Groom v Police - [2015] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GROOM v POLICE
[2015] SASC 101
Judgment of The Honourable Justice Nicholson
14 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - TIME FOR APPEAL AND EXTENSION
Appeal against conviction. The appellant was charged with the offence of breaching a term of an intervention order. On 17 January 2014, the protected person recorded a conversation with the appellant, without the appellant’s knowledge, during a child handover. The appellant was charged subsequent to the protected person providing the audio recording to the police. On the voir dire, the Magistrate determined that, in the circumstances, the audio recording was admissible notwithstanding section 4 of the Listening and Surveillance Devices Act 1972, as the recording of the conversation was in the public interest and for the protection of the lawful interests of the protected person.
On appeal, the appellant contends that the audio recording should not have been admitted into evidence and that, in any event, it did not support his conviction for the offence.
Held:
1. Permission to appeal out of time refused and the appeal dismissed.
2. The audio recording made on 17 January 2014, given the circumstances of this case, was properly admitted into evidence at trial.
3. The Magistrate was correct to find, beyond reasonable doubt, that the appellant contravened a term of the intervention order.
Domestic Violence Act 1994 (SA) s9; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s31; Listening and Surveillance Devices Act 1972 (SA) s3, s4, s5, s7, referred to.
Thomas & Anor v Nash [2010] SASC 153; R v Smith, Turner and Altintas [1994] SASC 4874, (1994) 63 SASR 123, discussed.
Groom v Police [2013] SASC 49; Groom v Police (No 2) [2013] SASC 50; Groom v Police (No 3) [2013] SASC 93; Groom v Police [2014] SASC 41; Martin v The Department of Transport, Energy & Infrastructure [2010] SASC 141; Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531, considered.

GROOM v POLICE
[2015] SASC 101
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal, filed out of time, against a conviction by a Magistrate. The appellant was charged, by complaint and summons dated 16 May 2014, with one count of contravening a term of an intervention order.[1] The alleged contravention was said to have resulted from a conversation between the appellant and his former partner (SB) on 17 January 2014 at Henley Beach during handover of access to their child (H).
[1] Contrary to section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009.
On 3 December 2014, the appellant entered a plea of not guilty to the charge in the Port Adelaide Magistrates Court. On 18 December 2014, following a two-day…

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: [2015] SASC 101
Decision Date: 14 July 2015

CaseChat Overview and Summary

Groom appeals against a decision of the Magistrates Court of South Australia, seeking to extend the time within which an appeal can be commenced and to appeal the decision itself. The appeal concerns the admission of an audio recording of a conversation between the appellant and SB into evidence, and the subsequent finding that the appellant contravened a term of the intervention order. The Supreme Court was required to determine whether the audio recording was properly admitted into evidence, and if so, whether it allowed for a finding, beyond reasonable doubt, that the appellant had contravened a term of the intervention order.

The court found that the Magistrate was correct to admit the audio recording into evidence. The court noted that the Listening and Surveillance Devices Act 1972 regulates the use of listening devices to record private conversations and that the term “private conversation” is defined as any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation. The court found that the appellant’s words fell outside the type of conversation otherwise permitted by the terms of the intervention order. The court further found that, having regard to all of the evidence before the Magistrate, his Honour was correct to find, beyond reasonable doubt, that the appellant contravened a term of the intervention order.

The appeal has no prospect of succeeding. As such, a refusal of permission to appeal out of time would not lead to a miscarriage of justice. The application to extend the time within which to appeal is refused and the appeal is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The notice of appeal was filed two months or so after the period within which such an appeal is to be commenced, as required by rule 281 of the Supreme Court Civil Rules 2006. An extension of time is therefore required. In this case, the question of whether or not permission to appeal out of time should be granted largely will be informed by the merits of the appellant’s argument on appeal; that is, whether the Magistrate’s admission into evidence of the audio recording effected a miscarriage of justice.Background It will be convenient to briefly summarise some of the factual and procedural background to this matter. Whilst not directly relevant, this background does provide some context to the issues to be determined. The appellant was in a relationship with SB for approximately seven years. They have one son together, H. Their relationship deteriorated throughout the latter stages of 2010 and early 2011. In October 2011, SB brought an application for a domestic violence restraining order against the appellant. A Magistrate, by ex parte order on 19 October 2011, issued an interim restraining order pursuant to section 9(2) of the Domestic Violence Act 1994 (SA). SB was specified in the order as the protected person. The interim domestic violence restraining order, which had become an interim intervention order by force of legislation,[2] was subsequently confirmed on 22 February 2012 with the appellant’s consent or, at least, without his opposition.[2] On 9 December 2011 the Domestic Violence Act 1994 (SA) was repealed and partially replaced by the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Significantly with respect to this matter, clause 37(1) of Schedule 1 of the Act provides that any domestic violence restraining orders that were in force under the former Act remained in force as if they were an intervention order issued under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). It was common ground that the domestic violence restraining order against the appellant was effectively converted to an interim intervention order pursuant to section 21 of the current Act. On 11 December 2011, the appellant was arrested for allegedly assaulting SB and for allegedly breaching the interim intervention order. He appeared before a Magistrate on 12 December 2011 and was granted bail in relation to those charges. On 23 August 2012, following a trial in the Magistrates Court during which he was legally represented, the appellant was found not guilty of breaching the intervention order but guilty of the assault charge. On 7 December 2012, the appellant, whilst unrepresented, pleaded guilty in the Magistrates Court to two counts of failing to comply with his bail agreement and a further count of contravening a term of the intervention order. Those charges stemmed from offending alleged to have taken place on 15 and 16 November 2012, again involving SB. The appellant subsequently filed appeals in this Court in relation to the confirmation of the interim intervention order on 22 February 2012, his assault conviction on 23 August 2012 and the three charges to which he pleaded guilty on 7 December 2012. All of those appeals were heard by Sulan J in March 2013. With respect to the confirmation of the interim intervention order, his Honour allowed the appeal on the basis that the appellant’s consent to the order had been vitiated given the circumstances in which it came about.[3] The matter was remitted to the Magistrates Court for rehearing. With respect to the conviction for assault, his Honour allowed the appeal for the reason that there was information which may have had an impact on the reliability of SB’s testimony and which had not come to the attention of the appellant’s counsel at trial.[4] Again, the matter was remitted for a rehearing. Finally, with respect to the three 7 December 2012 convictions, his Honour allowed the appeal on the basis that the appellant’s guilty pleas had been entered in circumstances giving rise to a miscarriage of justice.[5][3] Groom v Police (No 3) [2013] SASC 93 at [46].[4] Groom v Police [2013] SASC 49 at [9]-[12].[5] Groom v Police (No 2) [2013] SASC 50.

