Atkins v Protected Person
[2022] SASC 31
•1 April 2022
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 List of agreed allegations”, however it appears to have been abandoned during the proceedings.
Communication No
Date of document
Party to receive the communication
Allegation relied on
1
07.02.2017
The protected person
Email attaching formal complaint letter dated 8 February 2017- “We will make you, your partner, your children and your grandchildren pay for what you did to us, making them pay for your riches”
2
01.02.2019
The protected person
Email stating “Please advise what time you get to work in the morning as I wish to deliver this sealed Summons personally myself so you can bend over and I can stick it up your arse”
3
04.02.2019
Frank Carbone –Private investigator previously engaged by the protected person to act on her behalf
Envelope with the protected person’s [‘PP’] photograph on it and letter to Private Investigator Mr Carbone. In the letter it states “…come the destruction of earth I will do whatever it takes to get my money and compensation back from [PP] … you can join [PP] to bring me down, what a show this is going to be, I reserve all rights to involve the media. You will obviously not be able to win against me for the despicable things [PP] did, however if one or some of you come to my side to support, those left will get crucified along with [PP]. …”.
4
04.12.2019
Dr Steven Churches – Barrister previously instructed by the protected person to act on her behalf
Envelope with the [PP’s] photograph on it sent to barrister Dr Steven Churches.
6
04.04.2019
David Rostron – Solicitor instructed by the protected person
Email stating that the appellant would appeal Master Keith’s decision to strike out his claim against the [PP] saying, inter alia:-“… with all my cases this is the one I will never let go of. There is no way in today’s society one person can do this to another or there is defiantly (sic) no hope for humans”.
7
08.04.2019
Associate to Master Keith who had struck out the appellant’s claim against the protected person
Email to Master Keith saying:- “That women (sic), [PP] “milked me dry” to feather her own nest, resulting in destroying my whole family and me a “disgusting” example of the justice system you are a party to. Then to boot you kick me out the door and have the impudence to drop the defendants cost on me. Now your milking me dry, unbelievable! … I am to appeal your dismissal that is for a certainty, and ask for your resignation as Master, there is no way on God’s green earth you decision is legal, violently bias and contempt of your own court against the individual who has no choice but to represent himself. … Obviously, you do not have the “tentacles” ‘as I am not allowed to say Balls I assume’ to take on your legal profession for the abomination that has transpired. … Please take note I did not call you an asshole …”
“This issue is not going to be swept under the carpet for the benefit of all self-represented plaintiffs”
8
09.04.2019
David Rostron – Solicitor instructed by the protected person
Email stating: “I will be appealing to the cows come home and prefer my success in the high Court … merely expressing my resolve for justice”
“… Certainly not a threat in any way, I am in no (sic) or form, but I truly understand the Martin Bryant’s of this world, I verily believe he was the victim of society …”.
9
23.04.2019
David Rostron – Solicitor instructed by the protected person
Email in the context of David Rostron requesting that documents be served upon him rather than served personally on the protected person. The applicant indicated he would not do so, saying, “As above, any appeal documents may be served upon you ... So I may not ...”
10
Undated
A google review posted on the protected person’s website
Review on website – “Disgusting, this person should not be allowed to practice, after $280,000.00 she was plainly milking me dry, [PP] never had a clue what she is doing. When we ran out of money she said goodbye yet she does pro bono for dogs. I guess we are lower than a dog. [PP] destroyed my young family to build her career at our expense. The matter is now in the Courts. Its called Quantum meruit, Unjust enrichment and I will do a better job defending myself than she did, period. It is absolutely true so yes I will put my name to this. Paul ATKINS”.
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 Act
5—Objects of Act
The 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 orders
Division 1—General
6—Grounds for issuing intervention order
There 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.
