Atkins v Protected Person - [2022] SASCA 130

Supreme Court of South Australia
(Court of Appeal: Criminal)
ATKINS v PROTECTED PERSON
[2022] SASCA 130
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
30 November 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
The litigation concerns an intervention order made pursuant to s 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) by a magistrate on 3 August 2021. An interim intervention order was made on 29 April 2019 and the trial concerning the confirmation of that order was heard on 1 July 2021.
A judge of this Court heard an application for leave to appeal against the intervention order on 23 December 2021 and on 1 April 2022 her Honour granted leave to appeal but dismissed the appeal. The applicant now seeks an extension of time to appeal that decision.
The applicant also seeks by interlocutory application an order that a psychiatrist review various materials and provide a report.
The Court held:
1.This appeal is properly described as vexatious. The application for leave to appeal is dismissed.

2. The application for an extension of time in which to seek leave to appeal is dismissed.
3.The interlocutory application dated 11 November 2022 to elicit expert psychiatric opinion evidence is dismissed.

4. The applicant is to pay the respondent’s costs fixed in an amount of $850.
Disability Discrimination Act 1992 (Cth); Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 8; Limitation of Actions Act 1936 (SA); Magistrates Court Act 1991 (SA) s 42; Supreme Court Criminal Rules 2014 (SA) r 104V, referred to.
Atkins v Protected Person [2022] SASC 31; White v Police [2018] SASC 124, considered.

ATKINS v PROTECTED PERSON
[2022] SASCA 130
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):
Introduction

