Groom v Police - [2017] SASC 21

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 21
Magistrates 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The order under consideration was originally made in the form of a domestic violence restraining order on 19 October 2011.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…

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.

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Details

Case: [2017] SASC 21
Decision Date: 23 February 2017

CaseChat Overview and Summary

Groom v Police is a case concerning an appeal against the decision of a magistrate in South Australia. The applicant, Groom, seeks to appeal against the magistrate’s decision to deny his application to revoke an intervention order. Groom contends that the magistrate erred in law and procedure by not considering all the evidence presented to him and by making his own submissions from the bench. The Supreme Court of South Australia was tasked with determining whether the grounds of appeal set forth by Groom were sufficient to warrant an appeal to the higher court.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Further, upon the hearing before me counsel for the respondent tendered the affidavit of Paul Michael Nunke, who was the assistant police prosecutor who dealt with the matter before the Magistrate. The applicant objected to the tender, arguing that he disputed some of the matters set out therein. I asked Mr Groom to stipulate which passages he objected to. He did so and I received the affidavit subject to excising those sentences. Annexed hereto is a record of those sentences which were excised.Conclusion For these reasons I make the following orders:1.The interlocutory application FDN 4 is dismissed.2.Permission to appeal is refused.Record of grounds of appeal or parts thereof, set aside as not amounting to grounds of appeal, or being scandalous, vexatious or argumentative1; 2; 3; 4; 5; 6; part of paragraph 7, namely: “(Para 6) had occurred when evidence was withheld form (sic) the applicant also flies in the face of the rule of law”; 8; 9; part of paragraph 10, namely: “just made his own submissions from the bench and rejected the application as per the Reasons in his report 30 November”; 11; part of paragraph 12, namely the words following “November 2012”; part of paragraph 13, namely the words following “Supreme Court”; 14 a; 14 b; 14 e.Excisions from affidavit of Paul Michael Nunke sworn 6 February 2017Paragraph 8: I do not recall having any particular conversation at that time with the appellant. I do not recall indicating to the Magistrate that the prosecution were of the opinion that the order would be revoked at the next Pre-Trial Conference (“PTC”).Paragraph 10: I informed the Magistrate that the application to revoke the IO was opposed.Paragraph 11: The appellant was also provided with a copy of the affidavit.Paragraph 17: The Magistrate appeared to listen to everything the appellant wanted to say and gave a calm, measured response on each occasion. I did not observe any interaction or behaviour which I perceived to be unfair or biased

Ratio Decidendi

Legal Principle Established

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