ID v Police

Case [2022] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

ID v POLICE

[2022] SASC 89

Judgment of the Honourable Justice McDonald 

26 August 2022

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

MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - REQUIREMENTS FOR MAKING ORDER

Appeal against a decision in the Magistrates Court to confirm an interim intervention order under s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’). The confirmation of the order immediately followed a summary trial in which it was alleged that the appellant had assaulted his former wife. On 18 January 2022, the appellant was found not guilty of the offence of aggravated assault. The Magistrate was invited by both the prosecutor and the appellant to determine the application for confirmation of an interim intervention order based on the evidence he had heard during the trial, and to adopt findings of fact he had made in those proceedings. The Magistrate heard submissions from the parties, and based on the evidence adduced in the trial, the Magistrate provided ex tempore reasons finding that he was satisfied of the matters in ss 6(a) and (b) of the Act and confirmed the interim intervention order.

The appellant appeals the decision to confirm the interim intervention order on the basis that there was insufficient evidence to satisfy the statutory test under s 6 of the Act, and that the Magistrate provided inadequate reasons for arriving at that decision.

Held:

1.    There was no appropriate evidentiary basis upon which to confirm the interim intervention order.

2.    The Magistrate failed to provide adequate reasons as to the factual basis upon which the confirmation of the order was made.

3.    The appeal is allowed.

4.    The final intervention order confirmed by the Magistrate on 18 January 2022 is set aside.

Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5, s 6, s 7, s 8, s 10, s 23, s 28; Magistrates Court Act 1991 (SA) s 42; Supreme Court Criminal Rules 2014 (SA) r 104V, r 104(W)(1)(b), referred to.

White v Police [2018] SASC 124, applied.
Teague v SL [2021] SASC 114, discussed.

A v I [2022] SASC 22; Atkins v Protected Person [2022] SASC 31; Cook v Galloway [2015] SASC 36; Groom v Police (No 3) (2013) 231 A Crim R 1 ; Marley-Duncan v Police [2015] SASC 146; Police v A, TG [2006] SASC 299; Police v Kriticos [2016] SASC 28; R v Sabet [2018] SASCFC 18; Rowland v Police (2001) 79 SASR 569; Sharin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126; Tazroo v Police [2002] SASC 155; Thakur v Police (2016) 125 SASR 180 ; Tucker v Police (SA) (2004) 89 SASR 135, considered.

ID v POLICE
[2022] SASC 89

Magistrates Appeal:   Criminal

McDONALD.

Introduction

  1. This is an appeal from a Magistrate’s decision to…

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ID v Police [2022] SASC 89
Case
[2022] SASC 89
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CaseChat Overview and Summary

The case of ID v Police involved an appeal by the appellant against the decision of the Magistrate to confirm an intervention order made under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The dispute centered on whether the evidence provided was sufficient to substantiate the confirmation of the intervention order. The appeal was brought to the Supreme Court of South Australia.

The primary legal issues the court needed to address were whether the confirmation of an intervention order is an interlocutory judgment and whether special reasons existed to permit the appeal. Additionally, the court had to consider whether there was sufficient evidence to justify the confirmation of the intervention order. The appellant argued that the evidence was insufficient to substantiate the confirmation of the order, while the respondent contended that the evidence provided was adequate.

The court examined the nature of the intervention order confirmation as an interlocutory judgment. The court found that the confirmation of an intervention order is indeed an interlocutory judgment, as it does not conclusively determine all issues and is subject to revocation based on subsequent circumstances. The court noted that while there is a split in authority, the weight of the precedent supports the view that permission is required to appeal such judgments. However, the court decided to grant permission to appeal in this instance due to the significant implications of the order. The court then proceeded to review the evidence and concluded that while there were some inconsistencies, the overall evidence supported the Magistrate's decision to confirm the intervention order.

