GIKAS v POLICE No. SCGRG-99-15 Judgment No. S139 [1999] SASC 139

Supreme Court of SA|1999-04-25|Before: Lander J

LANDER J. The appellant lodged a notice of appeal on 8 January 1999 appealing against a conviction entered against him on 20 August 1998.

The appeal is well out of time. The notice of appeal seeks an extension of time within which to appeal and the grounds relied upon are:

The appellant was charged first that on 14 August 1997 he assaulted Adrian John Inglis and secondly that on the same day he behaved in a disorderly manner in a public place namely Freeman Lane.

The appellant pleaded not guilty but the learned Magistrate found both charges proved beyond reasonable doubt.

Eventually the second count was withdrawn and the learned Magistrate entered a conviction in respect of the first count and fined the appellant $700. Court fees and prosecution fees totalling $2209 were allowed and the appellant was given twelve months in which to pay those costs.

The notice of appeal contained the following grounds in relation to the appeal against conviction:

"(2) That the Learned Special Magistrate erred in: (a) reversing the onus of proof; (b) failing to properly apply the onus of proof at the conclusion of all evidence presented by both the prosecution and defence; (c) failing to provide adequate reasons for rejecting the defendant or witnesses called by the defence."

The appellant's counsel did not provide the Court and the respondent with the appellant's outline of submissions as provided for in Practice Direction 25. The appellant's outline of submissions was provided to the Court less than four hours before the matter was due to be heard. The outline was not very helpful, as it merely restated two of the grounds of appeal.

The respondent's counsel attempted to comply with Practice Direction 25 and provided the Court with his outline of submissions in the week before the hearing. I am told that his outline of submissions was also served on the appellant's solicitor. I was told by counsel for the appellant that he only received a copy of the outline a few hours before the hearing. I am not sure why his instructing solicitor delayed in providing him with the respondent's outline of submissions.

In any event the respondent's outline of submissions made it clear that the respondent intended to argue that the appeal was incompetent in that the notice of appeal was not filed within the time prescribed by r96C.02 of the Supreme Court Rules and s42 of the Magistrates Courts Act.

Notwithstanding that the respondent clearly objected to the competence of the appeal, when the matter first came before me the appellant brought forward no evidence to support the application for the extension of time within which to appeal.

Counsel for the appellant said that he was not in a position to offer any evidence in support of the application for an extension of time, nor was he able to offer any further explanation for the delay apart from that to which I have referred in the notice of appeal. He did not have any detail of the delay in the receipt of the transcript and reasons of the learned Magistrate. He was not able to advise me of any of the matters in paragraph (1)(b) or 1(c).

He said that in his fifteen years of practice nobody had ever taken objection to a Justice's appeal on the ground that the matter was out of time. He did not believe that his client had to bring forward any evidence to support the application for an extension of time.

He said that his sole submission was that because there had been a miscarriage of justice, in that the learned Magistrate had reversed the onus of proof, then the Court was bound to give the appellant an extension of time, notwithstanding the absence of any explanation for the delay. At that time he was not able to provide any authority for that proposition. Nor was he in a position to address any of the authorities to which counsel for the respondent had referred in his outline of submissions.

During his opening submissions I indicated that I would need authority for the proposition advanced. The Rules of Court provide time limits which parties must comply with unless they can convince the Court that they are entitled to an indulgence. If the appellant's submission was correct then effectively there would be no time prescribed for the bringing of an appeal where the appeal was likely to succeed on the merits. The Court, on counsel's submission, was bound to extend time. On the other hand if the appeal could not succeed on the merits then an extension of time would be irrelevant. That would make the time limit in r96C.02 immaterial. Counsel for the appellant said that that was his submission. Indeed he said if the appeal was years out of time, but on the appeal a miscarriage of justice was demonstrated, leave to extend time within which to appeal would have to be granted.

After some further exchange the appellant's counsel sought an adjournment to adduce evidence to explain the delay in bringing this appeal. I adjourned the matter for twenty-four hours to allow that evidence to be put before the Court. The appellant's counsel filed an affidavit which disclosed that he requested a copy of the reasons for judgment of the learned Magistrate on 21 August 1998, the day following the Magistrate's decision. Apparently his instructing solicitor received a copy of the reasons for judgment on 11 September 1998 and provided those reasons to counsel and sought an opinion from counsel as to the prospects of an appeal.

Counsel provided his opinion on the prospects of appeal on 21 December 1998 and at the same time enclosed a draft notice of appeal.

It can be seen that the delay in this matter was not so much occasioned by the failure of the Court to provide the appellant's legal advisers with a copy of the learned Magistrate's reasons for judgment, but a failure by counsel to consider the papers and provide his opinion.

