F, S v Police - [2013] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
F, S v POLICE
[2013] SASC 164
Judgment of The Honourable Justice David
1 November 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against a Magistrate's confirmation of an interim intervention order made against the appellant – whether the Magistrate made proper findings of fact – whether the onus of proof should have been heavier than proof on the balance of probabilities - whether the evidence was sufficient to prove the interim order should be confirmed.
Held: Appeal dismissed – the Magistrate set out the evidence in relation to each incident and dealt with them accordingly – the consequences of a finding which lead to an intervention order being confirmed are not so grave as to warrant an onus of proof heavier than proof on the balance of probabilities – there is no reason to disagree with the conclusions made by the Magistrate on the facts she found proved.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6, s 8, s 23, referred to.
Police v Giles [2013] SASC 11, discussed.
Briginshaw v Briginshaw (1938) 60 CLR 336, considered.

F, S v POLICE
[2013] SASC 164
Magistrates Appeal: Criminal

DAVID J: This is an appeal against a decision of a Magistrate confirming an intervention order made against the appellant in relation to his ex‑wife, OF.
On 31 January 2013, an interim intervention order was made in relation to four protected persons namely, OF, and three children of the appellant. Pursuant to s 23(1)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”), a Magistrate confirmed that order in relation to the appellant’s ex‑wife but dismissed it in relation to his three children.
The appellant now appeals against the Magistrate’s confirmation of that order.
Background facts
At the trial, OF and her mother, GG, gave evidence. The appellant also gave evidence and called his mother, AF, as a part of his defence.
OF’s evidence, in essence, was that she and the appellant, at the time of the hearing, had been married for five years although they had been together for nine years and had three children. Initially, the marriage was a very happy one until about August 2011 when the appellant began to behave violently and abused her in front of the children, causing them to be upset. She gave evidence of a number of separate incidents of violent and erratic behaviour and arguments about whether the appellant had been using drugs. The behaviour was continuous, on one occasion she reported the matter to the police and she had psychological counselling. In particular, there was an incident where the appellant picked up a screwdriver and held it at her neck and said he would kill her if she took the children. There were other incidents OF spoke of involving threats of violence. She said there was damage to the walls caused by him when in a violent mood.
That evidence, to a certain extent, was supported by OF’s mother in that she noted that the marriage changed from being successful, where everyone got on well, to a situation where the appellant was often screaming and swearing at the children and his wife and how the whole family were continually distressed.
The appellant gave evidence to the effect that none of these things happened. He never swore at her or the children, was never violent and there was no justification for the making of the interim order. That evidence was supported by his mother who visited the house occasionally.
The Magistrate, in her reasons, went through various incidents which were in dispute and made findings in respect to each one. In dealing with those incidents, the Magistrate found:[1]
[1] [2013] SAMC 15, [39]-[54].
The relevant allegations which are disputed by the [appellant] are: That he held a screwdriver to [OF’s] throat. I note this was not in her original statement to the police and there are various explanations for that. She says she told the police officer, but it is not in her statement. Or alternatively she did not tell the police officer originally because she was still hoping to get the relationship back on track. I do not accept a police officer would not have put that into a statement. Nor do I accept that someone who went to the police in order to make a record of such an incident would not tell the police officer if in fact it happened.
I am not satisfied that incident occurred as alleged.
Secondly, [OF] said the [appellant] swore at her and threatened to break her legs. The exact occasion on which this is said to have happened is not clear, but it is in the report to the police. The allegations regarding the breaking of legs is apparently in the original police report, although I note it is not in her affidavit forming the basis of the application to this court.
Thirdly, it is alleged he threw clothes and shoes around in arguments. Whilst it is not suggested these were thrown at her, it could be perceived as intimidation and a show of strength and being in an out of control fury.
Fourthly, it is said the [appellant] punched holes to the walls. There are discrepancies as between [OF’s] evidence and what is contained in the statement to the police and her affidavit. In evidence she is adamant there was one hole in the wall and one in the door. This does not constitute ‘regularly punching holes to walls and doors’, as per her statement. But in this regard, she is quite consistent in evidence‑in‑chief and in cross‑examination. Those holes are not confirmed by the evidence of [GG] and another explanation is offered by [AF]. The [appellant] offers innocent explanations for these holes and I am left in some doubt as to how and when those holes occurred.
