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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JP v Police

Details

AGLC: JP v Police [2024] SASC 114
Case: [2024] SASC 114
Decision Date: 28 August 2024

CaseChat Overview and Summary

In the case of JP v Police, the appellant, JP, contested the confirmation of an intervention order made against him by the Mount Gambier Magistrates Court. The order was based on allegations of abusive conduct during his relationship with his former partner, which culminated in a violent confrontation. JP's former partner and another individual sought the intervention order, leading to a protracted legal process that extended over three years. The appeal to the higher court focused on the merits of the decision to confirm the intervention order and the appellant's contention that the order should not have been upheld due to insufficient evidence and procedural irregularities.

The primary legal issues before the court were whether the evidence was sufficient to justify the confirmation of the intervention order, and if the trial judge correctly exercised their discretion in upholding the order. The appellant argued that the evidence did not substantiate the allegations of abuse and that there were procedural errors in the handling of the case by the lower court. Additionally, the appellant contended that the trial judge failed to properly consider the evidence and exercised their discretion in an arbitrary manner.

In determining the appeal, the court considered the evidence presented during the trial, focusing on the credibility and weight of the testimonies provided by the protected persons and the appellant. The court found that the evidence did not conclusively support the allegations of abuse and that there were procedural issues in the handling of the case. The court held that the trial judge did not properly exercise their discretion in confirming the intervention order and that the order should not have been upheld. Consequently, the appeal was allowed, and the intervention order was set aside.

The final orders of the court included granting leave to appeal, setting aside the intervention order confirmed by the Mount Gambier Magistrates Court, and granting an extension of time for further proceedings. The court's decision underscores the importance of proper evidentiary standards and procedural fairness in the confirmation of intervention orders.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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