Groom v Police - [2014] SASCFC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
GROOM v POLICE
[2014] SASCFC 125
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Peek and The Honourable Justice Parker)
19 November 2014
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal to the Full Court of the Supreme Court against a decision of a single judge - single judge refused permission to appeal against decision of a magistrate confirming an intervention order made against the applicant - whether applicant denied natural justice.
Held: permission to appeal refused.
Domestic Violence Act 1994 (SA) s 9(2); Intervention Orders (Prevention and Abuse) Act 2009 (SA) s, 37(1), Schedule 1; s 3, s 11, s 23(1)(a); Magistrates Court Act 1991 (SA) s 42(1a)(c); Supreme Court Act 1935 (SA) s 50(1)(a), s 50(6), s 50(4)(a)(ii), referred to.
Groom v Police (No 3) [2013] SASC 39; De Jong v Police [2010] SASC 191, considered.

GROOM v POLICE
[2014] SASCFC 125
Full Court: Vanstone, Peek and Parker JJ

THE COURT: This is an application for permission to appeal against a decision of a single judge of this Court. On 21 March 2014 the judge refused the applicant permission to appeal against an order of a magistrate confirming an interim intervention order. The applicant now seeks to have the judge’s refusal of permission to appeal set aside and to have his appeal against the magistrate’s confirmation of the interim intervention order heard by the Full Court. The applicant was not represented by counsel before the judge and that position endures.
The application was filed about four months after the elapse of the prescribed time within which to appeal and an extension of time is sought. In considering the merits of both applications the court has had regard to the notice of appeal, affidavit and summary of argument filed by the applicant, along with the reasons of the single judge.
Background
On 19 October 2011 a magistrate made a domestic violence restraining order against the applicant pursuant to the Domestic Violence Act 1994 (SA) (the 1994 Act). That order was made ex parte and, accordingly, would not remain effective after the conclusion of a further hearing to which the applicant was summonsed, unless confirmed by that court: s 9(2) of the 1994 Act. On 9 December 2011, the 1994 Act was repealed by the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”) and any restraining orders then in force were effectively converted into “intervention orders”: s 37(1), Schedule 1, the Act. Pursuant to sections 3 and 11 of the Act, the interim intervention order against the applicant continued in force until revoked.
On 22 February 2012 the intervention order made on 19 October 2011 was confirmed by a magistrate with the applicant’s consent. In June 2013 the applicant appealed to a single judge of this Court against the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Groom v Police

Details

AGLC: Groom v Police [2014] SASCFC 125
Case: [2014] SASCFC 125
Decision Date: 19 November 2014

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia considered an application for permission to appeal and an associated application for an extension of time. The applicant sought to appeal a decision of a single judge who had refused permission to appeal against an intervention order confirmed by a magistrate. The applicant contended that he had been denied natural justice during the confirmation hearing.

The legal issues before the Full Court were whether to grant an extension of time for the applicant to seek permission to appeal, and whether to grant permission to appeal against the magistrate's intervention order. The applicant's grounds for appeal essentially argued that his consent to the intervention order's confirmation was not informed, due to confusion and stress, and that his legal representation was inadequate concerning the intervention order itself.

The Full Court reasoned that while the applicant's delay in seeking permission to appeal was significant, an extension of time was warranted given the circumstances. However, regarding the application for permission to appeal, the Court found that the evidence, including the prosecutor's affidavit and the hearing transcript, indicated that the applicant's legal counsel was briefed to represent him generally, and that the consent given to the intervention order's confirmation was informed. The Court noted that the confirmation of the order had been the subject of negotiation, and the applicant had been present and had not raised objections. Therefore, the Court concluded that the grounds for appeal lacked sufficient merit to grant permission.

The Full Court ordered that the application for an extension of time within which to apply for permission to appeal be granted, extending the time to 21 August 2014. However, the application for permission to appeal itself was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The application was filed about four months after the elapse of the prescribed time within which to appeal and an extension of time is sought. In considering the merits of both applications the court has had regard to the notice of appeal, affidavit and summary of argument filed by the applicant, along with the reasons of the single judge.Background On 19 October 2011 a magistrate made a domestic violence restraining order against the applicant pursuant to the Domestic Violence Act 1994 (SA) (the 1994 Act). That order was made ex parte and, accordingly, would not remain effective after the conclusion of a further hearing to which the applicant was summonsed, unless confirmed by that court: s 9(2) of the 1994 Act. On 9 December 2011, the 1994 Act was repealed by the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”) and any restraining orders then in force were effectively converted into “intervention orders”: s 37(1), Schedule 1, the Act. Pursuant to sections 3 and 11 of the Act, the interim intervention order against the applicant continued in force until revoked. On 22 February 2012 the intervention order made on 19 October 2011 was confirmed by a magistrate with the applicant’s consent. In June 2013 the applicant appealed to a single judge of this Court against the confirmation order: Groom v Police (No 3) [2013] SASC 39. Sulan J heard and allowed the appeal, set aside the magistrate’s order of 22 February 2012 and remitted the matter to the Magistrates Court. On 10 December 2013 the applicant, now represented by counsel, was again before the Magistrates Court both in relation to the intervention order and for 31 criminal charges alleging breaches of it. After negotiation, the prosecution agreed to withdraw the 31 charges if the applicant consented to confirmation of the intervention order. Upon that consent being given, the magistrate confirmed the order pursuant to s 23(1)(a) of the Act. The applicant subsequently applied for permission to appeal against that order. Permission was required pursuant to s 42(1a)(c) of the Magistrates Court Act 1991 (SA) as the magistrate’s order was interlocutory, being an order capable of variation or revocation: Groom v Police (No 3) at [32]; De Jong v Police [2010] SASC 191, [40]-[41]. The applicant came before Kelly J seeking permission to appeal the confirmed order made on 10 December 2013 and a revocation of that order arguing, in essence, that before the magistrate, he was confused, under “enormous stress” and that he consented as a result of being “railroaded”. He also argued that his counsel was not briefed in respect of the intervention order and was only instructed to represent him in respect of the 31 charges. Permission to appeal was refused. The judge noted that the prosecutor’s affidavit as well as the transcript of the hearing of 10 December 2013 demonstrated that counsel was briefed to represent the applicant generally before the magistrate and that the consent he gave on that occasion was informed: [2014] SASC 41 at [15], [18], [22], [32]. Indeed, it appeared that the issue of confirmation was the subject of some little negotiation and the applicant’s counsel plainly had instructions going to it; the applicant was present throughout and raised no objection, and in fact confirmed to the magistrate that he would accept service of the confirmed order.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

We would grant the extension of time but refuse permission to appeal.Conclusion The orders we make are:1.the application for an extension of time within which to apply for permission is granted;2.the time within which to appeal is extended to 21 August 2014;3.the application for permission to appeal contained in FDN15 is refused.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.