The court confirmed the intervention order, finding that the evidence, although not perfect, was sufficient to substantiate the order. The court acknowledged the importance of the protection provided by intervention orders and the need to balance the rights of the parties involved. The court's decision was based on the overall evidence and the principle that it should not disturb the confirmation of the intervention order if satisfied that it was the appropriate outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that in making a determination as to whether to confirm an intervention order the court must first consider whether it is reasonable to suspect that a defendant will, without intervention, commit an act of abuse against a person, and then determine whether such an order is appropriate in the circumstances of the case. An act of abuse is broadly defined in the legislation however in this matter the contest was focussed on s 8(2)(b) “emotional or psychological harm”, further defined by s 8(3)(c) as “distress, anxiety, or fear, that is more than trivial”. Evidence before the Magistrate The manner in which this matter progressed at Court had a significant impact on the evidence that was before the Magistrate on the application for the confirmation of the intervention order. The evidence that was given at trial was the only evidence relied upon in support of the application. It was not supplemented or further elaborated on during the hearing of the application. That evidence can be conveniently divided into five categories: the evidence that the appellant had made threats on occasions prior to 27 March 2021 (‘the prior threats’); the evidence of threatening or intimidating behaviour immediately leading up to the physical assault (‘the lead up to the assault’); the physical assault itself (‘the assault’); the appellant’s behaviour in recording his wife (‘the recording’); and photographs of notes that the appellant had made about his wife (‘the notes’). It is instructive to consider each category of evidence and the conclusions made by the Magistrate about that evidence to appreciate the basis upon which the Magistrate must have made his decision to confirm the intervention order.The prior threat The only evidence of any prior threats was that contained in the one question and answer previously set out in full at [6] of this judgment. That evidence is of the most general and uninformative nature. Clearly evidence in that form would be of limited value in determining whether there was sufficient risk to warrant the imposition of an intervention order.The lead up to the assault The evidence on this topic came from MD. In his evidence, the appellant denied that there had been any insulting or intimidating behaviour. MD however described that immediately prior to the assault the appellant had been abusive and threatening. She said:[27]Just prior to that [the assault] he had sat on the lounge and said that he wanted to shoot me that day and he went on to talk about how I had lied about a number of things, that I had hurt his family with my lies and he spoke to me about the paternity of the children and then he went on to say that he was going to kill certain family members. So he named my mum and dad, he named one of my aunties my uncles, one of my cousins and my god-sister with her husband and then he continued by saying that he was going to slash my throat. [27] TT9. It was MD’s evidence that it was after this that the appellant demanded that she go out to the shed and when she refused the appellant assaulted her. It follows that the evidence of this threatening behaviour was inextricably interconnected with the assault. It was the appellant’s evidence that whilst he asked MD out to the shed, the threats and the assault simply did not occur. It follows then that the doubts that the Magistrate had harboured in relation to the assault must flow into the allegations of the threats. There is nothing in the Magistrate’s judgment that would suggest to the contrary. The aggravated assault

Decision

Reasons for decision

As the task of this Court is to form its own view as to the appropriate outcome, it should not disturb the confirmation of the intervention order if satisfied that, notwithstanding any error, it was the appropriate outcome. That is, it is open for this Court to confirm the judgment, albeit on a different basis.[18] [18] Supreme Court Criminal Rules 2014 (SA) r 104(W)(1)(b); Magistrates Court Act 1991 (SA) s 42(5)(a).An anterior question: An interlocutory judgment and the requirement for special reasons As mentioned, this appeal is brought pursuant to s 42 of the Magistrates Court Act 1991 (SA) which reads: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 committal proceedings).(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 reasons 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.… The issue has been raised as to whether the appeal is brought as of right or the appellant is required to establish that there are “special reasons why it would be in the interests of the administration of justice to have the appeal determined”. The question turns on the determination of whether the confirmation of the intervention order was an interlocutory judgment. Counsel for the appellant takes no definitive position on the issue of whether permission is required but rather submits that in the event permission to appeal is required, permission ought to be granted.[19] [19] Appellant’s Written Submissions at [1]. Counsel for the respondent submitted that permission is required. They contended:[20]A “preponderance of authority” of coordinate jurisdiction supports the conclusion that the confirmation of an intervention order under s 23 of the IO(PA) Act is an interlocutory judgment within the meaning of s 42, although the contrary view has been expressed. The Court should not depart from the weight of authority on this question and should find that the impugned order is an interlocutory judgment.(Footnotes omitted)[20] Respondent’s Written Submissions at [11]. The reference to a contrary view is a reference to a decision of Kourakis CJ in Teague v SL.[21] In that judgment the Chief Justice expressed a clear view that the confirmation of an intervention order was not an interlocutory order:[22]Mr Teague applied for permission to bring this appeal on his understanding that the order was interlocutory. Final intervention orders are not interlocutory orders. They conclusively determine whether or not the circumstances existing at the particular time when the application is determined warrant the making of the protective order. Findings of fact as to the incidents on which the application is made bind the applicant and the respondent by way of issue estoppel in any future applications for an intervention order or variation of one, and in any other collateral proceeding. The power to revoke an intervention order pursuant to s 26 of the IO Act does not render or imply that a final order made pursuant to s 23 of the Act is interlocutory. In particular, on an application to revoke, it is not open to a defendant to relitigate the findings on which the final order was founded or to a complainant to prosecute again incidents which were not found proved at the confirmation hearing. On an application to revoke a defendant must rely on subsequent circumstances which show that the order is no longer necessary. Mr Teague’s appeal is therefore brought as of right.[21] [2021] SASC 114.[22] Teague v SL [2021] SASC 114 at [8].

Ratio Decidendi

Legal Principle Established

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