APPEALS - PRACTICE & PROCEDURE - application to dismiss appeal from a magistrate for want of prosecution - where orders stayed pending the determination of appeal - where delay of seven years since a step last taken in the appeal - whether unjust for appellant to serve sentence now - appeal dismissed

Court Procedures Act 2004 (ACT)

Magistrates Court Act 1930 (ACT) s 216

Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4C, 15, 15AA, 19, 41

Victims of Crimes (Financial Assistance) Act 1983 (ACT) s 68

Court Procedures Rules 2006 (ACT) rr 5191, 5130

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229

Barton v R [1980] HCA 48; (1980) 147 CLR 75

Blunden v The Commonwealth [2014] ACTSC 123

Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37

Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA

Ferguson v Smorhun [2017] ACTSC 192

Fitzpatrick v Batger & Co Ltd [1967] 2 All ER 657

Guiseppe Emanuele v Allan John Dau (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 16 March 1995)

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Muto v Faul [1980] VicRp 3; [1980] VR 26

Snaidero v Crampton and O'Sullivan [2014] ACTSC 262

1. By application filed 31 August 2018, the respondent in these proceedings seeks orders under r 5191 of the Court Procedures Rules 2006 (ACT) (Rules), that an appeal commenced in this Court seven years ago be dismissed for want of prosecution.

2. On 18 April 2011, the appellant was convicted in the Magistrates Court of the Australian Capital Territory of two charges, which may be described informally as driving a motor vehicle through a red traffic light and driving with a blood alcohol concentration over the prescribed limit.

3. The appellant was fined $250 for each conviction and had his licence disqualified for four months. He was also required to pay a levy of $50.00 under s 68(1) of the Victims of Crimes (Financial Assistance) Act 1983 (ACT) and victims services levies amounting to $20.00 under s 24(2) of the Victims of Crimes Act 1994 (ACT).

4. On 20 April 2011, the appellant lodged a notice of appeal against the decision of the court below. As a result of appeal proceedings being commenced, the enforcement of the orders was stayed, pursuant to s 216 of the Magistrates Court Act 1930 (ACT).

5. The record of this Court reveals that on 23 June 2011, the appellant's counsel and a representative for the respondent appeared before the Deputy Registrar. The matter was set down for an index hearing on 28 July 2011.

6. On 27 July 2011, the appellant's counsel attempted to contact the Court via email, seeking an adjournment of the listing the following day, due to health reasons. It appears that the email was misdirected at first and was ultimately only received by the Deputy Registrar after the listing hearing on 28 July 2011.

7. However, the miscommunication did not have any significant consequence as the listing was indeed adjourned to 18 August 2011. Although there is no evidence that the respondent notified the appellant of the adjourned date, similarly no steps were taken by the appellant or his counsel to communicate with either the respondent or the Court so as to ascertain the future conduct of the matter.

8. On 18 August 2011, the appellant again did not appear. On that occasion, the matter was stood out of the list and it was noted that the respondent intended to file an application to strike out the appeal for a want of prosecution. However, the respondent did not then file any application and no party took any step in the proceedings for the following seven years.

9. On 9 July 2018, the Court contacted the Australia Capital Territory Director of Public Prosecutions (DPP), regarding a number of outstanding appeal proceedings which had not been prosecuted to completion, discontinued or otherwise dismissed for many years. As a result of that correspondence, the DPP filed the present application in proceeding.

10. Rule 5191(2) of the Rules sets out the grounds on which an appeal to the Supreme Court may be dismissed for want of prosecution, namely if an appellant:

(a) has not done anything required to be done under these rules during a period of 3 months after the day the requirement arises; or

(b) otherwise has not prosecuted the appellant's appeal with appropriate effort during a period of 3 months after the day the last step in the proceeding was taken.

11. The present appeal falls into both the circumstances described in r 5191. The last appearance of the appellant and their legal representative occurred on 23 June 2011. No further step has been taken since then, which far exceeds the three month period. It is clear that the appellant has not made appropriate efforts to prosecute the appeal.

12. The appellant is also in default of r 5130 of the Rules, which required a draft index of the appeal papers to be filed and served three days before the date set for settling the appeal papers, being 12 May 2011, the original date recorded in the sealed notice of appeal.

