JBS v RB - [2022] SASC 143

Supreme Court of South Australia
(Magistrates Appeal: Criminal)
JBS v RB & ANOR
[2022] SASC 143
Judgment of the Honourable Justice Bampton (ex tempore)
29 November 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
Appeal against making of a final intervention order pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA) – where appellant agreed to the making of final intervention order in the Magistrates Court without admitting the facts.
HELD: No error identified in the making of the final order – appeal dismissed – intervention order confirmed.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23, referred to.

JBS v RB & ANOR
[2022] SASC 143

BAMPTON J: This is an appeal against the decision of a Magistrate made on 13 July 2022 in AMC-21-9798 confirming an interim intervention order as a final intervention order pursuant to s 23(1)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
By her notice of appeal received by the Court on 15 August 2022, the appellant appeals the Magistrate’s decision. I note the Magistrate also dealt with a breach of the interim intervention order in AMC‑22‑3074 on 13 July 2022 which is not complained of. The appellant seeks an order “removing the order”. I infer the appellant seeks an order revoking the final intervention order.
The appellant and the protected persons are neighbours. The protected persons named in the final intervention order are a husband and wife and their two teenage sons. The relevant details of final intervention order are:
1.The defendant must not assault, threaten, harass or intimidate the protected person(s).
2.The defendant must not follow or keep the protected person(s) under surveillance including tracking by GPS or otherwise and including taking photographs or videos of the protected person(s).
3.The defendant must not enter or remain within the boundary where the protected person(s) stays, resides, or works; when they are present at the workplace.
4.The defendant must not damage or interfere with the premises where the protected person(s) stays, resides, or works.
In response to being asked to state why the Magistrate’s decision is wrong, the appellant detailed a litany of allegations against the protected persons. She alleges:
1.They are verbally abusive, are bullying her, and are teaching their sons to be abusive, including giving their 17-year-old son a camera to take pictures of her.
2.She was unable to water her garden as “they were constantly coming to and being present”.
3.The 17-year-old protected person looks at her and is laughing at her constantly and swore at her.
4.She is not respected and is trying to teach the protected persons to be civil.
5.No-one protects her, the police do not protect her and are corrupt.
6.Documents have been stolen from her home, altered and returned.
7.Her car was vandalised causing $600 damage following the hearing of her ex parte application for an interim intervention order on 29 September 2021.
8.She is the victim who needs protection and an intervention order.
The following extract from the transcript of the appeal hearing details certain of the appellant’s allegations:[1]
[1]     T13.11-18.7.
APPELLANT:    Thank you. That letter when my daughter wrote to me that was produced for the court and the magistrate read that letter and given to my neighbours as part of my response that I have no problem if they read that letter. So that letter was original letter which my daughter wrote was changed. My letter was stolen from my home, that letter from my daughter and was rewritten changing the end of the letter.
HER HONOUR:   So who do you think stole the letter from your home?
APPELLANT:    Well, first documents which were stolen about my neighbours which is about which – that was about mediation, first mediation about 10 years ago.
HER HONOUR:   So you think there was theft of documents from the first mediation.
APPELLANT:    First mediation because there was proof that I organised that mediation.
HER HONOUR:   Okay, so you think that your neighbours stole the documents.
APPELLANT:    Well, who can be interested in those letters and who can be interested about my daughter’s letter against my neighbours?
HER HONOUR:   And you think that your neighbours –
APPELLANT:    Yes, I do believe.
HER HONOUR:   – stole your daughter’s letter from your home –
APPELLANT:    Yes, I do believe.
HER HONOUR:   – came into your home –
APPELLANT:    Yes, I do believe.
HER HONOUR:   – and stole the letter and changed the letter.
APPELLANT:    Yes, I do believe so.
HER HONOUR:   How do you think the letter was changed?
APPELLANT:    There is proof that is not correctly spelled and sounds very stupid like my daughter is not able to explain herself and write correctly. The very end of the letter, it’s not correct. So I was very upset about this because that’s why I put this letter for you, your Honour.
