J v P; J v The The Queen; J v Protected Persons - [2022] SASC 45

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
J v P; J v R; J v PROTECTED PERSONS
[2022] SASC 45
Judgment of the Honourable Justice Stein
16 May 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 - INTERIM ORDER
The respondents sought and were granted interim intervention orders against the appellant. The appellant sought but was refused an interim intervention order against the respondents.
The appellant appeals against the grant of the two interim intervention orders against her and the dismissal of her application for interim intervention orders against the respondents.
Held, refusing permission to appeal:
1.The grant of interim intervention orders against the appellant was an interlocutory decision requiring permission to appeal.
2.The dismissal of the application for interim intervention orders against the respondents was an interlocutory decision requiring permission to appeal.
3.Permission to appeal is refused in respect of the grant of the interim intervention orders in circumstances in which the interim intervention orders have not yet proceeded to a hearing to determine whether final intervention orders ought to be made.
4.Permission to appeal is refused in respect of the dismissal of the application for interim intervention orders. An arguable case sufficient to constitute special reasons has not been established by the appellant.

Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 3, 6, 20(1), 23; Magistrates Court Act 1991 (SA) sub-s 42(1), (1a), (4); Supreme Court Criminal Rules 2014 (SA) r 104V(1)(a), (c), referred to.
Groom v Police (No 3) (2013) 231 A Crim R 1; Kiparoglou v Fantinel [2021] SASC 90; Shahin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126; Thakur v Police (2016) 125 SASR 180, applied.

J v P; J v R; J v PROTECTED PERSONS
[2022] SASC 45
Magistrates Appeal: Criminal
STEIN J:
Overview

This group of appeals concerns a strained relationship between neighbours which resulted in those neighbours making applications for interim intervention orders against each other. Interim intervention orders were granted for the protection of one set of neighbours, the respondents and their children, but a Magistrate declined to grant an interim intervention order for the protection of the other neighbour, the appellant.
Although there are three separate appeals, all arise out of the same factual background and I have therefore addressed all three together in these reasons.
Background
The appellant and respondents have been neighbours for about 18 years. The neighbours’ relationship initially was positive, however, it deteriorated.
The appellant claimed the respondents were behaving in an unacceptable fashion. The appellant asserts that the respondents have, among other things, thrown faeces into the appellant’s driveway, gossiped about her in their back garden, screamed at her and sworn at her, thrown objects over the fence and poisoned her plants.
The respondents assert that in 2012 the appellant installed cameras pointing directly at their back door and backyard in order to spy on the respondents. They allege unacceptable conduct by the appellant such as playing loud music at 6.00am on weekends, squirting a hose at the fence, spraying water onto the respondents’ cars and behaving in a way to annoy them. The respondents allege that the appellant takes photographs and video footage of the respondents and their teenage children and has attended the workplace of one of the teenage sons complaining about him to his manager.
The parties attended a mediation in about 2011 which was unsuccessful.
On 17 September 2021, the appellant applied for an intervention order as against the respondents.
On 29 September 2021, a Magistrate refused the appellant’s application.
On 30 September 2021, one of the respondents, R, applied on behalf of herself, her husband and her two teenage sons for interim intervention orders against the appellant. Interim interventions orders were made on 3 November 2021. On 5 November 2021, the interim intervention orders were served on the appellant.
A mediation took place on 1 December 2021 between the parties. The mediation was unsuccessful.
On 12 January 2022, a Magistrate made an order adjourning the matter to 13 July 2022 to assess if the parties are able to abide the terms of the interim orders and come to an agreement, failing which the matter will proceed.
As at the date the appeal was heard, a final intervention order had not been issued.
Magistrate’s decision in relation to the appellant
The Magistrate gave ex tempore reasons for refusing the appellant’s application for an interim intervention order. I will refer to this decision as the “Appellant Judgment”.
