BRENAN RODGERS In Person via AVL v COMMISSIONER OF POLICE [2023] SASCA 23

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA DCCRM-20-1684; MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE SUTCLIFFE) MCCRM-22-003418 Applicant: BRENAN RODGERS In Person via AVL Respondent: COMMISSIONER OF POLICE Counsel: MR P LEESON - Solicitor: CROWN SOLICITOR (SA) Second Respondent: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Counsel: MR W SCOBIE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Third Respondent: PAROLE BOARD OF SOUTH AUSTRALIA Counsel: MR P LEESON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 06/03/2023 File No/s: SCCRM-23-002261 B SUPREME COURT OF SOUTH AUSTRALIA (Court of 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 & ORS v RODGERS [2023] SASCA 23 Judgment of the Honourable President Livesey (ex tempore) 6 March 2023 APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - JURISDICTION TO GRANT NEW TRIAL AND OTHER MATTERS The applicant filed a notice of appeal complaining that the extradition ordered by a magistrate in September 2022 was invalid and seeking an order that the decision be reviewed. The notice of appeal also sought to review a decision by the Parole Board of South Australia to revoke the applicant's parole. The Court held (striking out the notice of appeal): 1. Previous litigation in the Supreme Court of Victoria did not justify invoking the jurisdiction of the Court of Appeal in South Australia. 2. The appropriate course was to seek a review of the extradition order before a Judge of the General Division pursuant to s 86 of the Service and Execution of Process Act 1992 (Cth). 3. The Court of Appeal is not the appropriate jurisdiction in which to seek judicial review of a decision of the Parole Board. Service and Execution of Process Act 1992 (Cth) ss 83, 86; Supreme Court Act 1935 (SA) s 50; Joint Criminal Rules 2022 (SA) r 192.2, referred to. Loveridge v Commissioner of Police (SA) (2004) 89 SASR 72; Re Dalton (1995) 120 FLR 408, considered. -- 1 of 4 -- -- 2 of 4 -- COMMISSIONER OF POLICE & ORS v RODGERS [2023] SASCA 23 Court of Appeal – Criminal 1 LIVESEY P (ex tempore): In this matter the applicant has by a notice of appeal against sentence dated 17 January 2023 raised a number of grounds of appeal, only some of which it is presently necessary to mention. They include the complaint that the extradition ordered by Magistrate Sutcliffe on 20 September 2022 was invalid, and an order is sought that that decision be reviewed. In addition, the applicant is critical of the decision by the Parole Board of South Australia to revoke his parole, and he seeks judicial review of that decision. 2 The applicant is not represented by a lawyer. 3 When this matter initially came before me, I made an order in the absence of Mr Rodgers which substituted for the name of the police prosecutor the Commissioner of Police as the proper party. In addition, Mr Scobie for the Director of Public Prosecutions argued that the Director was not a proper party, and he sought disjoinder. I declined to make that order in the absence of Mr Rodgers. Having heard Mr Rodgers today I am satisfied that the Director is not a proper party, and I will order disjoinder of the Director. 4 So far as the other matters raised by the notice of appeal are concerned, Mr Rodgers maintains that the jurisdiction of the Court of Appeal is properly invoked because there was litigation involving a warrant concerning him in the Supreme Court of Victoria between 2012 and 2016. I have been handed documents this morning which demonstrate that a warrant concerning Mr Rodgers was reviewed by Pagone J in the matter of Rodgers v Chief Commissioner of Victoria Police.1 An appeal against that judgment came before the Court of Appeal of Victoria and was allowed by consent on 18 September 2013. 5 The appeal was allowed only on the basis of ground 1(c) of the further amended notice of appeal, which was concerned with the requirements of the Service and Execution of Process Act 1992 (Cth). It was accepted that there had been a failure to specify a particular correctional centre, as well as a failure to comply with the form provided by s 181 of the Crimes (Administration of Sentences) Act 1999 (NSW). In consequence there had been a failure to comply with the requirements of the Service and Execution of Process Act 1992 (Cth). 6 I am not satisfied that the litigation in the Supreme Court of Victoria, including before the Court of Appeal, demonstrates that the jurisdiction of this Court has been properly invoked. 1 (2012) 263 FLR 478. -- 3 of 4 -- [2023] SASCA 23 Livesey P 2 7 Pursuant to s 86 of the Service and Execution of Process Act 1992 (Cth), where an order is made for extradition under s 83 a review may be sought within seven days by application to the Supreme Court. That review would ordinarily be heard by a judge of the General Division.2 8 In circumstances where an order was made by a Magistrate in September last year, the appropriate course is to seek a review before a Judge of the General Division pursuant to the terms of the Service and Execution of Process Act 1992 (Cth). Any question concerning the time within which that review should have been commenced can be addressed then. It is not appropriate to seek to invoke the appellate jurisdiction of the Court of Appeal.3 9 Similarly, the application to judicially review the decision made by the Parole Board to revoke parole does not come within the appellate jurisdiction of this Court. 10 In these circumstances I am satisfied that the notice of appeal is misconceived and incompetent, and accordingly I strike it out pursuant to rules 12.1 and 30.3 of the Joint Criminal Rules 2022 (SA).4 2 That is demonstrated by cases such as Re Dalton (1995) 120 FLR 408 (Batt J) and Loveridge v Commissioner of Police (SA) (2004) 89 SASR 72 (White J). 3 Supreme Court Act 1935 (SA) s 50; Joint Criminal Rules 2022 (SA) r 192.2. 4 See for example, Kiparoglou v Magistrate [2023] SASCA 16 (Livesey P and Bleby JA). -- 4 of 4 --