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:
Allegation No
Allegation/Issue relied on
Appellant’s explanation
1
Email attaching formal complaint “We will make you, your partner, your children and your grandchildren pay for what you did to us, making them pay for your riches”
“Pay” means to pay money. The appellant was referring to the money he hoped to recoup back from the protected person through litigation.[11]
2
Email stating “Please advise what time you get to work in the morning as I wish to deliver this sealed Summons personally myself so you can bend over and I can stick it up your arse”
This was an example of the appellant reverting to the use of “Australian English”.[12]
3
Envelope with [PP’s] photograph and letter to Private Investigator Mr Carbone. In the letter it states “…come the destruction of earth I will do whatever it takes to get my money and compensation back from [PP] … you can join [PP] to bring me down, what a show this is going to be, I reserve all rights to involve the media. You will obviously not be able to win against me for the despicable things [PP] did, however if one or some of you come to my side to support, those left will get crucified along with [PP]. …”.
This was a reference to the appellant doing whatever it takes in order to get his money and compensation. He described it as an “Aussie” acronyism. The appellant compared it to the use of the phrase “stone the crow”.[13]
4
Envelope with [PP’s] photograph on it sent to barrister Dr Steven Churches.
It was the appellant’s evidence that he had put the protected person’s photograph on the envelope so that the recipient would know who he was referring to. He said that he did that because when he had previously telephoned these people they said that they did not know who he was talking about.[14]
6
Email to David Rostron stating that he would appeal Master Keith’s decision to strike out his claim saying, “… with all my cases this is the one I will never let go of. There is no way in today’s society one person can do this to another or there is defiantly (sic) no hope for humans”.
The appellant gave evidence that he was saying that he was determined to lawfully exhaust all lines of pursuit to obtain what he believed that he was entitled to.[15]
7
Email to the associate to Master Keith saying:- “That women (sic), [PP] “milked me dry” to feather her own nest, resulting in destroying my whole family and me a “disgusting” example of the justice system you are a party to. Then to boot you kick me out the door and have the impudence to drop the defendants cost on me. Now your milking me dry, unbelievable! … I am to appeal your dismissal that is for a certainty, and ask for your resignation as Master, there is no way on God’s green earth you decision is legal, violently bias and contempt of your own court against the individual who has no choice but to represent himself. … Obviously, you do not have the “tentacles” ‘as I am not allowed to say Balls I assume’ to take on your legal profession for the abomination that has transpired. … Please take note I did not call you an asshole …”
“This issue is not going to be swept under the carpet for the benefit of all self-represented plaintiffs”
“Milk me dry” and “feather her own nest” were further examples of the Aussie language that the appellant uses. He gave evidence that he did not believe that there was anything offensive about this communication.[16]
8
Email dated 9 April 2019 to David Rostron stating: “I will be appealing to the cows come home and prefer my success in the high Court … merely expressing my resolve for justice”
“… Certainly not a threat in any way, I am in no (sic) or form, but I truly understand the Martin Bryant’s of this world, I verily believe he was the victim of society …”
The appellant’s evidence was that he did not intend to convey a threat in this communication. He said that he believed Martin Bryant to be a victim of society. He explained that just because he understands Martin Bryant does not mean that he intends to copy his actions. The appellant used his brother’s suicide by way of analogy. He said that just because he understood why his brother committed suicide does not mean that he was going to commit suicide.[17]
9
Email in the context of David Rostron requesting that documents be served on him. The appellant indicated he would not do so, saying, “As above, any appeal documents may be served upon you ... So I may not ...”
The appellant’s evidence was that he had no intention of serving the appeal documents on the protected person in person.
10
Negative review on [PP’s] website.
It was the appellant’s evidence that he was entitled to provide his feedback on the protected person’s website. When the issue was raised in court, he agreed to remove the comment from the website within two hours and he followed through with that undertaking as soon as he got home.[18]
[11] T47-48.
[12] T48. In submissions on the appeal, the appellant went on to further elaborate that he is a builder and this is the sort of language that can be heard on a building site 20 times a day. He submitted that it is the type of language regularly used by working class men (T7).
[13] T48.
[14] T49.
[15] T50-51.
[16] T51.
[17] T51-52.
[18] T53-54.