The grounds of the appellant’s application before the Magistrate were that proposed defendants (the respondents) may commit an act of non-domestic abuse and the applicant had, and would, suffer emotional harm.
The Magistrate listed the acts of alleged abuse. She acknowledged the appellant’s distress. However, the Magistrate was not satisfied on the evidence that it was reasonable to suspect that the respondents will, without intervention, commit an act of abuse against the appellant nor that it was appropriate to issue the order.
The Magistrate referred to each of the alleged acts of abuse. The Magistrate said she was not satisfied that the alleged act of gossiping amounts to abuse. She was not satisfied an act of poisoning plants occurred based on only the appearance of the plants. There was an allegation that R video recorded the appellant. The Magistrate was not satisfied that the isolated incident amounted to an act of abuse. The Magistrate was not satisfied that the conduct of the male respondent, P, (in particular, swearing at the appellant) was sufficient to persuade her that the abuse was likely to continue without intervention. There was little information before the Court to suggest that the behaviour of the teenage son (also primarily swearing) was likely to continue.
Accordingly, although the Magistrate was satisfied the appellant had experienced genuine distress, she was not satisfied it was appropriate to issue an interim intervention order.
Magistrate’s decision in relation to the respondents
The Magistrate hearing the applications by the respondents made the interim intervention orders after hearing evidence from the respondents and viewing stills of video footage. I will refer to this decision as the “Respondents’ Judgment”. The Magistrate heard evidence, considered the stills of video footage and questioned the witnesses in relation to the relevant matters required to found the basis for an interim intervention order. It is apparent that the Magistrate was satisfied it was appropriate to grant interim intervention orders.
The notices of appeal
None of the parties were represented. Without in any way criticising the parties, this resulted in a lack of clarity in the submissions. Understandably, the appellant expressed her complaints in general terms.
In respect of the Appellant Judgment, the appellant complains that the intervention order was refused on 29 September 2021. The appellant states she would like to be protected and have an intervention order in respect of her neighbours.
In respect of the Respondents’ Judgment, in the notice of appeal the appellant seeks the removal of the order “because I’m the victim. I was forced to accept the order to protect my neighbours for 6 months by Magistrate … on 12.1.22”.
The grounds of appeal state that the appellant does not feel safe at home when the respondents are home. She states that the respondents abuse her and teach their children to abuse her as well.
The appeal book essentially comprised the material from the lower court file. The respondents’ material largely mirrors the lower court file.
General principles on appeal
The Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”) provides for applications for an intervention order to be made to the Magistrates Court.[1]
[1] Section 20(1) of the Act; “Court” is defined in section 3 of the Act.
This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) (“Magistrates Court Act”)[2] and Chapter 12A of the Supreme Court Criminal Rules 2014 (SA) (“Rules”).
[2] Groom v Police (No 3) (2013) 231 A Crim R 1, [22]-[28] (Sulan J).
Pursuant to r 104V(1)(a) of the Rules, the hearing is to occur by way of re‑hearing. The Court may in its discretion hear further evidence pursuant to r 104V(1)(c), and, if the interests of justice so require, section 42(4) of the Magistrates Court Act.
In addressing the appeals, I have considered the transcript of the hearings before the Magistrates, the material from the lower court files and the oral submissions made to me.
Interlocutory order - requirement for permission to appeal
The appellant (understandably) did not in her notice of appeal seek permission to appeal.
Subsections 42(1) and (1a) of the Magistrates Court Act provides as follows:
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.
Interlocutory order
In Kiparoglou v Fantinel,[3] Kourakis CJ confirmed that a dismissal of an ex parte application for an intervention order is interlocutory in nature. Such dismissal is interlocutory because the respondent is not present and there cannot be a final determination of any issue as between an applicant and any other person in the absence of the opposing party. The Appellant Judgment following the hearing of the appellant’s application for interim intervention orders in the absence of the respondents is accordingly an interlocutory judgment.
