DAVID NORTHEAST In Person v COMMISSIONER OF POLICE [2024] SASC 93

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE STRATTON- SMITH) MCPAR-21-5337; MCPAR-22-5483; MCCRM-23-034173 Appellant: DAVID NORTHEAST In Person Respondent: COMMISSIONER OF POLICE Counsel: MS C NOLAN - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 04/07/2024 File No/s: SCCRM-24-009490 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. NORTHEAST v POLICE [2024] SASC 93 Judgment of the Honourable Justice Kimber 22 July 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA - GENERAL PRINCIPLES CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - SEPARATE TRIALS AND ELECTION CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS This is an appeal against conviction. Following a trial conducted in the Magistrates Court, the appellant was convicted of two counts of driving with excess blood alcohol, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (RT Act), and of one count of owning an unregistered vehicle found standing on a road, contrary to s 9(3) of the Motor Vehicles Act 1959 (SA) (MV Act). In respect of one of the counts contrary to s 47B(1)(a) of the RT Act, the appellant had entered a plea of guilty; in respect of each of the remaining counts, the appellant entered pleas of not guilty. The appellant was unrepresented at the trial. At the conclusion of the prosecution’s evidence, and having rejected an application by the appellant to adjourn the hearing to enable him to obtain certain evidence, the Magistrate found that the offences had been proved beyond reasonable doubt and moved to sentence. On appeal, the appellant contended that his convictions ought to be quashed on the grounds that the Magistrate should have acceded to his application to order that each count be the subject of a separate trial and that, in all the circumstances, he had been ‘ambushed’ by being forced to deal with three trials on the same day. The appellant also contended that the Magistrate ought to have adjourned the hearing to enable him to obtain certain evidence. Held, dismissing the appeal: -- 1 of 11 -- 1. With respect to the count to which the appellant had entered a plea of guilty, there existed no reason to allow the appellant to withdraw his plea. On the evidence, and from the face of the transcript of the proceedings before the Magistrate, that plea had been entered in full cognisance of the charge laid against the appellant, and after ample opportunity had been given to permit the appellant to plead not guilty. There was, further, no evidence suggesting that a miscarriage of justice had occurred by the entry of the plea. 2. The Magistrate’s decision not to order separate trials being a discretionary one, the appellant’s appeal in this respect could only be allowed if it were established that the Magistrate had erred in the exercise of that discretion in the sense(s) articulated in House v The King (1936) 55 CLR 499. In this respect, the appellant had not established any such error. The appellant had been on notice for months before the trial that the prosecution intended to deal with each of the charges at the same time and had sufficient time to prepare for a trial of all alleged offences. There was, thus, no error in the Magistrate refusing to separate the trial of the remaining two offences. 3. The Magistrate’s decision to refuse to adjourn the trial being a discretionary one, the appellant’s appeal in this respect could only be allowed if it were established that the Magistrate had erred in the exercise of that discretion in the sense(s) articulated in House v The King (1936) 55 CLR 499. In this respect, none of the matters put by the appellant at trial, or on appeal, justified the adjournment of the hearing. 4. Although strictly outside the scope of the appellant’s Notice of Appeal, each of the penalties imposed by the Magistrate, save for the imposition of a lower fine against the appellant than mandated by statute, was proportionate to the offences of which the appellant had been convicted. Criminal Procedure Act 1921 (SA) s 51(2); Joint Criminal Rules 2022 (SA) r 44.1; Magistrates Court Act 1991 (SA) s 17; Motor Vehicles Act 1959 (SA) ss 9(3), 140; Road Traffic Act 1961 (SA) ss 47(7), 47B(1)(a), 47K, referred to. Crowther v Police [2008] SASC 302; House v The King (1936) 55 CLR 499; Kanakaradnam v R [2018] NSWCCA 282; R v Forde [1923] 2 KB 400; R v Pugh (2005) 158 A Crim R 302; R v Stewart [2010] SASCFC 72; White v The King (2022) 110 NSWLR 163, applied. Police v Dunstall (2015) 256 CLR 403, considered. -- 2 of 11 -- NORTHEAST v POLICE [2024] SASC 93 Magistrates Appeal: Criminal KIMBER J: 1 This is an appeal against conviction with respect to three offences, one of which followed a guilty plea and two of which followed trial in the Magistrates Court. 