The [appellant’s] evidence is quite different to [OF’s]. He agrees they had arguments, but he says they swore at each other. Concerning the trip to Marion Bay, [OF] was cross‑examined regarding the trip back. She acknowledged she got angry at the [appellant] after he was angry with her. The [appellant], however, says there no issues on the trip home. They stopped at Port Wakefield, but there was no argument. Further, there was no argument which culminated in her leaving in October, except over some money, before he went to work and when he got home she was simply gone. The [appellant] denied he swore in front of the children.
I reject the [appellant’s] evidence he did not become angry and yell at [OF] at times, and I reject his evidence he did nothing which would cause her fear.
It is quite apparent this was a relationship in a state of deterioration. On the [appellant’s] evidence, except for some arguments over money and the fact he was working long hours; there were no other real issues. It is obvious [OF] believed he was using drugs and this belief caused problems between them. She raised it with him quite regularly.
That there may be loud verbal arguments between parties when a relationship is having difficulties, is not surprising or uncommon, and not every argument which includes swearing of an offensive nature could possibly be said to constitute ‘threatening to cause a person physical injury or emotional or psychological harm’.
In the present case, [OF] says this had been a very happy marriage, her husband had been loving and caring and fun to be around and in part, this was why the [appellant’s] behaviour caused her anxiety and fear. It was the change in his nature and the manner in which he was behaving and his attitude to her, which caused her anxiety and fear.
I am satisfied on the balance of probabilities that [the appellant] swore at [OF] and he threw clothes and shoes around during arguments and was extremely agitated. I am satisfied that this caused distress, anxiety and fear which was not trivial.
Whilst I recognise the fact [GG] would have some bias for her daughter’s version of events, I am satisfied her evidence confirms the [appellant’s] aggressive behaviour towards his wife, and I accept her evidence in this regard.
I now turn to the question whether it is reasonable to suspect the [appellant] will commit an act of abuse against [OF and the three children]. There are ongoing issues with regard to the dissolution of this relationship and in particular, the [appellant’s] contact with the children. With the exception of the presence of the children during arguments, I do not accept there has been any abuse of the children. I consider if proper arrangements are put in place there is no reason for the children to hear, witness or otherwise be exposed to the effects of any interaction between the [appellant] and [OF].
I am satisfied it is reasonable to suspect there may be further of abuse against [OF] if any order is not made, given the ongoing issues between the couple. But such an order, I consider is not appropriate with respect to the children and I consider any such order must allow for [appellant’s] contact with the children.
Accordingly, the order with respect to [OF] will be confirmed, but there will no order with respect to [the children].
And further, the order is varied and confirmed in the following terms:
•The [appellant] must not assault, threaten, harass or intimidate the protected person.
•The [appellant] must not follow or keep the protected person under surveillance
•The [appellant] must not be within 200 metres of the protected person.
•The [appellant] must not contact or communicate with the protected person; either directly or in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc).
•The [appellant] must not enter or remain in the vicinity of the protected person’s place of residence, place of employment or any other place at which the protected person is staying or working.
•The [appellant] must not damage or interfere with the premises where the protected person is staying, residing or is employed.
•The [appellant] must not damage or take possession of personal property belonging to the protected person.
•The [appellant] must not enter or be in the vicinity of the following locations: [OF’s address].
•The [appellant] must not publish on the internet or by any electronic means any material about the protected person.
•The [appellant] must not cause, allow or encourage another person to do anything forbidden by this order.
•Contact is permitted for the purposes of mediation.
•Contact is permitted to arrange for and take access to the children and for matters pertaining to the children and in accordance with any court order or pursuant to any agreement between the childrens’ parents.
•Any firearm in the possession of the [appellant] and any licence or permit held by the [appellant] authorising possession of a firearm must be surrendered to the Registrar of Firearms forthwith.
The Act
I set out the relevant sections of the Act:
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.
…
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—
(a)     physical injury; or
(b)     emotional or psychological harm; or
(c)     an unreasonable and non‑consensual denial of financial, social or personal autonomy; or
(d)     damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
(3)Emotional or psychological harm includes—
(a)     mental illness; and
(b)     nervous shock; and
(c)     distress, anxiety, or fear, that is more than trivial.