[3] [2021] SASC 90.
The Respondents’ Judgment following the hearing of the application for interim intervention orders in the absence of the appellant is also an interlocutory judgment. The application has not yet proceeded to a final hearing in relation to whether or not the interim intervention order will be made final.
Permission to appeal
It follows that permission to appeal is required pursuant to s 42(1a)(c) of the Magistrates Court Act in respect of both the Appellant Judgment and the Respondents’ Judgment.
In order for an appeal to lie against an interlocutory judgment, I must be satisfied there are special reasons why it would be in the interests of the administration of justice to have the appeal determined.
In Shahin v El-Shafei; El-Shafei v Shahin,[4] Parker J considered the operation of s 42(1a)(c) of the Magistrates Court Act. He agreed with the view expressed by Sulan J in Groom v Police (No 3)[5] that the words “before commencement or completion of the trial” in that section only operate when they are relevant. He said the Court has power to grant permission for an interlocutory appeal if it is satisfied there are special reasons why that would be in the interests of the administration of justice.
[4] (2018) 132 SASR 126.
[5] (2013) 231 A Crim R 1.
In the case of permission to appeal in respect of an intervention order, Stanley J in Thakur v Police held that an arguable case would generally be sufficient to establish special reasons. [6]
[6] (2016) 125 SASR 180 at [26].
For the reasons that follow, I do not consider an arguable case has been raised by the appellant in respect of the Appellant Judgment. I am not persuaded on the material before me that special reasons are established. Consequently, I have determined to refuse permission to appeal.
In relation to the Respondents’ Judgment, I do not consider an arguable case has been raised by the appellant. I am not persuaded on the material before me that special reasons are established. In particular, I will not grant permission to appeal in circumstances in which the interim intervention order has not yet proceeded to a hearing to determine whether a final intervention order ought to be made.
Extension of time
The appeals were filed some months after the relevant time limit expired. The appellant seeks an extension of time on the basis that she states she was not informed by the Magistrate of the requirement to appeal the decision in 21 days. In view of the conclusions I reach, it is not necessary for me to consider the question of the extension of time.
Appeal grounds – Appellant Judgment
The appellant’s notice of appeal sought to appeal the intervention order refused on 29 September 2021, stating that “there are missing vital information not included” and that she would like to be protected. The appellant relied on the following grounds of appeal:
1.I don’t feel safe at home when my neighbours are home. They abuse me for years and they teach their children to abuse me too. See Att, info, emails.
The attachments included correspondence with Registry, correspondence with the respondents, photographs (such as of yellowed plants, damage to the front bumper bar of a vehicle, the lights of a vehicle at night and so on) and correspondence in relation to a freedom of information request made by the appellant.
Appeal grounds – Respondents’ Judgment
In respect of the Respondents’ Judgment, the notice of appeal states that the appellant seeks the removal of the interim intervention order protecting the respondents as she is the victim and she was forced, in January 2022, by the Magistrate to accept the order.
As the grounds are related and overlap, I will deal with them together.
Appellant’s submissions
The appellant’s submissions largely replicated the matters in respect of which she gave evidence to the Magistrate. She alleged that the respondents had, among other things, gossiped about her, sworn at her and failed to stop their teenage son from swearing at her. She asserted that the respondents abuse her and teach their children to abuse her. She asserted this amounts to defamation of character.
The appellant asserted the respondents’ children threw stones over the fence and the respondents poisoned a shrub near the fence. She gave an explanation of her own behaviour (taking photographs of cars) and said she was taking photographs of registration plates to be vigilant only, and that if nothing happened she would not need to worry nor need to tell police a car was in front of her house.
The appellant submitted that the Magistrate heard her evidence, but crucial information was not included. She asserted that the crucial information consisted of letters she wrote to her neighbours relating to a mediation which took place many years ago. She asserted these letters were missing. She stated that she had left her back door open whilst she went to the shops, during that time her keys were stolen and she subsequently discovered that documents relating to the mediation were missing. The appellant asserted those letters were put in evidence by the respondents in their application for an intervention order. She implied the respondents must have stolen the letters from her.