The decision of the Magistrate
Given the narrow scope of the dispute it was unnecessary for the Magistrate to make any significant factual determinations. As said previously it was not in dispute that the appellant was the author of each of the communications and that he had forwarded them to the various recipients.
The Magistrate first then considered whether the evidence fit within the meaning of ‘abuse’ as set out in s 8(2) the Act. The Magistrate adopted the course of considering each communication separately and came to the view that communications 1, 2, 3, 6 and 8 were perceived by the protected person as threats and in all of the circumstances it was not unreasonable for her to come to such a view. The Magistrate did not place any weight on communications 4, 7, 9 and 10 given the more benign nature of the comments.[19]
[19] SMO v Atkins (Magistrates Court of South Australia, Magistrate Metanomski, 3 August 2021) (“Magistrate’s Reasons”) at [46]-[54].
The Magistrate found that in all of the circumstances the protected person had experienced “emotional harm” in the form of “fear and anxiety that was more than trivial”.[20] The Magistrate then considered whether, given those findings, the test set out in s 6 the Act could be satisfied. The Magistrate concluded:[21]
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.
[20] Magistrate’s Reasons at [56]-[57].
[21] Magistrate’s Reasons at [58].
In arriving at the view that there were grounds for issuing the intervention order, the Magistrate did not go on to consider the appellant’s intent in making the communications. There was no need for him to do so. The two qualifying requirements to establish an “act of abuse” are disjunctive rather than conjunctive. It follows that once the Magistrate determined that the communications had resulted in the requisite level of emotional harm, there was no requirement for him to consider whether that was the outcome intended by the appellant.
Grounds of appeal
On 14 October 2021 the appellant filed an appeal against the decision to confirm the intervention order. The grounds of appeal are:
1.Miscarriage of justice
2.The judge “abused his/her discretion”
3.The facts of the case and/or the evidence introduced in the trial court do not support the judge’s decision.
4.The judge made an error of law.
5.misconduct and ineffective assistance of counsel.
6.Ineffective Assistance of Counsel
7.the performance prejudiced the defendant.
8.Proving the Right to Adequate Representation Was Violated
9.object to improper testimony
I make no criticism of the appellant in making the observation that these grounds were somewhat difficult to understand. I appreciate that the appellant is an unrepresented litigant doing his best to navigate the legal system.
In his outline of argument counsel for the respondent attempted to assist the Court by summarising the appellant’s arguments. He summarised them in the following terms:
a.The LTM erred in resolving disputed evidence in favour of the Respondent;
b.The finding by the LTM that, unless restrained, the Appellant would commit an act of abuse against the Respondent was unreasonable; and
c.The LTM’s decision to confirm the Interim Intervention Order was unreasonable in the circumstances.
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].
In White, Nicholson J found that those matters, combined with the fact that there was an arguable case and the appellant had no right to apply for a variation or revocation for at least 12 months,[24] were sufficient to establish special circumstances.
[24] Section 15 of the Act.
During submissions the appellant described the impact that the intervention order has had in his life.[25] He explained that he had a difficult upbringing at the hands of a violent father and consequently now takes some pride in having not become a violent man. The appellant described a recent occasion on which he attended at a police station. He said:[26]
I went to the police the other day about my own interventions orders and they said, no there’s no intervention order against these men, and then they said, “But there’s one against you”, and I sort of was a little shocked, and said “who?”. It was just a knee jerk reaction and he says, “[the protected person]”, and I shrunk down to a cockroach and just walked out the door, slid underneath it and went home. I never said another word and all these police officers were looking at me. I think it’s horrendous to be called a violent man. I’ve always known from growing up, someone that has an intervention order against them, or restraining order against them, means wife basher. That’s all it means to everyone else in the community. So everyone just sees me as a wife basher, doesn’t know the full story.
[25] Whilst this was effectively evidence given from the bar table, given the personal circumstances of the appellant and his status as an unrepresented litigant, I am prepared to accept it as the evidence of the appellant on this topic.
[26] T18.
The appellant went on to explain to the Court that because he had learnt from his father’s mistakes, he had written a book about his life story, however he felt that the intervention order was an impediment to him now publishing it.
