MARIYA SHMANDIY In Person via AVL v COMMISSIONER OF POLICE (SA) In Person [2025] SASC 210

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SALE) MCLIN-21- 105 Appellant: MARIYA SHMANDIY In Person via AVL Respondent: COMMISSIONER OF POLICE (SA) In Person Counsel: MS E HARPER - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 23/06/2025, 13/08/2025 File No/s: SCCRM-25-005292 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. SHMANDIY v POLICE [2025] SASC 210 Judgment of the Honourable Justice Gray 24 December 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT This matter concerns an appeal against a conviction recorded on 15 December 2023 by a magistrate following a trial of the applicant, Mariya Shmandiy, for the offence of driving with the prescribed concentration of alcohol in blood, contrary to s 47B(1) of the Road Traffic Act 1961 (SA). The applicant seeks to raise 17 grounds of appeal with respect to her conviction. A previous appeal to this Court in respect of the same conviction was initially filed by the applicant on 4 January 2024 and heard by another judge of this Court. That matter was listed for hearing on 29 April 2024, and the applicant did not attend. The hearing was adjourned to 17 May 2024, and the applicant did not attend again. The appeal was dismissed for want of prosecution. The learned appeal Judge also formed the view that the appeal lacked merit on the basis of the grounds of appeal and written submissions before the Court. The dismissal of the first appeal was the subject of an application for permission to appeal. The Court of Appeal refused permission to appeal on 26 July 2024. The primary submission of the respondent on this appeal was that the appeal was incompetent for a want of jurisdiction. It was submitted by the respondent that the appeal had already been heard and determined on the merits by the learned appeal Judge on 17 May 2024 and therefore this Court lacked jurisdiction to hear a second appeal. The applicant submitted that this appeal raised different issues to those raised in the first appeal and that the first appeal was not determined on the merits. -- 1 of 19 -- Held, dismissing the appeal: 1. The appeal before McIntyre J in proceedings SCCRM-24-000504 was considered on its merits, and, accordingly, this Court lacks jurisdiction to hear the present appeal: at [63]; 2. In the event that the above finding is incorrect, the applicant has not made out an exception to the finality rule which justifies the setting aside of the orders dismissing the appeal for a want of prosecution and a consideration of the merits of the appeal: at [65]-[66]; and 3. The appeal is without merit: at [67]. Joint Criminal Rules 2022 (SA) r 191.1; Magistrates Court Act 1991 (SA) s 42; Road Traffic Act 1961 (SA) ss 47A and 47B; Criminal Procedure Act 1921 (SA) s 157, referred to. R v Brain [1999] SASC 358; (1999) 74 SASR 92, applied. Jackamarra (an Infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516; Jaunay v Police (SA) [2023] SASC 38; Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403; R v Parenzee [2008] SASC 245; (2008) 101 SASR 469; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; Shmandiy v Police (No 2) [2024] SASCA 90; Shmandiy v Police [2024] SASCA 89; Hazeldell Ltd v The Commonwealth [1924] HCA 36; (1924) 34 CLR 442; CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339; Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1, considered. -- 2 of 19 -- SHMANDIY v POLICE [2025] SASC 210 Criminal: Magistrates Appeal 1 GRAY J: This matter concerns an appeal against a conviction for the offence of driving with the prescribed concentration of alcohol in blood, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). The information dated 9 February 2021 alleged that on 30 January 2021, at Port Lincoln, the applicant drove a motor vehicle on Jubilee Drive whilst there was present in her blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA). It was alleged that the concentration of alcohol was 0.051 grams in 100 millilitres of blood. 2 The matter proceeded to trial on 25 September 2023. On 15 December 2023, the learned Magistrate delivered his Honour’s verdict, stating that each element of the offence was proven beyond reasonable doubt and the defendant was guilty of the offence.1 In ex tempore remarks on penalty delivered on 1 August 2024, the learned Magistrate recorded that the applicant had been found guilty of the offence.2 3 The learned Magistrate, having found the applicant guilty of the charged offence, proceeded on the basis that the applicant had committed a similar offence within five years by committing a drink driving offence on 7 August 2018.3 The learned Magistrate recorded that as a consequence the offence was to be dealt with as a second category 1 offence, being the second offence committed by the applicant within five years.4 In those circumstances, the offence carried a mandatory minimum penalty of a driver’s licence disqualification of not less than six months5 and a fine of up to $1,100.6 The learned Magistrate imposed a penalty of the minimum six months’ licence disqualification and a fine of $300 in addition to court fees, prosecution fees and the victims of crime levy. 4 The notice of appeal filed by the applicant concerns an appeal against conviction. The orders sought seek that both the conviction and sentence be quashed. The applicant also seeks to be released from all court fees and costs orders including not only the costs in the Magistrates Court, but the costs orders made by McIntyre J on 17 May 2024 and the cost orders made by the Court of Appeal on 26 July 2024. 5 Although the grounds of appeal appear to be incorrectly numbered, the appeal grounds relate to complaints about the conviction. There appear to be 1 Police v Mariya Sergeyevna Shmandiy [2023] SAMC 166. 2 Appeal Book (FDN 14) at 143-4 (Ex tempore Remarks on Penalty of Magistrate Sale dated 1 August 2024) (‘AB’). 3 AB at 143-4 (Ex tempore Remarks on Penalty of Magistrate Sale dated 1 August 2024). 4 See Road Traffic Act 1961 (SA) s 47B(4). 5 Road Traffic Act 1961 (SA) s 47B(3)(a)(ii)(A). 