Groom v Police (No 3) - [2013] SASC 93

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 Ltd (1994) 50 FCR 134; Green v Rozen [1955] 1 WLR 741; Jeans v Commonwealth Bank of Asutralia Pty Ltd (2003) ALR 327; Drabsch v Switzerland General Insurance Co Ltd (NSWSC unreported, 16 October 1996, 7-8); Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd [2000] FCA 1732; Celestino v Celestino [1990] FCA 299; Ameri v Police [2006] SASC 40, considered.

GROOM v POLICE (No 3)
[2013] SASC 93
Magistrates Appeal: Criminal

SULAN J: This is an appeal against an order of a magistrate of 22 February 2012, confirming an intervention order. The intervention order prohibits the appellant from being on the premises where his former partner, Ms Butler, resides or works, and prohibits the appellant from contacting Ms Butler unless that contact is regarding their child.
Application for extension of time
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.
On the morning of 22 February 2012, the appellant appeared before a magistrate in relation to the assault charge. The appellant’s intervention order matter was also listed for trial that morning. The appellant was in custody, and gave evidence on appeal of the distress which this was causing him on that day. The appellant’s lawyer, who was instructed to act for the appellant in relation to the assault matter and had been provided with the appellant’s written response to Ms Butler’s affidavit supporting the intervention order, was present in court. The lawyer did not have instructions to act for the appellant in the intervention order matter. The assault matter was called on, and the appellant’s lawyer made submissions.
The intervention order matter was then called on, and the appellant applied for an adjournment. The Magistrate dealt directly with the appellant, who was unrepresented in that matter. The Magistrate indicated she would adjourn the intervention order matter to that afternoon. The appellant sought a longer adjournment. Although he had prepared some of his case as early as November 2011, he told the Magistrate that he needed more time. He did not have his documentation in court. Specifically, the appellant did not have the written document which outlined his responses to Ms Butler’s affidavit. The appellant did not have Ms Butler’s second affidavit, as that had not been provided to him by the prosecution. The Magistrate noted that the prosecution witnesses were at court and that the appellant had known about the hearing date well before being imprisoned. The Magistrate refused the appellant’s application for a longer adjournment and directed that the matter be heard by another magistrate that afternoon.
Advice in the holding cells
The appellant left the courtroom at approximately 10:45am and was returned to the holding cells. At about 11am, the appellant’s lawyer spoke to the appellant in the cells.
The appellant gave evidence that in the cells he asked his lawyer what he should do next, since he had been refused an adjournment but was unprepared for the case. The appellant said his lawyer did not advise him that he could make a fresh application for an adjournment before the magistrate who was to hear the matter that afternoon.
The appellant’s lawyer also gave evidence of the meeting in the cells on the morning of 22 February 2012. The lawyer said he saw the appellant in the holding cells for approximately 20-30 minutes. The lawyer agreed to act for the appellant in the intervention order application. The lawyer was not in a position to fully defend the intervention order, nor did he have sufficient instructions.
The appellant and his lawyer discussed s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), which provides that a defendant can consent to the confirmation of an intervention order yet dispute the factual basis upon which the order is sought. The appellant’s lawyer advised the appellant that the appellant could consent to the order while disputing some or all of the grounds on which it was sought. The lawyer advised that there was a risk that, if the intervention order was confirmed following a full hearing, the order may have been expanded to prevent the appellant from seeing his son.
The appellant’s lawyer spoke to the prosecutor and then returned to the cells. He informed the appellant that the prosecutor would accept the matter proceeding in accordance with s 23(3). He was instructed to consent to the order.
The matter was listed before a different magistrate on the afternoon of 22 February 2012. The appellant does not recall what happened in the courtroom. He accepts that his lawyer was representing him at this time. There is no dispute that the appellant’s lawyer did not seek a further adjournment, and that he was instructed to consent to the order pursuant to s 23(3). The interim restraining order was confirmed. The appellant now seeks to withdraw his consent and have the confirmation of the interim order set aside.
Preliminary matters
Jurisdiction
A preliminary question arose as to whether this is an appeal pursuant to the criminal or civil appeal provision of the Magistrates Court Act 1991 (SA).
The Intervention Orders (Prevention of Abuse) Act 2009 (SA) confers jurisdiction on “the Court” as to various matters relating to intervention and other orders. Section 3 of the Act defines “Court” as the Magistrates Court.
Section 10 of the Magistrates Court Act 1991 (SA) confirms that the Magistrates Court has any jurisdiction conferred on it by statute, and provides that the Court’s rules may assign statutory jurisdictions to divisions of the Court:
10—Statutory jurisdiction
(1) The Court has any jurisdiction conferred on it by statute.
[…]
(2) The rules may assign a particular statutory jurisdiction (other than a statutory
jurisdiction specifically assigned by or under another Act to a particular Division of the Court) either to the Civil (General Claims) Division, or to th Criminal Division, of the Court.
Rule 4.07 of the Magistrate Court Rules 1992 (SA) provides:
4.07The jurisdiction conferred on the Court by the Intervention Orders (Prevention of Abuse) Act 2009, shall vest in the Criminal Division of the Court.