For the reasons set out by Nicholson J in White and, in particular, the significance of the consequences of the imposition of an intervention order on the appellant, I find that special reasons have been established.
The appeal
As set out previously this is an appeal under s 42 of the Magistrates Court Act 1991 (SA) and is governed by Part 5 of the Supreme Court Criminal Rules 2014 (SA). In particular under r 104V, the appeal is to be by way of rehearing. This requires that I undertake an independent review of all of the evidence and the findings below and form my own view as to the appropriate outcome.[27] I do so giving due weight to the Magistrate’s advantage in seeing and hearing the witnesses, and of course giving weight to any findings on credibility which depend largely or in part on demeanour.[28]
[27] Police v Kriticos [2016] SASC 28 at [22].
[28] Tazroo v Police [2002] SASC 155 at [17]-[19]; Police v A, TG [2006] SASC 299 at [15].
Extension of time
The decision of the Magistrate to confirm the order was made on 3 August 2021. The appellant filed a Notice of Appeal on 14 October 2021. It follows that the appellant requires an extension of time.[29]
[29] Supreme Court Criminal Rules 2014 (SA) r 104G.
Factors to be taken into consideration in granting an extension of time in which to file an appeal include the length of and explanation for the delay, whether there is any prejudice suffered by the respondent and whether there are some prospects that the appeal will be successful.[30]
[30] Gikas v Police (1999) 202 LSJS 301; [1999] SASC 139 at [23].
The respondent has not suggested that there has been any prejudice caused by the delay nor has he opposed an extension of time being granted. I am mindful that the appellant is unrepresented and the delay is not that significant.
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.
Having heard the appellant’s submissions this is clearly an aspect of the Magistrate’s reasoning process that he has some difficultly in understanding and accepting. In one sense, that is unsurprising. In most aspects of life and certainly in the criminal law the intent of an individual is central to an evaluation of their conduct. That is not necessarily so in relation to the decision to impose an intervention order. The rationale behind that can be found in the policies underpinning the legislation. In Rona v Gregurev[33] Peek J set out the purpose of the legislation:
A primary purpose of the legislation is to protect people when it is reasonable to suspect that somebody (a defendant) will, without intervention, commit an act of abuse (whether against the applicant or some other person(s)). The importance of such protection is reinforced by various provisions in the Act, including the very broad definition of “abuse” (s 8), the recitation of the objects of the Act and the broad principles to be applied (ss 5 and 10), and the enactment of a presumption against “exercising the discretion to dismiss the application if the applicant alleges an offence involving personal violence or an offence of stalking under s 19AA of the Criminal Law Consolidation Act 1935.”
However, because the concept of abuse is so broadly defined, it is also necessary for the courts to ensure that this broad jurisdiction is not itself abused by specious or unwarranted claims with their associated detrimental consequences to both the limited resources of the courts and to persons the subject of unmeritorious allegations. The necessary balance is achieved by investing the Magistrates with a great deal of discretion in the course they may take in any given case.
[Footnotes omitted]
2.The finding by the Magistrate that, unless restrained the appellant would commit an act of abuse against the protected person was unreasonable
[33] [2015] SASC 37 at [14]-[15].
There was no dispute that the appellant sent the communications relied upon by the protected person in support of the application. The Magistrate considered those letters in the context of the broader relationship between the two parties. In particular that the professional relationship of solicitor/client had ended in 2014 and from the perspective of the protected person that relationship had ended on amicable terms.[34] It was only after about three years that the appellant made contact with the protected person. That occurred in the context of him being aggrieved about the legal service with which she had provided him. The Magistrate placed considerable weight on the “significant acrimony that Mr Atkins bears towards the protected person dating back to when they had a solicitor/client relationship”.[35] That acrimony was apparent both in the communications and in the appellant’s evidence. The Magistrate had regard to the conduct of the appellant and the protected person’s response needed to be considered in that context.[36] Having considered those matters the Magistrate concluded that given the history:[37]
… 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.
[34] The appellant does not agree with that characterisation of the status of the relationship in 2014.
