COMMISSIONER OF POLICE [2025] SASC 20

Applicant: COMMISSIONER OF POLICE Counsel: MS A MARSH - Solicitor: CROWN SOLICITOR (SA) Respondent: MIKKAELA KNIGHT In Person via Telephone Hearing Date/s: 06/02/2025, 12/02/2025 File No/s: SCCRM-24-013933 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. COMMISSIONER OF POLICE v KNIGHT [2025] SASC 20 Decision of the Honourable Justice B Doyle (ex tempore) 12 February 2025 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES This is an application by the appellant for leave to withdraw a notice of discontinuance pursuant to Rule 188.5(3) of the Joint Criminal Rules 2022 (SA). The respondent was charged with the summary offence of driving a motor vehicle with methyl amphetamine present in her oral fluid, contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA) (‘RTA’). The respondent entered a plea of not guilty. Following a trial in the Magistrates Court on 30 November 2023 the respondent was acquitted, with the Magistrate concluding that personal service on the respondent of a document entitled ‘Certificate of Oral Fluid Analysis for Drugs’ had not been effected in accordance with s 47K(17) of the RTA. By notice of appeal dated 17 April 2024 the Commissioner of Police appealed to this Court but encountered difficulty in locating and serving the notice on the respondent between the date of the institution of the appeal and June 2024. The Commissioner subsequently filed a notice of discontinuance on 13 June 2024. After becoming aware, on or around 13 November 2024, that the respondent had returned to South Australia, by interlocutory application filed on 18 November 2024, the Commissioner of Police applied to withdraw its notice of discontinuance and reinstitute the appeal. Held, granting the interlocutory application: 1. Double jeopardy considerations are relevant to the exercise of the discretion to permit the Commissioner to withdraw a notice of discontinuance. 2. Notwithstanding those considerations, in all the circumstances, it is in the interests of justice to grant leave to withdraw the notice of discontinuance. Criminal Procedure Act 1921 (SA) ss 157(1); Electronic Communications Act 2000 (SA) s 8; Joint Criminal Rules 2022 (SA) rr 33.1 - 33.6, 185.4, 188.5(3), 201.6(3); Legislation Interpretation Act 2021 (SA) s 51; Magistrates Court Act 1991 (SA) s 42(1); Road Traffic Act 1961 (SA) ss 47BA(1)(a), 47K(11), 47K(17), referred to. -- 1 of 10 -- Mattner v Director of Public Prosecutions (2011) 252 FLR 239, applied. R v Brougham (2015) 122 SASR 546, discussed. Director of Public Prosecutions v Scibilia [2023] SASC 87; R v Ametovic [2024] SASCA 153; Verban v The King [2023] SASCA 14, considered. -- 2 of 10 -- COMMISSIONER OF POLICE v KNIGHT [2025] SASC 20 Criminal: Interlocutory Application 1 B DOYLE J: This is an application by the appellant for leave to withdraw a notice of discontinuance, pursuant to Rule 188.5(3) of the Joint Criminal Rules 2022 (SA). Background 2 The respondent was charged with the summary offence of driving a motor vehicle whilst there was present in her oral fluid a prescribed drug, namely, methyl amphetamine, contrary to s 47BA(1)(a) of the Road Traffic Act 1961 (SA) (‘RTA’). She entered a plea of not guilty. 3 The prosecution case involved reliance upon a document entitled ‘Certificate of Oral Fluid Analysis for Drugs’, apparently produced pursuant to s 47K(11) of the RTA. The respondent was represented by counsel who contended on her behalf that by reason of s 47K(17) of that Act, the certificate could not be received as evidence in the proceeding for want of the requirement that a copy of the certificate proposed to be put in evidence had, not less than 7 days before the commencement of the trial, been served on the respondent. 4 The Magistrate concluded that s 47K(17) required personal service and that even if, contrary to his view, s 51 of the Legislation Interpretation Act 2021 (SA) or s 8 of the Electronic Communications Act 2000 (SA) applied, service had not been effected in accordance with those provisions. 5 The Magistrate held that s 47K(17) had not been complied with and the certificate could therefore not be received as evidence. There being no evidence capable of proving that the respondent had a prescribed drug in her oral fluid at the time of driving, there was no case to answer, and the Magistrate dismissed the application for reasons given on 27 March 2024.1 6 By notice of appeal filed on 17 April 2024, the Commissioner of Police appealed to this Court. That appeal was as of right pursuant to s 42(1) of the Magistrates Court Act 1991 (SA). The grounds of appeal include that the Magistrate erred in finding that s 47K(17)(a) required personal service and ‘prevailed over’ s 51 of the Legislation Interpretation Act 2021 (SA). It is further argued that the Magistrate erred in finding that the respondent had not been served, and by refusing to receive the certificate into evidence. 