ID v Police - [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

This is an appeal from a Magistrate’s decision to confirm an interim intervention order made on 18 January 2022 pursuant to 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, MD. The only witnesses to give evidence at the trial were the appellant and MD. They gave competing accounts. The appellant was found not guilty of the aggravated assault on the basis that the Magistrate was “left not knowing where the truth lies”.[1]
[1] Police v ID (Magistrates Court of South Australia, Magistrate Jensen, 18 January 2022) (‘Magistrate’s Judgment’) at [31].
The appellant appeals the decision to confirm the interim order on the basis that there was insufficient evidence to satisfy the statutory test under s 6 of the Act. Further, that the Magistrate provided inadequate reasons for arriving at that decision.
The trial
The appellant and MD were married in 2011 and now have three children. It was alleged by the prosecution that on 27 March 2021 the appellant committed the offence of aggravated assault, the victim of that offence being MD.
The trial commenced on 17 January 2022. The only witnesses were the appellant and MD. Their evidence was brief and focussed almost entirely on the events of 27 and 28 March 2021. The evidence was completed in a day with closing addresses heard the following day on 18 January 2022. Those addresses took less than 20 minutes, whereupon the Magistrate adjourned for an hour, after which time he returned his verdict of not guilty.
Competing accounts
Whilst some brief general evidence was led from each of the parties about the history of their relationship, this was neutral and non-contentious in nature. It was certainly not a trial in which the prosecution placed a history of domestic violence or other discreditable conduct before the Court. The only evidence of this nature that was elicited from MD came at the very end of her evidence-in-chief and was comprised of one question and answer, although the preceding two questions and answers provide necessary context:[2]
Q.We need to ask some questions about the actual relationship itself and I’ve already asked you roughly how long it had been before that the relation started to become an unhappy one. You say that [the appellant] was making some threats against you and your family that night.
A.Yes.
Q.How did it make you feel.
A.I feared for my life and my family’s life.
Q.Had any threats of that kind been made at any other earlier time.
A.Yes.
(Emphasis added)
[2] Trial Transcript (‘TT’) 24.
Turning then to the evidence about the events of 27 March 2021.
At that time MD was seven months pregnant with their third child and the other two children were in bed asleep. The marital relationship had deteriorated. At the time of these events, it was no longer a happy relationship. The appellant had become concerned that MD had been unfaithful during their marriage and that, consequently, he was not the biological father of one or more of the children.
It does not appear that there was any dispute about the events leading up to the alleged assault. MD and the appellant were together in the TV room of the house. MD was lying on a couch watching television when the appellant approached her and asked her to come out to the shed to listen to a recording that he had made. There was equipment in the shed through which the recording could be played and heard. The appellant claimed that the recording was in some way relevant to his assertions that MD had been unfaithful in the marriage.
At this point, the versions given by the appellant and MD diverged.
It was MD’s evidence that the appellant insisted that she go out to the shed, however she refused because she felt uncomfortable and unsafe. She described that at this point the appellant became very threatening. She said that the appellant talked about wanting to shoot her and members of her family. It was her evidence that he went as far as to threaten to slash her throat.[3]
[3] TT9.
MD gave evidence that despite this she accompanied the appellant as far as the kitchen where she stopped and told him she would not go to the shed. It was her evidence that she told the appellant to bring whatever it was that he wanted to show her from the shed to the house. It was at this point that MD alleged that the appellant assaulted her by placing his hands around her neck. She said that she told the appellant to let go and when he did, she ran back to the TV room and then out the front door. She ran to the other side of the road and telephoned the police.
The appellant’s account was at odds with that of MD. He did not dispute that the events commenced in the TV room with him approaching MD as she lay on the couch. There was also no dispute that he requested that she accompany him out to the shed so that he could play her the recording. His evidence was that when she refused to go, he went alone to the shed to get the device to bring it back into the house so that he could play the recording to his wife. He said that when he got to the shed, he smoked a couple of cigarettes, retrieved the device and went back to the TV room. When he arrived back in the room, MD was no longer there. It was shortly after this that police knocked on the front door and the appellant answered it. It was at this point that the appellant was advised that his wife had alleged that he had assaulted her.