13. If the rule applies, the Court has a discretion to make an order that the appeal be dismissed for want of prosecution and confirm the order appealed from: r 5191(3)(a) of the Act. The Court may alternatively make any other order the Supreme Court considers just: r 5191(3)(c) of the Act.

14. The appellant's counsel submitted no further action had been taken because she had believed the appeal was completed and the appellant had believed a notice of discontinuance had been filed.

15. It is difficult to see how either could have formed such a belief given the last communication to the Court was merely a request for an adjournment. Nevertheless, that was the evidence and I accept it.

16. In such circumstances, one would have thought that dismissing the appeal would be unopposed, as it would achieve the same result that the perceived discontinuance would have achieved seven years ago. However, the application before the Court is opposed by the appellant, on the basis that the orders of the Magistrates Court have since been only partially carried out and it would be unjust for the orders to now be enforced following any formal dismissal of the proceedings.

17. At the hearing of the application, counsel for the appellant submitted that the application should be refused and the appeal should be referred to the registrar to be put back into the appeal index list. Indeed, after I reserved judgment on the present application to dismiss the proceedings, the appellant's counsel apparently sought to reinforce this submission by contacting the Court and requesting that the matter be restored to the list to settle the appeal index as soon as practicable.

18. There was a separate argument by the appellant that the DPP did not have authority to make the application. However that issue was resolved at the hearing once it was clear that the Notice of Intention to Respond, filed 12 May 2011, recorded the solicitor acting for Aidan Irving (the informant and arresting officer) as the DPP.

19. In Snaidero v Crampton and O'Sullivan [2014] ACTSC 262 at [18]- [20], Refshauge J discussed the principles applicable to the dismissal of an action for want of prosecution. His Honour referred to Blunden v The Commonwealth [2014] ACTSC 123 at [37]; Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 at [36]- [39]; and to the Full Court of the Supreme Court of Victoria's judgment in Muto v Faul [1980] VicRp 3; [1980] VR 26 at 31.

20. Relevant (although neither mandatory nor exhaustive) considerations include:

(a) how long ago the events, the subject of the proceedings, occurred and any delay before the litigation was commenced;

(b) what prospects of success the appellant has on the appeal;

(c) whether there has been disobedience to court orders;

(d) whether the appeal has been characterised by periods of delay;

(e) the degree of responsibility of the appellant for the delay;

(f) whether the litigation between the parties would be concluded by dismissing the proceedings;

(g) whether the respondent would suffer prejudice if the appeal were not struck out;

(h) what preparation the respondent had done towards the hearing of the appeal; and

(i) whether there was a satisfactory explanation for the delay.

21. Here, there was no delay before the litigation was commenced but the events happened in May 2010 and it is clear that the appeal has not been prosecuted with due diligence, or at all, since 23 June 2011. On any view, the delay is extreme.

22. The grounds of the appeal concern the acceptance by Magistrate Walker (as her Honour then was) of an evidentiary certificate under s 41 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Act), the evidence recording a breath analysis result of 0.051g of alcohol per 100 millilitres of blood, which was taken at 11.12pm on 8 May 2010. The prescribed concentration under the Act was 0.05g or more, but less than 0.08g, of alcohol in 100mL of blood (s 4C of the Act as at May 2010).

23. The appellant contends that there was reasonable doubt about that evidence, and that the magistrate thus erred in convicting the appellant, due to a subsequent blood sample taken just under two hours later, on 9 May 2010, where the reading was (by that time) 0.04g of alcohol per 100 mL of blood.

24. The appellant also seeks to argue that there were errors of statutory construction made in the interpretation and application of ss 15AA and 19 of the Act.

25. Section 19 of the Act, as it stood in May 2010, was in the following terms (with emphasis added):

(1) A person who -

• (a) has been the driver of a motor vehicle on a public street or in a public place; and
• (b) has, within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration;

commits an offence punishable on conviction by a penalty ascertained in accordance with section 26.

(2) In proceedings for an offence against subsection (1), evidence may be given of the concentration of alcohol in the person's blood as determined by -

• (a) an analysis of a sample of the person's breath carried out in accordance with this Act; or
• (b) an analysis of a sample of the person's blood carried out at an approved laboratory and certified accurate by an approved analyst; or
• (c) any other analysis.

(3) In subsection (1) (b):

relevant period means the period beginning when the person ceased to be the driver of the vehicle and ending at the latest time when -

(a) a breath analysis of the person may be carried out in accordance with this Act; or

(b) if section 15 or section 15AA applies - a sample of the person's blood may be taken in accordance with that section.

