Cunningham v Police

Case [2021] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

CUNNINGHAM v POLICE

[2021] SASC 46

Judgment of the Honourable Justice Blue 

30 April 2021

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

CRIMINAL LAW - GENERAL MATTERS

ESTOPPEL - ESTOPPEL BY JUDGMENT - ISSUE ESTOPPEL

The appellant appeals or seeks permission to appeal against a decision by a Magistrate, on his application to revoke a consent final intervention order, that evidence must be adduced relevant to the original grant of the intervention order.

The respondent contends that the appeal is incompetent because it is against a ruling rather than a judgment or order but, if the appeal is competent, concedes that permission to appeal should be granted and accepts that the Magistrate made an error in the ruling.

An interim intervention order was made by a police officer pursuant to section 18 of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act).  In due course it was confirmed as a final intervention order by consent of the appellant while disputing the grounds on which it was sought pursuant to section 23(3) of the Act.

The appellant subsequently filed an application to revoke the final intervention order under section 26 of the Act supported by an affidavit in which he said, amongst other things, that there had been no contact between himself and the complainant since the making of the intervention order and he had moved away from the region where she lived. 

A Magistrate heard the application at a trial at which the complainant and appellant gave evidence chiefly addressing matters since the interim intervention order was made.  The Magistrate reserved judgment.

After delivery of reasons for judgment in G v C [2020] SASC 134, the Magistrate ruled that, in light of that decision, it was necessary to reopen the evidence, for the respondent to be dux litus and for the parties to give evidence on the question whether there had existed grounds to make the interim intervention order at the outset.

Held (allowing the appeal):

1. The appeal is competent under section 42(1) of the Magistrates Court Act 1991 (at [34]-[35]).

2.      The Magistrate’s judgment is interlocutory and leave to appeal is required (at [43]).

3.      Leave to appeal should be granted (at [45]).

4.The Magistrate erred in ruling that it was necessary to reopen the evidence to determine whether there had existed grounds to make the interim intervention order at the outset.  Instead the Magistrate should have engaged in an iterative process to ascertain the attitudes of the appellant and the respondent and determined the appropriate course in light of their attitudes (at [83]-[96]).

5.      Appeal allowed.  Magistrate’s ruling set aside.  Parties to be heard on further orders (at [93]).

Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 3, 5, 6, 8, 15, 18, 21, 23, 24, 26; Magistrates Court Act 1991 (SA) ss 3, 42; Magistrates Court (Criminal) Rules 1992 (SA) r 4.07, 18.01, 18.05, referred to.

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Cunningham v Police [2021] SASC 46
Case
[2021] SASC 46
Decision Date

CaseChat Overview and Summary

In Cunningham v Police, the appellant sought to appeal a ruling by a Magistrate concerning the revocation of a final intervention order issued under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The Police contested the appeal's competency, arguing that it was against a ruling rather than a judgment or order. The primary legal issue before the court was whether the appeal was competent and, if so, whether the Magistrate made an error in his ruling that required the reopening of evidence to determine the grounds for the interim intervention order at the outset. The court also needed to decide if the Magistrate should have instead engaged in an iterative process to ascertain the attitudes of the parties and determined the appropriate course in light of those attitudes.

The court found that the appeal was indeed competent under section 42(1) of the Magistrates Court Act 1991. It noted that the Magistrate's judgment was interlocutory and, therefore, leave to appeal was required. The court granted leave to appeal, holding that the Magistrate had erred in ruling that it was necessary to reopen the evidence to determine the grounds for the interim intervention order. Instead, the court found that the Magistrate should have engaged in an iterative process to ascertain the attitudes of the appellant and the respondent and determined the appropriate course in light of their attitudes. Consequently, the appeal was allowed, the Magistrate's ruling was set aside, and the parties were directed to be heard on further orders.

This decision underscores the importance of procedural fairness and the need for Magistrates to carefully consider the appropriate course of action in intervention order revocation cases, particularly in light of the authority of G v C and the legislation. The court's ruling highlights the potential for increased expense and delay in such cases, and the necessity of ensuring that all parties are given a fair opportunity to present their evidence and arguments.

Orders

Orders of the court

Held (allowing the appeal):

1. The appeal is competent under section 42(1) of the Magistrates Court Act 1991 (at [34]-[35]).

2. The Magistrate’s judgment is interlocutory and leave to appeal is required (at [43]).

3. Leave to appeal should be granted (at [45]).

4. The Magistrate erred in ruling that it was necessary to reopen the evidence to determine whether there had existed grounds to make the interim intervention order at the outset. Instead the Magistrate should have engaged in an iterative process to ascertain the attitudes of the appellant and the respondent and determined the appropriate course in light of their attitudes (at [83]-[96]).

