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The order under consideration was originally made in the form of a domestic violence restraining order on 19 October 2011.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 that all the charges would be discontinued on the basis that the applicant would agree to the confirmation of the intervention order. That is what took place. Subsequently a single Judge of this Court refused the applicant permission to appeal against that confirmation and the Full Court of this Court refused permission to appeal from that decision.
I note that in December 2014 a Magistrate found the applicant guilty of contravening a term of the intervention order and an application for permission to appeal to this Court against that order was dismissed.
Having regard to the chronology of events there is now no utility either in Mr Groom making, or in this Court entertaining, allegations that the original order was irregularly obtained.
I turn then to the question of bias.
The applicant asserts that the Magistrate who heard and refused the application currently under consideration also dealt with him in relation to a separate matter. Apparently in those other proceedings the Magistrate was prepared to disqualify himself and did so. The present application was filed on 16 June 2016. Initially it came before Mr Fisher SM who adjourned it to enable the appellant to file an affidavit outlining the circumstances in support of his application. That was done. After various further mentions the matter came before the Magistrate under appeal on 19 October 2016. The Magistrate requested that the prosecution submissions be supported by affidavit. That was done.
The matter came back before the Magistrate on 30 November 2016. The applicant asserts that this was a further pre-trial conference. However, neither the prosecutor’s affidavit nor the court record supports that assertion. According to the prosecutor’s affidavit the appellant made submissions on that day in support of his application. These were described by the prosecutor as “basically a reiteration of the content of his affidavit”. The applicant accepts that no request was made to the Magistrate for him to disqualify himself. The Magistrate did not think it necessary to hear from the prosecutor. He gave short reasons for dismissing the application.
It is convenient to set out the subsection within the Intervention Orders (Prevention of Abuse) Act 2009 (SA) containing the powers of the court upon an application for variation or revocation of an intervention order:
Division 4 – Variation or revocation of orders
26 – Intervention orders
...
(4)On an application for variation or revocation of a final intervention order by the defendant, the Court may, without receiving submissions or evidence from the protected person, dismiss the application—
(a) if satisfied that the application is frivolous or vexatious; or
(b) if not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied.
...
The Magistrate referred to s 26(4)(b). He noted that there needed to be a “substantial change” in relevant circumstances before an intervention order could be revoked. He said:
In my view all the matters that [the applicant] raises refer to matters that occurred prior to the confirmation and up to the date of the confirmation of the order. Some such information he may have received subsequent to the confirmation of the order, but in my view these are not matters that I need to consider and so I dismiss his application for consideration of the revocation of the order.
Discussion
An order made in response to an application to revoke a confirmed intervention order is interlocutory in nature; it does not constitute a final determination of the party’s rights: O, GL v Police [2016] SASC 73 at [1]-[2] (Bampton J). Accordingly, permission to appeal to this Court is required: Magistrates Court Act 1991 (SA) s 42(1a)(c).
For two reasons I find that permission to appeal should not be granted. First, there is no material to support the allegation of actual bias. I note that no application for the Magistrate to disqualify himself was made at the time of the hearing. Nor is there anything in the papers to substantiate the allegation. The second matter is that on the material before the Magistrate there was no avenue open to him other than to dismiss the application. There was simply no evidence before him of a substantial change in circumstances since the order was last varied. Indeed, as noted, as recently as December 2014 the applicant had been found guilty of a breach of the intervention order. Therefore the only evidence bearing on the issue was against revocation. The affidavit of Sergeant Fulcher, which was before the Magistrate, asserted that the protected person had stated, upon enquiry, that there was no change in circumstances such to warrant the revocation of the order.
For these reasons the application for permission must be refused.
I mention two further matters of a procedural nature.
Prior to the hearing of this application and on 3 February 2017 Mr Groom filed an interlocutory application (FDN 4) in essence asking that the respondent supply materials bearing on the procedures which led to the original order in October 2011. For the reasons already set out that application must be dismissed.
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 argumentative
1; 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 2017
Paragraph 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