The applicant seeks leave to appeal pursuant to s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) and r 196.2(b) of the Joint Criminal Rules 2022 (SA) by Notice of Appeal dated 16 August 2022.
This litigation concerns an intervention order made pursuant to s 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Intervention Act) by a magistrate on 3 August 2021. An interim intervention order had earlier been made on 29 April 2019 and the trial concerning the confirmation of that order was heard on 1 July 2021. A judge of this Court heard an application for leave to appeal against the intervention order on 23 December 2021 and on 1 April 2022 her Honour granted leave to appeal but dismissed the appeal.[1]
[1] Atkins v Protected Person [2022] SASC 31 (McDonald J).
The applicant now seeks an extension of time to appeal that decision, though the basis for the extension of time and the grounds of appeal remain unclear.
In addition, the applicant seeks by interlocutory application an order that a psychiatrist review various materials and provide a report. That application is supported by an affidavit sworn on 11 November 2022. The interlocutory application and supporting affidavit were filed and sealed on 21 November 2022.
For the reasons that follow, the extension of time and the application for leave to appeal should be refused and the application dated 11 November 2022 should be dismissed.
The intervention order
The applicant was represented by the respondent solicitor in litigation during 2014. Commencing three years later, between February 2017 and April 2019, the applicant sent a series of communications to the respondent and others in which various threats were made.[2]
[2] Atkins v Protected Person [2022] SASC 31, [4], [13] and [15] (McDonald J).
The magistrate found that the applicant was angry and resentful about the respondent’s conduct of the retainer and that five of the communications each comprised “an act of abuse” within s 8(2) for the purpose of s 6 of the Intervention Act. Those communications included statements such as:
·the respondent and her family would be made to “pay for what you did to us, making them pay for your riches”;[3]
·“Please advise what time you get to work in the morning as I wish to deliver this sealed Summons personally … so you can bend over and I can stick it up your arse. So everyone in the legal community can see you for what you are, a thieving con artist mitch [sic]. You are disgusting for what you did to me and my family, disgusting!”;[4]
·“I will do whatever it takes to get my money and compensation back from [the respondent] … if one or some of you come to my side to support, those left will get crucified along with [the respondent];[5]
·“I will be appealing to [sic] the cows come home … Certainly not a threat in any way, I am in no [sic] or form, but I truly understand the Martin Bryant’s [sic] of this world …”.[6]
[3]     Atkins v Protected Person [2022] SASC 31, [4] (Communication No. 1) (McDonald J).
[4]     Atkins v Protected Person [2022] SASC 31, [4] (Communication No. 2) (McDonald J).
[5]     Atkins v Protected Person [2022] SASC 31, [4] (Communication No. 3) (McDonald J).
[6]     Atkins v Protected Person [2022] SASC 31, [4] (Communication No. 8) (McDonald J).
The last communication prompted the respondent’s application for an intervention order. Having found that communications such as these were perceived by the respondent as threats and that it was “in all of the circumstances … not unreasonable for her to come to such a view”,[7] the magistrate found that these communications resulted in “emotional or psychological harm” within s 8(2)(b), because they each caused the respondent “anxiety or fear” that was more than trivial, as required by s 8(3)(c) of the Intervention Act.
[7] Atkins v Protected Person [2022] SASC 31, [15] (McDonald J).
The magistrate found that, in those circumstances, “the issuing of the order is appropriate” as required by s 6(b) of the Intervention Act:[8]
In my view, it is not unreasonable to suspect, given Mr Atkins’ feelings towards the protected person that he will, without intervention, commit an act of abuse against the protected person in the future. The intervention order to date has had the desired effect with no allegation of abuse occurring since its inception. Mr Atkins genuinely believes that the protected person has significantly adversely affected the life of he and his family and he harbours resentment towards her. With future ongoing litigation clearly his intention, unless restrained, there is a reasonable risk that the ongoing tension and anxiety associated with that may lead to a resumption of the nature of communications that are before the court in these proceedings.
[8] Atkins v Protected Person [2022] SASC 31, [16], citing SMO v Atkins (Magistrates Court of South Australia, 3 August 2021), [58] (Magistrate Metanomski).
The magistrate did not find it necessary to make any finding as to whether the applicant’s abuse was “intended [by him] to result in … emotional or psychological harm” under s 8(2)(b), having found that the communications in fact caused the respondent emotional or psychological harm.[9]
[9] Atkins v Protected Person [2022] SASC 31, [17] (McDonald J).
The appeal to the single judge
The judge determined to follow earlier authority to the effect that the making of a final intervention order is interlocutory in nature,[10] with the result that it was necessary to find “special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial” as a condition of granting permission to appeal pursuant to s 42(1a)(c) of the Magistrates Court Act 1991 (SA).
[10] White v Police [2018] SASC 124, [20] (Nicholson J).
Again, following earlier authority, the judge held that the unusual nature and impact of an order on a person subject to an intervention order provided a sufficient basis for granting permission to appeal.[11]
[11] Atkins v Protected Person [2022] SASC 31, [25]-[29] (McDonald J), citing White v Police [2018] SASC 124, [24] (Nicholson J).
After conducting a rehearing pursuant to s 42 of the Magistrates Court Act 1991 (SA) and r 104V of the Supreme Court Criminal Rules 2014 (SA), the judge granted the applicant an extension of time, considered each of his grounds of appeal and concluded that none of the grounds was made out, with the result that the appeal was dismissed.[12]
[12] Atkins v Protected Person [2022] SASC 31, [30], [34], [36]-[53] (McDonald J).
Broadly, the judge: rejected the contention that the magistrate had erred in resolving the disputed evidence in favour of the respondent; rejected the contention that it was unreasonable for the magistrate to find that, unless restrained, the applicant would commit an act of abuse; and rejected the contentions that the magistrate’s approach revealed inappropriate inconsistency and that the respondent’s initial application in seeking an intervention order was motivated by the legal proceedings the applicant had filed against the respondent.