2 The appellant, unrepresented at trial and on appeal, was charged with each offence on a separate Information. The three offences were: driving with excess blood alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (RT Act), committed on 2 June 2021 (MCPAR-21-5337); being the owner of unregistered vehicle standing on a road contrary to s 9(3) of the Motor Vehicles Act 1959 (SA) (MV Act), committed on 7 September 2021 (MCPAR-22-5483); and driving with excess blood alcohol contrary to s 47B(1)(a) of the RT Act, committed on 24 June 2023 (MCCRM-23-034173). 3 The allegations the subject of the three offences can be briefly summarised. On 2 June 2021, the appellant was stopped after driving a motor vehicle with a blood alcohol concentration of 0.161g in 100ml of blood. On 7 September 2021, the appellant was the registered owner of an unregistered vehicle parked on the street outside his home. On 24 June 2023, the appellant was stopped at a testing station and a breath analysis gave a reading of 0.148g in 100ml of blood. 4 On 25 October 2023, a Magistrate listed all three offences for trial on 15 February 2024. The prosecution had submitted that all three offences could proceed in a single trial. 5 On 13 February 2024, the appellant filed an interlocutory application seeking a separate trial of each offence (the interlocutory application). At the commencement of the hearing on 15 February 2024, having heard submissions, the Magistrate refused that application. That application having been refused, the appellant pleaded guilty to the offence alleged to have been committed on 2 June 2021 and not guilty to the other two offences. The two offences the subject of not guilty pleas proceeded to trial, with the prosecution calling oral evidence and tendering exhibits, including various certificates. 6 At the end of the evidence called by the prosecution, the appellant repeated his complaints about more than one offence being tried and sought an adjournment of the trial. The Magistrate refused to grant the adjournment and gave brief ex tempore reasons. The appellant did not call any evidence. The Magistrate found the two relevant offences established beyond reasonable doubt and imposed penalties for each offence. There is no dispute that, on the evidence before the Magistrate, the two offences the subject of the trial had been proved beyond reasonable doubt. -- 3 of 11 -- [2024] SASC 93 Kimber J 2 7 For the reasons that follow, I dismiss the appeal. The grounds of appeal 8 With respect to the three offences, the appellant advances three grounds of appeal in identical terms. The grounds are: 1. That the Court commenced a trial of all three matters in this case – together as one trial, notwithstanding that all three matters occurred on different days, and 2. That the Court refused my Application for a Separation of Trials, and 3. That in all circumstances, the Appellant was ambushed with the trial. 9 As may be obvious, the grounds make no complaint about the penalties imposed and are only consistent with the appeal being against conviction. Despite that, there is passing reference within the Notice of Appeal to the judgment subject to appeal being ‘conviction and sentence’. For that reason, and only as a matter of completeness, later I will make some brief reference to the penalties which were imposed. Some procedural history 10 Before turning in more detail to what occurred on the day of trial and the grounds of appeal, it is helpful to give some further history about each of the three files. It gives some context to some of the issues on appeal. 11 Before 15 February 2024, MCPAR-21-5337 had been listed on 17 occasions, with the appellant appearing on 14 of those occasions. The appellant was represented on three occasions, but had been unrepresented for more than a year before the hearing at which the trial date was set. The trial date of 15 February 2024 was the fourth trial date set for this Information. Before 15 February 2024, MCPAR-22-5483 had been listed on nine occasions. The appellant appeared on seven of those occasions and was never represented. Before the trial date was set, there had been one previous trial date listed, with two days set aside. Before 15 February 2024, MCCRM-23-034173 had been listed twice and the appellant had appeared unrepresented on both occasions. The trial date of 15 February 2024 was the first trial date. 12 As set out above, the trial date of 15 February 2024 was set for all matters on 25 October 2023 and the appellant was present at that hearing. The trial 13 At the commencement of the hearing on 15 February 2024, the Magistrate heard submissions with respect to the interlocutory application. During those submissions, there was some exploration of the issues to be raised with respect to the alleged offences and the Magistrate read each offence to the appellant. When the offence alleged to have been committed on 2 June 2021 was read, there were exchanges between the Magistrate and the appellant which culminated in the -- 4 of 11 -- [2024] SASC 93 Kimber J 3 appellant stating, ‘I plead guilty for having alcohol in my system’ but indicating that he could not plead ‘knowing the exact amount’. Consistent with that having occurred, the Magistrate noted that a guilty plea had been entered. On the hearing of the appeal, the appellant accepted that he had entered a guilty plea as noted by the Magistrate. The appellant then entered not guilty pleas to the other two offences. As a result, the interlocutory application became that there should be two separate trials. 