6 Road Traffic Act 1961 (SA) s 47B(1)(b)(i). -- 3 of 19 -- [2025] SASC 210 Gray J 2 approximately 17 separate grounds of appeal which make complaints with respect to matters concerning the conviction. The applicant’s appeal grounds do not make complaint in respect of the sentence imposed. 6 The appeal against conviction has a lengthy procedural history in this Court and was subject of a decision of McIntyre J on 17 May 2024,7 and a subsequent ex tempore judgment of the Court of Appeal on 26 July 2024.8 I consider this procedural history further below. 7 The respondent contends that once an appeal against conviction has been heard and determined, and an order made disposing of the appeal has been entered onto the court record, this Court has no jurisdiction to hear a further appeal against the same conviction.9 The respondent contends that an appeal pursuant to s 42(1) of the Magistrates Court Act 1991 (SA) has already been heard and determined by McIntyre J and as such this Court has no jurisdiction to hear a further appeal against the same conviction.10 The respondent also contends that the applicant’s grounds of appeal lack merit.11 8 The applicant submits that this appeal raises different issues to those raised in the first appeal and that the first appeal was not determined on its merits. The applicant seeks an extension of time and seeks to raise some 17 grounds of appeal. Statutory basis of the appeal 9 This matter concerns an appeal under s 42(1) of the Magistrates Court Act 1991 (SA) and is governed by Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA). It 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.12 10 The Court is required to conduct a review of the evidence before the learned Magistrate whilst, at the same time, making due allowance for the advantage of the learned Magistrate in seeing and hearing the evidence being given at trial.13 11 Whilst the Court must set aside a challenged finding of fact which is demonstrated to be wrong, the appeal is not a de novo hearing, and the appellate court should not substitute its own view or otherwise interfere unless it is satisfied that the trier of fact fell into error.14 7 Ruling, Shmandiy v Police (Supreme Court of South Australia, SCCRM-24-000504, McIntyre J, 17 May 2024). 8 Shmandiy v Police (No 2) [2024] SASCA 90 (Livesey ACJ and David JA). 9 Respondent’s Written Submissions dated 21 July 2025 (FDN 19) at 6, [31] (‘RWS2’). 10 RWS2 at 7, [40]. 11 RWS2 at 5, [24]. 12 Joint Criminal Rules 2022 (SA) rr 191.1(1)(a)-(b). 13 Martin v Department for Transport, Energy and Infrastructure (SA) [2010] SASC 141; (2010) 269 LSJS 403 at 410, [38] (White J). See also, Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J). 14 Jaunay v Police (SA) [2023] SASC 38 at [55] (Stein J). -- 4 of 19 -- [2025] SASC 210 Gray J 3 An extension of time 12 The granting of an extension of time within which to appeal is an evaluative exercise. There are four matters which the Court in the exercise of its discretion must consider. These are:15 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. 13 The applicant submitted that the sentence being delivered on 1 August 2024, and the appeal being filed in this Court on 5 August 2024, the appeal was within time.16 If that was not the case, the applicant submitted that an extension of time should be granted in the interests of justice and that she reasonably believed the appeal period commenced from 1 August 2024.17 14 The respondent opposed a grant of leave to extend time to bring the appeal. The respondent contends that the applicant has filed her notice of appeal against conviction out of time.18 The respondent notes that none of the applicant’s appeal grounds concern the sentence imposed upon her by the learned Magistrate. The respondent contends that an extension of time for the applicant to appeal against her conviction should not be granted as there has been a considerable delay in bringing the appeal against conviction, without any reason for the delay being provided by the applicant, and despite being given the opportunity to present such reasons by this Court. 15 The first duty of this Court is to determine jurisdiction.19 That issue will be considered before returning to the question of the extension of time. 15 Jackamarra (an Infant) v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 520-1, [4] (Brennan CJ and McHugh J). 16 Appeal Transcript dated 13 August 2025 at T9.1-29 (‘AT’). The court record does not support this submission. The Court records indicate that in SCCRM-24-000504 (being the appeal before McIntyre J), a Notice of Appeal was filed on 4 January 2024 (FDN 1). In SCCRM-24-026411 (being the application for permission before the Court of Appeal), a Notice of Appeal was filed on 11 July 2024. In SCCRM-25-0052992 (the present appeal) a Notice of Appeal was filed on 7 February 2025. 17 AT dated 13 August 2025 at T9.1-29. 18 RWS2 at 4, [12]-[15]. 19 See Hazeldell Ltd v The Commonwealth [1924] HCA 36; (1924) 34 CLR 442 at 446 (Isaacs ACJ). See further CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339 at 349-50, [24] (French CJ, Kiefel, Bell and Keane JJ); Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 at 12, [8] (Kiefel CJ); 24, [55] (Bell, Gageler, Keane, Nettle and Gordon JJ). -- 5 of 19 -- [2025] SASC 210 Gray J 4 Procedural history Appeal to McIntyre J 16 On 15 December 2023, the learned Magistrate convicted the applicant of the charge. On 4 January 2024, the applicant filed a notice of appeal against her conviction to this Court. The notice of appeal was accepted by the Registry. On 15 April 2024, the applicant filed amended appeal grounds. The amended appeal grounds were:20 i. the Magistrate erred in finding that the evidence of prosecution was sufficient evidence to establish the guilt of the defendant; and ii. the Magistrate erred in reversing the onus of proof onto the defendant to prove that the breath analysis device was not in proper order and/or operated properly; and iii. the evidence provided by the defendant was sufficient to shift the balance of probabilities to establish that at the time of driving that she did not exceed the minimum lawful limit iv. Appellant submits the (the Court, in allowing the appeal) ought to find: i. There was insufficient evidence to establish the prosecution had established that the breath analysis device used, had been correctly applied to the appellant’s testing: first ground of conviction is not established ii. The Magistrate erroneously reversed the onus of proof onto the defendant to prove that the breath analyser was not properly operated: first ground is not established iii. There was no evidence as to the operation or proper operation of the breath analyser and it was not open to the Magistrate to find the charge proved iv. An acquittal – must be substituted for the conviction, rather than remittal back to the Magistrates Court for a fresh trial. 