Atkins v Protected Person

Case [2022] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

ATKINS v PROTECTED PERSON

[2022] SASC 31

Judgment of the Honourable Justice McDonald  

1 April 2022

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS

Appeal against a decision in the Magistrates Court to confirm an interim intervention order. The appellant had engaged the respondent as his solicitor between 2011 and 2014. A series of communications were sent by the appellant to the respondent and various other third parties which gave rise to the application for the interim intervention order. The appellant did not dispute that he sent the communications but contended that the conduct could not or did not constitute abuse. The primary contentions on appeal were that the Magistrate erred in resolving disputed evidence in favour of the respondent and the decision to confirm the interim intervention order was unreasonable in the circumstances.

Held:  dismissing the appeal:

1. None of the grounds are made out. The appeal is dismissed.

Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5, s 6, s 7, s 8, s 10, s 15, s 23(1), s 31; Magistrates Court Act 1991 (SA) s 42(1a)(c); Bail Act 1985 (SA) s 10A(2)(ba), referred to.

White v Police [2018] SASC 124, applied.
Rona v Gregurev [2015] SASC 37, discussed.

Police v Kriticos [2016] SASC 28; Tazroo v Police [2002] SASC 155; Police v A, TG [2006] SASC 299; House v The King (1936) 55 CLR 499, considered.

ATKINS v PROTECTED PERSON

[2022] SASC 31

Magistrates Appeal:   Criminal

McDONALD J.

Introduction

  1. This is an appeal from a Magistrate’s decision to confirm an interim intervention order made on 3 August 2021.  The interim intervention order had been made on 29 April 2019.

    Background

  2. The appellant had engaged the protected person as his solicitor between 2011 and 2014.  It was the view of the protected person that this relationship had concluded on amicable terms,[1] however the appellant takes issue with this characterisation of the circumstances in which their relationship ended.[2]

    [1]     T5.

    [2]     T45-46.

  3. It was not disputed that following the end of the professional relationship there was a period of about three years during which there was no direct or indirect communication or correspondence between the parties.  The events said to give rise to the application for the intervention order commenced in February 2017.  Between that date and 23 April 2019, a series of communications were sent by the appellant to the protected person and various third parties.  The protected person relied on 10 such communications (“the communications”) as the basis of the application for the intervention order, however the Magistrate ultimately relied on only five of them as the basis for confirming the intervention order. 

  4. The following table summarises the various communications that the respondent relied upon.[3] 

    [3]     The table directly reproduces the extracts from the relevant documents without spelling or grammatical correction. Communication number 5 was tendered during the trial as part of “Exhibit #P1…

Continue reading Atkins v Protected Person

Sign in free to access the full text

Details
AGLC
Atkins v Protected Person [2022] SASC 31
Case
[2022] SASC 31
Decision Date

CaseChat Overview and Summary

The appellant, Atkins, appeals a decision of a Magistrate to confirm an interim intervention order made against him on 29 April 2019. The protected person, who had been engaged by the appellant as her solicitor between 2011 and 2014, applied for the intervention order on 17 April 2019. The protected person relied on a series of communications sent by the appellant to her and various third parties as the basis for the application. The appellant opposed the application and the matter proceeded to trial. The trial was narrowly focussed on whether the contents of the communications and their impact on the protected person were sufficient to satisfy the requirements of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The primary issue for the court was whether the Magistrate erred in confirming the intervention order. The court considered the evidence of both the protected person and the appellant, and the relevant provisions of the Act. The court found that the Magistrate was not required to resolve any significant conflict between the evidence of the two parties in assessing the evidence. The court also found that the Magistrate had made findings that were open to him and that there was no error in his approach and assessment of the evidence of the protected person.

The appeal was dismissed and the intervention order was confirmed. The court found that none of the grounds of appeal were made out and that there were no special reasons for departing from the preponderance of authority on this topic. The court granted an extension of time for the appeal and considered the grounds of appeal as formulated by the respondent. The court found that the Magistrate had made findings that were open to him and that there was no error in his approach and assessment of the evidence of the protected person. The court also found that the unusual nature and impact of an intervention order may of itself be a sufficient basis for a granting of permission to appeal. However, in this case, the court found that there were no special reasons for departing from the preponderance of authority on this topic. The appeal was dismissed and the intervention order was confirmed.