The appellant asserts that the police never assisted her and there was corruption in which the respondents were involved.
The appellant asserts her car was vandalised.
The appellant acknowledged that she did not have evidence that the respondents vandalised her car. She also said she could not accuse the respondents of vandalising her car. The appellant asserted there were lots of matters suggesting the conduct had been inflicted by the respondents but that she was not the police and it was not her duty to accuse the respondents.
In relation to Respondents’ Judgment, the appellant asserted that the respondents had lied in the affidavits sworn in support of the intervention orders. She asserted the terms of the orders created issues for her and needed amendment. For example, she stated she could not comply with an order not to approach the respondents at their place of work when she did not know the location of their place of work.
The appellant acknowledged that final intervention orders had not yet been made but asserted that when the parties appeared before the Magistrate at the hearing in January (which resulted in the adjournment of the matter to July 2022) the Magistrate forcefully required her to accept that order.
The gist of the appellant’s complaints are that she is the victim requiring protection from the respondents rather than the other way around.
Respondents’ submissions
The appellant did not serve her appeal materials on the respondents. They appeared at the hearing and provided an oral response.
The respondents’ submissions largely addressed factual assertions. They denied inflicting any damage to the appellant’s vehicle and gave a different version of events (reflecting the evidence given by them before the Magistrate) including as to the circumstances in which the appellant had taken photographs of their car.
The respondents acknowledge that there were several occasions when P or his teenage son had sworn at or called the appellant names, but asserted it was in response to frustration over the appellant’s conduct; that they had apologised for the conduct and ceased to continue such conduct.
The respondents maintained the interim intervention orders in their favour were necessary and had generated a peaceful situation in the months since the imposition of the orders.
Relevant provisions of the Act
Section 6 of the Act provides that there are grounds for issuing an intervention order against a person if it is reasonable to suspect that person will, without intervention, commit an act of abuse against a person and the issuing of the order is appropriate in the circumstances.
Analysis
In relation to the appeals against the Respondents’ Judgment, a hearing was held in January 2022. There is no material before me in relation to the asserted conduct of the Magistrate at the hearing. The court record in relation to the hearing which took place in January 2022 states “Lengthy adjournment to assess if the parties can abide by the order and come to an agreement. After 6 months if there is an agreement the order may be revoked. If there is no agreement the matter is to be set for PTC”. Consequently, a hearing to finalise the interim intervention applications in favour of the respondents has not yet been held.
Section 23 of the Act provides that, on the hearing of an application for a final intervention order, the court may confirm the interim intervention order as a final intervention order, issue a final intervention order in substitution for an interim intervention order or dismiss the application and revoke the interim intervention order issued against the defendant. When that hearing takes place, the appellant will have the opportunity to put to the Magistrate the reasons why she asserts the interim intervention orders in favour of the respondents ought not be finalised and/or to put to the Magistrate any variations she asserts should be made to the terms of the interim intervention orders if they are to be finalised.

In relation to the appeal against the Appellant Judgment, the appellant contended there was an error because information was missing, that is, in relation to the asserted theft from her house of documents relating to the mediation. The appellant rightly conceded that she could not accuse the respondents of the theft without evidence. The asserted theft of the letters thus could not have constituted an act of abuse by the respondents (nor potentially be fresh evidence) and the asserted missing information does not give rise to appealable error. The Magistrate’s ex tempore reasons adequately set out the basis upon which the Magistrate dismissed the application. No appealable error has been identified.
It follows from my reasons above that I do not consider there is an arguable case on the appeal in relation to the Appellant Judgment. Consequently, had I granted permission to appeal, I would in any event have dismissed the appeal.
Orders
1.I refuse permission to appeal in respect of all three appeals.