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
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…
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- AGLC
- Atkins v Protected Person [2022] SASC 31
- Case
- [2022] SASC 31
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Decision
Reasons for decision
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.