17 The applicant and respondent both filed written submissions in respect of the appeal against conviction. On 29 April 2024, the appeal was listed for hearing. The applicant had been granted leave to appear from Queensland via audiovisual link. The applicant did not attend the 29 April 2024 hearing. The applicant did not respond to either emails or calls to her mobile telephone number prior to the 29 April 2024 hearing. No reasons were given by the applicant for her non-attendance at the 29 April 2024 hearing.21 18 A copy of the orders made by McIntyre J on 29 April 2024 were emailed to the applicant on 29 April 2024.22 Those orders provided: Count 1 20 AB at 165-7 (Amended Appeal Grounds – SCCRM-24-000504 (FDN 15)). 21 See Shmandiy v Police (No 2) [2024] SASCA 90 at [29] (Livesey ACJ and David JA). 22 RWS2 at 2, [7]. -- 6 of 19 -- [2025] SASC 210 Gray J 5 Attempts made to contact the appellant with no success, Her Honour calls the matter on in the appellant’s absence and adjourns the appeal hearing to 10:00am on Friday, 17 May 2024. Court Order 1. Her Honour orders that the appellant is to appear in person for the next hearing, and that if the appellant does not appear in person the appeal will likely be dismissed. 19 No response was received to the email. A second email was sent to the applicant with a further copy of the orders attached. No response was received from the applicant.23 20 The appeal was re-listed for hearing on 17 May 2024 with the applicant ordered to attend the hearing in person. It was indicated that failure of the applicant to attend the hearing may result in dismissal of the appeal.24 21 On 17 May 2024, the applicant did not attend the hearing. McIntyre J dismissed the appeal. In her Honour’s ruling, McIntyre J stated that:25 The parties have filed written submissions in this matter setting out their argument, however I have not heard oral argument concerning the issues. It is my view that it is appropriate, in all of the circumstances, to dismiss this appeal for want of prosecution. I will say, however, that having read the grounds of appeal and the written submissions that have been provided, it is my view that the appeal lacks merit and, subject to any further matters that might have been out by the appellant, I would consider the appellant’s prospects of success on the appeal to be minimal. 22 On 17 May 2024, McIntyre J signed a record of outcome recording her Honour’s decision to dismiss the appeal against conviction. The record of outcome relevantly reads:26 Count 1 Her Honour delivers an ex tempore ruling dismissing the appeal for want of prosecution. The respondent makes an application for costs in the amount of $750 pursuant to JCR r 191.3(2)(b). Her Honour grants this application and orders that the appellant is to pay costs fixed in the amount of $750. Supreme Court Appeal Costs 1. Mariya Sergeyevna SHMANDIY is to pay to Commissioner of Police costs in the sum of $750.00. Appeal Dismissed 23 Ruling, Shmandiy v Police (Supreme Court of South Australia, SCCRM-24-000504, McIntyre J, 17 May 2024) at 2. 24 Record of Outcome dated 29 August 2024 (FDN 23) SCCRM-24-000504. 25 Ruling, Shmandiy v Police (Supreme Court of South Australia, SCCRM-24-000504, McIntyre J, 17 May 2024) at 3. 26 AB at 173-4 (Record of Outcome (McIntyre J) dated 17 May 2024 – SCCRM-25-000504). -- 7 of 19 -- [2025] SASC 210 Gray J 6 2. The appeal is dismissed for want of prosecution. Appeal to the Court of Appeal 23 On 11 July 2024, the applicant appealed to the Court of Appeal from the decision of McIntyre J.27 24 On 26 July 2024, the Court of Appeal refused the applicant permission to appeal and awarded costs in favour of the respondent. In determining to refuse the applicant permission to appeal against McIntyre J’s decision to dismiss her appeal, Livesey ACJ and David JA held:28 The applicant was invited to identify appeal grounds specific to the ruling made by the appeal judge. Despite having been given that opportunity, she declined to provide any further grounds concerning the ruling made on 17 May 2024. Whilst in many cases the failure by an appeal judge to detect and correct error in the court below is a matter that can be raised in this Court, the starting point remains the detection of error in the decision of the appeal judge. Where an applicant seeking permission to pursue a second appeal fails to identify error by the appeal judge, it will usually be difficult to demonstrate that the case warrants a grant of permission to appeal. The identification of error or injustice is critical to the success of any appeal. As might be expected, the magistrate at first instance proceeded on the basis of statutory presumptions and certificates. That was done in an orthodox manner. The evidence included a certificate of record from the Adelaide Magistrates Court, demonstrating that the applicant had previously been found to have driven with excess blood alcohol which was dealt with on 7 August 2018. This was tendered only to explain why the current alleged offence was not expiated. The magistrate explained that the unrepresented applicant appeared to be operating under a misapprehension where the alcotest returned a blood alcohol concentration of 0.051 grams, whereas the blood test returned a reading of not less than 0.027 grams of alcohol per 100 millilitres of blood: Throughout the course of the trial and prior to the trial it was apparent that the defendant was labouring under the misapprehension