[35] Magistrate’s Reasons at [40].
[36] Magistrate’s Reasons at [40].
[37] Magistrate’s Reasons at [58].
The finding of that reasonable suspicion was clearly open on the evidence. There is nothing to suggest that the Magistrate erred in his approach to this question.
In submissions the appellant put to the Court that the fact that he has not undertaken any steps to approach the protected person or her business contraindicates an intent by him to commit an act of abuse against her. That submission however does not take into account the very broad definition of an act of abuse set out in the legislation.
3.The Magistrate’s decision to confirm the interim intervention order was unreasonable in the circumstances
In all of the circumstances it was open to the Magistrate to find that it was appropriate to make the order sought pursuant to s 6(b) of the Act.
This determination is, or is akin to, an exercise of the discretion that falls to be exercised according to the principles established in House v The King.[38] The discretion here thus has a very wide ambit. It also has not been established by the appellant that the Magistrate took into account irrelevant matters, or failed to take into account relevant matters, or otherwise erred when undertaking that exercise.
Other matters raised by the appellant
[38] (1936) 55 CLR 499.
Inconsistency of approach
In submissions, the appellant put to the Court that there has been inconsistency in how the protected person’s application for an intervention order was dealt with as compared to applications that he has made for intervention orders in other proceedings involving different parties.
In the absence of the transcript of the other hearings that the appellant was referring to, it is not possible for me to determine whether a different procedure or approach was followed. In my view however this is not to the point.
Section 21 of the Act provides, relevantly:
(1)On an application for an intervention order in circumstances in which an interim intervention order has not been issued by a police officer, the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear.
…
(3)At the preliminary hearing, the Court may—
(a) issue an interim intervention order against a defendant if it appears to the Court that there are grounds for issuing the order; or
(b) dismiss the application on the grounds that the application is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other ground considered sufficient by the Court.
(4)If the applicant alleges non-domestic abuse and is a person other than a police officer, the Court must, in determining whether to exercise the discretion to dismiss the application, take into account—
(a) whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means; and
(b) whether the application is in the nature of a cross application; and
(c) any other matters that the Court considers relevant.
Section 21(3) provides the Magistrate with a very broad discretion. He or she may dismiss the application at the preliminary hearing, without having heard evidence, if he or she considers that there are sufficient grounds to do so. This broad discretion makes it clear that each application must be dealt with on its facts; in some cases, it will be appropriate to proceed to a further hearing where oral evidence is adduced, whereas in others, dismissal at the preliminary hearing may be appropriate. The mere fact that the Magistrate may have dealt with this matter in a way different to that in another matter is not in itself a sign of error.
Suspicious timing
In his submissions the appellant also raised an issue surrounding the timing of the application for an intervention order vis a vis when he filed proceedings against the protected person. He put to the Court:[39]
… on the 17th of a month I filed a second litigation against [the protected person] and she got that on the 17th, that afternoon. She then filed for the intervention order. To me the only reason - which I have said from the beginning, the only reason she’s got an intervention order is to discredit me from - stopping me to continue with the court case. …
[39] T4.
The appellant cross‑examined the protected person on this topic. Her evidence was that the reason that she had filed the application for an intervention order on 17 April 2019 was because she had been motivated by becoming aware of the “Martin Bryant comment”. She further said that she had not become aware that the appellant had filed a legal suit against her until May 2019.[40]
[40] T41.
It was open for the Magistrate to accept the protected person’s evidence on the topic especially given the “Martin Bryant comment”,[41] on the face of it, appears to be one of the most sinister communications. Even if, however, the protected person had been aware that the appellant had instituted legal proceedings against her on 17 April 2019 and that in turn motivated her to make an application for an intervention order, that would not make it inappropriate for that Magistrate to make the order.
[41] Communication 8 emailed on 9 April 2019.
Disposition of the appeal
I find that none of the grounds are made out.
Orders
I make the following orders:
1.Time within which to appeal is extended to 14 October 2021;
2.Permission to appeal is granted;
3.The appeal is dismissed.
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