14 Having referred during submissions to the importance of the Court using resources efficiently, and indicating that no evidence with respect to one alleged offence would be used in proof of the other, the Magistrate dismissed the application and gave ex tempore reasons as follows: I’m not going to allow your application for the first and second because we’ve got the same officers here, I don’t think it’s appropriate that I hear them once and then get them to come back here in a few weeks to give some more evidence on a separate trial when it sounds as if it’s not going to be that long anyway. They’ll say they attended your house, noticed this car and that was that so I don’t think it’s appropriate that I call them back for that and with the third drink driving, given the way these matters run, the evidence I suspect will be very similar to the first, it will be a similar group of certificates and aids to proof, I can’t see a justification for not hearing them now because I suspect the police officers for that one are here ready to go as well. 15 The application having been refused, the prosecution then called evidence with respect to the two relevant offences. 16 With respect to MCPAR-22-5483, a police officer gave evidence that, at about 6.30am on 7 September 2021, the relevant vehicle was parked on the road. A certificate was tendered pursuant to s 140 of the MV Act. It is not disputed that the certificate established that the defendant was the registered owner of the vehicle and that the registration had expired on 4 September 2021. It was not disputed at trial, nor on appeal, that, on the day alleged in the offence, the vehicle was unregistered; that it was parked on a road; and that the appellant was the registered owner. To the extent that the appellant said anything at trial which shed light on the offence, he submitted that the vehicle could not be parked on his property and off the road as he did not have an available driveway; did not dispute that the vehicle was unregistered on 7 September 2021, but submitted that the vehicle had been unregistered for a shorter time than established by the certificate; and asserted that no offence was committed, provided that the vehicle was registered at some time later on 7 September 2021. Neither at trial, nor on appeal, did the appellant direct attention to any statutory provision which might justify the assertion just outlined. 17 With respect to MCCRM-23-034173, the prosecution called evidence that the appellant was driving a vehicle which was stopped at an RBT site and was directed to submit to an alcotest which gave a positive reading. The prosecution then led evidence that a breath analysis was conducted. The prosecution tendered several certificates pursuant to s 47K of the RT Act. It was not suggested at trial, -- 5 of 11 -- [2024] SASC 93 Kimber J 4 nor on appeal, that the certificates might have been deficient in any respect, nor was it suggested that they did not establish what was necessary to prove the offence. The certificates included, but were not limited to, a certificate pursuant to s 47(7), which established that the appellant was given an approved blood test kit in accordance with the RT Act. The evidence at trial was that, after being given the blood test kit, the appellant was taken to a hospital where he was ultimately detained because of mental health concerns. At trial, the appellant made reference to the blood test kit in the context of an application that the trial be adjourned. The appellant did not advise the Magistrate of the result. On appeal, the appellant submitted that the result was lower than the breath analysis. I will return to this. 18 At the conclusion of the evidence called by the prosecution, the appellant made an application for an adjournment of the trial. In order to evaluate the merits of that application, the Magistrate enquired of the appellant what evidence he might lead in the event that the adjournment were granted. With respect to the offence alleged on 7 September 2021, the matters put to the Magistrate that were maintained on appeal were submissions about a document said to indicate that the relevant registration had expired only about six hours before the offence; and a submission about a document suggesting that it was not an offence if the appellant had registered the relevant vehicle on the same day as the police attended. With respect to the offence alleged on 24 June 2023, the matters put to the Magistrate that was maintained upon on appeal was a submission about the blood test result being lower than the breath analysis. 