legal framework … the identity of the decision-maker, the nature of the decision and issues in question, and of the relevant facts and circumstances leading to the decision, including, of course, the impugned conduct”.20 40 The observer is necessarily reasonable21 and neither complacent or unduly sensitive or suspicious.22 16 (2023) 279 CLR 148 at [38]. 17 (2023) 279 CLR 148 at [45]-[49]. 18 Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 at [68]. 19 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509 at 517. 20 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CQZ15 (2021) 284 FCR 455 at [91]. 21 Johnson v Johnson (2000) 201 CLR 488 at [12]. 22 Johnson v Johnson (2000) 201 CLR 488 at [53]. -- 10 of 25 -- [2026] SASC 37 McDonald J 9 41 A finding of apprehended bias is not to be reached lightly; it must be firmly established.23 A vague sense of unease or disquiet is insufficient.24 1.3.1. The legally ineffective and ambiguous Stay Order which acted as a “procedural trap” 42 The very premise upon which this complaint is made is incorrect, that is, that the stay was “ineffective and ambiguous”. Mr Hickey made an application for a stay pending the outcome of the appeal. That application was granted. The stay remains in effect and will continue to do so until the outcome of the appeal is determined. 43 There was nothing “ineffective and ambiguous” about the order that was made for a stay. 44 Mr Hickey is aggrieved by the fact of his arrest and the laying of a charge in respect of his failure to comply with the order for Community Service and supervision. As I have said, those events arise out of conduct alleged prior to the imposition of the stay. It is therefore not a matter for this Court to play any role in the proceedings that are currently before the Magistrates Court. 45 There is no merit to this complaint. 1.3.2. The failure to disclose a material conflict of interest 46 Again, this complaint is based on a mistaken premise, that is, that I was a former employee of the Attorney-General’s Department. That is incorrect. It may be that Mr Hickey is confusing the Attorney-General’s Department with the Office of the Director of Public Prosecutions of which I was a previous employee. 47 The Office of the Director of Public Prosecutions was established in 1992 as an independent statutory authority, free from political or ministerial direction. The Director has had no involvement in any aspect of the proceedings against Mr Hickey. 48 There is no material conflict of interest and therefore no failure to disclose relevant information.25 23 Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [20], quoting R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553-554. 24 Chen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 288 FCR 218 at [40], quoting Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [90]. 25 I note that even if Mr Hickey had been correct, the fact that a Judge was previously employed in the Attorney-General’s Department of itself would not be a basis for recusal. -- 11 of 25 -- [2026] SASC 37 McDonald J 10 1.3.3. “Descending into the arena” by tactically inviting the Crown Solicitor to file for summary dismissal 49 Mr Hickey was put on notice on 14 May 2024, and then again on 8 October 2025, that there were obvious deficiencies in his grounds of appeal. On being put on notice, Mr Hickey was given ample opportunity to address those deficiencies. 50 On 8 October 2025, when setting the timetable for the proceedings, Mr Hickey had not yet filed any further particulars and was provided with an opportunity to do so. It was unknown at that stage as to whether Mr Hickey would take up the opportunity to file any further particulars, and if he did so, whether those particulars would be sufficient to identify grounds of appeal that were reasonably arguable. 51 It was in that context that a timetable was set for the respondent to file any application arising from any documents Mr Hickey had filed in the intervening period. 52 An application for summary dismissal is provided for under r 201.1 of the Joint Criminal Rules 2022 (SA). Relevantly r 201.1(2)(e) provides: 201.1—Interlocutory orders (1) A Judge may, at a hearing in court or in chambers, make interlocutory or ancillary orders— (a) on their own initiative; or (b) on the application of any person in relation to an appellate proceeding. (2) For example, a Judge may make orders— … (e) striking out an appellate document or summarily dismissing an appellate proceeding if— (i) the appellate proceeding is incompetent or has not been validly commenced; (ii) none of the grounds has a reasonable prospect of succeeding; or (iii) the appellant has not obeyed these Rules or any order made under them; … 53 Of note, a Judge may of their own initiative summarily dismiss an appellate proceeding if “the appellate proceeding is incompetent”26 or “none of the grounds has a reasonable prospect of succeeding”.27 It would therefore have been open to 26 Joint Criminal Rules 2022 (SA) r 201.1(2)(e)(i). 