JP v Police - [2024] SASC 114

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
JP v POLICE
[2024] SASC 114
Judgment of the Honourable Justice McDonald (ex tempore)
28 August 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
This is an appeal against a decision of a Magistrate to confirm an intervention order pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) on 8 September 2023. The appellant was the subject of the intervention order, and his former partner and her son were the protected persons.
The basis upon which the interim intervention order was imposed were allegations that the appellant had been abusive during his relationship with his former partner which commenced in 2011. The relationship began to deteriorate over time and in May 2020 the appellant’s former partner left the appellant. At this time, the appellant opposed the confirmation of the intervention order and the matter proceeded to trial.
Following the evidence at trial, the Magistrate considered that there had been no contact between the appellant and his former partner since the breakdown of the relationship and that the appellant and the protected persons were no longer residing in the same town as the appellant, that being Millicent. The Magistrate however in exercising her discretion nonetheless held that there was sufficient evidence to find a reasonable suspicion that the appellant would have, without intervention, commit an act of abuse against the protected person pursuant to s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). In reaching this finding, her Honour exercised her discretion to confirm the intervention order.
Pursuant to s 42 of the Magistrates Court Act 1991 (SA) and r 213.1 of the Uniform Civil Rules 2020 (SA), the appellant seeks leave to appeal on the basis that the confirmation of an intervention order is an interlocutory judgment and does not conclusively determine the rights of the parties. The appellant also requires an extension of time to institute this appeal on the basis that the notice of appeal was filed one week out of the required time frame stipulated in r 214.1(1) of the Uniform Civil Rules 2020 (SA).
The appellant brings this appeal on the basis that the Magistrate erred in exercising her discretion to confirm the intervention order against the appellant. The appellant further contends that the proceedings in the Magistrates Court resulted in a miscarriage of justice due to inadequate and/or the absence of legal representation, that the Magistrate exercised actual or apprehended bias in determining the issues for consideration and in considering the trial evidence and that there was a miscarriage of justice as a result of the appellant not being afforded procedural fairness during the trial.
Held; the appeal is allowed:
1. The appellant is granted leave to appeal.
2.The Magistrate was in error in confirming the intervention order and in finding that the first limb of the Act was satisfied.

3. The time to appeal is to be extended to 6 October 2023.
4. The intervention order made on 7 July 2020, and confirmed on 8 September 2023 is quashed.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5, s 6(a)(b), s 8(2)(a-d), s 8(3)(c), s 10(1), s 23; Magistrates Court Act 1991 (SA) s 42; Uniform Civil Rules 2020 (SA) r 213.1, r 214.1, referred to.
van Reesema v Police [2009] SASC 8; House v The King (1936) 55 CLR 499; George v Rockett (1990) 170 CLR 104; Marley-Duncan v Police [2005] SASC 146; Police v Kriticos [2016] SASC 28; Police v Giles [2013] SASC 11, applied.

JP v POLICE
[2024] SASC 114
Magistrates Appeal: Criminal
McDONALD J (ex tempore):

This is an application for permission to appeal against the decision of a Magistrate to confirm an intervention order pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’) on 8 September 2023. The appellant is the subject of that order, and his former partner and her son are the protected persons.
This appeal is brought pursuant to s 42 of the Magistrates Court Act 1991 (SA) and r 213.1 of the Uniform Civil Rules 2020 (SA) (‘the Rules’). An intervention order is an interlocutory judgment, as it does not finally determine the rights of the parties, and consequently leave to appeal is required. Section 42 provides no criteria by which it is to be determined whether leave should be granted. The purpose of limiting the right of appeal from interlocutory judgments and orders is to prevent summary proceedings from being delayed and fragmented.
As Bleby J observed van Reesema v Police:[1]
If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final, substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of interlocutory order is not yet known.
[1] [2009] SASC 8 at [23].
The appellant also requires an extension of time. Rule 214.1(1) provides “An appeal must be instituted within 21 days after the date of the judgment or order the subject of the appeal”. The notice of appeal was filed on 6 October 2023, which means that it was filed about one week out of time.
For reasons that I will come to, in my view this appeal has merit and it is therefore appropriate that I grant leave to appeal and grant an extension of time to 6 October 2023.
Background
In order to understand the basis upon which I have determined to allow this appeal, it is necessary to have an appreciation of the events that led up to, and the circumstances in which the intervention order came to be confirmed.
On 3 July 2020, South Australian Police applied to the Mount Gambier Magistrates Court for an intervention order against the appellant in respect of the two protected persons. An interim order, based on affidavit material filed by the police, was made on 7 July 2020. The appellant was not in attendance at that hearing.[2]
[2] FDB 18, Written Submissions of the Respondent at [6]-[7].
The basis for the interim intervention order were allegations that the appellant had been abusive during his relationship with his former partner. The relationship had ended when she left the appellant on 26 May 2020.