As previously discussed, in delivering his verdict the Magistrate did not prefer the evidence of one witness over the other. He ultimately concluded:[4]
In this matter I am left not knowing where the truth lies and consequently, I find that the prosecution has not proved its case beyond reasonable doubt.
[4] Magistrate’s Judgment at [31].
Significantly, the Magistrate did not have the benefit of any detailed history of the relationship that may have assisted him in determining the matter. He observed:[5]
While it is apparent that there was tension in the relationship and that threats of violence had previously been made there is nothing in that evidence that directly proves the assault.
[5] Magistrate’s Judgment at [29].
Confirmation of the intervention order
Following the appellant’s acquittal, the prosecutor invited the Magistrate to finalise and confirm the interim intervention order. It was submitted to the Magistrate that he was in the best position to rule on the issue given that he had just heard “the evidence that the prosecution relied on in support of the application.”[6]
[6] Affidavit of Scott Jeffrey Mesecke sworn on 12 April 2022 at [11] (‘Mesecke Affidavit’).
The prosecutor submitted to the Magistrate that although he could not tell where the truth of the matter lay, the standard of proof in making an intervention order was different to that in relation to the criminal charge in that the decision about the order was to be determined on the balance of probabilities.[7] Further, the prosecutor made a submission that the Magistrate had not gone so far as to make a finding that MD was an untruthful witness therefore it was open for him to rely on her evidence as the basis for making the order.
[7] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 28.
Counsel for the appellant resisted the making of any form of intervention order. He argued that the basis for the interim intervention order was the allegation of an aggravated assault and that it had been put in place as a protective measure pending the determination of that charge. He made a further submission that following 28 March 2021, the relationship between the parties had ended and the circumstances between the appellant and MD had changed such that there was no interaction between the parties.[8] He put that even if historically there had been a risk, distance and time painted a different picture to that which existed in March 2021. Finally, and significantly, counsel for the appellant submitted that there was limited evidence before the Court of any history of abuse and in particular, no evidence of any history of physical abuse.[9]
[8] Mesecke Affidavit at [17]-[18].
[9] Mesecke Affidavit at [24].
Having heard submissions the Magistrate acceded to the prosecution’s request and made a determination that the interim intervention order would be confirmed. In doing so, he provided brief ex tempore reasons. In those reasons the Magistrate correctly identified the two-step process necessary to be undertaken before such an order can be made pursuant to s 6 of the Act.
The Magistrate correctly identified that under the Act the burden of proof was different to that in place during the criminal trial in that in deciding whether to confirm the order the facts were to be determined on the balance of probabilities.[10] The Magistrate went on the discuss the evidence led at the trial in the following terms:[11]
During the course of the trial, which evidence I have been invited to take into account, there was evidence given in relation to a fixation (my word) on the part of the defendant regarding the protected person having been unfaithful and the possibility that the defendant was not the father of one or more of the children of that marriage and also evidence of the defendant taking a keen interest in the complainant and whether she had been unfaithful and evidence of threats in the lead-up to the alleged offence, which gave context to the alleged offending in relation to which I emphasize I found the defendant not guilty.
I do not focus in any way on the act of violence given that my finding was that the defendant was not guilty in relation to that.
(Emphasis added)
[10] Police v ID (Magistrates Court of South Australia, Magistrate Jensen, 18 January 2022) (‘Magistrate’s Ex Tempore Reasons’) at [3].
[11] Magistrate’s Ex Tempore Reasons at [4]-[5].
On that basis, the Magistrate came to the following view:[12]
In all the circumstances, turning my mind to the tests in s.6 of the legislation I do find that it is reasonable to suspect that the defendant will without intervention commit an act of abuse against a person and that the issuing of the order is appropriate in all the circumstances in that regard. I rely on the matters that I have already identified in the course of these reasons.
(Emphasis added)
[12] Magistrate’s Ex Tempore Reasons at [7].
