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 On 9 December 2011, the 1994 Act was repealed by the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”) and any restraining orders then in force were effectively converted into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 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.
An appeal lies to the Full Court against the judgment of a single judge: s 50(1)(a) of the Supreme Court Act 1935. A decision to refuse permission to appeal falls within the ambit of “judgment” as defined by s 50(6) of the Supreme Court Act. However, the applicant requires permission to appeal to the Full Court because the decision was that of a single judge on appeal from a judgment of the Magistrates Court: s 50(4)(a)(ii) of the Supreme Court Act.
Proposed grounds of appeal
The applicant’s principal ground of appeal is that he was denied natural justice because he was not provided with a copy of the transcript from the Magistrates Court hearing of 10 December 2013. In his affidavit accompanying his draft notice of appeal, the applicant claims that at some stage prior to the hearing before Kelly J he requested a copy of the transcript from the Magistrates Court registry. He was told that the hearing had not been transcribed. He said that on two occasions after Kelly J’s judgment had been handed down he again sought copies of the transcript, but was told the same thing. He said that upon addressing the request to the Supreme Court registry he was directed back to the Magistrates Court. The appellant in his affidavit referred to, but did not exhibit, any correspondence.
In a separate ground of appeal the applicant questions the “officiality” of the transcript on which Kelly J relied. He appears to suggest that a member of the police prosecution service had, either unlawfully or, at least, mischievously, placed the transcript on the file which came before Kelly J: ground 1(1) of Notice of Appeal and [16] and [17] of Summary of Argument.
The appellant further argues that his application before Kelly J should have succeeded for the very same reasons that Sulan J allowed the earlier appeal. He puts that he was “placed in a position of weakness due to not being advised correctly of his options and having no evidence to support his application to have the order heard in the court, had agreed to the confirmation”.
In her reasons for judgment, Kelly J dealt with the marked difference between the two occasions when the appellant consented to confirmation of the order. Her Honour observed that:
²⁴On [the first occasion] the appellant was in custody and believed he could not properly defend the proceedings. He did not have relevant documentation in court that day, and was not aware that he could apply for a further adjournment. In those circumstances the appeal turned on the issue of whether the appellant’s consent to confirmation of the interim intervention order was freely given. The situation confronting the appellant on 10 December 2013 could hardly have been more different. He was not in custody. He was present throughout the negotiations on the morning of 10 December 2013. He was present in court when the order was confirmed and personally agreed to accept service.
Other complaints encompassed in his draft notice of appeal and summary of argument are in essence restatements of points previously agitated before Kelly J; for example, complaints about the conduct of members of the police prosecution service throughout the intervention order proceedings.
Discussion
The applicant’s complaints concerning the transcript were not raised before Kelly J. This was despite his claim to have sought the transcript prior to that hearing and despite the judge specifically referring, early in the hearing, to the transcript of 10 December 2013. From that point the applicant was on notice of the use being made of the transcript and had opportunity to raise any concerns about its unavailability to him.
The applicant has not identified precisely how the lack of the transcript has prejudiced him. He was present with his legal representative during the hearing of 10 December 2013 and must have been in a good position to understand what occurred. Indeed, in his presentation before Kelly J he appeared to have no trouble recalling the course of the earlier proceedings.
The differences between the arguments before Kelly J as opposed to those which persuaded Sulan J to set aside the earlier order are stark. It is unnecessary to add to the observations on this point made by Kelly J.
The balance of the applicant’s complaints are rehearsals of arguments made before Kelly J.
Recitation of the background against which this application is brought tends to indicate that it is without merit. The applicant has now been present in the Magistrates Court on two separate occasions when the intervention order has been confirmed with his apparent consent. As Kelly J remarked in her judgment of 21 March 2014, the applicant’s ongoing and deeply felt grievance against his former partner, rather than any want of procedural fairness in the court below, appears to be the cause of successive applications to this Court. In this application the applicant has focussed upon the fact that he did not have at his disposal a copy of the transcript of the last hearing when the order was confirmed. If he was in fact misled by Registry officials about the availability of the transcript, then that is unfortunate. However, he did not make that complaint before Kelly J notwithstanding that her Honour referred at the outset of the appeal to that very transcript and indicated, though perhaps not expressly, that she was in possession of it.
All the applicant’s grievances were heard and considered by the judge. We apprehend no error in the way they were dealt with. The present application raises no novel point, nor any question of law, nor any question of principle.
In our opinion the application is without merit and should be refused.
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.