19 The Magistrate refused the application for an adjournment and the appellant did not call evidence. The Magistrate found the appellant guilty of the two offences which had been the subject of evidence. MCPAR-21-5337 20 I will deal separately with this file as the appellant does not dispute that he entered a guilty plea. It is obvious that no ground of appeal is relevant to this offence. 21 On the hearing of the appeal, the appellant submitted that, at the time the guilty plea was entered, he ‘felt under pressure’ and that the plea was ‘not in a true understanding of what I was saying’. It is difficult to view those submissions as anything other than a contention that permission should be given to withdraw the plea. On that premise, the onus is upon the appellant to establish that he did not appreciate the nature of the charge, or that he did not intend to admit that he was guilty of it, or that, upon the admitted facts, he could not in law have been convicted of the offence; or that there has been a miscarriage of justice.1 In cases where a plea of guilty has been accepted by the Court and has resulted in 1 R v Forde [1923] 2 KB 400, 403 (Avory J for the Court); R v Pugh (2005) 158 A Crim R 302, 320 [100] (Bleby J); R v Stewart [2010] SASCFC 72, [42] (Doyle CJ, David and Peek JJ agreeing); Kanakaradnam v R [2018] NSWCCA 282, [17]–[19] (Johnson J, Simpson AJA and N Adams J agreeing). -- 6 of 11 -- [2024] SASC 93 Kimber J 5 conviction, the primary inquiry is into whether a miscarriage of justice has occurred.2 22 The appellant has not submitted that he did not know the nature of the charge or that the charge was not made out. To the contrary, immediately before the plea was entered, the appellant told the Magistrate that he admitted that he had alcohol in his system and did not dispute any aspect of the evidence adduced at trial. While the appellant said to the Magistrate that he could not say if he were over the limit and that he did not know the exact amount of alcohol in his blood, I do not read that as a claim that the level alleged by the police had not been detected in the breath test. 23 The contention of the appellant appears to be that he did not intend to enter the plea, but did so under pressure. I reject that contention. The guilty plea was entered after the Magistrate gave the appellant ample opportunity to plead not guilty and after the appellant had been told that, if a not guilty plea were entered, the prosecution would be obliged to prove the charge. As already observed, immediately before the plea was entered, the appellant indicated that he did not dispute that he had alcohol in his system. Further, that the appellant did not understand what he was doing does not fit comfortably with him entering not guilty pleas to the other two offences immediately after the guilty plea. In the circumstances, there is no proper basis to permit the appellant to withdraw his plea. 24 The appeal must be dismissed in so far as it relates to MCPAR-21-5337. MCPAR-22-5483 and MCCRM-23-034173 25 As may be seen from the grounds of appeal, there are really two contentions. First, that the application for separate trials should have been granted.3 Secondly, that the appellant was ‘ambushed’.4 A single trial 26 The decision whether to have a single trial of offences on more than one Information is a discretionary one. Section 51(2) of the Criminal Procedure Act 1921 (SA) provides: 51—Joinder and separation of charges … (2) The Magistrates Court may direct that— (a) charges contained in a single information be dealt with in separate proceedings; or 2 See White v The King (2022) 110 NSWLR 163, 184, [58] (Bell CJ, Button and N Adams JJ). 3 Grounds 1 and 2. 4 Ground 3. -- 7 of 11 -- [2024] SASC 93 Kimber J 6 (b) charges contained in separate informations be dealt with together in the same proceedings. 27 The discretionary power conferred upon the Magistrate is further reflected in r 44.1 of the Joint Criminal Rules 2022 (SA), which provides: 44.1 Consolidation The Court may order charges contained in separate Informations be dealt with together in the same proceeding on such conditions as it thinks fit. 28 The appeal being one with respect to a discretionary decision, it will only be allowed if it is established that the Magistrate erred in the exercise of that discretion. That is, that the Magistrate acted on some wrong principle; or gave weight to some irrelevant matter; or failed to consider a relevant matter; or made a mistake as to the facts. 5 29 I have set out earlier the brief ex tempore reasons for refusing the interlocutory application. 