Groom v Police (No 3)

Link copied
Case Copied 22 min read

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

GROOM v POLICE (No 3)

[2013] SASC 93

Judgment of The Honourable Justice Sulan

25 June 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - OTHER IRREGULARITIES

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - OTHER MATTERS

Appeal against an order of a Magistrate - pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), confirming an intervention order - the appellant had consented to the order pursuant to s 23(3) - whether an appeal from a confirmation order is brought under s 40 or s 42 of the Magistrates Court Act 1991 (SA) - whether a confirmation order is interlocutory in nature - whether the appellant should be permitted to withdraw his consent.

Held: An appeal from a confirmation order is to be brought under s 42 of the Magistrates Court Act 1991 (SA) - a confirmation order is interlocutory in nature - an application to withdraw consent given under s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is similar to an application to withdraw a civil admission - the appellant's consent was given in circumstances where he considered he had no satisfactory alternative - the respondent will suffer no injustice should the appellant be permitted to withdraw his consent - the appellant is permitted to withdraw his consent - appeal allowed - the matter is remitted to the Magistrates Court.

Magistrates Court Act 1991 (SA) s 3, s 10, s 42; Supreme Court Civil Rules 2006 (SA) r 295(1)(a); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 3, s 11, s 15, s 21, s 22, s 23, s 23(3), sch 1, s 37; Summary Procedure Act 1921 (SA) s 99AA; Domestic Violence Act 1994 (SA) s 9; Magistrates Court Rules 1992 (SA) r 4.07, referred to.
Grey v City of Marion [2006] SASC 3; De Jong v Police [2010] SASC 191; Hall v Nominal Defendant (1966) 117 CLR 423; Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Sanofi v Parke David Pty Ltd (No 1) (1982) 149 CLR 147; Commonwealth Bank of Australia & Ors v Heinrich (No 2) [2004] SASC 436; Van Reesema v Police [2009] SASC 8; R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; Lutton v Lessels (2002) 210 CLR 333; Harris v Caldine (1990-1991) 172 CLR 84; Sali v SPC Ltd & Anor (1993) 116 ALR 625; Maxwell v Keun [1928] 1 KB 645; Walker v Walker [1967] 1 WLR 327; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566; Bloch v Bloch (1981) 37 ALR 55; Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273; Tresize v National Australia Bank…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Groom v Police (No 3) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2013] SASC 93
Decision Date

CaseChat Overview and Summary

The case of Groom v Police (No 3) involved the appellant, Groom, appealing against an order of a magistrate which confirmed an intervention order made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant had initially consented to the order under section 23(3) of the Act. The appeal was lodged beyond the prescribed time limit, and Groom sought an extension of time to appeal under rule 295(1)(a) of the Supreme Court Civil Rules 2006 (SA). The legal issues before the court were whether an appeal from a confirmation order is governed by section 40 or section 42 of the Magistrates Court Act 1991 (SA), whether a confirmation order is of an interlocutory nature, and whether Groom should be allowed to withdraw his consent to the order.

The court held that an appeal from a confirmation order must be brought under section 42 of the Magistrates Court Act 1991 (SA), as a confirmation order is interlocutory in nature. The court compared an application to withdraw consent given under section 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) to an application to withdraw a civil admission. The court found that Groom's consent was given in circumstances where he considered he had no satisfactory alternative. Additionally, the respondent would not suffer any injustice if Groom was permitted to withdraw his consent. Consequently, the court allowed the appeal and remitted the matter to the Magistrates Court.

Orders

Orders of the court

Held: An appeal from a confirmation order is to be brought under s 42 of the Magistrates Court Act 1991 (SA) - a confirmation order is interlocutory in nature - an application to withdraw consent given under s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is similar to an application to withdraw a civil admission - the appellant's consent was given in circumstances where he considered he had no satisfactory alternative - the respondent will suffer no injustice should the appellant be permitted to withdraw his consent - the appellant is permitted to withdraw his consent - appeal allowed - the matter is remitted to the Magistrates Court.