Section 3 of the Magistrates Court Act 1991 (SA) defines a “criminal action” as “an action or proceeding brought in the criminal division of the Court.”
The effect of the forgoing provisions is that the Magistrates Court’s jurisdiction under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) vests in the criminal division of the Court. Sections 42(1) and (1a) of the Magistrates Court Act 1991 (SA) provide:
42—Appeals
(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reason why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
It follows that an appeal by a party to an action arising under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is to be brought under s 42 of the Magistrates Court Act 1991 (SA).
Permission to appeal
Section 42(1a)(c) of the Magistrates Court Act 1991 (SA) provides that, in appeals from interlocutory judgments, permission to appeal is required. It is thus necessary to consider whether the Magistrate’s decision under appeal is interlocutory in nature.
The decision the subject of this appeal is the Magistrate’s order, on the afternoon of 22 February 2012, confirming the order made on 19 October 2011. By s 15 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA), a defendant may not apply for a variation or revocation of an intervention order until 12 months following the order, or such longer period as specified by the court:
15—Terms of intervention order—date after which defendant may apply for variation or revocation
(1) The Court may, when issuing or varying an intervention order (other than an interim intervention order), include a term fixing a date after which the defendant may apply for variation (or further variation) or revocation of the order.
(2) The date must fall at least 12 months after the date of issue or variation of the order.
(3) If the Court does not include in an intervention order (other than an interim intervention order) a term under subsection (1), the intervention order will be taken to include a term fixing the date falling 12 months after the date of issue or variation of the order as the date after which the defendant may apply for variation (or further variation) or revocation of the order.
In De Jong v Police Gray J considered a paedophile restraining order made pursuant to s 99AA of the Summary Procedure Act 1921 (SA). The scheme under that Act allows an interim ex parte order to be made and then considered at a confirmation hearing. The defendant may apply to have an order varied or revoked, although such an application will only succeed if there has been a substantial change in the relevant circumstances. Gray J, in considering whether an interim order and subsequent conferral order were interlocutory, discussed the principles enunciated in Hall v Nominal Defendant,[2] Licul v Corney,[3] Carr v Finance Corporation of Australia Ltd (No 1),[4] Sanofi v Parke Davis Pty Ltd (No 1),[5] Commonwealth Bank of Australia & Ors v Heinrich (No 2).[6] Gray J concluded:[7]
On the one view, a paedophile restraining order made pursuant to section 99C constitutes a final order. That order will remain in full force and effect, curtailing the rights of the subject of the order, until it is either varied or revoked. Until that occurs, the order operates in the same way as a final order, binding the subject of the order in the manner specified by the order.
However, ultimately a paedophile restraining order may be varied or revoked pursuant to section 99F of the Summary Procedure Act. The provision of a process by which the order may be varied or revoked, results in the conclusion that the order is not a final order. As Debelle J observed in Commonwealth Bank of Australia & Ors v Heinrich (No 2): “It is a misuse of language, if not also legal heresy, to characterise as final an order which is capable of being later varied or revoked”. This conclusion is appropriate notwithstanding the fact that a variation or revocation would generally only occur as a result of a change in circumstances. As the authorities make clear, it is the legal effect rather than the practical effect of the judgment or order that is to be considered. The purported confirmation of the paedophile restraining order by Magistrate Fahey on 3 September 2009 did not constitute a final determination of the parties’ rights. As a consequence, the defendant in the within proceeding requires permission to appeal.
[Footnote omitted.]
[2] (1966) 117 CLR 423.
[3] (1976) 180 CLR 213.
[4] (1981) 147 CLR 246.
[5] (1982) 149 CLR 147.
[6] [2004] SASC 436, [15]-[16].
[7] De Jong v Police [2010] SASC 191, [40]-[41].
These observations apply equally to an order confirming an intervention order. A confirmation order is interlocutory in nature.
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 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). As discussed the appellant had, under s 23(3), consented to the order.
The refusal to grant a longer adjournment
The appellant appeals against the confirmation of the interim intervention order, and is seeking to withdraw his s 23(3) consent. The application to withdraw his consent is to be considered having regard to the events which took place in the morning before the matter was listed for hearing in the afternoon of 22 February 2012. As I have earlier discussed in the morning the appellant applied for an adjournment which was refused.
Section 22 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) specifically confers, on a court hearing an application for an intervention order, a power to grant adjournments:
22—Adjournments
(1) The Court may, from time to time without requiring the attendance of any party, adjourn the hearing of an application for an intervention order at which a defendant is required by an interim intervention order to appear to a later date if satisfied that the interim intervention order has not been served or that there is other adequate reason for the adjournment.
(2)The date fixed for an adjourned hearing must be within 8 days after the date on which the adjournment is ordered, unless the Court is satisfied—
(a) that a later date is required to enable the interim intervention order to be
served; or
(b) that there is other adequate reason for fixing a later date.
(3) If a hearing is adjourned under this section, the Court need not be constituted at the adjourned hearing of the same judicial officer as ordered the adjournment.