The application for leave to appeal and the grounds of appeal
In this Court, the applicant relies on the following grounds of appeal as well as the following grounds for seeking leave to appeal:
3.     Grounds of appeal
3.1    This Appeal is brought under 262.3 Right to appeal.
3.2    The judge “abused his/her discretion”
3.3    The facts of the case and/or the evidence introduced in the trial court do not support the judge’s decision. Bared by the “Harman Principle”.
3.4    The Judge performance prejudiced ATKINS, obviously.
3.5    Atkins object to improper testimony (like hearsay statements).
3.6    Breached prosecutorial discretion, “The Harman Principle”
4.Permission to appeal
4.1    Denied procedural fairness completely.
4.2    There was no case against Atkins period.
4.3    Denied natural legal justice.
The Notice of Appeal also contains references to the Disability Discrimination Act 1992 (Cth) and the Limitation of Actions Act 1936 (SA). Briefly, the applicant contends that he “cannot possibly understand the legal jargon and time frames to keep up with the legal profession” and so reliance is placed upon this legislation so as to ensure that justice is “served despite complaints, period. If justice is only available to the rich and educated, there is no justice”.
In addition, the applicant relies upon extensive affidavit evidence. In his affidavit made on 11 October 2022, the applicant deposes at some length to various intellectual difficulties and disabilities including an acute anxiety panic attack disorder, chronic post-traumatic stress disorder and profound dyslexia. He exhibits various medical reports supporting the diagnoses made concerning these matters.
In addition, he has exhibited one of his own affidavits dated 30 July 2022 in which he attacks the making of what he described as “the scandalous granting of an intervention order” and his views on various topics, including the conduct of the respondent as the applicant’s legal adviser.
In his affidavit made on 24 October 2022, the applicant deposes at some length to his views regarding the conduct of various judicial officers and his ruminations about various topics including the steps he has taken to cope with his difficulties and disabilities, including his use of computer technology and various test results concerning his intellectual functioning.
It is not unfair to describe most of this material as peripheral to the question whether leave to appeal should be granted.
The disposition of the application for leave to appeal
When determining whether leave to appeal should be granted, this Court will act in the interests of justice and by reference to three, inter-related questions:
1.whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
2.whether the decision raises an issue of principle or general importance; and
3.whether allowing the decision to stand would work a substantial injustice to the applicant.
In evaluating these questions, it is relevant to observe that the present application represents a second attempt to appeal a decision made by a magistrate following a trial. The first appeal proceeded as an appeal by way of rehearing on the basis that it required the judge to conduct an independent review of all of the evidence and findings made, and to form her own view about the appropriate outcome.
Whilst the grounds of appeal are difficult to understand, it would appear that the applicant wishes to challenge the decision on the bases that the evidence did not support the decision made and the judge was prejudiced against the applicant.
It is sufficient for the purposes of determining leave to appeal that we observe that there is no basis for any contention that the judge was affected by actual or apprehended bias and, in addition, the evidence which was accepted by the magistrate supported the magistrate’s decision and the judge made no error in finding that it did so.
There is no basis for the contention that the judge abused any discretion insofar as one was open to be exercised. We take this complaint to be a criticism of the finding that the issuing of the intervention order was appropriate in the circumstances proved, see s 6(b) of the Intervention Act.
In argument, Mr Atkins described the litigation before the magistrate as corrupt. No basis for this scandalous submission was provided. Mr Atkins presents as a litigant who is both angry and determined. His appeal is properly described as vexatious.
In short, there is no basis to question the decision made by the judge, this case raises no issue of principle or general importance and the applicant has failed to demonstrate that allowing this decision to stand will cause him any injustice. Leave to appeal must be refused.
In these circumstances, there is no utility in granting an extension of time and the application for an extension of time is refused.
The interlocutory application dated 11 November 2022
The interlocutory application that the materials be considered by a psychiatrist is intended to produce a psychiatric report which will assist the applicant’s prosecution of his application for leave to appeal.
As there is no merit in the application for leave to appeal, there is no utility in making an order of the kind sought.
However, even if that were not so, we are far from satisfied that it would be appropriate to make an order that the materials filed in this matter be reviewed by a psychiatrist.
Even if it is assumed that a psychiatrist might produce a report which demonstrated support for one or more of the diagnoses which are set out in the applicant’s materials, that would not undermine the findings made by the magistrate and upheld on appeal by the judge. It must be remembered that the applicant’s intention in sending the impugned communications was not the subject of any finding. It was sufficient that there was a finding made that the communications in fact caused emotional or psychological harm to the respondent.
Insofar as the magistrate made findings about the respondent’s state of mind, these were based on a combination of the magistrate’s own assessment of the communications as well as his assessment of the evidence of the respondent following cross-examination by the applicant. As presently advised, we are not satisfied that expert psychiatric opinion evidence would be relevant to an assessment of those findings. In any event, it would be necessary for the applicant to face the hurdle of demonstrating why he should be permitted to lead new evidence so late in the appeal process and he has failed to do so.
In the circumstances, the interlocutory application dated 11 November 2022 must be dismissed.
Conclusions
The application for an extension of time in which to seek leave to appeal is dismissed.
The application for leave to appeal is dismissed.
The interlocutory application dated 11 November 2022 to elicit expert psychiatric opinion evidence is dismissed.
The applicant will pay the respondent’s costs fixed in an amount of $850.