HER HONOUR:   So this letter that you’ve put here at p.13 –
APPELLANT:    Yes.
HER HONOUR:   – is that the letter that was changed?
APPELLANT:      Yes.
HER HONOUR: How was it changed?
APPELLANT:    The end of the letter, it’s not the way it’s supposed to be, it’s a mistake.
HER HONOUR:   Well, how is it supposed to be?
APPELLANT:    I cannot read this now, like I said
HER HONOUR:   It says ‘Regards, [name of appellant’s daughter]’.
APPELLANT:    Yes, before she signed that there is information about the neighbourhood is –
HER HONOUR:   Okay, I’ll read it. ‘My mother has genuine intentions to remain civil and does not seek to have any difficulty with this family in the future, she only asks for respect and privacy that the neighbourhood, neighbours and community work towards to keep every feeling safe’. There’s a couple of words missing.
APPELLANT:    The ‘every feeling safe’, it’s not correct.
HER HONOUR:   Well, it might be that she left [a word] out accidentally.
APPELLANT:    No, no, I know because I read that original letter and my daughter will not make that mistake. So this is showing directly to her misunderstanding language or suggesting that she is not able to write.
HER HONOUR:   So you’re suspicious that your neighbours went into your house, got this letter that your daughter had written, took it away and changed it, and then put it back in your house. Is that what you think?
APPELLANT:    Yes. There were several breaks to my home about documents and I informed police. Police never checked anything about this.
HER HONOUR:   So you’ve made lots of complaints to the police. You’ve made lots of complaints to police and you don’t think the police take you seriously; is that –
APPELLANT:    Yes, yes.
HER HONOUR:   And you have alleged to me and alleged to the magistrate that the police are corrupt.
APPELLANT:    Yes. Your Honour, may I go to that with what happened through a first appearing in the court when I applied for my private intervention ...
HER HONOUR:   I can’t consider that because that’s been already decided by Stein J. So we now need to focus on what happened in July.
APPELLANT:    Not Stein J. Okay, I will go back to that, but I wasn’t able to proceed with police and have protection from police and I still don’t have because I was refused the order. Police refused to look after me and look after the whole community because when I’ve got first appearance in the court I – my car was vandalised and I went to police –
HER HONOUR:   Okay. So you think that - when you came to your first appearance when you were applying for your intervention order – was that before Magistrate Sutcliffe?
APPELLANT:    Yes.
HER HONOUR:   Is that the day you say your car was vandalised?
APPELLANT:    Yes.
HER HONOUR:   Were you at that first - they weren’t there.
[PROTECTED PERSON 1]:     Didn’t even know about it.
[PROTECTED PERSON 2]:     Didn’t even know about it.
HER HONOUR:   They didn’t know about it. It was done without them, it’s what we call ex –
APPELLANT:    They’ve got cameras, your Honour.
HER HONOUR:   But they don’t know that you’re going into the court to get an interim intervention order against them. You didn’t serve it on them.
APPELLANT:    Your Honour, you think that I am naïve. I am 63 years old, I know what’s going on in my life. And after all those abuses when I went through – I am 63 years old who is constantly abused, never have respect from my neighbours. I don’t have problem with other neighbours, that’s what I want to stress out.
I went to police and I would like to stress this out again. There is not everybody corrupted. I am not accusing every single policewoman and policeman that they corrupted. I am saying that I will seek police help because I am not the one who will tell my neighbours what is important to do, to be civilised, because in the first place – and years ago I try to teach them to be civilised and they never learn that.
HER HONOUR:   It’s not your job to teach your neighbours –
APPELLANT:    Maybe it’s wrong quote. I try to get them to mediation to be - they will be told by other people to be civilised. They never respect me and they still going on for over 10 years. So because of those –
HER HONOUR:   Do you respect them?
APPELLANT:    Can I finish?
