Groom v Police - [2014] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GROOM v POLICE
[2014] SASC 41
Judgment of The Honourable Justice Kelly
21 March 2014
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS
This is an appeal against an order of a Magistrate pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) confirming an interim intervention order. On 10 December 2013 the appellant appeared at the Port Adelaide Magistrates Court in relation to two separate matters. The first was an application to confirm an interim intervention order, while the second involved 31 charges. The court was informed there was an agreement to consent to the confirmation of the order, subject to the 31 charges being withdrawn. The appellant subsequently consented to the confirmation of the intervention order and the 31 charges were withdrawn.
Whether there are special reasons why it would be in there interests of the administration of justice to have the appeal determined – whether the appellant gave informed consent to the confirmation of the interim intervention order.
Held (dismissing the appeal):
1. Permission to appeal refused.
2. The appellant provided informed consent to the confirmation of the interim intervention order.
Domestic Violence Act 1994 (SA) s 9(2); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 11, s 23, Sch 1 cl 37; Magistrates Court Act 1991 (SA) s 42(1a)(c), referred to.
Groom v Police (No 3) [2013] SASC 93; Van Reesema v Police [2009] SASC 8, applied.
Groom v Police [2013] SASC 49; Groom v Police (No 2) [2013] SASC 50, discussed.

GROOM v POLICE
[2014] SASC 41
Magistrates Appeal: Criminal
KELLY J.
Introduction

This is an appeal against the order of a Magistrate on 10 December 2013 confirming an interim intervention order made on 19 October 2011. The intervention order prohibits the appellant from being on the premises where the appellant’s former partner Ms Butler resides or works, and prohibits the appellant from contacting her unless that contact is regarding their child. The order was requested by way of complaint made by the appellant’s former de facto partner, Ms Butler, in October 2011.
The self-represented appellant seeks an order that the order made on 10 December 2013 be revoked and discharged.
Background
Before conducting a close consideration of the grounds of appeal, it is necessary to outline the procedural history of this matter.
In mid-October 2011 Ms Butler swore an affidavit in support of an application for a domestic violence restraining order naming the appellant as respondent. On 19 October 2011, a Magistrate made an ex parte domestic violence restraining order pursuant to s 9(2) of the Domestic Violence Act 1994 (SA) (Domestic Violence Act). That order was set to expire two years later, on 19 October 2013. On 9 December 2011 the Domestic Violence Act was repealed and partially replaced by the Intervention Orders (Prevention of Abuse)…

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: [2014] SASC 41
Decision Date: 21 March 2014

CaseChat Overview and Summary

The appellant Groom brought an appeal against the decision of a Magistrates Court in South Australia which confirmed an intervention order made against him. The order was made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and was based on an earlier domestic violence restraining order made under the Domestic Violence Act 1994 (SA) which had been repealed. The appellant contended that the order should be revoked and discharged on the basis of what he described as "special disadvantage." The appeal was heard in the Supreme Court of South Australia.

The legal issues in the appeal were whether the appellant had given informed consent to his lawyer to accept the offer of the police to withdraw the charges in consideration of confirming the intervention order, and whether the Magistrate had erred in confirming the intervention order without receiving any further evidence or submissions as to the grounds on which the interim order was made. The court needed to determine whether the appellant's consent was informed and whether the Magistrate had followed the correct legal process in confirming the intervention order.

The court found that the appellant had given informed consent to his lawyer to act on his behalf to negotiate a resolution of all matters before the Court on 10 December 2013. The court was satisfied that the appellant was well aware of what occurred in court on 10 December 2013, was present throughout the discussions and gave informed consent to his lawyer to accept the offer of the police to withdraw the 31 charges listed for trial that date in consideration of the appellant agreeing to confirmation of the intervention order. The court also found that the Magistrate was entitled to confirm the intervention order on 10 December 2013 without receiving any further evidence or submissions as to the grounds on which the interim order was made, as the Act permits that course to be taken where the subject of the intervention order gives informed consent.

The appeal was dismissed and the order made on 10 December 2013 was upheld. The court noted that the appellant's ongoing sense of grievance and not any denial of his procedural rights on 10 December 2013 was the real basis of the appeal. The court found that the appellant did not identify any error in the process undertaken by the Magistrate on 10 December 2013 and that the decision of the Magistrate was properly made.