27 Joint Criminal Rules 2022 (SA) r 201.1(2)(e)(ii). -- 12 of 25 -- [2026] SASC 37 McDonald J 11 summarily dismiss Mr Hickey’s appeal absent any application having been made by the respondent. In such circumstances it cannot therefore be suggested that by raising the possibility that the respondent may make “an application”, provided the respondent with a “tactical invitation” to adopt a course that they might have not otherwise been aware was open to them. 54 There is no merit to this complaint. 1.3.4. Inequitable treatment between the parties 55 A review of the transcript of the various hearings demonstrates that Mr Hickey has been given more than ample opportunity to make his submissions, file appropriate paperwork and present his case to the Court. Mr Hickey has in fact been indulged in a manner that would not have been afforded to a legal practitioner or most litigants. 56 I provide this brief synopsis by way of illustration. 14 May 2024 57 In the face of a submission by the respondent that the interlocutory application brought by Mr Hickey should be dismissed at that hearing, it was listed for argument. 58 It was explained to Mr Hickey that the matter could proceed by oral submissions, written submissions, or a combination of both. Mr Hickey was given the option of proceeding with any of those options. Mr Hickey expressed a preference for written submissions to be supplemented by oral submissions. That was the course adopted. 59 Mr Hickey was consulted about the time that he would require to prepare his submissions. He was permitted four weeks, and a timetable was set for filing written submissions and for argument on the interlocutory application. 60 It was foreshadowed that moving forward, at some point, Mr Hickey would be required to file further and better particulars of his grounds of appeal. 12 July 2024 61 In advance of this hearing, Mr Hickey and the respondent had filed detailed written submissions in relation to Mr Hickey’s interlocutory application. 62 The hearing commenced at 11.05am and concluded at 12.26pm. Mr Hickey’s submissions (generally without interruption) occupied nearly all of that time. -- 13 of 25 -- [2026] SASC 37 McDonald J 12 63 Mr Hickey makes three particular complaints about this hearing. The first is:28 Approximately one hour into the allotted two-hour interlocutory hearing dated 12 July 2024 Hon. MacDonald (sic) began to apply pressure to the Appellant to complete the oral submission. The appellant, a self-represented litigant was interrupted by Hon. Justice MacDonald (sic) and instructed to ‘move on’ when concluding remarks in relation to the Legislation Interpretation Act 2021 Section 23, which underpins the South Australian legislative framework. 64 Mr Hickey filed two sets of written submissions and addressed the Court for over an hour on an interlocutory application with negligible merit. Mr Hickey’s submissions extended well beyond what was necessary to make out his arguments on the interlocutory application. The suggestion that he “move on” with his argument came in response to the following submission:29 Then I will just make one further point, because returning to the Legislation Interpretation Act 2021 s.23, the problem that has also occurred by the parliament allowing itself to time travel essentially back to 1836 is that it has created an entirely new legislative framework for the last 100, 200 years backdating to 1836. For example, the Real Property Act 1886 was first gazetted around 1990/1991, that is, obfuscate the actual Real Property Act 1886. This is the problem with that assertion, that the State of South Australia began in 1836, is that it is given some permissions, the parliament has given itself right to reshape the legislative framework of South Australia and in that regard it is requested that this court finds that the Legislative Interpretation Act 2021 s.23 is not lawful, has no basis in law. The second point raised was that:30 … Approximately 1 minute and 30 seconds into the Crown Solicitor’s oral submission on 12 July 2024 Hon. Justice McDonald interrupted and questioned whether anything beyond the Crown Solicitor’s written submission would be included in the oral submission. This resulted in a diminished opportunity for the Crown Solicitor to respond to the Appellant’s final written response (FDN 12) and the Appellant’s oral submission at the 12 July 2024 hearing. (Footnote omitted) 65 As I have said, the respondent filed detailed written submissions in advance of the hearing. Unsurprisingly at the outset of her submissions, Ms Winra indicated that it was her intention to rely on the written submissions. Ms Winra then proceeded to make submissions which mirrored the written submissions. The extent of the judicial intervention was to make an enquiry as to whether the matters which were being raised were in her written submissions, and to make the following suggestion “You don’t need to take me through your written outline, I’ve read that, if there are additional matters, of course, please raise them but I 28 FDN 23 at [5]. 29 T22-23, 12 July 2024. 30 FDN 23 at [6]. -- 14 of 25 -- [2026] SASC 37 McDonald J 13 don’t need you to take me through the outline”.31 Ms Winra responded by making a further brief submission summarising her argument. 