HER HONOUR:   No, no, it’s my turn. Do you respect them? You don’t have respect for your neighbours either, do you?
APPELLANT:    Excuse me?
HER HONOUR:   Do you respect them?
APPELLANT:    Did I call them names?
HER HONOUR:   I’m asking you whether you have respect for them.
APPELLANT:    Did I call them names and abuse them and poison the plants and constantly doing all wrong things towards them?
HER HONOUR:   Do you film them? Do you photograph them?
APPELLANT:    But I am explaining. Is it not respect that I never called them names?
HER HONOUR:   I’m asking you do you photograph them?
APPELLANT:    I – did they photograph me?
HER HONOUR:   I’m asking you the question. Do you photograph them?
APPELLANT:    I tried to get evidence on my neighbours –
HER HONOUR:   You tried to get evidence by filming –
APPELLANT:    Because my camera doesn’t work.
HER HONOUR:   So you used your phone.
APPELLANT:    And I try to get my evidence because they have been so abusive towards me all the time, and the evidence for the court I need because they constantly breaking a part of the car, they breaking my covers; I’ve got covers for the car, shade cloth, big triangle –
HER HONOUR:   So you think they’re breaking your shade for the cars; the shade cloth?
APPELLANT:    Yes. So I am going to opine that when they breaking cover over and over and over, I went to police two times about this and after that I spoke with my neighbour who suggested that he’s happy to help me and he made big screen to put next to the fence so that I will have cover from my neighbours not to see them, not to be – they will not interfere with the cameras. So he did that for me, my neighbours. I pay for him for whatever he ask for. And after that my neighbours went to my neighbour to abuse him that he help me.
The protected persons allege the appellant was constantly filming them before the making of the interim intervention order and following the making of the order attended their sons’ part time workplace, the local Woolworths (the subject of the breach in in AMC-22-3074), in contravention of the interim intervention order. The protected persons acknowledge their son swore at the appellant before the making of the interim intervention order on an occasion when the appellant had her camera “right in front of his face while he was sitting in the car and that’s why he got out and told her to go away. It’s just this constant fear”.[2] The protected persons referred to a recent incident when the appellant “started screaming over the fence all sorts of crazy stuff so we called the police”.[3] The police attended the next day, got their side of the story went to the appellant’s house but said there was no answer. The protected persons stated their son is not doing nor would they permit him to do the things the appellant alleges.
[2] T11.1-4.
[3] T11.31-32.
The history to this matter involves the appellant and the protected persons attending a mediation in 2011 which was unsuccessful. More recently, on 17 September 2021, the appellant applied ex parte for intervention orders in AMC‑21‑9546 and AMC-21-9550 against the protected persons, which were refused on 29 September 2021. It is following this hearing the appellant alleges her car was vandalised by the protected persons. When I suggested to the appellant the protected persons did not know about her applications at the time they were heard, she said:[4]
[4]     T19.24-21.29; T22.26-28.
APPELLANT:    Your Honour, I am coming to the part when I will explain what my neighbours know and how things going. So they – I listened to them because my windows, it’s at the backyard, I listened to them for years and after a while, when they gossip, talking rubbish, I just shut my windows to not listen to them, whatever they do. But they talking about my relationships, my money, my business, everything what I’ve got, they talking about all the time, they gossiping.
HER HONOUR:   So you think that they’re spending all their time talking about you.
APPELLANT:    They – I don’t say all the time, I don’t know how often because I cut off and I live my life, when I -
HER HONOUR:   But they’re busy people, they’ve got two children, they’ve got jobs. You’ve each got a job?
[PROTECTED PERSON 1]:     Yes, full-time.
[PROTECTED PERSON 2]:     Yes.
HER HONOUR:   Their kids go to school, they’ve got to run a house.
