CORMACK v POLICE No. SCGRG-98-1575 Judgment No. S107

[1999] SASC 107

CORMACK v POLICE
[1999] SASC 107

Magistrate’s Appeal

1. MARTIN J.  (Ex tempore)  This is an appeal against a restraining order made on 15 October 1998, in the Elizabeth Magistrates Court. 

2. On 31 July 1998, a complaint was filed seeking an order, pursuant to the provisions of s99 of the Summary Procedure Act, against the appellant. 

3. In essence, the complaint alleged that the appellant had behaved in a provocative manner, which behaviour was likely to lead to a breach of the peace, and the appellant was, unless restrained likely again, to behave in the same or similar manner. 

4. The complaint was based on the affidavit of Jennifer Sander, dated 31 July 1998.  She deposed that, over a substantial period of time, the appellant had harassed her and told her that she was evil and that the Catholic Church had raped her (the appellant).  She said she felt threatened and intimidated by the behaviour.  She spoke of an occasion when an abusive and intimidating message had been left on her answering machine and the appellant had subsequently come to the house and demanded the tape. 

5. She deposed that, during the morning of Saturday, 18 July 1998, the appellant attended at Sander's home where she abused her from outside the premises, ripped plants out of the garden and threw them at the window.  She said the appellant also banged loudly on the bedroom and lounge windows. 

6. The complaint came on for hearing as an ex parte application before the magistrate on 31 July 1998.  On the basis of the evidence contained in the affidavit, and in accordance with the provisions of s99 of the Act, his Honour determined that, because of the alleged behaviour, he should make the order sought. 

7. He made an order that the defendant be restrained from: 

   (1)... entering into or remaining within the vicinity of 100 metres of any premises of which Jennifer Sander may from time to time reside or work;

   (2)    from contacting or communicating, either directly or indirectly, whether by telephone, in writing, in person, through a third person, or otherwise with Jennifer Sander;

   (3)... from assaulting, molesting, harassing or abusing Jennifer Sander. 

8. His Honour made associated firearms orders. 

9. A summons was issued to the appellant to show cause why the order should not be confirmed. 

10. A trial was held on 15 October, 1998 at which both Sander and the appellant gave evidence.  The appellant was unrepresented.  Sander gave evidence of the history of her relationship with the appellant.  It began in 1990 when she came to know the appellant through the appellant's brother, who was killed in a car accident in July 1990.   Sander assisted the appellant through a lengthy period of grieving.  It is unnecessary to canvass the evidence of Sander at any length.  She spoke of a course of conduct of verbal abuse and other harassing conduct over a period of many months.  She was driven to change her telephone to a silent number.  By the end of April, 1998 she had made clear to the appellant that she wanted nothing further to do with her. 

11. The appellant's harassing conduct continued and included the incident described in the affidavit when the appellant pulled plants from Sander's garden and threw them at the window.  According to her evidence, the appellant's conduct caused Sander to become extremely frightened and agitated, to the point where she called the police for assistance. 

12. The appellant gave evidence and sought to explain her conduct.  She did not, however, deny the essence of the critical incidents in the course of conduct. 

13. The magistrate had no hesitation in accepting the evidence of Sander.  Having read the cross-examination conducted by the appellant and the appellant's evidence, in my view his Honour's finding was inevitable and the only reasonable finding that could have been made.  Indeed, his Honour treated the appellant kindly in his extempore judgment. 

14. In view of his findings, his Honour confirmed the terms of the ex parte order that had been made on 31 July 1998.   His Honour was clearly correct in doing so.  Nothing has emerged during the hearing of the appeal that casts any doubt upon the correctness of his Honour's decision. 

15. The grounds of appeal were drawn by the appellant.  In keeping with the general tenor of the appellant's evidence and cross-examination of Sander, the grounds are discursive and attack the credit of Sander.  The appellant alleges she was unable to conduct her case properly before the magistrate and that Sander has breached a court order.   Other allegations are made which need not be repeated. 

16. When the matter was called on for hearing this morning, Mr Martin appeared for the appellant for the purposes of explaining the situation that had arisen between him and the appellant and to seek leave to withdraw. 

17. After a brief discussion with Mr Martin, I invited the appellant to consider her position as to whether she wished to proceed without the assistance of Mr Martin.  I adjourned for a few minutes to enable Mr Martin and the appellant to discuss that matter. 

18. On resumption, the appellant indicated she wished to proceed unrepresented and that she had no objection to Mr Martin withdrawing.  Accordingly I gave him leave to withdraw. 

19. In her submissions, the appellant outlined a number of matters that have happened to her as a consequence of which she feels that she is being oppressed, emotionally abused and generally harassed.  I endeavoured to explain to her that those are not matters with which I can deal in the course of this hearing. 

20. As to why the magistrate had fallen into error, the appellant submitted that Sander lied and that she has done nothing wrong.  She indicated that she is prepared to abide by the terms of the order. 

21. Having taken into account the appellant's submissions, in my view there is no basis for interfering with the order that was made by the magistrate or any of his findings.  In those circumstances, the appeal is dismissed.