66 There is nothing about the exchange that took place that may lead to an impression of a foreclosed mind. To the contrary, it was left open to the respondent to make any further submissions, beyond repeating that which was already contained in the written submissions. 67 The third complaint raised by Mr Hickey was the delay in the delivery of the ruling on this application. It took 11 months for the decision to be delivered. It cannot be disputed that delay of that duration is undesirable, however, delay is often the outcome of a busy court with competing pressures. 68 Contrary to what is contended by Mr Hickey, delay cannot be equated with or seen as an indicator of bias. 8 October 2025 69 This hearing followed Mr Hickey’s arrest. It had initially been scheduled for 20 August 2025, however, was adjourned until the later date at Mr Hickey’s request. 70 By the time of this directions hearing enquiries had been made about the reason for Mr Hickey’s arrest in order to determine whether the stay that had been ordered remained in effect. 71 Mr Hickey was advised of the outcome of these enquiries and in particular that the stay on the order for the performance of community service remained in force. 72 At this hearing, the issue of providing Mr Hickey with the opportunity to file further and better particulars of his grounds of appeal was again raised. It should be noted that the Court was under no obligation to provide Mr Hickey with such an opportunity and the respondent would have been entitled to make an application for summary dismissal on the basis of the documents that had been filed up to that date. Instead, an explanation was provided to Mr Hickey of the nature of what was required in order for the Court to better understand his grounds of appeal and a timetable was set. The following exchange illustrates the efforts made to assist and accommodate Mr Hickey:32 HER HONOUR: Mr Hickey, I’m trying to really break this down so that it assists you, rather than tell you all the steps that will need take place. How long do you think you’ll need to file further and better particulars? ACCUSED: I’m aware you only have 10 minutes. 31 T24, 12 July 2024. 32 T6-7, 8 October 2025. -- 15 of 25 -- [2026] SASC 37 McDonald J 14 HER HONOUR: No, you take your time. Be realistic, I’d rather fix a date today that’s realistic than you have to come back before the court - ACCUSED: I think a month will be good. HER HONOUR: I’ll give you a month. ACCUSED: I’m just cognisant of timetable in relation to exams for university. HER HONOUR: I’m happy to give you a month, if you need a bit longer that’s fine, if you’ve got exams in there. ACCUSED: No, a month should be fine. HER HONOUR: What about if I give you until close of business Friday, 7 November? That’s a month and a couple of days. ACCUSED: Yes. HER HONOUR: Ms Winra, if I allow you a fortnight after that to file the application arising? MS WINRA: Yes. HER HONOUR: That makes it Friday, 21 November. Then what I’ll do is I will list the matter for a directions hearing the week commencing 24 November. Mr Hickey, do you have any preference for any particular day that week? ACCUSED: I’m pretty sure that will be after exams, so yep. HER HONOUR: It should be. ACCUSED: Yes, any time after that. MS WINRA: My apologies, I’m not available on the 26th and 27th of that week. HER HONOUR: Let’s make it Friday the 28th, at 9.30? MS WINRA: That’s suitable. HER HONOUR: That will be a timetable where the matter proceeds from there, bearing in mind the documents should have been filed by that time. And look, it might be, Mr Hickey, bear in mind we’ll be at the end of November by then, that you wish to reagitate whether or not this matter should await the Magistrates Court proceedings, given the time frame is between the two dates is shrinking, but we’ll deal with that on 28 November. So, I’ll make orders that that timetable be put in place and I’ll adjourn the matter to a further directions hearing 9.30 on Friday, 28 November. -- 16 of 25 -- [2026] SASC 37 McDonald J 15 28 November 2025 73 By this occasion Mr Hickey had endeavoured to file a number of documents at the registry. These were an “interlocutory application”,33 and a “Submission in response to Court Order 8 October 2025 (FDN18)”.34 Mr Hickey indicated that this document was a response to the order for further and better particulars. 74 In addition to this, Mr Hickey had emailed to chambers a “Summary of argument of appellant”. Although different in formatting to the “Submission in response to Court Order 8 October 2025 (FN18)”, it was in substance the same document with numerous exhibits attached. Mr Hickey had attempted to file those exhibits, but the registry had refused to accept them. 75 Mr Hickey was advised that the “interlocutory application” that he had filed was not in fact an interlocutory application but a request for further information, which information he was given. 76 A new timetable was set for written submissions and argument, which was again designed to accommodate Mr Hickey. To assist in his preparation for the argument, Mr Hickey was provided with a copy of Miojlic v City of Onkaparinga Council,35 in which Livesey P discussed the principles in relation to summary dismissal. 