7 In circumstances explained in the affidavit of Angela Catherine Marsh sworn on 18 November 2024, the Commissioner of Police encountered difficulty in 1 Police v Knight [2024] SAMC 33. -- 3 of 10 -- [2025] SASC 20 B Doyle J 2 locating and serving the notice of appeal on the respondent between the date of the institution of the appeal and June 2024. Those efforts included: (1) sending weekly emails to an email address used by the respondent in the Magistrates Court proceeding; (2) making enquiries on police systems to locate a current address; (3) contacting Service SA / Motor Registration and interstate licencing authorities; (4) contacting the Department of Correctional Services and Centrelink; and (5) attempting to contact the respondent using a mobile telephone number listed on police systems. 8 On 13 June 2024, the matter was listed for a directions hearing before McDonald J. There was no appearance for the respondent. The appellant’s counsel explained the efforts that had been made to contact the respondent, including by speaking with the legal representative who appeared for the respondent before the Magistrate, and who informed the appellant that he did not have instructions to accept service on the respondent’s behalf. 9 The appellant’s counsel explained to McDonald J that service had not been able to be effected and that in those circumstances the appellant intended to file a notice of discontinuance. She added that if the respondent were to be located later there may be consideration given to initiating a further appeal albeit that an extension of time would need to be sought to do so. 10 The appellant filed a notice of discontinuance of appeal later that day. The Joint Criminal Rules 2022 (SA) provide as follows with respect to such a notice. 188.5—Discontinuance of appeal (1) An appellant may discontinue an appeal by filing a notice of discontinuance in the prescribed form. Prescribed form— Form 191 Notice of Discontinuance of Appeal (2) Upon a notice of discontinuance being filed, the appeal will be deemed to have been dismissed by the Court. (3) A notice of discontinuance may be withdrawn with leave of the Court. 11 The structure and effect of the rule is such that rather than the discontinuance be treated as not precluding the institution, subject to any necessary extension of time, of a second appeal, the discontinuance is treated as equivalent to a dismissal. -- 4 of 10 -- [2025] SASC 20 B Doyle J 3 The mechanism by which any appeal is to be pursued is therefore to apply for leave to withdraw the discontinuance. 12 That is what, by interlocutory application filed on 18 November 2024, the Commissioner of Police did. The Commissioner took that step promptly after becoming aware, on or around 13 November 2024, that the respondent had returned to South Australia in relation to separate proceedings in the Magistrates Court. The respondent apparently provided information to the Commissioner regarding a temporary residential or postal address whilst she was in South Australia as well as her permanent residential address in Redbank, Queensland. 13 Personal service of the notice of appeal was effected on 16 November 2024, together with a letter notifying the respondent of the course that would be pursued, namely, the making of an application for leave to withdraw the discontinuance. 14 The interlocutory application first came before me on 20 November 2024. On that occasion I was informed by the appellant that it had not proved possible to serve the interlocutory application on the respondent. I expressed uncertainty as to whether service of the notice of appeal was effective to enable me to consider the interlocutory application, given that at the time of its service the appeal was taken to be dismissed. 15 In any event, contact was subsequently made by the appellant’s legal representatives with the respondent, the interlocutory application has been provided to her, and the respondent appeared by telephone on a further four occasions during the months of November and December 2024.2 It is not necessary to detail what occurred on those occasions save to say that, for reasons related to the respondent’s physical or mental state, she did not feel in a position to deal with the hearing of the interlocutory application, and I ultimately adjourned the hearing of the application to 6 February 2025. 16 Shortly before that hearing the respondent provided some evidence, albeit in the barest of forms, to the effect that she had recently been suffering from vertigo. 17 I acceded to a request at the hearing on 6 February 2025 that the matter be listed for further hearing on 12 February 2025. There being no opposition to my doing so, I permitted the appellant to advance submissions in support of the application at the hearing on 6 February 2025, so that the respondent would have the intervening period to reflect upon those arguments with the benefit of the transcript and to consider her response to those submissions. I permitted the respondent to provide her submissions informally in writing in advance of the hearing on 12 February 2025 if she so wished. 