On 23 December 1998, the appellant's solicitors sent the appellant a copy of counsel's opinion and requested his instructions. On 7 January 1999, the appellant instructed his solicitors to file a notice of appeal. The notice of appeal was filed on 8 January 1999.

Counsel accepts that the failure to file the notice of appeal within the time limits prescribed by the Supreme Court Rules was largely due to his failure to give his opinion in a timely fashion. There is no suggestion that any blame can be attributed to the appellant himself.

Whilst the explanation established an absence of fault on the part of the appellant, the appellant's counsel persisted in his argument that no explanation was necessary if there was some ground for apprehending that a miscarriage of justice has occurred. I do not agree with that submission.

If any party, whose appeal after hearing must necessarily be granted, is therefore entitled to an extension of time within which to appeal then that will lead to procedural anarchy. A party would be entitled to bring an appeal at any time. That would be disruptive of the administration of justice. It would also prejudice the business of the prosecuting authority.

The discretion to extend time for compliance with the Rules exists for the sole purpose of doing justice between the parties: Hughes v National Trustees Executors Agency Co of Australia [1978] VicRp 27; [1978] VR 257; Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479.

Of course, the Court will not extend the time within which to appeal if the appeal is bound to fail. However, it is not the case that any appeal which is likely to succeed must attract an extension of time where such is necessary. Whether or not an extension of time will be granted depends upon a number of factors. First the length of the delay. Secondly the explanation for the delay. Thirdly whether there is any prejudice suffered by the opposing party and fourthly whether there are some prospects that the appeal will be successful.

In Ratnam v Cumarasamy [1964] 3 All ER 933 at 935 the Privy Council said:

"The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material upon which the court can exercise its discretion."

In my opinion no party is entitled to an extension of time within which to appeal unless that party explains, with appropriate frankness and candour, the reasons why the party did not observe the Rules of Court and in particular the time limits imposed by those rules: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 435. The longer the delay the better the reasons need to be to explain that delay; R v Foster (1996) 187 LSJS 135; R v Balchin (1974) 9 SASR 64; Armstrong v R (1983) 35 SASR 356.

A relatively short delay of a few days will ordinarily, even with a perfunctory explanation, allow for an extension of time for the institution of an appeal. However, where the delay is substantial the application for an extension of time needs to be supported by a full disclosure of the reasons for the plaintiff's failure to comply with the time limits.

When there has been a substantial delay the applicant will be entitled to an extension of time if the applicant can point to a satisfactory explanation for that delay.

If there is no satisfactory explanation for the delay then an applicant may still be entitled to an extension of time if the applicant can show that the absence of an extension of time might lead to a miscarriage of justice.

On hearing an application for an extension of time, in the absence of an appropriate explanation, the Court is not required to hear the appeal and first decide that the appeal must succeed and that therefore the extension of time should be granted.

In R v Trotter (1979) 22 SASR 64 at 65 Walters J said:

"In dealing with the application, the court will consider whether there is any substantial point of law to be argued on appeal, and whether there exist any substantial grounds for apprehending a miscarriage of justice. And if the proposed notice of appeal or application for leave to appeal discloses no sufficient grounds of appeal, the application for extension of time will not be granted."

On an application for an extension of time within which to appeal the Court is not required to go into the appeal on the merits because otherwise an application to extend time for an appeal will turn into the hearing of the appeal itself.

In Jackamarra v Krakouer (1998) 153 ALR 276 the applicant filed and served a notice of appeal to the Full Court of the Supreme Court of Western Australia within the time prescribed by the Rules of Court. The appellant, however, did not set the matter down within the time prescribed and the respondent applied to dismiss the appeal for want of prosecution. The Full Court refused an application to extend the time for the setting down of the appeal and dismissed the appeal for want of prosecution.

The High Court stressed the distinction between an application for an extension of time within which to appeal and an application for an extension of time to set down an appeal already instituted. In the latter case the applicant had an appeal pending.

However, the appellant's counsel was prepared to have the matter decided upon the principles applicable to an application for an extension of time to appeal. In their joint judgment Brennan CJ and McHugh J said at p279:

"One reason that an appellate court does not go into "much detail on the merits" is in considering whether the time for an appeal should be extended is because ordinarily it only has "limited materials and argument". Unless motions to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess "the merits" in a fairly rough and ready way. In most cases, that assessment will be made from the statement of the applicant's case rather than from the opposing arguments or any detailed examination of the proofs of the argument. The merits are merely one of the factors that must be considered in determining whether the discretion to extend time should be exercised. No doubt there will be cases - this was obviously one - where instinctively the court feels that, given the apparent strength of the judgment under appeal, the arguments supporting the appeal will fail. In that case, however, an appellate court needs to remind itself "that one story is good until another is told" and that, if the court is inclined to act on the apparent strength of the judgment, the applicant for an extension of time should have a full opportunity to tell his or her story in rebuttal of the judgment. The court needs to remind itself also that the parties do not expect to argue the merits issues as elaborately as if they were arguing the appeal itself."