Orders

Orders of the court

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Background

Background to the litigation

The self-represented appellant seeks an order that the order made on 10 December 2013 be revoked and discharged.Background Before conducting a close consideration of the grounds of appeal, it is necessary to outline the procedural history of this matter. In mid-October 2011 Ms Butler swore an affidavit in support of an application for a domestic violence restraining order naming the appellant as respondent. On 19 October 2011, a Magistrate made an ex parte domestic violence restraining order pursuant to s 9(2) of the Domestic Violence Act 1994 (SA) (Domestic Violence Act). That order was set to expire two years later, on 19 October 2013. On 9 December 2011 the Domestic Violence Act was repealed and partially replaced by the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act). Clause 37(1) of Schedule 1 of the Act provides that a domestic violence restraining order in force under the Domestic Violence Act remains in force as if it were an intervention order issued under the Act. Thus, the ex parte domestic violence restraining order dated 19 October 2011 is, in effect, an interim intervention order under s 21 of the Act.Section 3(1) of the Act defines “intervention order” to include interim intervention orders and section 11 of the Act provides:11—Ongoing effect of intervention order(1) An intervention order is ongoing and continues in force (subject to any variation or substitution of the order under this Act) until it is revoked.(2) Consequently, an issuing authority may not fix a date for the expiry of an intervention order or otherwise limit the duration of an intervention order.Therefore, pursuant to the Act, the restraining order is effectively an intervention order which is ongoing and continues in force until revoked. On 16 January 2012 Ms Butler swore a second affidavit in support of an application for an intervention order. On or about 15 February the appellant was taken into custody on separate matters. Around 20 February 2012, the appellant asked a friend to bring his documentation for the intervention order matter to the gaol. That friend was told by the Department of Correctional Services that he could not bring the documentation to the appellant. On the morning of 22 February 2012, the appellant appeared before a Magistrate in relation to an assault charge. The appellant’s intervention order matter was also listed for trial that morning. Sections 23(1)-(5) of the Act provide:23—Determination of application for intervention order(1) On the hearing of an application for an intervention order, the Court may—(a)confirm the interim intervention order issued against the defendant as an intervention order; or(b)issue an intervention order in substitution for an interim intervention order issued against the defendant; or(c)dismiss the application and revoke the interim intervention order issued against the defendant.(2) An intervention order may be confirmed or issued in the absence of the defendant if the defendant failed to appear at the hearing of the application as required by the interim intervention order issued against the defendant or by conditions of bail.(3) If a defendant disputes some or all of the grounds on which an intervention order is sought but consents to the order, the Court may confirm or issue the order without receiving any further submissions or evidence as to the grounds.(4) If an interim intervention order is confirmed, the order continues in force against the defendant as an intervention order without any further requirement for service.(5) An intervention order that is issued in substitution for an interim intervention order comes into force against the defendant when served on the defendant personally or in some other manner authorised by the Court (and until the order is so served the interim intervention order continues in force against the defendant).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

All of the matters raised in respect of proposed ground 9 of the appellant’s application for permission to appeal on the basis of what he described as “special disadvantage” are attempts to re-litigate the grounds on which the intervention order was made. Those matters are now irrelevant by virtue of the appellant’s informed consent to confirmation of the intervention order on 10 December 2013. They may well be relevant at some future stage in relation to any application which might be made to revoke or discharge that order. They are not relevant to the disposition of this appeal. The Magistrate was entitled to confirm the intervention order on 10 December 2013 without receiving any further evidence or submissions as to the grounds on which the interim order was made. The Act permits that course to be taken where the subject of the intervention order gives informed consent to its confirmation.Conclusion During the hearing of the appeal the appellant stated that he consented to the order on 10 December because he was enormously stressed on that day and had not been sleeping properly. He conceded Mr Redmond acted for him “because he was there”. He said he accepted what was being put forward on 10 December 2013, however after having time to consider it, about three weeks later he formed the view that he had been railroaded and that is why he filed the notice of appeal. It became apparent during the appellant’s submissions on appeal that the appellant maintains an ongoing deeply felt grievance against his former partner and what he perceives to be the injustice of the various legal proceedings against him which all appear to have arisen out of the breakdown of his relationship with his former partner. It is this ongoing sense of grievance and not any denial of any of the appellant’s procedural rights on 10 December 2013, which I find to be the real basis of the appellant’s appeal to this Court. In the end the only issue which arises on this appeal is whether the appellant gave informed consent to his lawyer to act on his behalf to negotiate a resolution of all matters before the Court on 10 December 2013. I do not accept the appellant’s contention that his lawyer was not briefed on the wishes of the appellant with regard to the restraining order. The transcript of the hearing on 10 December 2013 alone satisfies me that the appellant was well aware of what occurred in court on 10 December 2013, was present throughout the discussions and gave informed consent to his lawyer to accept the offer of the police to withdraw the 31 charges listed for trial that date in consideration of the appellant agreeing to confirmation of the intervention order. In light of my finding that the appellant did give his informed consent it is no longer necessary to explore any of the evidence before the Court as to the grounds on which the original intervention order was sought. The appellant did not identify any error in the process undertaken by the Magistrate on 10 December 2013. The decision of the Magistrate was properly made.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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