Ameri v Police

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

AMERI v POLICE

Judgment of The Honourable Justice Besanko

14 February 2006

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - SUMMONS - GENERAL PRINCIPLES

Appeal against order confirming restraining order made on complaint under Summary Procedure Act 1921, s 99AA – appellant not summoned to hearing of complaint and order made in his absence – pursuant to s 99C, where defendant not summoned to hearing of complaint and order made in his or her absence, Court must summon defendant to appear before Court to show cause why order should not be confirmed – hearing to take place within 7 days of date of order – whether compliance with section – held, appellant not  served with summons before hearing, or in sufficient time for him to attend hearing – order improperly confirmed – miscarriage of justice – appeal allowed and order set aside.

Supreme Court Rules 1987 r 96C.02; Summary Procedure Act 1921 ss 99AA, 99C, 99F, referred to.
Moore-McQuillan v Police (1998) 196 LSJS 175; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

AMERI v POLICE
[2006] SASC 40

Magistrates Appeal

1. BESANKO J:        This is an application for an extension of time within which to appeal against an order made by a magistrate on 14 October 2004 and an appeal against the order should an extension of time be granted.  The appeal was instituted on 21 November 2005.  The time for instituting an appeal is within 14 days from the date of the order (Supreme Court Rules 1987, r 96C.02). The period of delay in this case is therefore a little under one year.

   Facts

2. Mr Kazem Ameri is the appellant and he is 47 years of age.  He is an immigrant from Iran and, on the evidence before me, he neither speaks nor reads English fluently.  Before October 2004, he had committed a handful of offences, none of which was of a sexual nature.

3. In October 2004, the Police had evidence that they considered justified the making of a complaint seeking a restraining order under s 99AA of the Summary Procedure Act 1921 (“SPA”).  On the case of the Police, the evidence established that the appellant had been found loitering near children, having been found loitering near children on at least one previous occasion, and there was reason to think that the appellant might, unless restrained, again loiter near children (see s 99AA(1)(a) and (b)(iii)).

4. The Police made a complaint that came on before a magistrate sitting in Adelaide on 7 October 2004.  The appellant was not summoned to appear at the hearing.  The magistrate made a restraining order in the absence of the appellant on the basis of evidence received in the form of one or more affidavits (see s 99C(2)).  The order was in the following terms:

   The defendant is restrained:

   1)     from loitering in the vicinity of where children frequent or are likely to be present;