that as the offence charged a prescribed concentration of alcohol in her blood and the only analysis of her blood gave a reading beneath the prescribed concentration, proof of the blood test result was, without more, sufficient to see her acquitted. Throughout the trial the Court attempted to explain the effect of s 47EB, 47K(1) and (1a) to the defendant. The first two create a presumption that once certain procedural conditions are met, the breath analysis concentration of alcohol becomes the blood alcohol concentration. The latter creates a limited means by which the breath analysis concentration can be challenged, namely by a combination of evidence as to the blood alcohol concentration as well as evidence the breath analysis concentration was exaggerated. The magistrate recorded that he explained the effect of the legislation and various authorities, and offered the applicant an adjournment if she wanted to call expert opinion evidence on topics such as whether a “count-back” based on the results of a blood test 27 AB at 175-8 (Notice of Appeal dated 11 July 2024 - SCCRM-24-026411, FDN 1. The annexed grounds are dated 4 July 2024. 28 Shmandiy v Police (No 2) [2024] SASCA 90 at [20]-[24] (Livesey ACJ and David JA). -- 8 of 19 -- [2025] SASC 210 Gray J 7 might shed doubt on the breath analysis evidence. The applicant declined the invitation. Respectfully, the magistrate’s approach was considered, careful and fair. As for the operation of the various statutory presumptions and certificates, it was for the applicant to displace their operation by leading or identifying evidence to the contrary: There was no evidence placed before me which constituted evidence to the contrary in relation to any of the certificates tendered by the prosecution. I find beyond reasonable doubt that the requirements in s 47K(1) have been met and the presumption that the concentration of alcohol of 0.051 grams was the concentration of alcohol in the defendant’s blood in the three hours prior to this reading being obtained, which includes her observed driving. As I have previously noted, while there is evidence before me of the analysis of a sample of blood taken in accordance with Schedule 1 of the Road Traffic Act 1961 there is no evidence before me which would allow me to conclude that the breath analysing instrument gave an exaggerated reading. (citations omitted) 25 The decision of the Court of Appeal was not further appealed. The present proceedings 26 The notice of appeal in the present proceedings was filed on 7 February 2025.29 The notice of appeal was accompanied by numerous affidavits in support. The parties were advised on 7 May 2025 of the listing of the appeal hearing. On 16 May 2025, parties were advised of the settled listing date of 12 June 2025. 27 The applicant advised chambers on 11 June 2025 that she was unwell and unable to attend the hearing on 12 June 2025. A medical certificate was provided. The matter was administratively adjourned by consent to 23 June 2025.30 28 A further medical certificate was provided to chambers on 20 June 2025 advising that the applicant was unwell and unable to attend the hearing on 23 June 2025. The matter remained listed and was called on. At the hearing, the respondent indicated that the medical certificate provided failed to identify that the medical practitioner issuing the certificate consulted with the applicant, nor did it outline the nature of the medical condition. I made orders as follows adjourning the hearing:31 Court Order 1. On or before 7 July 2025, the appellant to file and serve any submission concerning whether the notice of appeal should have been accepted for filing, and the competency of the appeal, having regard to the decision of Shmandiy v Police (No.2) [2024] SASCA 90, and the orders made by the Full Court on 26 July 2024, and the need for an extension of time. 29 Notice of Appeal dated 7 February 2025 (FDN 1). 30 Record of Outcome dated 13 June 2025 (FDN 15). 31 Record of Outcome dated 23 June 2025 (FDN 16). -- 9 of 19 -- [2025] SASC 210 Gray J 8 Court Order 2. On or before 21 July 2025, the respondent to file and serve any submissions concerning whether the notice of appeal should have been accepted for filing, and the competency of the appeal having regard to the decision of Shmandiy v Police (No.2) [2024] SASCA 90, and the orders made by the Full Court on 26 July 2024, and the need for an extension of time. Court Order 3. Pursuant to s 126(1)(b) and (2) of the Criminal Procedure Act 1921 (see also r 123.1 of the Joint Criminal Rules 2022 (SA). The respondent has leave to issue a subpoena to any medical practitioner requiring their attendance at court, in the event that the appellant proposes to rely on a further medical certificate. Court Order 4. Ms Shmandiy is required to attend on the next occasion in person, and any leave granted previously for Ms Shmandiy to attend these proceedings via AVL is revoked. Future Hearing 5. The matter is adjourned for Single Judge Appeal Hearing to 13/08/2025 at 02:15 PM at Supreme Court Adelaide. Reason - For Submissions. Court Order 6. No party may file, other than the documents referred to above, any further documents in this proceeding without leave of the court. Court Order 7. Liberty to apply. 29 A copy of the orders made on 23 June 2025 were emailed to both parties and the further listing date of 13 August 2025 was advised. 30 In the intervening period, the applicant submitted for filing four interlocutory applications.32 Each can be summarised as follows: 1. FDN 21, dated 8 August 2025, concerns an application to set aside orders made on 23 June 2025 concerning the leave granted to issue a subpoena, concerning the requirement for in person attendance, and the order requiring leave to bring any further interlocutory applications; 2. FDN 28, dated 13 August 2025, which sought leave to file written submissions in support of the substantive appeal. 