2 The hearings were on 26 November 2024, 5 December 2024, 13 December 2024 and 17 December 2024. -- 5 of 10 -- [2025] SASC 20 B Doyle J 4 Contentions 18 The appellant submitted that, first, the appeal had been filed within time, and secondly, that appropriate efforts had been made to serve the appeal proceedings in a timely way following their institution, by seeking to comply with various of the modes of original service contemplated by Rules 33.1 to 33.6 of the Joint Criminal Rules 2022 (SA). Thirdly, it was submitted that because Rule 185.4 required service as soon as was practicable, it was reasonable to have discontinued the appeal when that did not prove possible within a period of approximately two months. Fourthly, it was submitted that the error identified in the notice of appeal was one of significance, the same issue having subsequently arisen in another appeal of an acquittal from the Magistrates Court. That appeal is presently listed before me on 26 March 2025.3 Fifthly, it was submitted that there was no relevant prejudice to the respondent in granting leave to withdraw the discontinuance and in effectively re-enlivening the appeal. 19 In the course of submissions I raised the question whether considerations relating to double jeopardy (in the broadest sense of that concept) were relevant to the exercise of the discretion to grant leave to withdraw the notice. The appellant submitted that they were not. 20 In an email dated 11 February 2024 setting out her submissions on the application, the respondent submitted that: (1) SAPOL were ‘well aware’ of her location between April and June 2024 as she had another matter with SAPOL before the courts in South Australia; (2) her email was ‘full and inactive’ as she rarely used the email address; (3) on 17 April 2024 she was on remand in Adelaide Women’s Prison until she was released at 5.45 pm; (4) she did not have any idea of the appeal until she returned to South Australia in November 2024; (5) she had been the victim of physical abuse by persons including against whom there are current intervention orders and she has ‘little faith in SAPOL’; (6) the affidavit in support of the application is in the nature of a ‘witch hunt’; (7) she does not believe there are grounds to proceed with the matter. Consideration 21 To the extent that the respondent makes factual assertions that are in conflict with the affidavit relied upon by the applicant, I accept the sworn evidence over the submissions of the respondent, unsupported as they are by evidence. 3 Commissioner of Police v Metters, SCCRM-24-048233. -- 6 of 10 -- [2025] SASC 20 B Doyle J 5 22 That said, the appellant did not go so far as to submit that the respondent had been directly evading service, or that she had in fact been aware of the appeal, and I would therefore accept that the respondent was not in fact aware of the appeal until November 2024. Whether she had a reasonable basis positively to believe that no appeal was on foot, however, is a different matter, in circumstances where she was not using an email address previously used, was obviously no longer instructing her legal representative, and was, it seems, interstate for part of the relevant period. 23 I would proceed on the factual basis that the Commissioner, through his legal representatives did make reasonable and diligent efforts to serve the respondent. I would accept that the respondent did not know that an appeal had been filed at any time prior to its discontinuance, but I would qualify the latter finding by stating that the respondent did not have a reasonable basis for a positive belief that an appeal had not been filed. She may have assumed or considered it likely no appeal was to be pursued, but she could not reasonably have been confident about that. Of course, this is not a case in which the respondent has proceeded on the basis that any appeal, if instituted, has been discontinued. 24 The parties did not draw my attention to any authorities concerning the discretion whether to grant leave to withdraw a discontinuance pursuant to Rule 188.5(3).4 In Mattner v Director of Public Prosecutions,5 under a previous regime, Kelly J exercised the Court’s general powers under Rule 117 of the Supreme Court Civil Rules 2006 (SA) to permit an appellant who had discontinued an appeal against a conviction in the Magistrates Court to withdraw her notice of discontinuance. When discontinuing the appeal, the appellant had indicated that her decision was made of her own free will and following advice from a solicitor and senior counsel. Her Honour considered that some examination of the merits of the appeal was appropriate in order to make an assessment that the appellant would suffer an injustice if the appeal were not reinstated. In that matter, the parties had consented to the Court considering the application for withdrawal of the notice of discontinuance together with the substantive merits of the appeal. The Court was ultimately persuaded to permit the notice to be withdrawn and the appeal was allowed. It was noted that there was no substantial delay in the matter, and that the point raised on the appeal was one of some importance. 