77 As by this stage Mr Hickey appeared to be suggesting that he may attempt to lead further evidence that was not before the Magistrate, he was also provided with a copy of Manuel v Police.36 Conclusion re: application for recusal 78 There is nothing that arises from the manner in which these hearings were conducted that might lead a fair-minded observer to conclude that anything other than an impartial mind will be brought to bear on the determination of the appeal. To the contrary, a fair-minded layperson would be left with the clear impression that as an unrepresented litigant, Mr Hickey has been given every opportunity to present his case to the Court. 79 I decline to grant the application for recusal. Application for summary dismissal 80 The respondent had filed an application for summary dismissal. 81 It is contended by the respondent that “the Court does not have before it properly drawn material which demonstrates even on an arguable basis any 33 FDN 19. 34 FDN 20. 35 [2025] SASCA 2. 36 [2010] SASC 169. -- 17 of 25 -- [2026] SASC 37 McDonald J 16 grounds enlivening the Court’s jurisdiction, and none of the grounds of appeal have any reasonable prospects of succeeding”.37 The legal test for summary dismissal 82 Recently, in Miojlic v City of Onkaparinga Council,38 Livesey P made the following observations about the determination of an application for the summary dismissal of an appeal:39 … To summarily dismiss an appeal is a large step, to be taken only where it is clearly in the interests of justice to make the order. The effect of the order is to deny a litigant the opportunity to proceed with an appeal or an application for leave to appeal, as the case may be. In most cases, like this case, some opportunity to amend the notice or grounds should usually be given. Where an opportunity to amend has been given, and it remains clear that there are no grounds with any reasonable prospect of succeeding, an order for summary dismissal may be an appropriate response. Summary dismissal may represent an appropriate recognition of the clear lack of merit in the appeal, together with an appropriate balancing of the interests of all parties to the appellate proceeding. Indeed, it may be unjust to allow a matter to go to a hearing, even if it is only a hearing of the leave application, where it appears likely that no reasonably arguable grounds will emerge and the parties will unnecessarily be put to further time, trouble and cost. 83 In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,40 Doyle J, in the context of discussing the power to determine a claim summarily, suggested that in assessing whether there is any merit to the claim, a practical approach should be adopted. His Honour explained:41 … it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss. (Footnote omitted) 84 There is no reason why any different approach should be adopted in relation to an application for summary dismissal of appellate proceedings. Should the application for summary dismissal be granted? 85 The appeal grounds can be described as generic, with none identifying any error of fact or law made by the Magistrate. 37 FDN 21. 38 [2025] SASCA 2. 39 Miojlic v City of Onkaparinga Council [2025] SASCA 2 at [17]-[18]. 40 (2020) 137 SASR 117. 41 Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [59]. -- 18 of 25 -- [2026] SASC 37 McDonald J 17 86 The opportunity to provide further and better particulars was an attempt to elucidate the legal and/or factual matters underpinning the grounds of appeal. 87 The approach adopted by Mr Hickey was to focus on the first five grounds of appeal and make further factual and legal submissions advancing his arguments. I will endeavour to summarise his position in relation to those grounds of appeal. 1. The learned Magistrate erred in law 88 Central to this ground of appeal was the Magistrate’s reliance on Whittacker v Police42 in support of her decision that it was open for the police to give a reasonable direction to Mr Hickey, even though he had alighted from the vehicle and was walking on private property. 89 Mr Hickey appears to contend that the Magistrate erred in relying on this authority on the basis that although there were factual similarities between Mr Hickey’s circumstances and those of Mr Whittacker, “Mr Whittacker complied with the request for an alcotest whereas Mr Hickey showed hesitancy with the requirement for an alcotest”.43 90 It is necessary to understand something about the facts and circumstances of Whittacker to put this ground of appeal into context. 91 Mr Whittacker appealed his conviction for driving with a prescribed concentration of alcohol on the basis of the admission of the breath analysis certificate. The basis to the objection to the admissibility of the certificate was that Mr Whittacker had pulled into his driveway and his vehicle was stationary, at the time that the police directed him to submit to an alcotest. 