Background

Background to the litigation

The appeal was commenced some 6 months out of time. The appellant seeks an extension of time in which to appeal, pursuant to r 295(1)(a) of the Supreme Court Civil Rules 2006 (SA).[1] To determine the appellant’s application for an extension it is necessary to consider the issues sought to be raised in the appeal. [1] As to the exercise of the discretion to extend time in which to appeal, see Grey v City of Marion [2006] SASC 3. Background The appellant and a solicitor who has represented him gave evidence on appeal. The appellant was in a relationship with Ms Butler for approximately 7 years. They have a son. Toward the end of 2010 and during 2011 the relationship deteriorated. In early 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. The terms of that order prevented the appellant from being on the premises at which Ms Butler resides or works, and prevented him from contacting Ms Butler. On 20 October 2011, the ex parte restraining order and supporting affidavit of Ms Butler were served upon the appellant. On 26 October 2011 the appellant appeared unrepresented before a magistrate. The matter was adjourned for a pre-trial conference on 16 December 2011. In November 2011 the appellant prepared a written response to Ms Butler’s affidavit in support of the intervention order. The appellant opposed the order continuing in force. The written response was made for the purpose of providing instructions or alternatively as an aide memoire for the appellant when the matter was to be heard. It was not filed in court. On 11 December 2011 the appellant was arrested for allegedly assaulting Ms Butler and breaching a term of what was then known as an interim intervention order. On 12 December 2011 the appellant appeared before a magistrate and was granted bail in relation to the assault charge and alleged breach of the interim intervention order. On 16 December 2011 the appellant appeared unrepresented before a magistrate for a pre-trial conference in relation to the intervention order. The matter was listed for trial on 22 February 2012. On 21 and 23 December 2011, and again on 19 January 2012, the appellant appeared in the Magistrates Court in relation to his bail conditions. Some time in January 2011 the appellant sent his written response to Ms Butler’s affidavit to a lawyer who was representing the appellant on other matters. On 16 January 2012, Ms Butler swore a second affidavit in support of the application for an intervention order. On 2 February 2012 the appellant attended at a pre-trial conference before a magistrate in relation to the assault charge and alleged breach of the interim intervention order. On or about 15 February 2012 the appellant was taken into custody on separate matters. On or about 20 February 2012 the appellant requested a friend bring his documentation for the intervention order matter to the gaol. The appellant’s friend made enquiries and was told by an officer of the Department of Correctional Services that he would not be permitted to bring the documentation to the appellant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Since the order in question is interlocutory, permission to appeal is required. By s 42(1a)(c) of the Magistrates Court Act 1991 (SA), permission will be granted where there are special reasons why it would be in the interests of the administration of justice to have the appeal determined.[8] [8] As to the requirement for “special reasons”, see Van Reesema v Police [2009] SASC 8, [23] (Bleby J).The decisions and legislation The ex parte domestic violence restraining order of 19 October 2011 was made pursuant to s 9(2) of the Domestic Violence Act 1994 (SA). The section provides that the defendant must be summonsed to appear before a court to show cause why the order should not be confirmed. By s 9(6), an ex parte order under s 9(2) continues in force until the conclusion of the hearing to which the defendant is summoned or, if the hearing is adjourned, until the conclusion of the adjourned hearing. On 8 December 2011 the Domestic Violence Act 1994 (SA) was repealed and partially replaced by the Intervention Orders (Prevention of Abuse Act 2009 (SA). By s 37(1) of Schedule 1 of the latter Act, a domestic violence restraining order in force under the Domestic Violence Act 1994 (SA) continues in force as if it were an intervention order issued under the Intervention Orders (Prevention of Abuse Act 2009 (SA). Thus the ex parte domestic violence restraining order is treated as if it were an interim intervention order under s 21 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Section 11 of the Intervention Orders (Prevention of Abuse Act 2009 (SA) provides that an intervention order continues in force until it is revoked: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. Section 3(1) of the Act defines “intervention order” to include interim intervention orders. It follows that on the morning of 22 February 2012 the appellant was subject to an interim intervention order which remains in force until it is revoked. Sections 23(1) – (5) of the Intervention Orders (Prevention of Abuse Act 2009 (SA) 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 orderissued 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).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.