3. FDN 31, dated 12 August 2025, seeks to strike out the proceedings bearing file number MCLIN-21-105 on the grounds of an abuse of 32 Interlocutory Application dated 8 August 2025 (FDN 21); First Interlocutory Application dated 12 August 2025 (FDN 31); Second Interlocutory Application dated 12 August 2025 (FDN 38); Interlocutory Application dated 13 August 2025 (FDN 28). -- 10 of 19 -- [2025] SASC 210 Gray J 9 process by South Australia Police and legal error by the court in passing judgment; and 4. FDN 38, dated 18 August 2025, seeks to strike out the present proceedings. 31 The interlocutory application filed 8 August 2025 sought that the order revoking leave for the applicant to attend via audiovisual link be set aside. That order was granted and leave to the applicant to attend via audiovisual link at the hearing of the appeal on 13 August 2025 was granted. The balance of the application was adjourned for hearing on 13 August 2025. 33 32 Further written submissions were also filed by both parties in accordance with the orders made on 23 June 2025. 33 At the outset of the hearing on 13 August 2025, the applicant sought to have orders 3 and 6 of the orders made on 23 June 2025 set aside, as contemplated by the application FDN 21. Argument as to the substantive appeal, as to FDN 21, and as to the other extant interlocutory applications, being FDN 31 and FDN 38, was heard at the hearing on 13 August 2025. I determined, in the interests of finality of litigation and in according the applicant procedural fairness, that a ruling on all extant interlocutory applications would be provided in combination with this judgment on the substantive appeal.34 34 During the course of the hearing on 13 August 2025, the applicant made an application that I recuse myself from the hearing of this matter on grounds of actual and apprehended bias.35 An explanation of the test involved in determining such an application was provided to the applicant in advance of her submissions on that application.36 Reasons for ruling were read onto transcript and a copy of those reasons were made available to parties.37 The application for recusal was refused on the basis that there was no logical connection between the matters advanced by the applicant and the suggestion that my involvement in the management and conduct of the proceedings might cause a fair minded lay observer to reasonably apprehend that I might not have brought an impartial mind to the proceedings, or that I demonstrated actual bias toward the applicant in the proceedings.38 35 At the conclusion of the hearing, I proceeded, in the interests of procedural fairness, to make timetabling orders for the filing of further written submissions by the parties concerning the competency of the appeal and the interlocutory applications which were accepted for filing.39 Parties were advised that it was 33 Record of Outcome dated 11 August 2025 (FDN 23). 34 AT at T8.1-23. 35 AT at T50.34-8.26. 36 AT at T43.1-28. 37 Ruling of Gray J dated 13 August 2025 (FDN 33). 38 Ruling of Gray J dated 13 August 2025 (FDN 33) at 4. 39 Record of Outcome dated 13 August 2025 (FDN 29). -- 11 of 19 -- [2025] SASC 210 Gray J 10 anticipated that judgment would be reserved upon receipt of the further written submissions filed pursuant to the orders made on 13 August 2025. 36 In accordance with the orders made on 13 August 2025, further written submissions were filed by the parties. Judgment was reserved on 4 September 2025 and a copy of those orders were provided to parties via email on 8 September 2025.40 Submissions of the parties 37 I have summarised the procedural history above and I address the central matters advanced by the parties below. I have, however, considered all of the written material advanced relevant to the issues joined between the parties before this Court. I have also considered the detailed oral submissions that were advanced by the parties at the hearing of this matter. Interlocutory applications Interlocutory application FDN 21 38 The applicant sought by FDN 21 to have orders 3 and 6 made on 23 June 2025 set aside.41 The terms of those orders are set out above.42 39 In relation to order 3, the applicant submitted that the order imposed “intimidating and discriminatory condition[s]” on her right to medical leave and that it amounted to a denial of procedural fairness.43 It was further submitted that to require attendance of the applicant’s medical practitioner in answer to a subpoena may deter that practitioner from providing further medical care to the applicant.44 The applicant contended that the making of order 3 constituted an act of “practising medicine from the bench.”45 40 In relation to order 6, the applicant submitted that the order evidenced clear “procedural coercion and bias, which involved collusion with the respondent to disadvantage” the applicant in circumstances where the applicant was unwell and unable to appear before this Court.46 Further, the applicant submitted that, being a self-represented litigant, order 6 prevented her from “producing her defence, effectively participating in proceedings and filing submissions of evidence or clarifications of the case that are necessary to ensure justice”.47 Ultimately, as I understand the contention, the applicant submits that these matters amount to a denial of procedural fairness. 40 Record of Outcome dated 4 September 2025 (FDN 36). 41 Record of Outcome dated 23 June 2025 (FDN 16). 42 See [28] above; Record of Outcome dated 23 June 2025 (FDN 16). 43 AT at T2.38-9.13. 44 AT at T39.14-9. See also Affidavit of Mariya Shmandiy affirmed 7 August 2025 (FDN 22) at 2, [3]- [4]. 45 AT at T39.20-34. 46 AT at T40.2-12. See also Affidavit of Mariya Shmandiy affirmed 7 August 2025 (FDN 22) at 2, [14]. 