25 The Commissioner has a right of appeal. The position therefore differs from that which applies when, in respect of proceedings in the District or Supreme Court, the Director of Public Prosecutions requires permission to appeal against an acquittal in a trial by judge alone or where a judge has directed the jury to acquit,6 and that which applies where the Director seeks to appeal against any sentence 4 In respect of Rule 201.6(3) of the Joint Criminal Rules 2022 (SA), see Ryan v The King [2024] SASCA 94 at [9] – [11] (Livesey ACJ and David JA), referred to in Verban v The King [2025] SASCA 14 at [5] (Livesey ACJ). 5 (2011) 252 FLR 239. 6 Criminal Procedure Act 1921 (SA), s 157(1)(b). -- 7 of 10 -- [2025] SASC 20 B Doyle J 6 passed on the conviction (other than a sentence fixed by law).7 At the stage of considering permission, double jeopardy considerations are significant.8 26 Recognising, however, that the appeal here is as of right, and that Parliament has not seen fit to require double jeopardy considerations to intrude at the stage of considering whether there should be an appeal against an acquittal in the Magistrates Court, there is authority to the effect that double jeopardy considerations can remain relevant in other ways in appeals against acquittals in summary matters. The matter is discussed extensively by Peek J, with whom Gray and Nicholson JJ expressed agreement, in R v Brougham,9 where a number of the authorities are reviewed. His Honour observed that this Court will have close regard to double jeopardy principles and will exercise appellate restraint in relation to prosecution appeals against acquittals by trained magistrates, and that that is particularly so where the acquittal has proceeded from a lack of satisfaction of guilt of the facts as distinct from a mistaken view of the law. There are subsequent examples of that approach being taken to acquittals which have turned on an assessment of the evidence.10 27 I consider that double jeopardy considerations are relevant to the exercise of the Court’s discretion whether to grant leave to a prosecuting authority to withdraw a notice of discontinuance of an appeal against an acquittal. Because the appeal is as of right, and the jeopardy arising from matters proceeding in the Magistrates Court will generally be less serious than is the case for matters proceeding in the higher courts, the intensity or weight to be given to the double jeopardy considerations may be less than is the case in the context earlier mentioned. 28 It suffices to say that a Court may be more inclined to grant leave to withdraw a notice of discontinuance of an appeal to a defendant who has sought to appeal against conviction than it will be to grant leave to a prosecuting authority. The decision in Mattner reflects the latitude that may be allowed to a defendant seeking to appeal against conviction, even where the discontinuance was said to have been on advice. 29 The relevance and weight of double jeopardy considerations in a case like the present will be affected by the nature of the proposed appeal and the broader circumstances. In a case in which the appeal concerns only the factual conclusion reached by the Magistrate in acquitting the defendant, that may be an additional consideration militating against the grant of leave to withdraw the discontinuance. 30 Even if, contrary to my view, it is not appropriate to have regard to the concept of double jeopardy in this context, it will always remain relevant in a 7 Criminal Procedure Act 1921 (SA), s 157(1)(a)(iii). 8 For a discussion in the context of acquittals, see R v Donovan [2025] SASCA 7 at [23]-[25] (Livesey P, Bleby and David JJA). For a discussion in the context of sentence appeals, see R v Ametovic [2024] SASCA 153 at [60]-[64], [76]-[101] (S Doyle and Bleby JJA, B Doyle AJA). 9 (2015) 122 SASR 546, particularly at [47]-[54]. 10 See, eg, Director of Public Prosecutions v Scibilia [2023] SASC 87 at [132]-[135] (McDonald J). -- 8 of 10 -- [2025] SASC 20 B Doyle J 7 discretionary exercise, which has as its ultimate touchstone the interests of justice, to consider the proved or presumptive effect of the decision on the litigants. 