Hame v Police

[2023] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

HAME v POLICE

[2023] SASC 131

Judgment of the Honourable Chief Justice Kourakis (ex tempore)

13 September 2023

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - OTHER MATTERS

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE

This is an appeal against the confirmation of an intervention order in the Magistrates Court under section 23(3) of the Intervention Order (Prevention of Abuse) Act 2009 (SA).

The appellant was charged with the assault of his wife and issued with an interim intervention order.  The appellant's solicitor engaged in negotiations with the police prosecutor in respect of both the assault charge and the confirmation of the intervention order.  The prosecutor indicated that the assault charges would be withdrawn if the appellant consented to the confirmation of the intervention order.  At the hearing in the Magistrates Court, the assault charge was withdrawn and the intervention order was confirmed by consent.

The appellant submitted that he did not understand the proposal and did not believe he had consented to the confirmation of the intervention order.

Held (allowing the appeal):

1.      The Magistrate’s order confirming the intervention order is set aside.

2.      The matter is remitted back to the Magistrates Court.

HAME v POLICE
[2023] SASC 131

Magistrates Appeal: Criminal

1. KOURAKIS CJ (ex tempore): This is an appeal against the confirmation of an intervention order in the Magistrates Court.  The appellant (the appellant) was represented in the Magistrates Court by solicitors but is unrepresented on this appeal. 

2. The appellant was charged with an assault of his wife and contemporaneously was issued with an interim intervention order.  He was assigned a solicitor by the Legal Services Commission in respect of the assault charges.  The solicitor engaged in negotiations with the police prosecutor in respect of both the assault charge and the confirmation of the intervention order.  The prosecutor indicated that she would withdraw the assault charges if the appellant consented to the confirmation of the intervention order.

3. The appellant was advised of that proposal by his solicitor.  The solicitor understood that the prosecutor had proposed the compromise because the appellant’s wife (the complainant) did not wish to give evidence.  In a number of conversations the solicitor explained to the appellant that he could consent to the confirmation of the intervention order without admitting the commission of the underlying assault.  On the account of those conversations appearing in the solicitor’s affidavit the appellant understood, and consented, albeit reluctantly, to the confirmation of the intervention order.

4. At a hearing in the Magistrates Court, in which the appellant was represented by the solicitor, the assault charge was withdrawn and the intervention order was confirmed by consent.

5. The appellant’s affidavit and other material which he has put before this Court on the appeal is to the effect that he did not understand the proposal, and did not believe, even when he left the courtroom on that occasion, that he had consented to the confirmation of the intervention order.

6. The appellant lodged his appeal against the confirmation of the intervention order well beyond the time within which he should have appealed.  The appellant’s submissions and evidential material is to the effect that his mental state made it difficult for him to lodge an appeal earlier.  However, it also appears that he was subsequently charged with a breach of the confirmed intervention order, and that might also have motivated the appeal.

7. Be that as it may, on the face of the solicitor’s affidavit, he advised the appellant that because his wife did not wish to give evidence, even if the appellant were to contest the confirmation of the intervention order, the appellant would not have an opportunity to challenge his wife’s account or put an alternative account of the events on which the assault charge and interim intervention order were found.  The appellant was not advised that even without his wife giving evidence, a Magistrate could at a confirmation hearing make findings on those disputed accounts.

8. It appears from evidence given by the solicitor before me this morning that there were several reasons why he did not turn his mind to how the competing factual accounts might still be resolved at a confirmation hearing even if the wife did not give evidence.  First, in his experience, most intervention orders are resolved on a no-admissions basis.  Secondly, the appellant told the solicitors that he had divorced his wife in accordance with Muslim tradition, and that they would not have any further contact.  Thirdly, the assignment of the Legal Services Commission was limited to representing the appellant only on the assault charge.  The solicitor’s attention was, understandably, focussed on that, both because that was the scope of the assignment, and because that was the only matter on which the appellant was liable to punishment.  Nonetheless, the solicitor’s retainer plainly extended beyond the scope of the assignment.  It was the solicitor’s obligation to give sound advice in respect of the related intervention order and its confirmation.

9. Contrary to the solicitor’s advice that the appellant would have no opportunity to contest his wife’s account, the legal position was that it was open to the appellant to contest the confirmation of the intervention order.  If he had done so, his wife may have been brought before the Court to answer questions.  Those questions may have been put to her by the Magistrate or by a solicitor provided by the Legal Services Commission for that purpose.  Even if the appellant’s wife was not called, the hearing could have proceeded on the basis of her written statement or an audiovisual record of her account.  The appellant would then have had an opportunity to give his account of those events.  Ultimately, the Magistrate would have proceeded to determine the matter by:

   ·accepting the complainant, in which case the intervention order would have been confirmed;

   ·accepting the appellant’s account, in which case the intervention order application would have been dismissed;

   ·being unable to decide where the truth lies, in which case the Magistrate would have again dismissed the intervention order.

10. In the absence of the appellant receiving comprehensive advice on the alternative ways in which he might have proceeded on the intervention order, I am satisfied that there has been a miscarriage of justice. 

11. I set aside the confirmation of the intervention order.  I remit the matter to the Magistrates Court so that the question of whether it ought to be confirmed or not can proceed in the ordinary way.