30 The transcript of the hearing before the Magistrate reveals that the appellant advanced two grounds for seeking a separate trial. First, that the prosecution had not indicated which trial they wished to have heard first. Second, that it was not possible for him to prepare for three trials conducted on one day. 31 As to the first matter, as set out earlier, the position of the prosecution on 25 October 2023 was that all three offences should be tried at the same time. There is no suggestion that that position had changed before the day of trial. Which of the three matters was the subject of evidence first was hardly a matter which was material. On any view, the oral evidence was going to be brief. So much is confirmed by what occurred on 15 February 2024. 32 As to the second matter, the trial had been listed almost four months before the trial date. It must be accepted that the appellant was unrepresented, but nothing of substance was put to the Magistrate, or on appeal, which establishes that was not ample time to prepare for a trial of all three offences. I am satisfied that the period between 25 October 2023 and the trial date was sufficient time to prepare for the three offences. In so far as the appellant put to the Magistrate that he had attended the trial without all of the material that he believed might be relevant, the significance of that material is best addressed when considering the contention that the Magistrate erred in not granting the application to adjourn the trial. 33 For the above reasons, there is no error in the approach of the Magistrate in refusing to separate the trials of the two offences to which the appellant pleaded not guilty. 5 House v The King (1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ). -- 8 of 11 -- [2024] SASC 93 Kimber J 7 34 With respect to MCPAR-22-5483 and MCCRM-23-034173, I dismiss Grounds 1 and 2. Ground 3 – the refusal to adjourn 35 It is first necessary to attempt to identify the nature of the complaint of the appellant about being ‘ambushed’ which finds voice in this ground. As part of this complaint, at times in his submissions, the appellant appeared to assert that the attendance of police at his home on 7 September 2021 was motivated by past dealings with the police and was improper in some way. It is difficult to discern how this aspect of the complaint might establish that the appellant was in some way ambushed at trial. In any event, it is clear that the appellant was not denied an opportunity to put to the police that the attendance at his home had an improper motive. During the cross-examination of the police officer called about the events of that day, that suggestion was put with the assistance of the Magistrate. The police officer rejected the suggestion. 36 Putting the above aside, the contention that the appellant was ambushed at trial appears to be a complaint that the appellant was not prepared for the trial either because the interlocutory application should have been granted or because the Magistrate should have granted an adjournment. The approach of the Magistrate to the interlocutory application has been dealt with above. I turn to whether the Magistrate erred in not granting the application of the appellant for an adjournment of the trial. The discretion to grant an adjournment 37 The decision whether to grant an adjournment is a discretionary one. Section 17 of the Magistrates Court Act 1991 (SA) provides: 17—Adjournment from time to time and place to place The Court may— (a) adjourn proceedings from time to time and from place to place; or (b) adjourn proceedings to a time and place to be fixed; or (c) order the transfer of proceedings from place to place. 38 While it is not possible to formulate hard and fast rules, an appropriate test has been held to be whether there is a reasonable possibility that material of substantial assistance would obtained, if the trial were delayed.6 In my view, that is the appropriate test in this case. 6 Crowther v Police [2008] SASC 302, [33] (David J), approving R v Alexandroaia (1995) 81 A Crim R 286. -- 9 of 11 -- [2024] SASC 93 Kimber J 8 Consideration 39 Before the Magistrate, the submissions of the appellant in support of the application to adjourn the trial with respect to MCPAR-22-5843 appears to have been: that he was only able to park the car in the street as he did not have a driveway; that the car had only been unregistered since midnight; and that the appellant held a belief that no offence would be committed if the relevant vehicle were registered within 24 hours of expiration. With respect, the Magistrate was correct in concluding that none of those matters provided a basis to adjourn the trial. As the respondent submitted, the relevant offence is one of strict liability and involves three elements: namely, that the vehicle was unregistered; that the appellant was the owner; and that the vehicle was found to be standing on a road. The appellant did not dispute before the Magistrate, nor on appeal, any of those elements. As for the assertion about some ability to avoid conviction of the relevant offence if the vehicle was registered within 24 hours of expiration, the appellant did not develop that submission beyond making that assertion. There is no support for that assertion within the MV Act and I reject it as a matter weighing in favour of the application to adjourn the trial. 