APPELLANT:    They not Sunday or Saturday afternoons when they sitting backyard they talking. So they put – they put – we’re going up and down with all the information but I hope you will have the whole picture – when put in the last letter that I am screaming at my driveway, no, no your Honour. I’ve got car on my driveway. When I go at evening to lock the car and that evening exactly happened because there was nice day and I have got open window so I went to the car to lock the windows. That’s what I did. Every time I am in my bathroom I have to think to close the windows because I don’t know what will happen. I have to think all the time what they doing because they constantly abusing me and their children abusing me, to that level that they say that I talk and abuse them when I’m on my driveway. Lately for quite some time I’ve got dog, my daughter’s dog, staying with me. So if I go to the car to put dog to the car to go for walk, because I’m living Glenelg as you know, and there is – I’m walking on seaside with the dog, depending sometimes, so I’m taking the dog to the car, I talk to the dog. I am not talking to my neighbours, I’m talking in Polish to my dog. So I am not talking to my neighbours, this is number 1. Number 2, going back to my neighbours and their children, they’ve been extremely abusive and I mentioned that in previously that my neighbour’s son, 17 years old, who call me names, he stand up on – probably on the beam because I had, looking over the fence, on my driveway, and screaming at me. That was when they get that order. They think they will be abusing me because they’ve got double standard and they will be protected by police. I am not going to dwell on every single event but they are circumstances which I am not able to go through and be able to be protected by police because I’m not going to police even every single time they breaking my covers for the car. I am exhausted and I didn’t go over and over because –
HER HONOUR:   You haven’t explained to me how they knew that you went to court.
APPELLANT:    They on my driveway, they have to be on my driveway.
HER HONOUR:   No, when you went to court and you didn’t get the intervention order and your car was vandalised, how do you know that they knew that you were in court?
APPELLANT:    Police, is that the neighbours, the people talking, they must know this.
HER HONOUR:   But how would they know if you went to court on 29 September and they weren’t served with anything?
APPELLANT:    I am not going to dwell on this your Honour because –
HER HONOUR:   You’re not going to dwell on it?
APPELLANT:    – Because police is there, court is there, people are there who talking about and I am not explaining this because it’s not my job to let them know because I was several times already at police –
HER HONOUR:   So you think the police told them?
APPELLANT:    – station and try to get that intervention order from July.
HER HONOUR:   So you think the police told them?
APPELLANT:    – from July to September.
…
HER HONOUR:   But you think it was these neighbours [who vandalised her car]?
APPELLANT:    Yes, I do believe so. So – but I cannot say this because it’s police job.
On 3 November 2021, the protected persons obtained an interim intervention order against the appellant in AMC 21-9798. A court-convened mediation, which took place on 1 December 2021 between the appellant and the protected persons and during which the second protected person apologised for swearing at the appellant in the past, did not resolve the matter.
On 12 January 2022, a Magistrate made an order adjourning the hearing of the application for a final intervention order to 13 July 2022 allowing more time for the interim intervention order to be complied with, failing which the matter would proceed to hearing on 13 July 2022.
On 16 May 2022, Stein J refused the appellant permission to appeal:[5]
1.against the dismissal of her applications for an interim intervention order AMC-21-9546 and AMC-21-9550; and
2.against the granting of the interim intervention order in AMC‑21‑9798.
[5] [2022] SASC 45.
I have had regard to the booklet of documents prepared by the appellant and her submissions about the abuse she alleges against the protected persons. I have also read the transcript of the previous hearings.
On my reading of the transcript of the hearing of the application for a final intervention order on 13 July 2022, the appellant was focused on the alleged abuses against her and her assertion that she is the victim. The Magistrate spent some time explaining to the appellant her options regarding the making of the order, contesting the order and going to trial. The appellant agreed to the making of the final intervention order without admitting the facts.
It is clear the applicant is keen to have her own intervention order and complains that the police have not assisted her and there is corruption at play.
The applicant has not identified any error in the making of the final intervention order.
Accordingly, I dismiss the appeal and confirm the final intervention order made by the Magistrates Court made on 13 July 2022.
There can be no application to revoke or vary the order for 12 months from 13 July 2022.