47 AT at T40.13-23. See also Affidavit of Mariya Shmandiy affirmed 7 August 2025 (FDN 22) at 2, [13]. -- 12 of 19 -- [2025] SASC 210 Gray J 11 Interlocutory applications FDN 38 and FDN 31 41 The applicant was advised about the effect of the interlocutory applications FDN 38 and FDN 31 at the hearing and leave was granted for them to be filed notwithstanding their potential effects.48 The applicant then advanced oral submissions to the effect of withdrawing the two applications FDN 31 and FDN 38 at the hearing of this matter on 13 August 2025.49 It was specifically advanced in the written submissions filed by the applicant following the hearing that FDN 31 be formally abandoned.50 42 Accordingly, the interlocutory applications FDN 31 and FDN 38 do not fall to be determined. Competency of the appeal 43 As to the competency of the appeal, the applicant made oral submissions as follows:51 With respect to the competency of the appeal, the High Court and Full Court of this Court have repeatedly held that the finality principle only applies where the earlier proceedings were decided on the merits, and related to the same subject matter in factual determination. As this present appeal concerns different grounds, namely deficiencies in the evidentiary foundation of the breath-test, reverse onus error by the magistrate and denial of procedural fairness during the original appeal hearing, the court retains jurisdiction to hear and determine the matter. The appellant was not afforded an oral hearing or a meaningful opportunity to be heard and therefore the matter was not [determined] on its merits. 44 It was submitted that the present proceedings concern a challenge to the conviction entered on 15 December 2023 and that the appeal proceedings before McIntyre J concerned different matters.52 Ultimately, the applicant submits that the appeal should be heard in the interests of justice as no substantive hearing of it has taken place and the appeal is competent in that regard.53 45 The respondent submitted that McIntyre J in dismissing the applicant’s appeal arising out of the same lower court proceedings indicated that her Honour had considered the matter on its merits.54 The respondent contended that this Court 48 AT at T12.6-30, T13.13-27 and T45.16-32. 49 AT at T48.31-6. 50 Applicant’s Written Submissions dated 28 August 2025 (FDN 34) at 2, [6]-[8] (‘AWS3’). No submission was made by the respondent as to the interlocutory applications FDN 28 and FDN 31. 51 AT at T9.30-11.3. 52 Applicant’s Written Submissions dated 13 August 2025 (FDN 25) at 2, [6]-[10] (‘AWS2’). 53 Applicant’s Written Submissions dated 7 July 2025 (FDN 17) at 3, [25]-[28] (‘AWS1’). 54 Respondent’s Written Submissions dated 3 June 2025 (FDN 11) at 2, [4]-[6] (‘RWS1’) and RWS2 at 2, [9]-[10]. -- 13 of 19 -- [2025] SASC 210 Gray J 12 had no jurisdiction to hear and determine the appeal sought to be pursued in these proceedings as the matter has already been heard and determined on its merits.55 46 In determining whether the appeal was heard on its merits, the respondent submitted that this Court was only to have regard to the decision of McIntyre J.56 The respondent submitted that if any regard could be had to the decision of the Court of Appeal, it was only the discussion regarding whether or not the merits of the appeal were determined by McIntyre J that should be considered.57 The Court of Appeal, it was submitted, did not consider any matter that bears upon the task before this Court, which is to determine whether McIntyre J dismissed the appeal before her Honour on the merits.58 The substantive appeal 47 The applicant raised approximately 17 separate grounds of appeal which make complaints with respect to matters going to the recording of the conviction. Written submissions were provided accompanying the appeal grounds.59 Broadly, the appeal can be categorised into complaints as to the making of factual findings, or the failure to make factual findings, complaints as to the conduct of the learned trial Magistrate, a complaint as to reversing the onus of proof, and a complaint as to the failure of the learned trial Magistrate to have regard to evidence submitted by the applicant. 48 As I have mentioned, the applicant made submissions in writing regarding the substantive appeal. The applicant did not make oral submissions on the substantive appeal at the hearing of this matter on 13 August 2025 but was afforded the opportunity to file further written submissions in support of the appeal.60 Further written submissions were received as to the substantive appeal on 28 August 2025.61 49 The respondent filed extensive written submissions concerning the grounds of appeal on 12 June 2025, which addressed each ground in turn.62 Extensive oral submissions were made at the hearing on 13 August 2025 which supplemented the written submissions concerning the grounds of appeal.63 55 RWS2 at [37]-[40]. 56 AT at T19.4-38. 57 AT at T21.6-24 and T22.8-21. 58 Respondent’s Written Submissions dated 21 August 2025 (FDN 32) at 4, [15]-[17] (‘RWS3’). 59 Appeal Grounds dated 7 February 2025 (FDN 2). 60 Record of Outcome dated 13 August 2025 (FDN 29). 61 AWS3 at 2-4, [9]-[22]. 62 RWS1. 63 AT at T25-42. -- 14 of 19 -- [2025] SASC 210 Gray J 13 Consideration 50 The issue of competency of the appeal is a jurisdictional question, and it is my duty to consider that question first.64 51 This is a statutory appeal brought pursuant to s 42(1) of the Magistrates Court Act 1991 (SA). That provision reads as follows: A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings). 52 In the context of appeals brought pursuant to s 157 of the Criminal Procedure Act 1921 (SA),65 it has been held that that legislation permits of only one appeal against conviction and only one appeal against sentence.66 53 The general rule, stated by Bleby J in R v Parenzee, is that once an appeal against conviction has been heard and determined on its merits and the order disposing of the appeal has been perfected on the court record, the Court lacks jurisdiction to hear a subsequent appeal against that same conviction.67 54 In R v Brain (‘Brain’),68 the Court of Criminal Appeal heard an application for permission to appeal against the decision of that Court dismissing an appeal against sentence. The initial appeal, although it proceeded to hearing and the court order was perfected, was summarily dismissed due to non-attendance of the appellant and not determined on the merits. 