The appellant opposed the confirmation of the intervention order and the matter proceeded to trial.
During the trial, the appellant appeared unrepresented. His previous lawyer, Mr Williamson, was granted leave to withdraw from the file on 6 October 2020.
The matter took three years to proceed through the Mount Gambier Magistrates Court with the trial taking place over six days between 31 May 2021 and 30 June 2023. Six witnesses, two of whom were the protected persons gave evidence at trial. The appellant also gave evidence.
The effect of the evidence was that the appellant and his former partner had commenced a relationship in 2011. Initially it was a happy and loving relationship and in 2014 they conducted an unconventional wedding ceremony that is not legally recognised. It was after that ceremony that the appellant’s former partner moved into the appellant’s house at Hill End, Victoria.
In March 2019, they purchased a property at Millicent and moved to that property. Over time, the relationship deteriorated. Both of the protected persons described the appellant as demonstrating aggressive, controlling and at times violent behaviour. The appellant’s former partner would travel to Victoria for business but was ostensibly living with the appellant in Millicent.
In early 2020, the situation escalated and the appellant’s former partner decided to leave him. She started secretly removing property from the matrimonial home. This was detected by the appellant and led to a long and violent confrontation involving the appellant and both protected persons, during which a car was damaged.
There were further incidents in March 2020 and thereafter, which on her evidence caused the appellant’s former partner to live in fear. On 26 May 2020, she succeeded in leaving the appellant after many unpleasant encounters.
There were a number of other witnesses who were called to give evidence in support of this account.
Of significance to the outcome of the appeal, it was the appellant’s former partner’s evidence that other than for the court proceedings, there was only one occasion on which she saw the appellant again after they separated. That was on 21 May 2021, and involved a chance encounter in Millicent when they were each in their respective motor vehicles. The appellant denied that this occurred.
The appellant’s former partner gave evidence 10 days later on 31 May 2021, that is two years and four months before the Magistrate ruled on the application.
In his evidence the appellant denied all of the allegations of physical violence that were made at trial. He maintained that his relationship with his former partner was not a romantic one. Whilst it started that way, in more recent years they had reverted to a friendship.
In her Honour’s reasons for her decision the Magistrate made the observation that both of the protected persons are long gone from Millicent.[3] During the trial they gave their evidence from a remote location. I am told that during the appellant’s former partner’s evidence-in-chief she was still living in Millicent, however, by the time she returned to court to be cross-examined she had moved to an address in Victoria.
[3] Police v JP [2023] SAMC 118 (‘Magistrate’s Reasons’) at [27].
In determining to confirm the order, the Magistrate considered the fact that there had been no contact between the appellant and his former partner.
Her Honour said:[4]
One relevant consideration is the fact that there has been no contact between the respondent and the protected persons since the proceedings were commenced, and in fact that both protected persons have moved to Victoria. However, the respondent and PP1 [the appellant’s former wife] first met and lived together interstate, and from the history he has given me, I cannot assume he will remain in Millicent. Indeed, he has expressed a desire to leave when he is able.
[4] Ibid at [22].
Grounds of appeal
The grounds of appeal are framed with a degree of imprecision that is unsurprising given the appellant drafted them without the benefit of legal assistance. They read as a list of complaints about the manner in which the trial was conducted in the Magistrates Court.
In order to assist the Court, counsel for the respondent attempted to sift through the various complaints and produce a list of grounds that reflect the issues raised by the appellant.[5] These include that a miscarriage of justice has occurred due, at least in part, to inadequate and/or the absence of legal representation, procedural unfairness and actual or apprehended bias.
[5] FDN 11, Respondent’s Summary of the Appellant’s Appeal Grounds.
The appellant agrees that the grounds drafted by the respondent are a fair reflection of the matters that he has raised.[6]
[6] 2 May 2024 T2.
The law
An appeal based upon a Magistrate’s decision to confirm an intervention order is one against the exercise of a discretion, and it will only be allowed where it has been established that the Magistrate has erred in the proper exercise of that discretion.[7] That is, the Magistrate has acted on some wrong principle or has given weight to extraneous or irrelevant matters or has failed to give weight to relevant considerations or has made a mistake of fact.
[7] House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
Section 6 of the Act sets out a two limb test to be satisfied before an intervention order may be granted by the Court. It relevantly provides:
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.
The first limb requires a reasonable suspicion of a future act of abuse. The facts required for a person to form a suspicion that the appellant would act in the prescribed way are less than those required for a person to form a belief that he would do so.[8]
[8] George v Rockett (1990) 170 CLR 104 at 115-116, cited in Marley-Duncan v Police [2015] SASC 146 at [36] per Stanley J.