Evidence

Evidence Before The Court

The first issue to be considered is whether the audio recording of the conversation between the appellant and SB was properly admitted into evidence. If the recording was properly admitted, a second issue arising is whether it allowed for a finding, beyond reasonable doubt, that the appellant had contravened a term of the intervention order. Was the audio recording properly admitted into evidence? The Listening and Surveillance Devices Act 1972 (“the Act”) regulates the use of listening devices to record private conversations. The term “listening device” is broadly defined pursuant to section 3 of the Act, and, relevantly, includes the following:(a) an electronic or mechanical device capable of being used to listen to or record a private conversation or words spoken to or by any person in private conversation (whether or not the device is also capable of operating as a surveillance device); and (b) associated equipment (if any), ...Section 3 defines a “private conversation” as follows:private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any party to the conversation desires it to be confined to the parties to the conversation.Section 4 of the Act prohibits the use of a listening device to record private conversations without the consent of parties to that conversation. 4—Regulation of use of listening devices Except as provided by this Act, a person must not intentionally use any listening device to overhear, record, monitor or listen to any private conversation, whether or not the person is a party to the conversation, without the consent, express or implied, of the parties to that conversation. Maximum penalty: $10 000 or imprisonment for 2 years.Section 5 of the Act prohibits the communication or publication of a recording obtained in contravention of section 4.5—Prohibition on communication or publication(1)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device in contravention of section 4. Maximum penalty: $10 000 or imprisonment for 2 years.(2)This section does not prevent the communication or publication of information or material derived from the use of a listening device in contravention of section 4 –(a) to a person who was a party to the conversation to which the information or material relates; or (b) with the consent of each party to the conversation to which the information or material relates; or (c) for the purposes of a relevant investigation or a relevant proceeding relating to that contravention of section 4 or a contravention of this section involving the communication or publication of that information or material.Section 3 defines “publish” as follows:publish information or material includes display or deliver the information or material to another. Notwithstanding the terms of section 4, it is lawful, in certain circumstances, to use a listening device to record a private conversation. Those circumstances are set out in section 7.7—Lawful use of listening device by party to private conversation(1)Section 4 does not apply to or in relation to the use of a listening device by a person (including a person to whom a warrant is issued under this Act) if that listening device is used –(a) to overhear, record, monitor or listen to any private conversation to which that person is a party; and (b) in the course of duty of that person, in the public interest or for the protection of the lawful interests of that person.(2)...(3)A person must not knowingly communicate or publish information or material derived from the use (whether by that person or another person) of a listening device under this section except –(a) to a person who was a party to the conversation to which the information or material relates; or (b) with the consent of each party to the conversation to which the information or material relates; or(c) in the course of duty or in the public interest, including, in the case of information or material derived from the use of a listening device in the course of an investigation by an investigating agency, for the purposes of a relevant investigation or a relevant proceeding; or (d) being a party to the conversation to which the information or material relates, as reasonably required for the protection of the person's lawful interests; or (e) if the information or material has been taken or received in public as evidence in a relevant proceeding. Maximum penalty: $10 000 or imprisonment for 2 years.

Decision

Reasons for decision

NICHOLSON J

The Magistrate was correct to find that the appellant’s words fell outside the type of conversation otherwise permitted by the terms of the intervention order.Conclusion The audio recording of the conversation between the appellant and SB on the afternoon of 17 January 2014 was properly admitted into evidence at trial. Having regard to all of the evidence before the Magistrate, his Honour was correct to find, beyond reasonable doubt, that the appellant contravened a term of the intervention order. The appeal has no prospect of succeeding. As such, a refusal of permission to appeal out of time would not lead to a miscarriage of justice. I refuse the application to extend the time within which to appeal and dismiss the appeal. I will hear the parties with respect to any consequential matters.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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