SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GROOM v POLICE
[2017] SASC 21
Judgment of The Honourable Justice Vanstone
23 February 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL
Appeal against a Magistrate’s refusal to revoke an intervention order. Where the Magistrate who heard and refused the application had dealt with the applicant in relation to a separate matter. Where the applicant alleges actual bias on the part of the Magistrate. Where the applicant’s primary complaint is that the intervention order should never have been made.
Held per Vanstone J: Permission to appeal is refused. There is no material to support the allegation of actual bias. On the material before the Magistrate there was no avenue open to him other than to dismiss the application.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26; Magistrates Court Act 1991 (SA) s 42, referred to.
O, GL v Police [2016] SASC 73 , considered.
GROOM v POLICE
[2017] SASC 21Magistrates Appeal: Criminal
VANSTONE J: Stephen Groom appeals against the decision of a Magistrate refusing to revoke an intervention order.
Background
The order under consideration was originally made in the form of a domestic violence restraining order on 19 October 2011. Since that time it has been at the centre of a number of charges of breach, orders and applications for permission to appeal.
The grounds, as set out in the notice of appeal, are 14 in number. Many of them merely state matters of history and do not amount to grounds of appeal. Others complain that the Magistrate failed to order an investigation into matters contained within the applicant’s affidavit in support of his application. Grounds 8 and 9 suggest that the attitude of the assistant police prosecutor who appeared before the Magistrate was sympathetic, and that he was not given opportunity to express that attitude. Even if those matters were true they would not constitute a ground of appeal. Further grounds assert that the Magistrate was biased against the applicant. I shall deal with those grounds. Some of the grounds contain material which is scandalous and vexatious and I disregard those allegations. Annexed hereto is a note of those parts of the grounds which I set aside.
A consideration of the material before the Magistrate establishes that, leaving aside the allegation of bias, the applicant’s real complaint is that the intervention order should never have been made. He alleges that there were irregularities in the way it came to court. The difficulty with that contention is that on 10 December 2013 the applicant appeared before a Magistrate on an application by the protected person to confirm the intervention order and also in relation to 31 charges, including 12 counts of contravening a condition of the intervention order and six counts of breaching a domestic violence restraining order and one count of aggravated assault. On that day the court was told…
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- Case
- [2017] SASC 21
- Decision Date
CaseChat Overview and Summary
The court needed to decide whether Groom’s grounds of appeal were valid and whether they amounted to sufficient grounds to warrant an appeal. The court had to consider the specific objections Groom had to the affidavit presented by the assistant police prosecutor, Paul Michael Nunke, and whether these objections were valid. Additionally, the court had to determine whether Groom's contentions regarding the magistrate’s conduct and decision-making process were substantiated.
The Supreme Court found that Groom's grounds of appeal were insufficient. The court noted that Groom's objections to the affidavit were limited to specific sentences, and the court received the affidavit with those sentences excised. The court also determined that Groom’s claims regarding the magistrate’s conduct and decision-making process were not substantiated by the evidence presented. The court concluded that Groom had not demonstrated that the magistrate's decision was so flawed as to warrant an appeal to the Supreme Court.
The court dismissed Groom’s interlocutory application and refused permission to appeal. The court also set aside certain grounds of appeal as not amounting to grounds of appeal or being scandalous, vexatious, or argumentative. The final orders of the court were to dismiss the interlocutory application and to refuse permission to appeal, with certain parts of the grounds of appeal being set aside as invalid.
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