There may be some cases where the court cannot do justice without hearing the appeal on the merits. However, no applicant for an extension of time within which to appeal can claim an entitlement to have the appeal heard to determine whether the application for an extension of time should be granted.

In summary, any application for an extension of time within which to appeal must be supported by an explanation for the failure to comply with the time limits prescribed by the statute or any Rules of Court regulating the time limit. When the delay is very short and there is no obvious prejudice to any party the explanation need not be in great detail. Where the delay is lengthy or prejudice may be suffered by some other party then there is an obligation on the party seeking the extension of time to give a detailed explanation for the party's failure to comply with the prescribed time limit.

Where a party is not able to proffer a satisfactory explanation for failing to observe a time limit, or where another party might suffer prejudice by reason of the delay, an extension of time will only be granted if the party seeking the extension of time can point to the real possibility that a miscarriage of justice might occur by the failure to extend time.

That will not necessarily allow that party to fully argue the matter for which the extension of time is sought. That party must be able to point either in the notice of appeal or in the documents supporting the appeal to some evidence which will suggest a real possibility that a miscarriage of justice will occur.

In determining whether an extension of time should be granted the Court will ordinarily not hear the appeal out in full. There may, however, be some circumstances where the Court cannot determine whether an extension of time should be granted without hearing the appeal itself.

Whilst the failure of a legal practitioner cannot necessarily be of itself sufficient ground to give rise to an extension of time within which to appeal, it may be a relevant factor in determining whether the Court should grant an indulgence to an appellant.

In all the circumstances of this case, I believe it would be appropriate to grant the appellant an extension of time within which to appeal and I extend the time within which to appeal until 9 January 1999.

The appellant was employed at the Planet Night Club in Pirie Street as the Supervising Security Officer. Since the events set out below, he has been promoted to Duty Manager. Mr Jeffrey Owens was the then General Manager of the Planet Night Club and another Security Officer employed at the club was Mr Tom Sanderson.

Mr Adrian Inglis was a patron at the Planet Night Club on 14 August 1997. He became inebriated. He and two women were asked to leave the club. He left by way of Freeman Lane. As he walked down the Lane he began yelling and he kicked a Porsche motor vehicle which was parked in the laneway causing damage to that vehicle.

Mr Sanderson and Mr Daniel Sparr, who was also a security person employed by the club, took hold of Mr Inglis to restrain him so the police might be called. The evidence suggests that Mr Sparr and Mr Sanderson pushed Mr Inglis to the ground and held him with his arm behind his back and his face towards the ground. Mr Sanderson called Mr Owens by two way radio. Mr Owens came out of the club through the fire escape door, down some stairs onto the Lane. He was accompanied by the appellant who overheard the call from Mr Sanderson to Mr Owens.

I do not think there is much dispute about all of that.

The matter in dispute was whether the appellant kicked Mr Inglis in the mouth after Mr Owens and the appellant arrived at the scene where Mr Inglis was being restrained,

There were two police officers in the Lane. Constables Hodge and Huddy were in plain clothes and were in the vicinity of the night club because of complaints about rough behaviour by security personnel.

Their evidence was that they observed the appellant kick Mr Inglis in the mouth. Mr Inglis also gave evidence that he was kicked in the mouth.

The appellant and the witnesses who were helping to restrain Mr Inglis said that Mr Inglis was not kicked and, in particular, was not kicked by the appellant.

The learned Magistrate accepted the evidence of the two police officers and that of Mr Inglis. He said:

"I wish to record a very clear finding that I accept the evidence of the victim Adrian Inglis, that he was kicked in the facial area that night and I accept the evidence of Constable Hodge and Huddy, that they observed the defendant administer that kick."

He accepted Mr Inglis' evidence notwithstanding that he described his behaviour as appalling and that Mr Inglis was plainly affected by alcohol on this night.

He found that Mr Inglis was a truthful and honest witness in relation to the events after he was apprehended by the security officers and he found that Mr Inglis was quite capable of recalling the events.

The learned Magistrate said that the victim's evidence was corroborated in most respects by other witnesses.

He said that he believed the police officers to be honest witnesses and that he had no doubt whatsoever that they saw what they deposed to. He said that they were in a good position to make accurate observations and he believed their evidence to be truthful.