The appeal
The appellant advances a single ground of appeal which is:[13]
The Learned presiding Magistrate erred at fact and at law by finding that the defendant is a risk of committing an act of abuse Section 6 of Intervention Orders (Prevention of Abuse) Act 2009 were established and exist.
[13] Notice of Appeal for the Appellant filed 8 February 2022.
The appellant has further particularised the central complaint:[14]
The main issue is whether the trial magistrate erred in arriving at that decision by how he approached the evidence, whether he made findings of fact, if findings of fact were made then on what basis or bases, and whether the legal principles were properly applied.
[14] Written Submissions for the Appellant dated 2 June 2022 at [2] (‘Written Submissions for the Appellant’).
This is an appeal under s 42 of the Magistrates Court Act 1991 (SA) and is governed by Part 5 of the Supreme Court Criminal Rules 2014 (SA). Under r 104V, the appeal is to be by way of rehearing. This requires that I undertake an independent review of all of the evidence and the findings to form my own view as to the appropriate outcome.[15] I do so giving due weight to the Magistrate’s advantage in seeing and hearing the witnesses, and of course giving weight to any findings on credibility which depend largely or in part on demeanour.[16]
[15] Police v Kriticos [2016] SASC 28 at [27].
[16] Tazroo v Police [2002] SASC 155 at [17]-[19]; Police v A, TG [2006] SASC 299 at [15].
Further, although I am to conduct a review of the evidence, an appeal under s 42 is not a hearing de novo in that this Court cannot substitute its own view, or otherwise interfere, unless satisfied that the Magistrate was in error. In the event that this Court does find such an error, it should not set aside the confirmation of the intervention order unless it is satisfied that the confirmation was not justified on the evidence before the Magistrates Court.[17]
[17] Police v Kriticos [2016] SASC 28 at [27].
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].
Whilst there is considerable force in what fell from the Chief Justice, this view was expressed against the backdrop of numerous authorities from this Court, at single judge level, supporting a conclusion that a Magistrate’s confirmation of an intervention order is an interlocutory order.[23]
[23] White v Police [2018] SASC 124 at [21] per Nicholson J. See also Groom v Police (No 3) (2013) 231 A Crim R 1 at [29]-[33] per Sulan J; Cook v Galloway [2015] SASC 36 at [29] per Nicholson J; Marley-Duncan v Police [2015] SASC 146 at [26] per Stanley J; Thakur v Police (2016) 125 SASR 180 at [3] per Stanley J; Sharin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126 at [40] per Parker J; A v I [2022] SASC 22 at [34]-[35] per Stein J (in respect of a decision to dismiss an interim order); Atkins v Protected Person [2022] SASC 31 at [23] per McDonald J.

In this matter it is not necessary for me to come to a concluded decision on this issue as it is my view that this would be an appropriate case in which to grant permission (insofar as it is required).
Counsel for the respondent submitted that the Court should not grant permission to bring this appeal on the basis that the appellant has “no arguable case” and there are no other reasons that would constitute “special reasons”.
For reasons that will become apparent, I do not accept that the appellant has “no arguable case”. There is, however, authority that suggests that the unusual nature and impact to the individual who is the subject of an intervention order may of itself be a sufficient basis for granting permission. As described by Nicholson J in Whitev Police:[24]
There are features of the type of order under consideration that distinguish it from the more common type of interlocutory order. To be made the subject of an intervention order following a contested hearing is a very serious matter. An intervention order can impose significant restrictions on freedom of movement. It contains obligatory firearms restrictions including the automatic suspension of any licence held and a prohibition from possession of a firearm. Such an order potentially exposes the person to criminal sanctions (including imprisonment) if it is contravened and in certain circumstances the person will lose the presumption of bail otherwise conferred by section 10 of the Bail Act 1985 (SA).
(Footnotes omitted)
[24] [2018] SASC 124 at [24].
In White Nicholson J found that those matters, combined with the fact that there was an arguable case and the appellant had no right to apply for a variation or revocation for at least 12 months, were sufficient to establish special circumstances.[25]
[25] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 15.