55 In Brain, Doyle CJ, with whom Bleby and Wicks JJ agreed, held that there is no general jurisdiction to reopen an appeal once it has been finally disposed of. Doyle CJ stated:69 It would be inconsistent with the cases referred to above to assert a general jurisdiction to reopen an appeal, once the appeal has been finally disposed of. To assert such a jurisdiction would mean that there is no real finality. In R v McNamara (No 2) [1997] 1 VR 257 the Court of Appeal of Victoria rejected a submission that there was a general, albeit exceptional, power to reopen an appeal although the appeal had been finally disposed of. So did the Court of Criminal Appeal of New South Wales in Saxon (1998) 101 A Crim R 71 in particular at 76-81. I agree with the approach taken in those decisions. 56 The Court of Criminal Appeal stated that two established exceptions existed to the rule of finality: reopening of an appeal where it has been abandoned by the 64 See Hazeldell Ltd v The Commonwealth [1924] HCA 36; (1924) 34 CLR 442 at 446 (Isaacs ACJ). See further CGU Insurance Limited v Blakeley [2016] HCA 2; (2016) 259 CLR 339 at 349-50, [24] (French CJ, Kiefel, Bell and Keane JJ); Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 at 12, [8] (Kiefel CJ); 24, [55] (Bell, Gageler, Keane, Nettle and Gordon JJ). 65 Or its predecessor: see Criminal Law Consolidation Act 1935 (SA) s 352. 66 R v Brain [1999] SASC 358; (1999) 74 SASR 92 at 99, [46] (Doyle CJ, Bleby and Wicks JJ agreeing). 67 R v Parenzee [2008] SASC 245; (2008) 101 SASR 469 at 497-8, [139] (Bleby J). 68 R v Brain [1999] SASC 358; (1999) 74 SASR 92 (Doyle CJ, Bleby and Wicks JJ agreeing). 69 R v Brain [1999] SASC 358; (1999) 74 SASR 92 at 100, [56] (Doyle CJ, Bleby and Wicks JJ agreeing). -- 15 of 19 -- [2025] SASC 210 Gray J 14 filing of a notice of discontinuance, and where there has been an inadvertent denial of procedural fairness.70 Doyle CJ went on to hold that a third, limited exception to the rule of finality formed part of the inherent power of the Court as follows:71 I have come to the conclusion that as the merits of Mr Brain's appeal were not considered at all, and as the order dismissing the appeal is an order for summary dismissal, this Court has an inherent power to revoke that order and to resume the hearing of the appeal. It has power to do that even though the appeal by Mr Brain was finally disposed of. I consider that to recognise this limited exception is not inconsistent with the line of authority to which I have referred. As I have mentioned, I have not found any case dealing with the circumstances now before the Court. I consider that it is consistent with the interests of justice to conclude that the Court has an inherent power of the type identified by me. The power is available for exercise in very limited circumstances. I do not consider that to hold that such a power exists is likely to have consequences that are adverse to the public interest in the due administration of justice. 57 I am bound by, and I follow, the approach of the Court of Criminal Appeal in Brain. 58 The exception concerning discontinuance of the appeal does not apply in this case. It is therefore necessary to consider whether the exception based upon a denial of procedural fairness or whether there was a determination of the appeal on its merits. 59 As Gleeson CJ held in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam:72 Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. 60 In determining whether the procedural fairness exception to the finality rule applies in this case, the decision of the Court of Appeal in dismissing the appeal against the decision of McIntyre J in the previous appeal of this matter is instructive. The decision of the Court of Appeal sets out the procedural history of those proceedings and McIntyre J’s management of those proceedings.73 Livesey ACJ and David JA held:74 Today, the applicant has explained that she did not appear before the appeal judge in April or May 2024 because the Elders of this land told her that they would manage her appeal. She said that they had higher jurisdiction over this Court than the colonials do. She said that the appeal judge could not rule on the merits of the appeal because the applicant did not attend the hearing. It may be that the applicant overlooked that the appeal judge had the benefit of her written submissions. 70 R v Brain [1999] SASC 358; (1999) 74 SASR 92 at 100, [58] (Doyle CJ, Bleby and Wicks JJ agreeing). 71 R v Brain [1999] SASC 358; (1999) 74 SASR 92 at 103, [76] (Doyle CJ, Bleby and Wicks JJ agreeing). 72 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 13-4, [37] (Gleeson CJ). 73 Shmandiy v Police (No 2) [2024] SASCA 90 at [20] and [25]-[33] (Livesey ACJ and David JA). 74 Shmandiy v Police (No 2) [2024] SASCA 90 at [34]-[36] (Livesey ACJ and David JA). -- 16 of 19 -- [2025] SASC 210 Gray J 15 This Court has explained that an appeal must usually be pursued with reasonable expedition. That was not done here. The applicant has not identified any error by the appeal judge. That conclusion is reinforced by the absence of any arguable appeal ground to demonstrate that the magistrate erred or, more importantly, any arguable basis to demonstrate that the appeal judge erred in dismissing the appeal for want of prosecution, or in failing to find error in the approach of the magistrate. The applicant has not identified any point of law or principle of general importance. She has not demonstrated that a clear injustice has occurred. In all of these circumstances, the applicant has failed to demonstrate any proper basis upon which permission to appeal could be granted. (citation omitted) 61 I consider having regard to the above mattes and to the procedural history of this matter before McIntyre J75 that the applicant was accorded procedural fairness in those proceedings. The second exception to the rule of finality referred to in Brain concerning an inadvertent denial of procedural fairness has no application in this case. The final exception to be considered is whether there has been a determination of the merits. 