92 The relevant provisions of s 47E of the Road Traffic Act 1961 (SA) (‘RTA’) at that time provided: Police may require alcotest or breath analysis 47E. (1) Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion- (a) has committed an offence of a prescribed class of which the driving of a vehicle is an element; or … (c) has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or (d) has been involved in an accident, 42 [2005] SASC 61. 43 FDN 20 at [29]. -- 19 of 25 -- [2026] SASC 37 McDonald J 18 that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both. … (2ab) A member of the police force may direct the driver of a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that the driver submit to an alcotest or a breath analysis. … (Emphasis added) 93 It was Mr Whittacker’s submission that it was a condition precedent to the exercise of the powers that the vehicle must first be stopped by the police. It was contended that he had not been stopped by police because he had driven into his driveway and stopped the vehicle himself. 94 Anderson J rejected that argument and found that the fact that Mr Whitacker had moved onto private property and stopped his vehicle did not preclude the police from requiring him to submit to an alcotest. 95 The current s 47E(2) and s 47E(2a) of the RTA were enacted in their current form by s 9(1) of the Statutes Amendment (Drink Driving) Act 2005 (SA) which came into effect on 1 June 2005. The amendment replaced cause based testing with a discretionary power to test any driver. Section 47E(2) and s 47E(2a) conferred on police the power to give directions precedent to, and for the purpose of giving a direction to submit to an alcotest. The provision of a direction to the driver enlivens the power of a police officer to give reasonable directions (including to exhale into the apparatus by which the alcotest or breath analysis is to be conducted) to a person pursuant to s 47E(3). 96 At the time of the relevant events in Whittacker, the amendments to s 47E had not been introduced. The direction under consideration in that case related to Mr Whittacker submitting to an alcotest, as compared to the relevant direction to Mr Hickey which was to cease walking. 97 The Magistrate, in my view correctly determined that the wording between the former s 47E(2a),(b) and (2ab) and the current s 47E(2) was not so different as to warrant a different decision to that arrived in Whittacker. 98 The Magistrate only relied on Whittacker in support of the proposition that it is not a condition precedent to the exercise of the powers under s 74E for the police to have stopped the vehicle whilst it was being driven. It therefore follows that any factual dissimilarities or the different nature of the directions were irrelevant to the reasoning relied upon. 99 There is no merit to this ground of appeal. -- 20 of 25 -- [2026] SASC 37 McDonald J 19 2. The Magistrate erred in not considering applicable law 100 Central to this ground of appeal again appears to be the Magistrate’s reliance on Whittacker. In particular Mr Hickey contended that the Full Court decision of Lester v Police44 was at odds with Whittacker and that the Magistrate fell into error in following the latter decision. 101 There are two difficulties with the argument. The first is that the Magistrate not only followed Whittacker, but also conducted her own analysis of Mr Hickey’s submission that the word “and” was used conjunctively in s 47E(2). She set out her reasoning in the following terms:45 Additionally, it does not necessarily follow that because the word 'and' is commonly used conjunctively in ordinarily speech it will always be treated this way when interpreting legislation. 'The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and the purpose of all the provisions of the statue’. It is well established that the Parliament intended to provide police with broad powers under s 47E including obtaining incriminating evidence from a person with no right to refuse this, except for good cause. Police powers to give a direction to a person under s 47E(2) are predicated on a police officer believing on reasonable grounds that a person is driving or has driven a motor vehicle. I consider the words 'has driven' in s 47E(1) inform the interpretation of 'and' where it appears in s 47E(2) so that the items connected by 'and' in s 47E(2) are to be treated as alternatives. To interpret 'and' as it appears in s 47E(2) otherwise would severely curtail the ability of the police to protect the community from intoxicated drivers as is the clear intention of the RTA. I therefore reject the defendant's contention that SC Torjul was not empowered to give a direction to the defendant under s 47E(2) because the defendant was not then driving a motor vehicle and/or because SC Torjul had not first directed the defendant to stop driving a motor vehicle. (Footnotes omitted) 102 In my view that analysis is correct. 103 The second difficulty with Mr Hickey’s argument is that it demonstrates a misunderstanding of Lester. Mr Lester was charged with the offence of refusing to comply with all reasonable directions of a member of the police force to submit to an alcotest contrary to s 47E(3) of the RTA. It therefore follows that he was not charged with the same offence as Mr Hickey. 