The discretion under s (6)(b) however is a wide-ranging one. Previous authorities have noted that the objects of the Act, the broad definition of abuse and the considerations set out in s 10(1) show that the Act contemplates a broad range of circumstances in which it may be appropriate to make an intervention order and in the exercise of the discretion great weight is given to the welfare and personal autonomy of the protected person.[9]
[9] Police v Kriticos [2016] SASC 28 at [25] per Doyle J; Police v Giles [2013] SASC 11 at [42] per Kourakis CJ.
Did the Magistrate err in the exercise of her discretion to confirm the intervention order?
I turn then to then to the question of whether the Magistrate erred in the exercise of her discretion to confirm the intervention order.
The obvious unusual feature of this matter is the length of time that it has taken for the completion of the proceedings in the Magistrates Court and to a lesser extent in this Court. It would not be productive and in fact, irrelevant to the issues before me to enter into an evaluation as to where the fault may lie for such a significant delay. I simply make the observation that it became apparent during the various hearings in this Court that the appellant does not appear to cope very well with life’s exigencies, and was often not ready for the hearings for any number of reasons.
Be that as it may, it has resulted in delay of nearly two and a half years between the imposition of the interim intervention order and the confirmation of that order on 8 September 2023. Approximately 12 months have now passed since that time.
A Magistrate is required to consider whether the two limb test in s 6 of the Act has been satisfied on the date of making the order. It follows that whilst in some circumstances the imposition of an interim intervention order may have been appropriate at the time it was made, by the time that an order comes to be confirmed, it is no longer necessary. That is more likely to be so the longer the interval between the two sets of proceedings.
The first question for the Magistrate to determine was whether it was reasonable to suspect the appellant would, without intervention, commit an act of abuse against his ex-partner or her son.
An act of abuse is defined in the Act as an act that:[10]
(2)… 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.
[10] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 8(2).
In addressing limb 6(a), the Magistrate observed:[11]
Evidence of past abuse, as defined in s 8 of the Act is sufficient evidence for the court to found a reasonable suspicion that the respondent will, without intervention, commit an act of abuse against the protected person. I am satisfied that the respondent’s behaviour as described by PP1 and PP2, in particular, in particular where it is supported by the evidence of the applicant’s other witnesses, caused distress, anxiety, or fear, that was more than trivial and constitutes abuse as defined by s 8(3)(c) of the Act.
[11] Magistrate’s Reasons at [25]
The Magistrate found that she was satisfied that the appellant’s behaviour, as described by the protected persons, in particular, where it was supported by the applicant’s other witnesses, caused distress, anxiety, or fear, that was more than trivial and constituted abuse as defined by s 8(3)(c) of the Act.
Whilst that finding was well open to the Magistrate, it fails to take into consideration that s 6 of the Act is forward and not backward looking. Whilst past conduct may be informative and the best predictor of future behaviour, the task for the Magistrate was to determine whether it was reasonable to suspect that the appellant would commit an act of abuse, absent an intervention order. The Magistrate did not engage in this exercise. In the unusual circumstance of this matter, there were considerations that weighed heavily against the ability to find that test satisfied.
Other than the one incidental crossing of paths (which is disputed), the appellant had not seen his former partner since 26 May 2020. To put that in context, in the intervening period, Australia has experienced a pandemic.
At the time of confirming the intervention order, the protected persons were long gone from South Australia, whereas to date, or more relevantly at least up until 8 September 2023, the appellant has continued to live in Millicent.
The appellant has had no knowledge of where the protected persons are residing since they parted company. There was no evidence to suggest that the appellant has attempted to seek out or locate the protect persons. To the contrary, I accept that he wishes to have nothing further to do with them and to move on with his life.
Whilst I accept that the Magistrate gave some consideration to these matters, her Honour’s reasoning demonstrates that the Magistrate’s focus was on what had occurred in the past rather than what might reasonably be suspected to occur in the future.
In my view, it was not open to the Magistrate to find that the first limb of the test of s 6 of the Act was satisfied.
Even if I am wrong about that, I also consider for the same reasons that I have already outlined, that it was not appropriate to issue the order.
The imposition of an intervention order has real and not insignificant consequences for a defendant. It appears on that individual’s police records, including any clearance certificates or working with children checks. The effect of an intervention order is to criminalise conduct that a person would otherwise engage in their everyday life. It follows that such an order should only be made where it is genuinely necessary to assist in preventing domestic or non-domestic abuse.[12]
[12] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5.
In my view, in the circumstances in which there was no more than an extremely remote chance that the appellant and the protected persons would cross paths in the future, so many years after the end of the relationship, it was not appropriate for the Magistrate to confirm the order.
It follows that the Magistrate was in error in confirming the intervention order.
I make the following orders:
1.The time to appeal is extended to 6 October 2023.
2.I grant leave to appeal.
3.The appeal is allowed.
4.The intervention order made on 7 July 2020 and confirmed on 8 September 2023 is quashed.