During submissions counsel for the appellant described aspects of the effect that the intervention order has had in his life. In particular, its impact on current Family Court proceedings. I was advised that an interim order in the Family Court prevents the appellant from having any contact with his children and that the basis for that order is the intervention order.[26]
[26] Appeal Transcript (‘AT’)19-20.
For the reasons set out by Nicholson J in White, in combination with the consequences of the imposition of an intervention order on the appellant, I find that special reasons have been established.
Did the Magistrate err in confirming the intervention order?
I set out the relevant provisions of the Act:
Part 2—Objects of Act
5—Objects of Act
The objects of this Act are—
(a)to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of domestic and non-domestic abuse, by providing for—
(i)    the issuing of intervention orders; and
…
Part 3—Intervention and associated orders
Division 1—General
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant) if—
(a)it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b)the issuing of the order is appropriate in the circumstances.
7—Persons for whose protection intervention order may be issued
(1)An intervention order may be issued for the protection of—
(a)     any person against whom it is suspected the defendant will commit an act of abuse; or
…
8—Meaning of abuse—domestic and non-domestic
(1)Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.
(2)An act is an act of abuse against a person if it results in or is intended to result in—
(a)     physical injury; or
(b)     emotional or psychological harm; or
(c)     an unreasonable and non-consensual denial of financial, social or personal autonomy; or
(d)     damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
(3)Emotional or psychological harm includes—
…
(b)     nervous shock; and
(c)     distress, anxiety, or fear, that is more than trivial.
…
10—Principles for intervention against abuse
(1)The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a)     abuse occurs in all areas of society, regardless of socio economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion;
(b)     abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour;
(c)     it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse;
(d)     as far as is practicable, intervention should be designed—
(i)to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse; and
(ii)to minimise disruption to protected persons …
…
(4)An issuing authority may take into account any other factor the authority considers relevant in the circumstances.
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
The Magistrate not only found the appellant not guilty of this offence but also in a relatively short judgment, highlighted the evidence that pointed against the assault having occurred. In particular, to the absence of any marks or injuries to MD's throat and to observations of the appellant when confronted with the allegations. His reaction was captured on the body worn camera footage of the attending police officers and was described by the Magistrate as “not inconsistent with a person who is hearing of an allegation for the first time”.[28]
[28] Magistrate’s Judgment at [30].
In his reasons for confirming the intervention order the Magistrate eschewed any reliance upon the assault. He made it plain:[29]
I do not focus in any way on the act of violence given that my finding was that the defendant was not guilty in relation to that.
[29] Magistrate’s Ex Tempore Reasons at [5].
In such circumstances, it must necessarily follow that the Magistrate could not rely on the lead up to the assault given the interconnection in the evidence.
The recording
There was limited evidence about the nature of the recording that the appellant was attempting to play to his wife. MD gave evidence that “[ID] came in and demanded that I go into the shed because he had 30 seconds worth of evidence to show that I was lying about something”.[30]
[30] TT8.
The appellant’s evidence was that when he asked MD to go out to the shed he told her that “I’ve got 30 seconds of you discussing with R [MD’s cousin] about cheating”.[31] He explained that the recording was of MD saying to R “he knows I’ve cheated on him”.[32] There was no further evidence of the nature of the conversation, when and where it had taken place and the circumstances in which it came to be recorded.
[31] TT34.
[32] TT33.
Counsel for the respondent submitted that there is something particularly sinister about the act of recording someone without their knowledge and made the point that on occasions that can even amount to a crime. There is some force to that submission. Counsel for the appellant, however, countered that by submitting that there are limitations as to what can be made of the appellant being in possession of a recording of his wife when there is an absence of evidence about how that recording came to be in existence.[33]
[33] Counsel for the appellant attempted to give evidence from the bar table about the provenance of the recording. I have disregarded his submissions on this topic.