104 In his judgment Peek J discussed the legislative history of s 47E(2) and s 47E(2a) and the purpose of those sections as compared to s 47E(3). His Honour observed:46 The purview of s 47E(2) is relatively narrow; it authorises the initial direction to a driver to stop (made by the police officer for the purpose of requiring the driver to undergo an alcotest) and further directions associated with the stopping of the vehicle (for example, 44 (2013) 118 SASR 190. 45 Magistrate’s Reasons at [15]-[16]. 46 Lester v Police (2013) 118 SASR 190 at [58]. -- 21 of 25 -- [2026] SASC 37 McDonald J 20 precisely where the driver is to park). The whole purpose of s 47E(2) is to enable a police officer to notify the driver as soon as possible that he or she is required to submit to an alcotest. Once that information has been conveyed to the driver, all further directions will be taken to be made pursuant to s 47E(3) (with disobedience being subject to the more stringent penalties under that subsection). 105 It follows that Lester does not “[override, annul and reject] the assertions made by Magistrate Schulz”47 as contended by Mr Hickey. The reasoning of Peek J is in fact entirely consistent with that employed by the Magistrate. 106 There is no merit to this ground of appeal. 3. The learned Magistrate erred in findings of Fact 107 In this ground Mr Hickey contends that the Magistrate “confused the order of events at [20] as well as the exact words”.48 108 As previously mentioned, during the trial the Magistrate not only had the evidence of two eye witnesses, but also the benefit of the dash cam and body worn camera footage. As observed by the Magistrate, although there were some minor differences between the two police officers and the recordings, the evidence was generally consistent.49 109 In her reasons the Magistrate separately discussed the evidence of Senior Constable Torjul,50 Probationary Constable Schlink,51 and the footage from the cameras.52 It should be noted that the passage complained of is not a factual finding made by the Magistrate, but rather a summary of the evidence provided by Senior Constable Torjul about his interactions with Mr Hickey. 110 The Magistrates factual findings are based on the camera footage and are set out at [21] and [22]. There is no complaint about these findings. 111 There is no merit to this ground of appeal. 4. Character of witnesses and prosecution 112 In this ground of appeal Mr Hickey complains about the finding made by the Magistrate that Probationary Constable Schlink was “truthful and reliable” and about various aspect of the evidence of both Probationary Constable Schlink and Senior Constable Torjul. 113 It is difficult to understand the nature of Mr Hickey’s criticisms of Probationary Constable Schlink, other than that she had a poor memory of events which was, to some extent, revived in re-examination. The genesis of the 47 FDN 20 at [33]. 48 FDN 20 at [40]. 49 Magistrate’s Reasons [9]. 50 Magistrate’s Reasons [5]-[6], [20]. 51 Magistrate’s Reasons [7]-[8], [18]. 52 Magistrate’s Reasons [9]-[10], [19], [21]-[22]. -- 22 of 25 -- [2026] SASC 37 McDonald J 21 complaint appears to be set out in the following passage of Mr Hickey’s written submissions:53 To overcome PC Schlink’s apparent memory failure the defendant painstakingly went through the police vehicle video evidence nearly frame by frame, which took a lot of the Court’s time and the defendant’s energy. However, when re-examined by the Prosecution PC Schlink gave short, concise and succinct responses showing she may have been suffering from “refreshing memory” or had been coached by the Prosecution. Mr Hickey objected to this at the time but was later told by Magistrate Schulz that the objection could be dealt with later in the judicial process. 114 Mr Hickey’s arguments appear to some extent contradict themselves. On the one hand he appears to attribute Probationary Constable Schlink’s revival of memory on her re-examination and then makes an accusation of “coaching”. 115 There is no issue with a witness refreshing their memory either in preparation for giving evidence outside of Court, or as a consequence of cross-examination. 116 In her reasons the Magistrate acknowledged that there were aspects of the events that Probationary Constable Schlink could not recollect, however found that these details were “not relevant to the issues to be determined to establish the elements of the offence”.54 Taking into account the shortcomings in Probationary Constable Schlink’s memory, the Magistrate found her to be a “clear and careful” and “truthful and reliable” witness whose evidence she could accept.55 117 That finding was open on the evidence. 118 The complaints in relation to Senior Constable Torjul fall into a different category and appear to amount to an allegation that he was in some way less than honest with the Court. 