(4)Emotional or psychological harm—examples
Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following:
(a)     sexually assaulting the person or engaging in behaviour designed to coerce the person to engage in sexual activity;
(b)     unlawfully depriving the person of his or her liberty;
(c)     driving a vehicle in a reckless or dangerous manner while the person is a passenger in the vehicle;
(d)     causing the death of, or injury to, an animal;
(e)     following the person;
(f)     loitering outside the place of residence of the person or some other place frequented by the person;
(g)     entering or interfering with property in the possession of the person;
(h)     giving or sending offensive material to the person, or leaving offensive material where it will be found by, given to or brought to the attention of the person;
(i)    publishing or transmitting offensive material by means of the Internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the person;
(j)    communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person;
(k)     keeping the person under surveillance;
(l)    directing racial or other derogatory taunts at the person;
(m)    threatening to withhold the person's medication or prevent the person accessing necessary medical equipment or treatment;
(n)     threatening to institutionalise the person;
(o)     threatening to withdraw care on which the person is dependent;
(p)     otherwise threatening to cause the person physical injury, emotional or psychological harm or an unreasonable and non‑consensual denial of financial, social or domestic autonomy or to cause damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
…
In the present case, the Magistrate found that, on the facts proved, it was reasonable to suspect that the appellant would, without intervention, commit an act of abuse against OF.[2] In coming to that conclusion the act of abuse contemplated by the Magistrate’s decision was that distress, anxiety or fear which was not trivial would be caused.[3]
[2] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6(a).
[3] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(3)(c).
In Police v Giles,[4] in dealing with the Act, the Chief Justice said:[5]
… the basis that the reasonable suspicion that the defendant will, if unrestrained, commit an act of abuse must be founded on findings of fact made on the balance of probabilities about past events. However, I would make two observations about the grounds for making an intervention order. First there is no requirement that the facts from which the reasonable suspicion is drawn themselves constitute an act of abuse. Secondly it is not a statutory requirement that those facts or events be recent, or have occurred before or after the breakdown of a relationship.
[4] [2013] SASC 11.
[5] [2013] SASC 11, [30].
In the present case, the Magistrate relied upon the reasonable suspicion that there would be an act of abuse on the proven behaviour set out above namely, “that [the appellant] swore at [OF] and he threw clothes and shoes around during arguments and was extremely agitated. [The Magistrate was] satisfied that this caused distress, anxiety and fear which was not trivial”.[6]
[6] [2013] SAMC 15, [49].
Appeal
The appellant argues that the Magistrate erred in a number of ways.
Firstly, it is argued that the Magistrate did not make proper findings of fact in the reasons for judgment. The basis of the argument is that there is no clear finding that, on the finding that is detrimental to the appellant, the Magistrate, to the requisite degree of proof, prefers the evidence of OF to that of the appellant.
It is further argued that there is no proper analysis as to why the Magistrate found the incident of throwing clothes to have been proved. The appellant also submits that the onus of proof should have been more stringent than proof on the balance of probabilities. He argues that it should equate with that onus set out in the decision of the High Court in Briginshaw v Briginshaw.[7] As I understand the argument, it is because the allegations in this matter have a criminal connotation.
[7] (1938) 60 CLR 336.
I reject both arguments.
The Magistrate set out very carefully the evidence in relation to each incident and dealt with them accordingly. As can be seen in relation to most of the incidents, the Magistrate found that the onus had not been satisfied. That does not preclude her from finding that, nevertheless, in relation to the incident that is the basis of the suspicion that it in fact had occurred. It is inferential in that finding that she accepted the evidence of OF in preference to that of the appellant.
There is no reason why a heavier onus than that which the Magistrate applied, namely the balance of probabilities, should be placed upon the prosecution. The consequences of a finding which lead to the intervention order being confirmed are not so grave as to warrant such a heavier onus. The orders that are made do not involve the children and merely allow the protected person to be protected against a potential act of abuse.
The appellant further argues that even allowing for a proper finding by the Magistrate, the facts as found certainly are not enough to justify a basis for there to be a reasonable suspicion that the appellant will commit an act of abuse in the way described. It is argued that the throwing of clothes and shoes during arguments and general agitation could not be said to amount to distress, anxiety or fear that is more than trivial. I cannot disagree with the Magistrate’s finding in relation to that aspect of the matter. Such considerations have an aspect of subjectivity about them upon which the trier of fact has a distinct advantage. I can see no reason for disagreeing with the conclusion that the Magistrate has come to on the facts that she found proved.
Conclusion
I dismiss the appeal.