26. Section 15 of the Act concerns the position where a police officer does not require a person to undergo a breath test for analysis or where the breath analysis instrument is not available or in working order. Section 15AA of the Act requires a doctor or a nurse to take a blood sample for analysis within two hours of arrival at hospital, if the doctor or nurse reasonably believes the patient was a driver in an accident, and the accident happened not longer than six hours before the patient arrived at the hospital.

27. The words emphasised in s 19 in [24] above form the basis of the appellant's argument outlined in the Notice of Appeal, as to an error in construing and applying the Act. As the appellant was the driver in a car accident and a blood sample was taken in accordance with s 15AA of the Act, the appellant argued that the evidence of the blood sample was properly part of the 'relevant period' and that it was in conflict with the breath analysis reading. On the earlier breath test reading, the appellant had committed an offence against s 19(1) of the Act. On the later blood test result, he had not. The appellant contends that the conflict is sufficient to create reasonable doubt and that the magistrate erred in finding otherwise.

28. I am prepared to accept that the appeal has reasonable prospects of success and that there is no great prejudice to the respondent in having to defend this particular matter years after the conduct to which the convictions relate occurred.

29. The applicant has disobeyed r 5130 and no party appears to have done any preparation of significance towards the appeal as the appeal index has yet to be settled, given the non-attendance of the appellant at the directions hearing for that purpose.

30. The dismissal of the appeal would bring the litigation between the parties to an end.

31. The explanation for doing nothing is that the appellant believed the appeal had been discontinued. However, the hearing of the application was expressly adjourned to give the appellant the opportunity to file the notice of discontinuance he had failed to file. Instead, when the matter resumed, the appellant pressed the continuance of the appeal.

32. The appellant says he paid the fines, notwithstanding the fact that at law, he was not required to do so: see, for example, the discussion in Ferguson v Smorhun [2017] ACTSC 192 (Ferguson v Smorhun) at [44]-[46] per Penfold J. The appellant did not serve the licence disqualification and says he can no longer prove the payment of the fines (although it may be expected that the relevant enforcement agency would have a record of any such payments). This submission was made from the bar table, but upon instruction and without any challenge. I have accepted it as a fact for the purpose of determining the application.

33. The appellant says it would be inconvenient, and more than that, unjust, for him to have to serve the licence disqualification seven years after the orders were made. The circumstances since the sentence have changed. He now lives in Bungendore and driving is his sole means of transport. Again, that was a submission from the bar table and the opportunity to file any further affidavit from the appellant was refused. I have taken it into account as a foreshadowing of an application to lead fresh evidence on appeal.

34. The corollary of the appellant's submission is of course that the appellant has enjoyed the convenience of being able to continue driving uninterrupted for a period of seven years, solely because of the ongoing stay brought about by the mere filing of the appeal.

35. I have also given consideration to cases such as Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 and Barton v R [1980] HCA 48; (1980) 147 CLR 75 concerning excessive delay affecting a fair trial, and to decisions of this Court that have applied the principle, such as Guiseppe Emanuele v Allan John Dau (Unreported, Supreme Court of the Australian Capital Territory, Higgins J, 16 March 1995), which found that a delay in the Magistrates Court finalising a trial had resulted in an oppression such that the conviction and sentence ought to be set aside and the proceedings permanently stayed as an abuse of process.

36. I do not consider the principle applies here, where the trial was itself conducted expeditiously in the court below and the primary reason for the appeal not being similarly conducted on appeal lies at the feet of the appellant as the moving party. To find otherwise would be to incentivise those convicted of offences to file an appeal and quietly delay the outcome, with a view to ultimately not having to serve the sentence due to their own conduct.

37. To make such a finding is not to disregard the lackadaisical case management practices of the respondent's legal representatives in allowing an appeal to languish for seven years without taking any step to bring the matter to an end, or apparently even to write to the appellant about the delay. The respondent on the appeal must share part of the responsibility for the delay and this is also a relevant factor in the discretion being exercised.