119 Mr Hickey appears to make a claim in his written submissions to have seen Senior Constable Torjul “conspiring” with police prosecutor, James Conahan. Further, there appears to be a claim that Senior Constable Torjul “doctored” the dash cam footage. Not only is this claim unsupported by any evidence, but at best the details of any conversation are unknown. The allegations made by Mr Hickey are supposition and speculation. Such allegations should not be lightly made and will not be accepted by the Court absent any supporting evidence. 120 There is no merit to this ground of appeal. 5. The learned Magistrate erred in Practice and Procedure 121 Mr Hickey relies on two “Records of Outcome” from the Magistrates Court in support of this ground. 53 FDN 20 at [44]. 54 Magistrate’s Reasons [8]. 55 Magistrate’s Reasons [8]. -- 23 of 25 -- [2026] SASC 37 McDonald J 22 122 The first is a Record of Outcome from a pretrial conference that took place on 6 September 2023 (FDN8), at which Mr Hickey’s trial was listed for 26 October 2023. Mr Hickey was present on that occasion. The second Record of Outcome was from a hearing in the general list on 17 October 2023. It would appear that the purpose of the listing was for the prosecution to make an application for Probationary Constable Schlink to give evidence via AVL from Port Lincoln. Mr Hickey was not in attendance on this occasion. The following note is recorded: This application came to the attention of the defendant by at least 6/10/23 being the date on which he replied to an email from prosecution serving the application. The defendant opposes the application but has not appeared today to make submissions. Prosecution will call 2 witnesses at trial. The main witness will be Senior Constable Simon Torjul. Probationary Constable Schlink will give evidence supporting Senior Constable Torjul. Prosecution will also rely on body worn camera footage of Probationary Constable Schlink and dashcam footage. In circumstances where the main prosecution witness will appear in court, leave is granted for Probationary Constable Schlink to appear via AVL from Port Lincoln Police Station. 123 Although in his written submissions Mr Hickey claims that the Court failed to inform him of the hearing, that appears to be at odds with the Court record. 124 Additionally, as it transpired, after Probationary Constable Schlink commenced her evidence by AVL, there was an adjournment and she subsequently attended Court and gave the remainder of her evidence in person. 125 It is therefore unsurprising that Mr Hickey has failed to identify any prejudice or disadvantage, or procedural unfairness that he has suffered as a consequence of these events. 6. The learned Magistrate erred in considering non-applicable Law or legal principles 126 It is difficult to understand the argument made by Mr Hickey in this ground of appeal. It appears to be something of a discursive stream of consciousness, drawing together various complaints. 127 The issues raised include: • The reliance of the Magistrate on Borman v Caldwell56 in discussing the purpose of s 47E of the RTA. • Other occasions on which Mr Hickey has complied with police direction (as opposed to this occasion when he was walking on private property). • The reliance of the Magistrate on s 14 of the Legislation Interpretation Act 2021 (SA) in adopting the purposive approach in statutory 56 (1986) 43 SASR 297. -- 24 of 25 -- [2026] SASC 37 McDonald J 23 interpretation, in circumstances in which there are issues about the date upon which the state of South Australia was established. • The “reasonableness” of Senior Constable Torjul’s conduct. • Further issues in relation to Senior Constable Torjul’s credibility, including a claim that he misled the Magistrate by saying that he had “served as an officer” when the Police Act 1998 (SA) defines an officer as “above the rank of inspector”.57 • Issues surrounding the identity of the “Commissioner of Police”. • Issues relating to the Crown Solicitor acting for the respondent. • Mr Hickey being required to wear a face mask while handcuffed at the Christies Beach Police Station on 28 February 2023, despite the “Revocation of Declaration of a Major Emergency COVID-19”. • The filing of the proceedings in the Magistrate Court as “Summary” as opposed to “Summary not punishable by imprisonment or detention” despite RTA s 47E(2a) carrying no threat of imprisonment. Mr Hickey suggests that this was a deliberate decision because he had been subjected to approximately 3 hours imprisonment at the Christies Beach Police Station. • The High Court decision of Plenty v Dillon58 and the limitations it places on police powers whilst on private property. 128 Mr Hickey has identified no arguable ground of appeal. Conclusion re: application for summary dismissal 129 Although this is a ruling on an application for summary dismissal, somewhat ironically, given the opportunities made available to Mr Hickey, he has in fact had the opportunity to argue his appeal in full. 130 No arguable grounds have been identified that have any reasonable prospect of success. It is therefore appropriate to grant the respondent’s application to dismiss the appeal. 57 Police Act 1998 (SA) s 3. 58 (1991) 171 CLR 635. -- 25 of 25 --