In his reasons the Magistrate placed considerable emphasis on this aspect of the evidence.[34] I have set out in full the Magistrate’s consideration of the topic at [20] of this judgment.
The notes
[34] Magistrate’s Ex Tempore Reasons at [4].
MD gave evidence that following the appellant’s arrest later that day she attended at the marital home with her cousin to collect some property. Whilst there, she went out to the shed to attempt to locate the medical records of the children. Whilst in the shed she came across two notebooks containing handwriting that she identified as the appellant’s. In evidence she described the contents of the books:[35]
Those books have a lot of research that he’s done into me and my life, things that I’ve been doing, things on my phone. There’s also notes about recordings that he’s got from conversations of mine.
[35] TT14.
MD took photographs of some of the writing in the books. It would seem these photographs were tendered on the basis that they were evidence that established that the appellant was keeping a record in relation to his wife but not as to the details of what was being recorded. Whilst it is difficult to understand the logic to that approach, once that exhibit was before the Court, the Magistrate was entitled to have regard to the entirety of the exhibit, including the detail of what was written in the books in considering whether to confirm the interim order.
The appellant also gave some brief evidence about the two books. His evidence on this topic was inconsistent and unsatisfactory. He pointed out that the entries had been made in 2017. At some points, he appeared to admit that at least some of the handwriting was his, at others he appears to dispute that he wrote any of the entries. He maintained that at the very least someone else was responsible for some of the handwriting.
In his judgment the Magistrate summarised the evidence on this topic:[36]
The complainant gave evidence that she later attended at the house in company of her cousin. On that occasion the complainant went to the shed at the back of the property in the company of her cousin and there found the journals that are shown in Exhibit P1. She photographed the pages and provided the photographs to the police. She did not take the journals but rather placed them back where she found them. On another occasion she again went to the house and went to the shed but the shed was locked and she did not enter it. The complainant observed in her evidence that the handwriting in the journals was not consistent but felt, through her familiarity with the defendant’s handwriting, that all the writing was the defendant’s. In the course of his evidence the defendant went through Exhibit P1 and marked those passages that he did not think were in his handwriting. The originals of the journals that feature in the photographs are not produced to the court and there is no additional evidence regarding the provenance of the journals nor the handwriting in them.
[36] Magistrate’s Judgment at [17].
His Honour then expressed the view:[37]
In my view Exhibit P1 does not take the matter much further than the accepted evidence.
[37] Magistrate’s Judgment at [18].
Whilst the meaning of that observation is not entirely clear, it is plain that the Magistrate did not place much weight on the notes.
I have had an opportunity to see the photographs of the notes. They are difficult to read. Putting them at their highest, if they were authored by the appellant, they suggest that he was keeping MD under close observation at the time they were being made. They appear to be written ruminations about concerns that MD was being unfaithful to him. They fall into a similar category as the evidence about the recordings, in that putting the evidence at its highest it was capable of establishing a “fixation” on the part of the appellant towards his wife.
The Magistrate made no reference to the evidence about the notes in his reasons for confirming the intervention order.
The combined effect of the evidence
It follows from that analysis of the evidence that there was very limited information before the Magistrate upon which to make a decision about the confirmation of the intervention order.
In summary, it consisted of a general, untested assertion that there had been prior threats, and a recording and some notes suggesting that the appellant had a “fixation” with the idea that his wife had been unfaithful.
In the passage of the Magistrate’s reasons that I have already referred to, he set out the evidence upon which he relied in making the determination to confirm the intervention order. The Magistrate points to the “fixation” with infidelity and “evidence of threats in the lead-up to the alleged offence, which gave context to the alleged offending in relation to which I emphasise I found the defendant not guilty”. The difficulty with the latter is that it is not at all clear as to which evidence the Magistrate is there describing. If it is to threats alleged to have been made historically, that evidence was bereft of any detail such that it would be unsafe to rely on it. If it is to the threats immediately preceding the assault, it is difficult to see how he could place reliance on that aspect of MD’s evidence whilst expressly putting to one side the evidence of the assault that happened only moments after. Not only would such an approach be illogical, but it would be thought that if that was the case the Magistrate would set out the process by which he had distinguished between the threats and the physical assault that were all part of one episode.