31 It is not possible to exhaustively identify the other considerations that might bear on an application such as this, but they likely include: (1) whether the appeal itself was instituted within time, or was instituted with the benefit of an extension of time; (2) whether there is any attributable fault on the part of the appellant in connection with the circumstances leading to the discontinuance; (3) whether the decision to seek leave to re-enliven the appeal results from a genuine change in circumstances, or instead simply involves a change in attitude on the part of the appellant; (4) the period of time that has elapsed between the discontinuance and the application; (5) relatedly, whether the defence of the appeal has, due to the period between discontinuance and the application for reinstatement, become more burdensome and the extent of the burden that the respondent would suffer if the appeal is successful and a re-trial is required; (6) the importance of the appeal, either as between the parties, in the public interest, or more widely by virtue of the issues raised; and (7) finally, in a general way, the apparent merits of the appeal. Whilst in some cases, such as Mattner, it may be appropriate not to decide the question of leave until argument has been heard on the appeal, if the question of leave is being considered discretely, as it is here, it is neither practical nor desirable to assess the merits in detail. A more impressionistic approach is called for. If the appeal is obviously strong, or demonstrably weak, that assessment may militate in favour of or against the application, respectively. 32 In the present case, the appeal was instituted within time. The appellant acted appropriately and diligently in seeking to effect service, and did not act unreasonably in discontinuing the appeal when service was not effected. The decision to seek leave does not reflect a forensic or tactical change in position. It was effectively foreshadowed to the Court as a possibility prior to the proceeding being discontinued. The period of time that has passed between the discontinuance and the application to reinstate the appeal is relatively short. Whilst further time has passed since that application was first made, I do not regard that as deserving of any particular weight, given it was at the respondent’s request. 33 The point, or at least one of the points, at issue, is apparently of some wider significance, but the weight that I might attach to that consideration is reduced slightly by the circumstance that, so I am told, the same or a similar issue will need -- 9 of 10 -- [2025] SASC 20 B Doyle J 8 to be resolved in a similar appeal which, I can only assume, will proceed in any event. 34 I have not formed the view that the appeal is obviously strong nor demonstrably weak. The merits are therefore a neutral consideration. 35 The appeal would appear to be in a relatively narrow compass. Whilst the respondent is presently unrepresented, I am told that her trial counsel is counsel for the respondent to the other appeal raising the same or a similar issue. I make no assumption about representation, but there is at least scope for efficiency and cost saving if the appeals are listed to be heard together, which has the potential to lessen the practical burden imposed on the respondent if the appeal is re-enlivened. 36 The alleged conduct of the respondent could be said to be serious, but in the scheme of all criminal offending, I do not think this is a strong factor in favour of the grant of leave. 37 The considerations relating to double jeopardy are relevant, and weigh against the grant of leave. The respondent may be taken to have felt relieved of the burden of the prosecution upon her acquittal. However, the weight to be attached to this consideration is not the same as it would be if the acquittal had been founded upon the Magistrate’s failure to be satisfied of factual matters based on an assessment of the credibility of witnesses or the intrinsic weight of evidence. The acquittal, and thus the proposed appeal, is largely, though not exclusively, concerned with a question about the proper construction of a particular provision. Further, as I have indicated, whilst I do not consider the respondent was evading service, I do not consider that she could have had a well-founded positive belief that there was to be no appeal. She has not adduced any evidence to suggest that in some specific or particular way, the re-enlivening of the appeal would cause her particular distress or prejudice, beyond that which may be inferred as a matter of course. Whilst she has suffered from some medical and other issues in recent times, I am not satisfied that they are such as to render the re-enlivening of the appeal particularly prejudicial. 38 In all the circumstances, given the relatively short passage of time and the relatively confined nature of the issues to be dealt with on the appeal, and the lack of any specific or particular evidence of prejudice, I am not persuaded that the more general considerations associated with double jeopardy should overcome the interests of justice that militate in favour of a party which, by statute, has a right of appeal, being permitted to avail itself of that right in order to raise legal arguments of potentially wider importance, albeit after a short delay which arose through no fault of its own. Disposition 39 I will grant leave to the Commissioner to withdraw the notice of discontinuance. -- 10 of 10 --