40 It follows that none of the matters raised by the appellant weighed in favour of the trial being adjourned with respect to this charge. 41 As to MCCRM-23-034173, the appellant submitted to the Magistrate that the evidence he might lead if the adjournment were granted related to his blood test result. There is no dispute that, after the breath analysis was conducted, the appellant was given a blood test kit and taken to a hospital for that purpose. The evidence before the Magistrate was that, once at the hospital, the appellant expressed mental health concerns and was detained. As to the blood test, the Magistrate explored with the appellant what evidence the appellant might adduce if the application to adjourn the trial were granted. In so doing, the Magistrate pointed out to the appellant that the RT Act required that any analysis of the blood needed to demonstrate the breath analysing instrument had given an exaggerated reading.7 That is, it would not be enough to adduce evidence of a blood test result that was lower than the breath analysis. With respect, the Magistrate was correct. In practical terms, the appellant was required to adduce expert opinion evidence based on the results of the analysis of the blood sample.8 42 At no point before the Magistrate did the appellant appraise the Magistrate of what the blood test result had been, let alone submit that he intended to adduce expert evidence that the breath analysis had resulted in an exaggerated reading. It follows that the decision to refuse to adjourn the trial because of what was put to him about a blood test result was open to the Magistrate. There was insufficient evidence before the Magistrate to warrant him believing that any evidence which might be led after an adjournment might have undermined the prosecution case. 7 RT Act s 47K(1a)(b). 8 Police v Dunstall (2015) 256 CLR 403, [11]. -- 10 of 11 -- [2024] SASC 93 Kimber J 9 43 As a matter of completeness, it can also be observed that, while the appellant submitted on appeal that the blood test result had given a lower reading than the breath analysis, the appellant made no submission on appeal about what the actual blood test result was, nor did the appellant provide detail as to how long after the breath analysis the blood had been taken. It follows that there was nothing put on appeal which provides a foundation to believe that an expert opinion might have established that the breath analysis had given an exaggerated reading. The penalties imposed 44 The Notice of Appeal states on its face that it is an appeal against conviction and the grounds of appeal do not relate to the penalties imposed. In my view, the appellant has not filed a Notice of Appeal against sentence and his grounds cannot be read as criticising the penalties imposed. Nevertheless, to avoid doubt, it is appropriate to say something about the penalties imposed as there is passing reference in the Notice of Appeal to the judgment the subject of appeal being ‘conviction and sentence’; aspects of the submissions of the appellant were about the impact of the penalties imposed by the Magistrate and his character; and the appellant is unrepresented. 45 I am unable to discern any legitimate complaint about the penalties imposed. In my view, each penalty (other than one in favour of the appellant) was within the appropriate range given the maximum penalties. With respect to the offences contrary to the RT Act, it is also relevant that they were not the first offences where the appellant had driven with alcohol in his blood. 46 For MCPAR-21-5337, the penalty was a conviction, a fine of $1,100, and disqualification for two years (after a reduction of 12 months before 15 February 2024). As this was a second category offence, the maximum penalty was a fine of not less than $1,600 and not more than $2,400 and disqualification for not less than three years. It follows that, with respect to the fine, the Magistrate erred in favour of the appellant. For MCPAR-22-5483, the penalty imposed was a conviction and a fine of $750. The maximum penalty was a fine of $7,500. For MCCRM-23-034173, the penalty imposed was a fine of $1,100 and disqualification for eight months (reduced by three months and two days disqualification before 15 February 2024). It is implicit that a conviction also followed. As a first category offence, the maximum penalty was a fine of not less than $900 and not more than $1,300 and disqualification for not less than three months. Conclusion 47 The appeal is dismissed. I will hear the parties with respect to any further order. -- 11 of 11 --