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court was informed there was an agreement to consent to the confirmation of the order, subject to the 31 charges being withdrawn. The appellant subsequently consented to the confirmation of the intervention order and the 31 charges were withdrawn.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) 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).
On the afternoon of 22 February 2012 the Magistrate confirmed the interim intervention order pursuant to s 23(1)(a). The appellant had consented to this order.
The appellant appealed to this Court to withdraw his consent and have the confirmation of the interim order set aside. Sulan J held that the appellant’s consent to the confirmation of the intervention order was given in circumstances in which he considered he had no satisfactory alternative but to agree. His Honour set aside the order of the Magistrate dated 22 February 2012 and the application for an intervention order was remitted to the Magistrates Court.
On 10 December 2013 the appellant appeared before Magistrate Whittle at the Port Adelaide Magistrates Court in relation to two separate files. Mr Redmond appeared on his behalf. Nevertheless, one of the appellant’s complaints on appeal is that his lawyer was not briefed to represent the appellant in respect of the intervention order matter.
The first matter concerned 12 counts of breach of bail, 12 counts of contravening a condition of an intervention order, six counts of breaching a domestic violence restraining order, and one count of aggravated assault. The second file concerned the application for an intervention order. The 31 offences subject of the first file had been listed for trial on that date, while the intervention order matter was listed for mention only. The Court was informed that the matter had resolved by agreement to consent to the confirmation of the intervention order, subject to the 31 charges being withdrawn by police. The matter was briefly adjourned to enable the parties to re-write the terms of the intervention order. The intervention order dated 19 October 2011 was then confirmed by the Magistrate pursuant to s 23(1)(a) of the Act. The offences the subject of the first file were withdrawn by the prosecution.
Appeal grounds
Prior to the hearing of this appeal the appellant filed three notices of appeal. At the hearing he confirmed that he wished to proceed in respect of the third notice of appeal only which contains nine proposed grounds in respect of which the appellant seeks permission to appeal. Those grounds were identified by the appellant as follows:
1At the time of confirmation of the order the defendant was in attendance at court for other charges;
2The prosecution presented the confirming of the order as though it was part of a plea bargain relating to the other charges; no plea bargain occurred;
3The interim restraining order had expired;
4The lawyer representing the appellant was in attendance with regard to the other charges that day, not the restraining order matter;
5The lawyer that day was not briefed on the position with the restraining order appeal which was a separate matter and the appellant was self-represented with regard to the restraint matter;
6The restraining order matter was merely for mention that day;
7As a result of all the criminal charges being withdrawn there is no basis for the confirmation of the order as no risk assessment has been provided;
8The appellant was denied natural justice.
Ground 9 of the appeal notice was expressed by the appellant in the following way:
9The appellant requests that the court considers a case of special disadvantage on the following grounds:
a.     The prosecution at Port Adelaide were fully aware of the conduct of the protected person in the restraint order from 10 November 2011, of her drinking problems and abusive nature;
b.     Members of the Family Violence Unit at Port Adelaide were aware of the protected person violating the restraint order from early December 2011;
c.     Members of the Family Violence unit at Port Adelaide were aware of the protected person’s abuse of the appellant, her aiding and abetting breaches of the restraint order from January 2012;
d.     Members of the Prosecution at Port Adelaide were aware of the inconsistencies within the protected person’s affidavits (Butler, Jones) from September 2012;
e.     Members of the DPP in Adelaide were aware of the inconsistencies in the affidavits (Butler, Jones) and her aiding and abetting of breaches of the restraint order by the protected person from October 2012;
f.      Members of the DPP were fully aware of all the facts regarding the appellant’s case after the three appeals before his Honour Justice Sulan in December – March 2012/2013; and
g.     All members of SAPOL involved in the appellant’s cases did nothing to assist the appellant’s case under DPP guidelines, SAPOL guidelines, and Magistrates Court Rules.
Discussion
The first issue which arises is whether permission to appeal should be granted. The order made by the Magistrate being interlocutory in its nature, the appellant requires permission to appeal.[1] By s 42(1a)(c) of the Magistrates Court Act 1991 (SA) the Court is empowered to grant permission where there are special reasons why it would be in the interest of the administration of justice to have the appeal determined.[2]
[1] See Groom v Police (No 3) [2013] SASC 93 at [29]-[33] per Sulan J.
[2] As to the requirement for “special reasons”, see Van Reesema v Police [2009] SASC 8 at [23] per Bleby J.
During the hearing, the appellant explained what he meant by each of his grounds of appeal. As far as I could understand the appellant’s complaints, they are that there was no proper basis to confirm the intervention order as the prosecution had dropped all of the other 31 charges against him, therefore no plea bargain could actually have occurred. Further, the appellant was not told that he was under any obligation to have the intervention order matter dealt with on the same day as the other 31 charges. The appellant claimed that Mr Redmond was not briefed to appear on the intervention order matter and “was not briefed on the wishes of the appellant regarding the confirmation of the order”.
I shall deal with each of the appellant’s contentions in turn. As to the first issue, namely whether the lawyer representing the appellant was not briefed with regard to the intervention order matter but only briefed to appear in relation to the 31 charges set for trial that day, a perusal of the transcript of the hearing before the Magistrate on 10 December 2013 points to the contrary conclusion.