The Magistrate on the morning of 22 February 2012 made it clear to the appellant that the matter would go ahead that afternoon. At that time the appellant was unrepresented. He was distressed, as a result of being incarcerated. He told the Magistrate that he did not have his documentation with him. He had made efforts through a friend to have the documentation brought to him, but these had failed. There was an affidavit sworn in the proceedings which had not been provided to him. If the adjournment had been granted the events which have resulted in this appeal would not have occurred. In substance the appellant is complaining of the failure of the Magistrate in the morning appearance to grant his application for an adjournment.
In Sali v SPC Ltd & Anor,[9] Brennan, Deane and McHugh JJ said:
In Maxwell v Keun,[10] the English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of the trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions.[11] Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.[12]
[9] (1993) 116 ALR 625, 628.
[10] [1928] 1 KB 645 at 650, 657, 658.
[11] See, for example, Walker v Walker [1967] 1 WLR 327, at 330; Carryer v Kelly (1969) 90 WN (Pt 1) (NSW) 566, at 569; Bloch v Bloch (1981) 55 ALJR 701, at 703; 37 ALR 55, at 58-9.
[12] Walker [1967] 1 WLR, at 330; Carryer (1969) 90 WN (Pt 1) (NSW), at 569.
If the application for a longer adjournment had been granted, the interim intervention order would have continued in force. No substantial prejudice would have been caused. The protected person would have continued to have the benefit of the interim order. Any prejudice to the respondent in having arranged for witnesses to attend could have been compensated by an order against the appellant for costs thrown away.
The appellant’s s 23(3) consent
The Intervention Orders (Prevention of Abuse) Act 2009 (SA) has received little judicial consideration. On appeal the respondent initially drew an analogy between an application to withdraw a s 23(3) consent and an application to withdraw a guilty plea. During the appeal I indicated, and the respondent conceded, that this analogy could not be maintained. In some respects, an intervention order based on s 23(3) consent is similar to an interlocutory order by consent. However, it is artificial to speak of such an order as arising from an agreement between the parties.[13]
[13] See, for example, Huddersfield Banking Co Ltd v Henry Lister & Son Ltd [1895] 2 Ch 273; Tresize v National Australia Bank Ltd (1994) 50 FCR 134; Green v Rozen [1955] 1 WLR 741.
A better analogy is between s 23(3) consent and admissions made in civil proceedings. In Jeans v Commonwealth Bank of Australia Ltd the Full Court of the Federal Court considered the principles applicable to applications to withdraw an admission.[14] The Full Court accepted that a court has “a broad discretion to weigh up all matters with the overall question being to ensure that there was a fair trial.”[15] In Drabsch v Switzerland General Insurance Co Ltd, Santow J observed:[16]
1 Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted ...
2 The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded ...
3 Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn ...
4 It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission ...
5 Following Cohen v McWilliam, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.
[Citation omitted.]
[14] (2003) 204 ALR 327.
[15] (2003) 204 ALR 327, [18].
[16] Drabsch v Switzerland General Insurance Co Ltd (NSWSC unreported, 16 October 1996, 7-8)
In Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd,[17] Mansfield J observed:[18]
that an error or mistake by or on behalf of the party seeking the amendment has been demonstrated,
that a sensible explanation for the making of the admission has been provided, based on evidence of a solid and substantial character, and
that no injustice will be occasioned to the other party by the withdrawal of the admission, other than hardship by delay or cost which can be accommodated by an appropriate order for costs.
[17] [2000] FCA 1732.
[18] [2000] FCA 1732, [45], citing Celestino v Celestino 1990 FCA 299.
I am satisfied that the appellant’s consent to the confirmation of the intervention order was given in circumstances in which he considered that he had no satisfactory alternative but to agree. At that time he was in custody and believed that he could not properly defend the proceedings. The appellant did not have his documentation in court on the day. He had made unsuccessful efforts to obtain his documents. One affidavit of Ms Butler was provided on the day of the hearing and the appellant did not have sufficient time to consider its contents. On the morning of 22 February 2012, the appellant was unrepresented, and was refused an adjournment in the circumstances outlined in [38] – [42]. The appellant did not apprehend that he could seek a further adjournment, and his lawyer did not apply for a further adjournment. The appellant had relatively little opportunity to consider whether he should give his consent.
I conclude that the respondent will suffer no injustice as a result of the appellant’s consent being withdrawn. If the appellant is permitted to withdraw his consent, the interim intervention order continues in force.[19] Any injustice by way of delay or cost as a result of having to arrange witnesses can be accommodated by an appropriate costs order. The appellant is permitted to withdraw his consent to the confirmation of the intervention order.
[19] Cf Ameri v Police [2006] SASC 40.
Conclusion
The appellant is granted an extension of time in which to appeal to 18 September 2012. I grant permission to appeal. The appellant is permitted to withdraw his consent given pursuant to s 23(3) of the Act. The appeal is allowed. The order of the Magistrate dated 22 February 2012 is set aside and the application for confirmation of the interim order is remitted to the Magistrates Court.
I will hear the parties as to costs.