5. Appeal allowed. Magistrate’s ruling set aside. Parties to be heard on further orders (at [93]).

Background

Background to the litigation

The respondent Police contend that the appeal is incompetent because it is against a ruling rather than a judgment or order. If the appeal is competent, the Police concede that permission to appeal should be granted and accept that the Magistrate made an error in the ruling.Background On 8 May 2018 a police officer, pursuant to section 18 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act), issued an interim intervention order against the appellant for the protection of a person with whom he had been in a relationship (the complainant). On 20 November 2018, while disputing the grounds on which a final intervention order was sought, the appellant consented, pursuant to section 23(3) of the Act, to a final intervention order. The Court made an order by consent confirming the interim intervention order as a final intervention order pursuant to section 23 of the Act. On 8 January 2020 the appellant filed an application to revoke the final intervention order supported by an affidavit in which he said, amongst other things, that there had been no contact between himself and the complainant since the making of the intervention order, he moved from the region in which the complainant was living to Adelaide in December 2018 and he has not breached the intervention order since the interim order was issued in May 2018. The appellant’s application was opposed by the Police and listed for trial on 26 March 2020. On 26 March 2020, at the outset of the trial, counsel for the appellant expressed concern that he did not have notice of the complainant’s ground of opposition to the revocation of the intervention order. During submissions, the Magistrate indicated that he would not permit evidence to be adduced, or the complainant to be cross-examined, on the factual circumstances that gave rise to the interim intervention order. Counsel for the appellant agreed with that position and did not seek to adduce or cross-examine on such evidence. The police prosecutor submitted that decisions of this Court on appeal suggested that limited reference might be needed to the basis in the affidavits that gave rise to the order so that the Court could determine whether there had been a substantial change. The Magistrate gave a ruling as foreshadowed that cross-examination would not be allowed on the complainant’s earlier affidavit. The appellant gave evidence in chief on matters of background and elaborating on his January 2020 affidavit. He was cross-examined concerning events since May 2018 but not concerning the complainant’s allegations that led to the making of the police-issued interim intervention order. The complainant gave evidence in chief on matters of background and events since May 2018 but not concerning her allegations that led to the making of the police-issued interim intervention order. She was not cross-examined. The Magistrate heard closing addresses and reserved judgment. He had indicated at the outset that he intended to await the delivery of reasons for judgment in an appeal in G v C (yet to be heard) against a refusal of an application for revocation of another final intervention order.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 23 November 2020 the Magistrate heard oral submissions from the parties on the course that should be adopted given the decision in G v C. The parties had filed written submissions in accordance with directions earlier given by the Magistrate. The appellant’s submission was that the Court should have no regard to the original allegations by the complainant that led to the making of the interim intervention order. The police prosecutor submitted that a full re-visitation of the matter de novo was not required but it was appropriate for the Court to have regard to the original allegations for limited purposes. The Magistrate reserved his decision.The Magistrate’s reasons for decision On 15 December 2020, the Magistrate delivered reasons for decision. He referred to the history of the matter and the judgment of Peek J in G v C. His reasons included the following passages:In the course the trial took on 26 March 2019, the procedure applied was exactly the same as matters that had been determined in this court over the last decade. That is, it was the defendant’s application so the defendant gave evidence to ground and then prove his application on the balance of probabilities. The [complainant] then gave evidence in reply as to her opposition of the application.That procedure was typical of the procedure applied in matters prior to G v C. As was also common, counsel [for Mr Cunningham] objected to evidence being given by [the complainant] referring to any prior allegation of abuse, or any allegation of [Mr Cunningham] breaching the order during its term. That was a common approach before G v C.In my view …, it is clear from G v C and indeed the legislation upon reflection, that a “full hearing” must be held. That is, the issues which give rise to the issuance of the intervention order must be revisited in the course of the revocation application – being the “same matters”.…My view is that a “full hearing” means that one must go back and consider all the evidence which founded the original application, but there is none. This order was issued in the discretion of the police, relying upon hearsay. It was confirmed by consent by the defendant without the admission of any allegation or fact. So, only now by the sworn evidence of the protected person, can I visit any allegation of abuse.The Magistrate then referred to the difficulties that would arise if the appellant remained dux litis. His reasons continued:Such are the difficulties in an application like this involving a s 18(9) intervention order. It is akin to running two simultaneous [applications] – one for the intervention order as a “full hearing” referring to the “same matters” and one for the revocation application.It seems to me that the only answer is that in the usual course of events in these applications, is to proceed dux litis.In that event, if the protected person (who is now the defendant in the revocation application) gives evidence first, then that may satisfy the grounds for the issuance of the intervention order. Therefore evidence is given about the “same matters” as required in a “full hearing”.…Findings of credit and fact need to be made after a “full hearing”. I still need to be satisfied that without intervention the defendant is likely to commit an act of abuse and that the issuing of interim intervention order is appropriate…I am patently conscious that the defendant is being put to further expense and this process may also re-traumatise applicants in certain circumstances.That is regrettable but is necessary following the authority of G v C and the legislation…The absence of clear procedural guidance in the legislation is regretful, as is this whole situation from both sides. The work of all parties and the court are significantly increased. Therefore the likelihood of expense and delay are also significantly increased.[2][2] Emphasis in original.

Ratio Decidendi

Legal Principle Established

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