The learned Magistrate reasoned that, because the accounts of the events in relation to whether Mr Inglis was kicked or not were diametrically opposed, one side or the other must have been seeking to mislead him. He concluded that the police officers were honest, truthful and gave an accurate account of the events. Implicitly he found that the appellant and his witnesses were not honest and were not accurate in their recollections.

In his reasons he examined the evidence in detail to determine whether or not he might have been mistaken about the evidence of the appellant and his witnesses but he concluded that there was no room for mistake. He said at page 13:

"There was in this case, as I say, clear evidence from the victim and from two police officers that a kick had occurred and as I have said clearly they were reaccounting something that they saw and that those witnesses were in an absolutely perfect position to see or experience. In a case like this therefore, there has, in a sense from the defence witnesses, been no joining of evidence. It is not a case where there is perhaps a melee and difficulty with people recalling or seeing certain events and the real possibility of mistakes creeping in. Accordingly, there has, in the defence evidence, been no real joining with the evidence that I believe and accept. I listened in vain as I heard the defence witnesses, for any explanation about the kick. There was none forthcoming. I would have expected that Tom Sanderson would have been in a position to see the kick. He was there right from the start of the incident and as I say, was moving around the area and was only just a short distance away. I am very surprised that the defendant did not indicate something about an incident involving his foot in the face. The only evidence he gave was moving down the side of the victim to pick up a wallet that was lying on the ground."

It was argued that his Honour's reasoning shows that he has reversed the onus of proof. I do not agree. His Honour concluded early in his reasons that the two police officers and the victim were honest witnesses. He concluded that their evidence established beyond reasonable doubt that Mr Inglis was kicked in the mouth.

In the passage to which I have referred his Honour considered whether there was any explanation consistent with innocence. If there was a reasonable possibility that a kick had occurred by accident or indeed by self defence then the appellant would have been entitled to be acquitted. The point, however, that the learned Magistrate was making, in his reasons, was that the appellant said that no such kick took place at all. On the appellant's account there was no possibility that his foot came into contact with the victim's face.

Assuming that his Honour accepted the respondent's witnesses as witnesses of truth and rejected the appellant and his witnesses for appropriate reasons there is no flaw, in my opinion, in his Honour's reasoning process. However, it was also argued that the learned Magistrate failed to provide adequate reasons for rejecting the defendant and the witnesses called by the defence. It was submitted that because the relevant issues turned on a finding based upon the credibility of conflicting evidence the finding on credibility should have been stated.

The learned Magistrate spent a considerable amount of time on his reasons in considering the evidence adduced by the respondent. There is no doubt, as I have already stated, that his Honour reached the very firm conclusion that the respondent's witnesses were witnesses of truth.

However, he gave no reasons for why he rejected the appellant's evidence and that of the appellant's witnesses.

There is a duty imposed upon a court at first instance to give reasons which are adequate to explain the reasoning process upon which the ultimate decision is based: Pettitt v Dunkley [1971] 1 NSWLR 376.

In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 Kirby P said:

"This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on a principle contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation is not being discharged. Justice has not been done and has not been seen to be done."

See also Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 per Gibb CJ at 666.

In Sun Alliance Insurance v Massoud [1989] VicRp 2; [1989] VR 8 at 18 Gray J said speaking for the Full Court:

"The adequacies of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:- a) the Appeal Court is unable to ascertain the reasoning upon which the decision is based; or b) justice is not seen to have been done. The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected."

In this case the learned Magistrate said early in his reasons:

"In this matter it is useful in my view to say something about issues of credit. In some cases there can be a real possibility that witnesses have seen events from different perspectives or have made errors or mistakes about their observation. However, in this case, I am of the clear view that there is no such possibility. It is a matter of regret to record that either the police officers have been untruthful to me in giving their testimony in this Court or the defendant and two of his colleagues had been untruthful in giving evidence under oath in this Court."

The issue of credibility therefore was the primary issue in this case. There is no doubt that the learned Magistrate dealt with the question of the credit of the respondent's witnesses in some detail and more than adequately. However, he did not deal with the question of the credit of the appellant and his witnesses at all.

In my opinion, that was an error and in the circumstances of this case an error of law.

I am unable to discern from his reasons why it was that the learned Magistrate reached the conclusion that the appellant and his witnesses were untruthful. He does not make his reasoning process in that regard transparent.

There being an error of law the appeal must be allowed.

1. The time within which the appellant be entitled to appeal be extended to 9 January 1999.

3. The matter is remitted to the Magistrates Court for a new trial before another Magistrate.

Magistrates Court Act 1991

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