62 The question to be considered is whether McIntyre J in her Honour’s ruling dated 17 May 2024 finally determined the merits of the appeal brought by the applicant concerning the conviction. The record of outcome of the hearing on 17 May 2024 signed by McIntyre J constitutes a perfected record of this Court finally determining the appeal.76 Her Honour held, and I repeat:77 The parties have filed written submissions in this matter setting out their argument, however I have not heard oral argument concerning the issues. It is my view that it is appropriate, in all of the circumstances, to dismiss this appeal for want of prosecution. I will say, however, that having read the grounds of appeal and the written submissions that have been provided, it is my view that the appeal lacks merit and, subject to any further matters that might have been out by the appellant, I would consider the appellant’s prospects of success on the appeal to be minimal. 63 The judgment of McIntyre J indicates that her Honour read the grounds of appeal and the written submissions. McIntyre J considered that the appeal lacked merit and the prospects of success on the appeal were minimal.78 Whilst this matter is finely balanced, given the finding that the prospects of success were minimal, in my view, on balance, these findings amount to a consideration of the appeal on the merits and accordingly I have no jurisdiction. Whilst I have formed that view based upon the decision of McIntyre J, I note that the Court of Appeal refers both to the failure of the applicant to demonstrate that McIntyre J erred in dismissing 75 See paragraphs [15]-[22] above. 76 AB at 173-4 (Record of Outcome (McIntyre J) dated 17 May 2024 – SCCRM-25-000504). 77 Ruling, Shmandiy v Police (Supreme Court of South Australia, SCCRM-24-000504, McIntyre J, 17 May 2024) at 3. 78 Ruling, Shmandiy v Police (Supreme Court of South Australia, SCCRM-24-000504, McIntyre J, 17 May 2024) at 2-3. -- 17 of 19 -- [2025] SASC 210 Gray J 16 the appeal for want of prosecution, or in failing to find error in the approach of the learned Magistrate.79 64 Even if I am incorrect about the nature of the findings of McIntyre J, and I have jurisdiction to consider hearing the appeal, there are strong discretionary reasons which militate against the discretion to allow a second appeal. 65 I note that Doyle CJ held that the third exception identified in Brain is a limited exception, and the power available for its exercise is very limited. 80 To the extent that I am wrong in making the above finding and I have jurisdiction and power to set aside the order of McIntyre J dismissing the appeal,81 I do not consider that it would be appropriate to exercise that power. The circumstances which led to the applicant not attending before McIntyre J were not exceptional.82 It is not in the interests of justice that the merits of the applicant’s appeal now be considered. 66 The applicant before the Court of Appeal had not demonstrated that “a clear injustice [had] occurred.”83 The same considerations apply in this case. Further, there was no denial of procedural fairness in the proceedings before McIntyre J. The applicant was afforded the opportunity to present her case before McIntyre J. She did not do so. The applicant has not demonstrated merit in her appeal. I find that there is no reason that the appeal should be determined again in accordance with any of the exceptions considered in Brain. 67 I have heard argument on the substantive grounds of appeal that the appellant seeks to raise. I consider in any event that there is no merit in the appeal. Conclusion and order 68 The Court is without jurisdiction. This Court has no jurisdiction to determine the appeal. The appeal should be dismissed for want of jurisdiction. It follows that to the extent that the applicant seeks that I set aside the orders of McIntyre J dismissing the appeal and the costs orders made by McIntyre J, the Court of Appeal and the Magistrates Court, I would not make those orders. I do not in any event have jurisdiction to set aside costs orders made by the Court of Appeal. 69 In the event that I am incorrect about my lack of jurisdiction to hear this case, I would not exercise my discretion to set aside the orders of McIntyre J and hear the appeal now sought to be brought. There are no applicable discretionary grounds which would favour that approach, and the finality principle is a strong discretionary consideration which militates against reopening the appeal. It follows that there is no utility in the grant of an extension of time. Further, I also note that in any event the length of the delay and reasons for the delay have not 79 Shmandiy v Police (No 2) [2024] SASCA 90 at [35] (Livesey ACJ and David JA). 80 R v Brain [1999] SASC 358; (1999) 74 SASR 92 at 103, [75] (Doyle CJ, Bleby and Wicks JJ agreeing). 81 That is, if I am wrong in determining that McIntyre J considered the appeal on its merits, and in my finding that I have no jurisdiction. 82 R v Brain [1999] SASC 358; (1999) 74 SASR 92 at 108, [103] (Bleby J, Doyle CJ and Wicks J agreeing). 83 Shmandiy v Police (No 2) [2024] SASCA 90 at [36] (Livesey ACJ and David JA). -- 18 of 19 -- [2025] SASC 210 Gray J 17 been adequately addressed so as to justify the grant of an extension of time. There is also no merit to the appeal. 70 I note that FDN 31 and FDN 38 are not pursued. 71 I make the following orders: 1. FDN 21 does not fall to be determined and is dismissed;84 2. In respect of FDN 28, orders were made for the filing of further written submissions. FDN28 is otherwise dismissed; 3. The appeal is dismissed. 72 I will hear the parties as to any further orders. 84 The issues raised by the interlocutory application have no merit. There was no denial of procedural fairness to the applicant. FDN 21 complains of the orders made on 23 June 2025. Firstly, in relation to order 3 of the orders of 23 June 2025, no subpoena was issued. In relations to order 4, permission to appear via AVL was granted. In relation to order 6, only two interlocutory applications were placed before the Court at the hearing subsequent to the making of that order, and the applicant was given leave to file those applications FDN 31 and FDN 38 (see orders 15 August 2025 FDN 29). To the extent that leave was sought to file further, unspecified interlocutory applications, I ruled that unspecified applications would not be subject to a grant of leave (see AT at T49.17-50.1) and the applicant was invited to raise any further matters following that ruling (see AT at T50.3-5). -- 19 of 19 --