Adequate reasons
There is nothing in the reasons of the Magistrate that provides any assistance in understanding the threats that the Magistrate relies on, or if it is the threats on the night of the assault, the basis upon which he now relies on them given his previous inability to determine where the truth lies.
When considering an appeal from the Magistrates Court it is appropriate to bear in mind that the Magistrates Court is a court of summary jurisdiction and the workload of Magistrates is heavy.[38] Accordingly, the requirements for a Magistrate to give reasons should not be pitched at an “unrealistically demanding level”. “Long and elaborate reasons” are not necessary and a “concise statement is sufficient”.[39]
[38] Tucker v Police (SA) (2004) 89 SASR 135 at [53] citing Rowland v Police (2001) 79 SASR 569 at [29]- [30].
[39] Rowland v Police (2001) 79 SASR 179 at [31]-[32].
Although in his reasons the Magistrate correctly identified that in arriving at his decision in relation to the intervention order he had to apply a different burden of proof in that he had to determine any question of fact on the balance of probabilities, he did not go on to identify those facts that he did or did not find established. It is left to the reader to speculate and attempt to reconstruct the evidentiary basis upon which the order was made.
The extent of the detail which a Magistrate is required to provide in their reasons will of course depend on the circumstances of the case and the facts and issues involved.[40] At the very least, the Magistrate is required to identify the critical issues relevant to the decision, the relevant evidence and how the issues are resolved.[41]
[40] R v Sabet [2018] SASCFC 18 at [25] and [29] per Stanley J; at [92] per Hinton J.
[41] R v Sabet [2018] SASCFC 18 at [29] per Stanley J.
In my view that did not occur here and had that exercise been undertaken it may have become more readily apparent that there was a significant deficiency in the evidence upon which the prosecution sought to rely in having the order confirmed.
Was there a sufficient evidential basis upon which to confirm the order?
Before confirming the intervention order the Magistrate was required to be satisfied of the matters in s 6(a) and s 6(b) of the Act. This required the Magistrate to be satisfied that “it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person”, and “the issuing of the order is appropriate in the circumstances”. It is an exercise of measuring future risk based on past conduct.
There was very limited evidence of past conduct in this case. The evidence of prior threats was so vague as to be meaningless. In circumstances in which the Magistrate found the appellant not guilty of the aggravated assault and expressly excluded that evidence from consideration, in my view it would be inappropriate to now attempt to rely on the evidence of the inextricably interconnected allegation of threatening behaviour.
That then leaves the evidence of the recording and the notes. There is no evidence establishing when and in what circumstances either of these records were generated. The most that can be said is that it was sometime prior to the events of 27 March 2021 whilst the marriage was still afoot, but clearly deteriorating. There is no suggestion that the appellant showed the notes to MD or even intended that she ever see them. There was evidence that the appellant wished for her to hear the recording, but it was in the context of wishing to confront her about concerns about the state of their relationship.

The appellant and MD are no longer in a relationship. There is no dispute that they have had no contact since the events of 27 March 2021. The appellant now has a new partner and has expressed no desire to have any further contact with his ex-wife. In such circumstances, it is difficult to see how the evidence about the notes and the recording found a reasonable suspicion that the appellant will without intervention commit an act of abuse as so defined by the Act. There was no appropriate evidentiary basis upon which to confirm the interim intervention order.
Conclusion
The Magistrate failed to provide adequate reasons as to the factual basis upon which the confirmation of the order was made. In my view the Magistrate was in error in making the order on the material before him. A critical analysis of the evidence discloses that there was an insufficient factual basis upon which the Magistrate could make the order.[42]
[42] If there is further evidence that was not before the Court and may be the basis for an intervention order, there is no reason why a further application cannot be made in the Magistrates Court.
Order
I make the following orders:
1.The appeal is allowed.
2.The final intervention order confirmed by the Magistrate on 18 January 2022 is set aside.