Orders

Orders of the court

Held: dismissing the appeal:

1. None of the grounds are made out. The appeal is dismissed.

Background

Background to the litigation

This is an appeal from a Magistrate’s decision to confirm an interim intervention order made on 3 August 2021. The interim intervention order had been made on 29 April 2019.Background The appellant had engaged the protected person as his solicitor between 2011 and 2014. It was the view of the protected person that this relationship had concluded on amicable terms,[1] however the appellant takes issue with this characterisation of the circumstances in which their relationship ended.[2] [1] T5.[2] T45-46. It was not disputed that following the end of the professional relationship there was a period of about three years during which there was no direct or indirect communication or correspondence between the parties. The events said to give rise to the application for the intervention order commenced in February 2017. Between that date and 23 April 2019, a series of communications were sent by the appellant to the protected person and various third parties. The protected person relied on 10 such communications (“the communications”) as the basis of the application for the intervention order, however the Magistrate ultimately relied on only five of them as the basis for confirming the intervention order. The following table summarises the various communications that the respondent relied upon.[3] [3] The table directly reproduces the extracts from the relevant documents without spelling or grammatical correction. Communication number 5 was tendered during the trial as part of “Exhibit #P1 List of agreed allegations”, however it appears to have been abandoned during the proceedings. On the basis of these communications, the protected person took out an application for an intervention order on 17 April 2019 and an interim intervention order was made on 29 April 2019. The protected person sought confirmation of that order[4] which was opposed by the appellant. Consequently, the matter was listed for trial.[4] Section 23(1) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).The trial The trial took place on 1 July 2021. The protected person and the appellant both gave evidence. Whilst the appellant clearly remained aggrieved about the history of his dealings with the protected person, the issue at trial was narrowly focussed. There was no dispute that the appellant was the author of the various documents. The issue was whether the contents of the documents and the impact of them on the protected person were sufficient to satisfy the requirements of ss 6‑8 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”).Relevant provisions of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) The following are the relevant provisions of the Act: Part 2—Objects of Act5—Objects of ActThe objects of this Act are—(a)to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of domestic and non-domestic abuse, by providing for—(i) the issuing of intervention orders; and…Part 3—Intervention and associated ordersDivision 1—General6—Grounds for issuing intervention orderThere are grounds for issuing an intervention order against a person (the defendant) if—(a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and(b) the issuing of the order is appropriate in the circumstances.7—Persons for whose protection intervention order may be issued(1)An intervention order may be issued for the protection of—(a) any person against whom it is suspected the defendant will commit an act of abuse; or…8—Meaning of abuse—domestic and non-domestic(1)Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.(2)An act is an act of abuse against a person if it results in or is intended to result in—…(b) emotional or psychological harm; or…(3)Emotional or psychological harm includes—…(b) nervous shock; and(c) distress, anxiety, or fear, that is more than trivial.…10—Principles for intervention against abuse(1)The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:(a) abuse occurs in all areas of society, regardless of socio economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion;(b) abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour;(c) it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse;(d) as far as is practicable, intervention should be designed—(i)to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse; and(ii)to minimise disruption to protected persons … …(4)An issuing authority may take into account any other factor the authority considers relevant in the circumstances.

Evidence

Evidence Before The Court

It follows that in making a determination as to whether to confirm an intervention order the court must first consider whether it is reasonable to suspect that a defendant will, without intervention, commit an act of abuse against a person, and then determine whether such an order is appropriate in the circumstances of the case. An act of abuse is broadly defined in the legislation however in this matter the contest was focussed on s 8(2)(b) “emotional or psychological harm”, further defined by s 8(3)(c) as “distress, anxiety, or fear, that is more than trivial”. The evidence Both the protected person and the appellant gave evidence about each of the communications. It was the evidence of the protected person that although not all of the documents were addressed or sent to her, she had become aware of their existence through various means.[5] The effect of her evidence was that these communications, both individually and in combination, caused her to feel upset and threatened. They also caused her to form the view that the appellant was never going to “give up” in relation to her.[6] In cross-examination the protected person agreed that to her knowledge at no time since 2014 had the appellant attempted to directly approach her.[7] She also accepted that the intention of the appellant behind some of the communications could be open to a less sinister interpretation than she had placed on them, however this was not how she interpreted them at the time.[8] [5]T5-6.[6] T16.[7] T45. [8] T20. In summary, it was the appellant’s evidence that he did not intend that the communications would have the impact that the protected person claimed that they had. The appellant gave evidence that he is not legally trained and that he is a plain speaker. He described that he only speaks in “Australian TV Aussie language”[9] in explanation for why his turn of phrase may be more colourful than that used by others. The appellant explained that the situation is compounded by a number of other conditions that he suffers. He said: [10]I’m profoundly dyslexic. Only discovered that I’m bi-polar. I’ve got 85% illiteracy, post-traumatic stress disorder, acute anxiety, panic attack and a string of others that are all related like ADHD and so on. So, when I’m under stress I always revert to Australian English and I have been diagnosed as that I only speak Australian TV Aussie language. I can’t speak English, that’s it. So, these words are typical English. Typical Australian. [9] T48.[10] T48. The effect of the appellant’s evidence was that much of what he has said in the communications has been misconstrued because of a lack of sophistication in the language that he has used. During his evidence the appellant went to each of the communications and explained what he had intended to convey with the words that he had chosen. Those explanations were mirrored in the submissions that the appellant made before me on appeal. The following table summarises the alternative explanations that the appellant provided:

Decision

Reasons for decision

Having read the appellant’s outline of argument and heard his submissions, in my view this is a fair distillation of the arguments raised. An anterior question: An interlocutory judgment and the requirement for special reasons In his outline counsel for the respondent, Mr Allen QC, raised the preliminary question of whether the grant of an intervention order was interlocutory in nature. On this issue, he cited Nicholson J in White v Police:[22]A preponderance of authority in this Court, at single Judge level, supports a conclusion that the Magistrate’s final intervention order is interlocutory. Whilst this line of authority, strictly, is not binding on me sitting as a single Judge of coordinate jurisdiction, ordinary principles of respect and comity mean that I should exercise significant caution before departing from it.[Footnote omitted][22] [2018] SASC 124 at [20]. It was put by counsel for the respondent that there is no reason why this Court should depart from the preponderance of authority on this topic. I accept and agree with that submission. It follows that this appeal is subject to s 42(1a)(c) of the Magistrates Court Act 1991 (SA) which requires that the Court be satisfied “that there are 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 and grants its permission for an appeal”. Counsel for the respondent submits that permission to appeal should not be granted. He makes that submission on two bases. The first is that there is no arguable case in that there is no demonstrable error of approach or principle amongst the complaints of the appellant. The second is that there is no feature of this appeal that distinguishes it from the usual cases. The respondent contends that, put succinctly, the complaint advanced by the appellant is the most common of complaints namely that the trier of fact accepted the evidence of the opposing party and that the outcome of the hearing was wrong. There is authority however that the unusual nature and impact to the subject of an intervention order may of itself be a sufficient basis for a granting of permission. As described by Nicholson J in White:[23] There are features of the type of order under consideration that distinguish it from the more common type of interlocutory order. To be made the subject of an intervention order following a contested hearing is a very serious matter. An intervention order can impose significant restrictions on freedom of movement. It contains obligatory firearms restrictions including the automatic suspension of any licence held and a prohibition from possession of a firearm. Such an order potentially exposes the person to criminal sanctions (including imprisonment) if it is contravened and in certain circumstances the person will lose the presumption of bail otherwise conferred by section 10 of the Bail Act 1985 (SA).[Footnotes omitted][23] White v Police [2018] SASC 124 at [24].

Ratio Decidendi

Legal Principle Established

I grant an extension of time. Consideration of the grounds of appeal Given the difficulty in understanding the grounds of appeal as formulated by the appellant, in addressing the individual grounds I have adopted the compendious grounds as suggested by the respondent. Having read all of the relevant matters and heard submissions from both parties, these adequately reflect and encapsulate the arguments raised. 1.The Magistrate erred in resolving disputed evidence in favour of the respondent The Magistrate had the benefit of observing both the protected person and the appellant give evidence. This was not a situation in which it was necessary for the Magistrate to prefer the evidence of one witness over the other. In reality, much of the evidence relied upon by the respondent at trial was not disputed. This was different to many cases in which it is fundamental to the determination of the application for the Magistrate to make express findings of fact.[31] The legislative scheme is such that in turning his mind to the relevant issues it was not necessary for the Magistrate to resolve any significant conflict between the evidence of the two parties in assessing the evidence. [31] See for example Police v Giles [2013] SASC 11. The Magistrate made the following findings about the evidence of the protected person:[32]I accept the evidence of the protected person. I am satisfied that her evidence reflects her genuine belief. I note that the protected person made several concessions and importantly these included concessions as to what Mr Atkins believed in his own mind his communications meant. I accept that on the allegations where I found there to be reasonable grounds for her reactions that her reactions were genuine, not unreasonable and not trivial. I also accept that the material referred to in those allegations contain offensive material constituting an abuse. I find that as a consequence of the conduct contained in the allegations, the protected person suffered emotional harm as she stated in her evidence. At times, she appeared visibly emotional when giving her evidence. She stated that she had sought medical assistance in relation to her fear and anxiety and the effect the subject communications had upon her. …[32] Magistrate’s Reasons at [56]-[57]. Having reviewed the transcript, these findings were open to the Magistrate to make. Further, there is nothing about the approach and assessment of the evidence of the protected person that is demonstrative of error. The Magistrate made no findings in relation to the evidence or the credibility of the appellant. Given his findings in relation to the evidence of the respondent, it was unnecessary for him to do so. Given that the Magistrate had found that the appellant’s conduct had resulted in “emotional harm” to the protected person, it was not necessary for him to make any findings about the evidence of the appellant that he did not intend for his conduct to result in the protected person suffering emotional harm. This is the approach that the Magistrate was required to adopt under the Act.