There were two matters before the Court on 10 December 2013: the intervention order and another file involving 31 charges, which are listed above. Most of those charges related to alleged offences in relation to the protected person under the interim intervention order, namely Ms Butler.
The affidavit filed by the prosecutor states that on the morning before trial he had a discussion with senior prosecutors and with the alleged victim Ms Butler, after which he approached Mr Redmond and asked him to consider a proposal put forward by Ms Butler for resolution of the matter. That resolution was that if the appellant would consent to confirmation of the intervention order the police would not proceed with the other 31 charges. Mr Redmond spoke with the appellant privately after which Mr Redmond conveyed to the prosecutor that the appellant agreed to the proposal.
The transcript of what transpired in court after that brief adjournment does not support the appellant’s contention either that his lawyer was not briefed to represent him generally on that day or the appellant’s contention that he was not made aware of the fact that he was under no obligation to have the matter of the restraining order dealt with on that day.
When the court reconvened Mr Redmond again appeared for the appellant. In court was Ms Butler, Ms Butler’s current partner who was to have been a prosecution witness, the investigating officer Constable Lum, the prosecutor and the appellant. The prosecutor informed the Court that the matter had resolved in terms of an agreement to confirm the interim intervention order and the police would then withdraw the 31 substantive charges.
The transcript shows that the Magistrate then adjourned the matter briefly to enable the parties to re-write the terms of the intervention order rather than amend the existing order and then come back to court. The people involved in drafting the final order were Mr Redmond, Ms Butler, Constable Lum, the appellant and the prosecutor. When the Court was reconvened the Magistrate confirmed the order.
Significantly it is obvious the appellant was present during the whole proceedings, made no objection to the way in which the matter proceeded and confirmed personally after his Honour enquired whether he would accept service of the confirmed order by saying “of course your Honour”.
The plain inference from the court record and the transcript of the hearing is that Mr Redmond was briefed to appear on behalf of the appellant and to consent to the order in the terms which it was finally made. Significantly, the order had endorsed upon it the words “this order is confirmed by the consent of the defendant without admission of the facts”.
The situation confronting the appellant on 10 December 2013 was very different to the circumstances which Sulan J dealt with in Groom v Police (No 3)[3] arising out of the appellant’s consent to the order made on 22 February 2012. As I have noted earlier, Sulan J held that the appellant’s consent to the confirmation of the intervention order on 22 February 2012 was given in circumstances in which the appellant considered he had no satisfactory alternative but to agree. That is the basis on which Sulan J set aside the earlier order.
[3] [2013] SASC 93.
On 22 February 2012 the appellant was in custody and believed he could not properly defend the proceedings. He did not have relevant documentation in court that day, and was not aware that he could apply for a further adjournment. In those circumstances the appeal turned on the issue of whether the appellant’s consent to confirmation of the interim intervention order was freely given. The situation confronting the appellant on 10 December 2013 could hardly have been more different. He was not in custody. He was present throughout the negotiations on the morning of 10 December 2013. He was present in court when the order was confirmed and personally agreed to accept service. For these reasons I cannot accept the appellant’s contentions with respect to grounds 1, 2, 4, 5, 6, 7 identified in the application for permission to appeal. The appellant was well aware of his rights that morning. I am fortified in reaching this conclusion particularly in light of the appellant’s previous experience in court with regard to this matter.[4] Each of the appellant’s complaints about the circumstances in which he consented again to the confirmation of the interim intervention order on 10 December 2013 are without foundation.
[4] Groom v Police [2013] SASC 49; Groom v Police (No 2) [2013] SASC 50; Groom v Police (No 3) [2013] SASC 93.
The appellant’s next contention that the interim restraining order had expired by 10 December 2013 can be dealt with briefly. On 10 December 2013 the appellant was the subject of an interim intervention order which had originally been made on 19 October 2011 set to expire two years later on 19 October 2013. However, the Domestic Violence Act was repealed on 9 December 2012 by virtue of which the order continued in force as if it were an interim intervention order under the Act.[5] That Act specifically provides that an intervention order is ongoing and continues in force until and unless revoked.[6]
[5] Intervention Orders (Prevention of Abuse) Act 2009 (SA) Sch 1, cl 37.
[6] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 11. See also Groom v Police (No 3) [2013] SASC 93 per Sulan J.
I turn now to address the fourth ground contained in the grounds of appeal (as opposed to grounds for seeking permission to appeal) section of the appellant’s notice. I deal with that ground at the permission stage because the appellant was apparently unaided by counsel in preparing his notice and because it is the only ground additional to those contained in grounds for seeking permission to appeal. That ground is that in June 2013, the appellant made an application to the Magistrates Court to have the interim restraining order revoked and this was refused by the Magistrate on the grounds that an appeal was before the Court regarding the confirmation of the order.
This complaint does not appear to raise any intelligible ground of appeal. Insofar as I could understand it, it relates to a previous application made by the appellant in June 2013 to have the intervention order revoked and to obtain a remission for fees. During the hearing on 10 December 2013, the Magistrate having regard to the appellant’s consent on that date to confirmation of the order, merely recorded that the appellant’s pre-existing application to revoke the order, together with his application for remission of the filing fees, was withdrawn. Insofar as the appellant persists with that complaint, it is irrelevant, in light of the appellant’s plain consent to the confirmation order made on 10 December 2013.
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.
For these reasons permission to appeal is refused and the appeal must be dismissed.