38. Further, the approach taken by this Court seven years ago was what enabled the appeal to drift, in that the matter was simply stood out of a list so that the respondent might merely think about filing an application to dismiss proceedings. The better course would have been to adjourn the proceeding to a particular date and to direct the respondent to notify the appellant of the date and that further non-appearance would result in the appeal being dismissed, or to require the relevant legal representatives to file affidavits explaining the lack of progress. Nevertheless, it is well established that the Court is not responsible for progressing proceedings: see Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, where Diplock LJ stated at 254:

The underlying principle of civil litigation is that the court takes no action in it of its own motion but only on the application of one or other of the parties to the litigation, the assumption being that each will be regardful of his own interest and take whatever procedural steps are necessary to advance his cause.

39. That principle was made in the context of civil litigation, although it must still be the case in the context of a criminal appeal that the parties to the appeal bear the responsibility of getting it prepared and brought on for hearing. There is also now the qualification to Diplock LJ's statement, arising from the Court Procedures Act 2004 (ACT) and the procedural Rules, that the Court now has a very clear objective of dealing efficiently and expeditiously with matters travelling through the legal system. As a consequence, the Court now takes a more interventionist approach to case management and has the ability to act on its own initiative under the Rules.

40. Ultimately though, as I have stated, the appellant must take the primary responsibility for failing to prosecute the appeal and the Court must not be seen to tolerate such a lengthy delay that was plainly to the appellant's benefit, whether or not that result was intentional and whether or not either the respondent or the Court could have taken steps to galvanise the appellant into action.

41. In Davis Samuel Pty Ltd v Commonwealth of Australia [2016] ACTCA 22 (Davis Samuel), Burns J was dealing with an application to strike out an appeal to the Court of Appeal for want of prosecution under r 5603 of the Rules, which is in terms substantially similar to r 5191 dealing with appeals to this Court from the Magistrates Court. His Honour stated at [141]:

Delay can become a tactic by which a litigant may seek to affect the course and outcome of litigation. It may also, of course, sometimes simply be a mechanism for delaying a possible negative outcome. For whatever reason deliberate and unjustifiable delay is engaged in by a party, such delay threatens access to justice. Tolerance of such delay by courts threatens the credibility of the courts as bodies capable and willing to control their own processes so as to achieve timely, cost efficient, and just resolutions of disputes.

42. His Honour had earlier referred to Fitzpatrick v Batger & Co Ltd [1967] 2 All ER 657, where Lord Denning MR said at 658, "Public policy demands that the business of the courts should be conducted with expedition."

43. These principles apply to the present case. An appellant who fails to attend a hearing or seeks an adjournment through the illness of counsel is still required to thereafter prosecute the appeal with reasonable diligence. The delay here has been inordinate and the excuse is inconsistent with any desire to prosecute the appeal. The belated motivation of the appellant, including the recent attempt to have the matter listed for settling an appeal index, only appears to have materialised because of a reluctance to face the consequences of a decision that the appellant in truth made seven years ago, namely not to proceed with the appeal.

44. Balanced against this is the potential prejudice to the appellant, relevantly of losing a right to challenge the conviction and sentence, an appeal which still carries some practical utility because part of the sentence is yet to be carried out, namely a four-month disqualification period of a licence.

45. The consequence of dismissing the appeal is that the stay would be lifted and the licence disqualification would now have to be served, noting the Court does not have the power on appeal to back date that aspect of the sentence even if cause were shown to do so: Ferguson v Smorhun at [49]-[50]. The appellant may have to seek assistance from family or friends or use public transport, which might not be his first preference in terms of convenience, but it is an inconvenience of very short duration.

(a) the extreme delay in determining the appeal, brought about primarily by the failure of the appellant to prosecute it;

(b) the nature of the offences and the sentence imposed;

(c) the lack of any step taken by the appellant other than the filing of the appeal;

(d) the fact that the sentence has been partially carried out in the meantime;

(e) the opportunity given to the appellant to make the arguments about the evidence and the construction of the Act before the court below, so that it cannot be said the appellant has had no hearing on the issues at all; and

(f) the fact that the appellant has at all times been legally represented;

I do not consider that any injustice would arise in dismissing the appeal for want of prosecution. Moreover, I consider there are strong reasons of public policy, as discussed by Burns J in Davis Samuel above, supporting the grant of the relief sought in the respondent's application.

47. For these reasons, I make the following orders:

(1) Pursuant to rule 5191(3)(a) of the Court Procedures Rules 2006 (ACT), the appeal is dismissed for want of prosecution.

(2) The orders of the Magistrates Court of 18 April 2011 are confirmed.

I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam.