KIPAROGLOU v AZ - [2022] SADC 147

District Court of South Australia
(Criminal)
KIPAROGLOU v AZ
[2022] SADC 147
Judgment of his Honour Judge Slattery
14 December 2022
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
The Informant has privately commenced prosecutions against 14 individuals alleging over 800 counts of criminal conduct. This conduct is alleged to be connected to a speeding prosecution brought against the Informant and the sequalae of that prosecution. The Defendant, AZ, was the presiding Magistrate of the prosecution of the Informant for the speeding offence alleged by Police.
Following the withdrawal of the prosecution by the Police, the Informant commenced a series of private prosecutions against AZ as the presiding Magistrate and against 13 other individuals including a surgeon and his wife, doctors, staff of a medical practice, police prosecutors, and police officers.
In the Information dated 15 August 2022 naming AZ as a Defendant, there are 147 charges alleged that fall into 24 categories of alleged offending.
By Application dated 21 September 2022, the Defendant applied for the following orders:
1. …
2. That the within proceedings to be stayed as an abuse of process.
3. Further, or in the alternative to [2], for each count in the Information constituting the within proceedings be struck out on the basis each count is frivolous, vexatious and an abuse of the processes of the court.
4. Further, or in the alternative to [2]-[3], for the Information to be struck out on the basis it is frivolous, vexatious and an abuse of the processes of the court.
This application is made under: Joint Criminal Rules 2022 rr 38.7, 64.1 and 30.3 as well as s 9 Magistrates Court Act 1991.
The Informant separately applies for an order that each of the Informations against all of the 14 Respondents be heard together.
Whether, as a presiding Magistrate, AZ had the benefit of an immunity under s 44 MCA 1991.
Held:
1.      Each count on the Information:
1.1    Does not comply with the Rules;
1.2    Is frivolous, vexatious and an abuse of the process of the court; and
1.3    Does not disclose an offence
and it is struck out under JCR 64.1(1)
2.      Leave is refused to file an amended Information under JCR 64.1(2)
3.      The Information:
3.1    Does not comply with the Rules; and
3.2    Is frivolous, vexatious and an abuse of the process of the court
and it is struck out under JCR 30.3(1)
4.      Leave is refused to file any amended or substituted Information under JCR 30.3(2)
5.      The prosecution is stayed
6.      Observations on the power, if any, of a Magistrate to strike out a criminal prosecution
7. Observations on the application and operation of s 44 Magistrates Court Act 1991 and the immunity of a Magistrate
8.      The Application by the Informant for joinder is refused
Magistrates Court Act 1991 (SA) ss 4, 9, 16, 22, 44; Criminal Law Consolidation Act 1935 (SA) ss 14, 19, 19AA, 20, 21, 23, 29, 39, 56, 134, 136, 139, 172, 244, 248, 256, 267, 270; Bail Act 1985 (SA) s 14; Criminal Procedure Act 1921 (SA) ss 51, 102, referred to.

KIPAROGLOU v AZ
[2022] SADC 147

The Informant is a private individual. On 15 August 2022, the Informant issued from the Adelaide Magistrates Court an Information and Summons alleging 147 separate counts of wrongdoing, allegedly committed by the Defendant, who will be described as AZ. Much of the offending is alleged to be aggravated. There is then a separate document recording what are said to be the facts of each of the charges which appear to be intended as informing the reader of the particulars of the charge. Unusually, there are 148 paragraphs of particulars for 147 alleged offences. I will treat this document as a recitation of the particulars of the charges.
For the purposes of the disposition of this application, I am sitting as Magistrate under s 22 Magistrates Act 1991; I am therefore in a position to dispose of this application by the Defendant. Some of the counts alleged minor indictable offences whilst others allege major indictable offences that only fall within the jurisdiction of the District Court of South Australia.
By an application dated 21 September 2022, the Defendant sought orders including as follows:
1.A closed court for the within proceedings on 29 September 2022 and any subsequent hearings.
2.That the within proceedings to be stayed as an abuse of process.
3.Further, or in the alternative to [2], for each count in the Information constituting that the within proceedings be struck out on the basis each count is frivolous, vexatious and an abuse of the processes of the court.
4.Further, or in the alternative to [2]-[3], for the Information to be struck out on the basis it is frivolous, vexatious and an abuse of the processes of the court.
This application is made under:
1.Joint Criminal Rules 2022 r 38.7;
2.Magistrates Court Act 1991 s 9;
3.Joint Criminal Rules 2022 r 64.1; and
4.Ibid r 30.3.
The application was supported by an Affidavit of […EF], solicitor made on 21 September 2022; that Affidavit was read into evidence in support of the application. There are a number of pertinent factual matter deposed to in that affidavit as follows:
32.Magistrate AZ is a serving judicial officer. A judicial officer is immune both civilly and criminally for words spoken in office. By virtue of s 44 MCA a Magistrate has the same privileges and immunity from liability as a Supreme Court Judge.
33.Based on a comparison between the date range of the purported offences identified at [6] (and the ‘particulars' alleged) and the history of the interactions between the Informant and Magistrate AZ, the clear inference is that the purported prosecution of Magistrate AZ is in the context of her duties as a judicial officer.
34.The purported prosecution of Magistrate AZ must also fail based on the immunity from criminal prosecution afforded to her as a judicial officer.
After making an order for a closed court, I heard the balance of the Defendant’s application on 29 September 2022, and on that day I made the following orders:
1.I grant a permanent stay of the proceedings in relation to each of the charges on the Information;
2.Each of the counts on the Information be struck out as abuse of process; and
3.The whole Information be struck out as the complaints on the face of the Information are all frivolous, vexatious or an abuse of the processes of the court.
I said then that I would publish my reasons. These are those reasons.
I will deal first with the stay strike out application and then with the other ancillary applications of the Informant.
It is necessary first to set some of the unchallenged background of the prosecution and then to address the applicable principles which govern my approach to this application.
The background to these allegations is within a reasonably narrow compass. On 2 October 2018, the Informant was driving in a 100 km/h zone in rural South Australia. A police officer detected that he was allegedly driving the vehicle at a speed of 113 km/h in that zone. He was issued with what is commonly described as an expiation notice in relation to that alleged offence. The expiation notice gives the driver a choice either to accept the allegations and all of the consequences which follow by completing the notice as acceptance of his guilt and returning it. Alternatively, the recipient of the notice could plead not guilty and contest the charge.
In this instance, the Informant chose to contest the charge. Proceedings commenced in […a] Magistrates Court on 15 August 2019. Although I am not informed of the reasons, the prosecution was then transferred to […another] Magistrates Court for trial in 2020. The trial of the action was set to occur on 16 January 2020, but it did not proceed on that day and it is appears that on 2 October 2020 that action was set at that court for trial in January or February 2021. Magistrate AZ was due to hear the trial.
In the course of the conduct of the prosecution before the Magistrates Court, a number of Interlocutory Orders were made by AZ about disclosure and other things. The Informant brought at least one appeal from the decisions of the Magistrate concerning inter alia, disclosure to be made by the prosecution. It was dismissed. Appeals against some of the orders made by the Magistrate were also brought by the prosecution, but those appeals were also dismissed.
In July 2021, the Informant unsuccessfully applied for an Intervention Order against the police officer who detected him speeding. An appeal against this unsuccessful application was dismissed by order of a Justice of the Supreme Court.
Then in May 2021, the prosecution for the speeding offence was withdrawn. The reasons for such withdrawal are neither relevant to nor were they disclosed.
On 15 August 2022, the Informant commenced an application by Information and Summons in the Magistrates Court against the Defendant AZ. The Information alleges 147 separate counts against AZ. These counts made be grouped into 24 different categories of alleged offences. Later in these reasons I will consider each of these categories in turn.
I have earlier recorded that I am sitting as a Magistrate pursuant to s 22 Magistrates Act and that an application has been taken by the Defendant seeking a stay of the prosecution and for other orders.
Rule 38.7 of the Joint Criminal Rules 2022 provide as follows:
38.7—Exclusion of persons from the court
(1)The Court may, on its own initiative or on application by any person, order that specified persons, or all persons except those specified, absent themselves from a hearing under section 69 of the Evidence Act.
Youth Court
(2)The Court may, on its own initiative or on application by any person, order that specified persons absent themselves from a hearing under section 24(2) of the Youth Court Act 1993.
Section 9 of the Magistrates Court Act 1991 provide as follows:
9—Criminal jurisdiction
(1)Subject to the Criminal Procedure Act 1921 the Court has jurisdiction—
(a)     to conduct committal proceedings for a charge of an indictable offence;
(ab)   to determine and impose sentence on a Defendant who admits a charge of a major indictable offence (other than treason, murder, or an attempt or conspiracy to commit, or assault with intent to commit, either of those offences);
(b)     to hear and determine a charge of a minor indictable offence;
(c)     to hear and determine a charge of a summary offence.
(2)The Court does not, unless it is constituted of a Magistrate, have the power to impose a sentence of imprisonment.
(3)If the Court, constituted otherwise than by a Magistrate, is of the opinion that a sentence of imprisonment should be imposed in any particular case, it may remand the Defendant to appear for sentence before the Court constituted of a Magistrate.
(4)The Court does not have the power to impose—
(a)     a sentence of imprisonment that exceeds—
(i)if the penalty is for 1 offence—5 years; and
(ii)if the penalty is for more than 1 offence—10 years; or
(b)     a fine that exceeds—
(i)in the case of an offence under the Work Health and Safety Act 2012 being heard by an industrial magistrate—$300 000; or
(ii)in any other case—$150 000.
(5)The limits imposed by subsection (4)(b) apply regardless of whether the relevant offence was committed before or after the commencement of that paragraph.
(6)Subsection (4) applies whether the offence to which the sentence relates is a summary offence or an indictable offence.
(7)If the Court is of the opinion in any particular case that a sentence should be imposed that exceeds the limits prescribed by subsection (4), the Court may remand the Defendant to appear for sentence before a superior court.
9A—Petty Sessions Division
(1)The Court in its Petty Sessions Division has jurisdiction—
(b)     to hear and determine any of the following charges:
(i)a charge of any offence in respect of which an expiation notice has been given to a person alleged to have committed the offence where the alleged offender has elected to be prosecuted for the offence to which the expiation notice relates;
(ii)a charge of a prescribed offence;
(iii)a charge of any other offence in respect of which the maximum penalty does not exceed a fine of $2 500 or include imprisonment (but may include disqualification from holding or obtaining a driver's licence); and
(c) to conduct appeals under section 23 of the Fines Enforcement and Debt Recovery Act 2017.
(2)In this section—
prescribed offence means an offence—
(a)     in respect of which the maximum penalty does not exceed a fine of $2 500 but does include imprisonment; and
(b)     that is prescribed by the regulations for the purposes of this definition.
Rules 64.1 and 30.3 of the Joint Criminal Rules provide as follows:
64.1—Strike out
(1)The Court may strike out a count in an Information if—
(a)     it does not comply with these Rules;
(b)     it is frivolous, vexatious or an abuse of the process of the Court; or
(c)     it does not disclose an offence.
(2)If the Court strikes out a count under subrule (1), it may if it thinks fit grant leave to file within a specified time a revised Information rectifying the matter that caused the count to be struck out.
This rule has application in relation to the content of the counts on an Information.
30.3—Strike out of filed documents
(1)The Court may order that a filed document or part of a filed document be struck out if—
(a) it does not comply with these Rules; or
(b) it is frivolous, vexatious or an abuse of the process of the Court.
(2)If the Court strikes out all or part of a document under subrule (1), it may if it thinks fit grant leave to file within a specified time an amended or substituted document rectifying the matter that caused the original document to be struck out.
Different from r 64, this Rule has application to a document filed in a proceeding. Each Rule postulates largely the same text and sub rule (2) of each of them, gives to the count what is commonly called a restorative discretion if a decision is made by it to strike out a count or all or any part of a filed document.
As earlier described, a large number of the offences alleged to have been committed by the Defendant are major indictable offences. The Magistrates Court has jurisdiction in relation to a major indictable offence only if the Defendant admits a charge of such offence, where the sentence of imprisonment for one offence does not exceed five years or, for more than one offence, does not exceed 10 years, but not if the court is of the opinion that a Defendant should appear before a superior court. In relation to major indictable offences, including the charges on the Information against the Defendant, only the DPP is authorised to lay an Information in a superior court alleging a major indictable offence.
I turn to the principles applicable to the question of the power of the court to stay an Information and, alternatively for the Information to be struck out. The relevant principles applicable to my consideration of this application may be described as follows:
1.The Magistrates Court, as a statutory entity, is an inferior Court of record with state wide jurisdiction.[1]
2.Criminal Jurisdiction is conferred upon the Magistrates Court under s 9 Magistrates Court Act 1991, and the Magistrates Court may hear and determine summary and minor indictable offences. Such a grant of power will, by implication, include any grant of power necessary for this exercise.[2]
3.The Magistrates Court may stay a proceeding where it is considered to be an abuse of the process of the court which includes, the prevention of the misuse of the Courts processes. Such a power is incidental to the general power of the court to administer justice and to ensure fairness.[3]
4.The continuation of a court process which will culminate in an unfair trial is a misuse of court proceedings and may constitute an abuse of process. An unfair trial offends the public interest.[4]
5.A court has power to stay criminal proceedings for abuse of process including to stay those proceedings permanently.[5]
6.The Magistrates Court has power to permanently stay proceedings: “… where the prosecution of those criminal proceedings will result in a trial that is unfair and an abuse of the process of the court”.[6]
7.Any power to permanently stay a proceeding will be exercised sparingly and only where good reason exists.[7]
8.The Court must be satisfied that an unfair trial will ensue unless the prosecution is stayed and there are no other available means such as directions to be given by the trial Judge to bring about a fair trial. These are considerations in the context of the principle that an order for a stay is an order of last resort.[8]
9.In the context of defining of what may constitute an abuse of process or what, for example, defines that which may be called vexatious or an abuse of process the court will not lay down hard and fast rule but will determine the matters according to circumstances.
[1] Section 16(2), s 4 Magistrates Court Act.
[2]     Grassby v Queen [1989] 168 CLR 1 at 16-17.
[3]     Jago v District Court (NSW) [1989] 168 CLR 23 per Mason CJ at 30 Deane J at 58.
[4]     Jago v District Court (NSW) [1989] 168 CLR 23 at 30 – 31 per Mason CJ.
[5]     Williams v Spautz [1992] 174 CLR 509; Rona v District Court (SA) [1995] 63 SASR 223 and 226 per King CJ.
[6]     Gray v Police [2003] 85 SASR 1 at [16] per Gray J.
[7]     Barton v Queen [1980] 147 CLR 75; Jago v District Court (NSW) [1989] 168 CLR 23 at 24.
[8]     Williams v Spautz [1992] 174 CLR 509 at 519.
At [22] in Gray v Police, Gray J held at [22] and [23] as follows:[9]
[9] [2003] 85 SASR 1.
The test for whether an abuse has occurred is whether the relevant act or omission is one which diminishes public confidence in the court as an institution. In Ridgeway v The Queen Gaudron J explained the position as follows:
The inherent powers of superior courts to prevent an abuse of process exist to protect the courts and their proceedings, and to maintain public confidence in the administration of justice. And the maintenance of public confidence in that regard depends on ensuring that judicial proceedings serve the ends of justice, not injustice.
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment.
In Bass v Permanent Trustee Co Ltd, the High Court observed:
The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy. ...
If the 'facts' which are the basis of an answer to a legal question are identified, that answer will have utility for the parties provided that no other evidence could add to or qualify those 'facts'. In such a case, the parties' rights will be determined when the evidence finally determines the existence or non-existence of those 'facts'. ...
It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue. However, that will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process.
Citations omitted
10.I am required to reach a final determination whether I am able to conclude or decide based on concrete and established facts or an agreed situation which aims to quell a controversy. It is doubtful that a Magistrate is empowered to dismiss proceedings on the ground that it is an abuse of process. In ordinary circumstances, the proper order with respect to criminal proceedings which are an abuse of process is to stay the proceedings until further order.[10]
11.A dismissal may be available where the criminal prosecution is an abuse of process. In Kowalski, Kourakis J (as his Honour then was) held at [9]–[14]:
The existence of that judgment is, in my view, an insuperable obstacle to the success of the information filed by Mr Kowalski. It is not open in criminal proceedings to find that an offence has been committed by the receipt of money payable under a judgment which has not been set aside. For that reason alone the information is bound to fail and should be stayed as an abuse of process.
There are, in my view, further reasons why it should be stayed. The material accompanying the information in itself shows that there are close to no prospects of success on the offences charged. Various elements which must be proved to establish those offences cannot be shown given the attached material which, in effect, discloses that the money was paid in accordance with a consent judgment. For that reason too, the information is an abuse of process.
Mr Kowalski is a lay litigant with a very limited understanding of the law. It appears from the way in which the information has been drawn and from the accompanying material, that if the information were to proceed it would take a tortuous path with much of the Magistrates Court’s time and resources occupied and devoted to matters which were simply irrelevant. That too, coupled with the lack of any real prospect of success is a reason to stay the information.
Next I observe that the offences alleged are now about a decade old.
Finally, it appears from the history of litigation of which I have been informed, and the content of Mr Kowalski’s submissions, that Mr Kowalski bears a great personal animosity towards Mr Bourne and is anxious to bring proceedings to harass him in any jurisdiction in which it is possible to do so.
For all of those reasons I conclude that the information is an abuse of process. I will allow the appeal for the limited purpose of changing the form of order from one dismissing the information to an order staying it until further order. I otherwise dismiss the appeal.
[10] Kowalski v Bourne [2012] SASC 6 at [5]-[6] per Kourakis J.

In Ryan v Doudle; Ryan v Clough; Ryan v Ward; Ryan v RSPCA[11] Doyle J considered a private prosecution by Ms Ryan against 4 respondents who were involved, in one way or another, in an investigation about her treatment of animals. Doyle J held at [33]-[39]:
Returning to the present matter, it is not clear to me that this was a case falling within the Magistrate’s power to dismiss an Information under s 181(2)(b) of the CPA. While there are undoubtedly defects in the Informations, I am not persuaded that they “cannot appropriately be cured by amendment”. While I do not think Ms Ryan is herself capable of making the necessary amendments, I am not in a position (in part because of the lack of clarity in the charges as presently articulated) to conclude that the defects are inherently incapable of being cured by amendment. The difficulties with the present Informations differ from the incurable defects in Kowalski v Cole ,11 and are generally less fundamental in nature. That said, it may well be that some of the defects, in particular in the charges laid against the RSPCA, are sufficiently fundamental in nature as to be incapable of cure.
However, it has not been necessary for me to reach a concluded view as to whether, and if so to what extent, the Magistrate might have been empowered to dismiss the Informations filed by Ms Ryan under s 181(2)(b) of the CPA. The reason for this is that I am satisfied that the Magistrate was justified in concluding that each of the proceedings were an abuse of process. That conclusion follows from the combined effect of several considerations.
The first is that it is readily apparent from the materials before me that the proceedings are motivated by Ms Ryan’s animosity towards the respondents arising out of the seizure and retention of animals from her property, and from the RSPCA’s pursuit of proceedings against her. Indeed, as mentioned earlier, the relief sought by Ms Ryan includes orders preventing two of the respondents from testifying in judicial proceedings (presumably intended to prevent them doing so in the proceedings against her). Not only is there no legal basis for such relief but it also raises concerns as to Ms Ryan’s purposes in pursuing these proceedings.
Next, there are the defects in the Informations filed by Ms Ryan. As the Magistrate explained, these defects exist at multiple levels. Many of the charges are misdescribed as summary offences when they are in fact indictable offences. Many of the charges, while identifying the sections within the AWA or CLCA sought to be relied upon,12 are nevertheless articulated in terms that do not conform to the offences in those sections. Many of the charges are also hopelessly vague in their terms. And the Particulars documents do not assist in this respect. In the case of some charges the Particulars are just as general or vague in their terms. In the case of other charges, the Particulars consist of a lengthy narrative without making it plain how the matters in those narratives are said to relate to the charges on the Informations.
Next, there is the inadequacy of the material relied upon by Ms Ryan in support of the charges laid. The documents are not in the affidavit form prescribed by the CPA. It is also difficult to understand the intended relevance of much of the documentation sought to be relied upon.
In my view, given the defects on the face of the Informations and in the Particulars provided in support of the charges contained on the Informations, and the difficulties with the material sought to be relied upon to make out the charges, it would be inappropriate and unfair to the respondents to permit the proceedings to progress in their current form. That is particularly so in circumstances where I share the Magistrate’s doubts that Ms Ryan is capable of ever overcoming these problems and prosecuting the proceedings in an appropriate manner.
It is entirely understandable that a lay person might struggle, as Ms Ryan has, with the demands of prosecuting criminal proceedings. And while the courts must afford some flexibility and assistance to unrepresented litigants to ensure they are not shut out of the legitimate pursuit of legal proceedings, the courts must also be astute to ensure that their processes (particularly their criminal processes) do not become instruments of oppression or injustice.
[11] [2019] SASC 155; per Doyle J.
The application of these principles guide my judgment here. It is necessary to survey the counts alleged by the Informant. As earlier described, there are 147 counts alleged which fall into 24 groups of offences. A hallmark of the Information and Summons is the repetition of alleged offences and the particulars which are said to support them. Due to the nature of this application, it is necessary that I survey a sufficient number of the alleged offences within the groups of offences in order to demonstrate the context of the allegations, their deficiencies and their vacuity. In the main, they do not achieve or justify the epithet of specious because they are not even superficially plausible. For the avoidance of doubt and unless stated explicitly to the contrary, where I use the expression ‘prove’ or ‘proof’ hereunder, it means proof beyond reasonable doubt.
The first count is a charge of stalking, a minor indictable offence. The count provides:
01.From circa May 2020 AZ committed an offence of unlawful stalking. This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e. she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a defendant, witness & his own legal counsel to court file # […], that the offender abused a position of authority &/or trust
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(d)(i), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA 1935 Part 3, Division 5, Section 19AA, ss(1)(a), ss(1)(a)(ivb), ss (1)(a)(v), ss(1)(a)(vi), ss (1)(b)(i), ss (1)(b)(ii).
This is a major indictable offence
The actions of the Defendant are said to have contravened s 19AA, ss(1)(a), ss(1)(a)(ivb), ss (1)(a)(v), ss(1)(a)(vi), ss (1)(b)(i), ss (1)(b)(ii) of the CLCA 1935.
Those subsections provide:
Division 5—Stalking
19AA—Unlawful stalking
(1)A person stalks another if—
(a)     on at least two separate occasions, the person—
(i)follows the other person; or
(ii)loiters outside the place of residence of the other person or some other place frequented by the other person; or
(iii)enters or interferes with property in the possession of the other person; or
(iv)gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or
(iva)publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or
(ivb)communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication in a manner that could reasonably be expected to arouse apprehension or fear in the other person; or
(v)keeps the other person under surveillance; or
(vi)acts in any other way that could reasonably be expected to arouse the other person's apprehension or fear; and
(b)     the person—
(i)intends to cause serious physical or mental harm to the other person or a third person; or
(ii)intends to cause serious apprehension or fear.
(2)A person who stalks another is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 3 years;
(b)     for an aggravated offence—imprisonment for 5 years.
(3)A person who is charged with stalking is (subject to any exclusion in the instrument of charge) to be taken to have been charged in the alternative with offensive behaviour1 so that if the court is not satisfied that the charge of stalking has been established but is satisfied that the charge of offensive behaviour has been established, the court may convict the person of offensive behaviour.
(4)A person who has been acquitted or convicted on a charge of stalking may not be convicted of another offence arising out of the same set of circumstances and involving a physical element that is common to that charge.
(5)A person who has been acquitted or convicted on a charge of an offence other than stalking may not be convicted of stalking if the charge of stalking arises out of the same set of circumstances and involves a physical element that is common to the charge of that other offence.
(6)For the purposes of this section, the circumstances of a dealing with material may be taken into account in determining whether the material was offensive material but, if material was inherently offensive material, the circumstances of a dealing with the material cannot be taken to have deprived it of that character.
The particulars of the offence provide:
01.From circa May 2020 AZ done an offence of unlawful stalking when she was keeping Mr. KIPAROGLOU under surveillance via the co-accused for reasons unknown to the victim at the time, with the intent, knowledge &/or reckless conduct to cause, create &/or threaten risk of endangering life or risk of serious harm to the victim, Mr. KIPAROGLOU’S person(s), his spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7
It is necessary to allege and so to prove that the Defendant has on at least two separate occasions followed the Informant, communicated with another person (to be identified) or to others (to be identified) about the Informant in a manner that could be reasonably be expected to arouse apprehension or fear in the mind of the Informant or keep the Informant under surveillance or act in any other way that could be reasonably be expected to arouse the Informant’s apprehension of harm or fear. It is also necessary to prove that the Defendant intended to cause serious physical or mental harm to the Informant or to a third person or intended to cause a serious apprehension of fear.
The particulars of this alleged offence do not elucidate the proof of the elements of the offence or the offence itself. It is alleged that the Defendant kept the Informant under surveillance via the co-accused. There was no identification of which co-accused is being referred to in these particulars. The Defendant must not be left to guess what allegations are made against her, on what basis and in what connection with some other person who must be identified. It is then alleged that there was some intention on the part of the Defendant to cause, create and/or threaten the risk of engendering life or risk of serious harm to the Informant. There is no particularity as to how that that intention was manifest.
This recitation of deficiencies record, what are common deficiencies in all of the allegations within the particulars. Many references are made to the Informant’s spinal cord or his spinal cord peripheral nerve. In many of these counts and the particulars to these counts, it is alleged that the offences are aggravated because the Informant had recently been diagnosed with a spinal condition and that the respondent deliberately inflicted severe pain upon him. No particularity is provided as to how that would be the case. The particulars offer no assistance to understand the allegations made. They are vacuous.
It is alleged in this count that a sitting Magistrate in a country Court was keeping the Informant under surveillance via a co-accused who is not named. There are 13 co-accused including a very highly qualified surgeon and his spouse. The Defendant cannot be left to guess the identity of this other person. It is said that the activity caused, created or threatened a risk of endangering life or risk of serious harm to the Informant’s person or his spinal cord or his spinal cord peripheral nerve. Those particulars are meaningless and do not inform the Defendant about how it is said that the Defendant kept the Informant under surveillance on two separate occasions.
The count is, at best, frivolous and is plainly intended to vex the Defendant. These are not particulars of an offence but are, like all of the particulars provided, a rambling discourse that is some way purports to connect a back injury or nerve injury said to have been suffered by the Informant to something done by the Defendant as a Judicial Officer but without any connection to the actions of the Defendant as a sitting Magistrate.
Nothing is alleged to inform any allegations of surveillance by the Defendant on more than two occasions. The Informant is unable to identify who it may be that kept him under surveillance, what relationship could be proved between that person and, for example the Defendant and how anything done by any person could reasonably be expected to arouse apprehension or fear in the Informant. There is also no particularity provided about how the Defendant intended to cause serious physical or mental harm to the Informant or to a third person or to cause serious apprehension of fear in the Defendant. There is no comprehensible particularity of this or for that matter and of the charged other offences. This pleading therefore does not comply with the rules and those particulars do not disclose any offence. The count is frivolous, vexatious or an abuse of the processes of the court.
The second category is count two. That count alleges.
0.2From circa May 2020 AZ committed an offence of threats or reprisals relating to persons involved in criminal investigations or judicial proceedings […]

CLCA 1935 SA Part 7, Division 3, Section 248, ss (1)(a), ss(2)(a), ss (2)(b), ss (3)(g), ss (3)(h), ss (4)(a), ss (4)(b)(iii)
This is a minor indictable offence.
The conduct alleged is said to be a breach by the Defendant of s 248 CLCA 1935. That section provides:
248—Threats or reprisals relating to persons involved in criminal investigations or judicial proceedings
(1)A person who—
(a)     stalks another person; or
(b)     causes or procures, or threatens or attempts to cause or procure, any physical injury to a person or property,
with the intention of inducing a person who is or may be involved in a criminal investigation or judicial proceedings, to act or not to act in a way that might influence the outcome of the investigation or proceedings, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(2)A person who—
(a)     stalks another person; or
(b)     causes or procures, or threatens or attempts to cause or procure, any physical injury to a person or property,
on account of anything said or done by a person involved in a criminal investigation or judicial proceedings in good faith in the conduct of the investigation or proceedings, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(3)For the purposes of this section, a person stalks another if the person does any of the following, in a manner that could reasonably be expected to arouse the other person's apprehension or fear:
(a)     follows the other person; or
(b)     loiters outside the place of residence of the other person or some other place frequented by the other person; or
(c)     enters or interferes with property in the possession of the other person; or
(d)     gives or sends offensive material to the other person, or leaves offensive material where it will be found by, given to or brought to the attention of the other person; or
(e)     publishes or transmits offensive material by means of the Internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, the other person; or
(f)     communicates with the other person, or to others about the other person, by way of mail, telephone (including associated technology), facsimile transmission or the Internet or some other form of electronic communication; or
(g)     keeps the other person under surveillance; or
(h)     acts in any other way.
(4)For the purposes of this section—
(a)     a person is involved in a criminal investigation if the person is involved in such an investigation as a witness, victim or legal practitioner or is otherwise assisting a law enforcement body with its inquiries; and
(b)     a person is involved in judicial proceedings if the person is—
(i)a judicial officer or other officer at judicial proceedings; or
(ii)involved in such proceedings as a witness, juror or legal practitioner,
whether the proceedings are in progress or are proceedings that are to be or may be instituted at a later time.
The section requires proof that a public officer has acted improperly by knowingly or recklessly acting contrary to the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by public officers. From the content of this count, it appears that the principal complaint of the Informant is that the Defendant committed the offence by making threats or reprisals relating to persons involved in criminal investigations or judicial proceedings. Those persons are not named in the count.
Particular number two provides:
02.From circa May 2020 AZ committed an offence of threats or reprisals to persons involved in criminal/judicial proceedings when she prevented &/or dissuaded Mr. KIPAROGLOU from taking a certain course of action with his criminal defence &/or investigations & his personal life, to where he was a Defendant, witness & self-represented legal counsel & a vulnerable person with the intent, knowledge &/or reckless conduct to cause, create &/or threaten risk of endangering life or risk of serious harm to the victim, Mr. KIPAROGLOU’S person(s), his spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7
Any conduct said to be a breach of s 248 CLCA 1935 requires proof that a public officer has acted improperly by knowingly or recklessly acting contrary to the standards of propriety generally and reasonably expected by ordinary decent members of the community to be observed by them.
It is alleged in the particulars that the Defendant made threats or reprisals to persons involved in criminal proceedings. That is said to have occurred when she allegedly prevented and or dissuaded the Informant from taking a certain course of action which is otherwise unspecified with his criminal defence and then investigations in his personal life which are unspecified. It is unclear what the relevance of the personal life of the Informant has to this matter. After recording that the Informant was a witness and self-represented legal counsel, it then goes on to allege that, with intent or with recklessness, the Defendant did something to create and or threaten the risk of endangering life or serious harm to the Informant’s person or his body.
These particulars do not elucidate the meaning of the charge in the count.
It is not alleged what the Defendant said or did to constitute a threat or reprisals, what she allegedly did to prevent or persuade the Informant from taking a course of action with some unparticularised intention to endanger the life of the Informant or to cause serious harm to his spinal cord or peripheral spinal nerve.
The statement of the offence is bad; there are no allegations of conduct that are said to constitute the offence and as will be seen with so many other particulars, here the particulars focus on threats to the life, the spine or at least the Informant’s spinal cord and peripheral nerve. It does not thereby comply with the rules, it is frivolous or vexatious, an abuse process and it does not disclose an offence.
I turn to the third group of offences. These are counts 3, 49-50, 64-65 and 100-103. These allege that Defendant committed an offence relating to witnesses. Count three may be used as an exemplar. It provides:
On & from the 02nd July 2020 AZ committed an offence relating to witnesses […] CLCA 1935 SA Part 7, Division 3, Section 244, ss (3)(b)(5)
This is a minor indictable offence

The conduct of the Defendant is alleged to contravene s 244 (3)(b)(5) of the CLCA 1935. That section provides as follows:
244—Offences relating to witnesses
…
(3)Subject to this section, a person who prevents or dissuades, or attempts to prevent or dissuade, another person from—
…
(b) giving evidence at, or producing a thing in evidence at, such proceedings, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
…
(5)A person who does an act with the intention of deceiving another person in any way in order to affect the evidence of the other person at judicial proceedings (whether proceedings that are in progress or proceedings that are to be or may be instituted at a later time) is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
…
Section 244 CLCA 1935 prohibits a person from offering or giving a benefit to a person who may be a witness in a proceeding to not attend or withhold evidence.
I will use the particulars for count three as the exemplar. There are some minor differences between the particulars for the other counts in this group, but they are not material. The particulars to count three provide:
03.On & from the 02nd July 2020 AZ committed an offence relating to witnesses when she along with the co-accused prevented or dissuaded &/or attempted to prevent or dissuade, the victim, Mr. KIPAROGLOU from producing a thing &/or evidence being a medical certificate &/or the correct diagnosis of the victim’s spinal condition, with the intent, knowledge &/or reckless conduct to cause &/or threaten harm to the victim, Mr. KIPAROGLOU’S person(s), his spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7
As an example of the immaterial difference between them, the particulars for count 49 provide:
49.On the 16th July 2020 AZ done an offence relating to witnesses when she prevented Mr. KIPAROGLOU’S witness & G.P., Dr. […G] to give evidence in the proceeding […] to prevent &/or dissuade Mr. KIPAROGLOU from producing evidence for his reason being at the […] 08th July 2020, being the victim was simply following her “court direction” 02nd Jul 2020
Any differences between these particulars are immaterial in the context of the charge because none of them allege the offer or giving of any benefit for one of the prohibited purposes of s 244 CLCA 1935. Nothing alleged could constitute an offence in the background that the Defendant was controlling her court in her role as a Judicial Officer. Also, there is no reference to the identity of the person identified as the co-accused. As earlier indicated, there are 13 co-accused and it is not said how an unidentified and unnamed co-accused was in some way involved in anything done by the Defendant or that the Defendant was involved in anything done by an unnamed co-accused. Also, it is said that the conduct which constitutes the offence was directed at the Informant relating to the production by him of a medical certificate about the correct diagnosis of his alleged spinal condition, which is said to have been intended, in some unspecified way, to cause or threaten harm to the Informant’s person, his spinal cord or his right-hand spinal cord peripheral nerve.
These are not particulars of an offence and a reader is left to guess what is being alleged, against whom, for what purpose and involving what appears to be an unrelated medical certificate which is different from a correct diagnosis of a spinal condition which is otherwise unconnected with some intention to cause or threaten harm to the Informant in some unspecified way. In that fashion, the count and the particulars do not comply with Rules, because they do not disclose an offence. They are frivolous, vexatious and an abuse of the process of the court.
Each of these counts and the particulars to them suffer the same deficiencies. I have separately considered each of them. Any differences are immaterial to the essential questions for my consideration. All of the counts in this group of counts and the particulars to them should be stayed for the same reason as I have already described.
The fourth group of offences, 4-6, 67-68 and 105-106 allege that on 2 July 2020, the Defendant deceived another or benefited herself or a third person in breach of s 139 CLCA 1935. These offences are said to be aggravated. Each of the counts within this group of counts are slightly different but those differences are immaterial. I will use the fourth count on the Information as an exemplar of my consideratons. It provides:
04.On & from the 02^ndJuly 2020 AZ committed an offence of deception (#1) This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e. she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a Defendant, witness & his own legal counsel to court file # […] , that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
From circa May 2020 AZ committed an offence of unlawful stalking. This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e. she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a defendant, witness & his own legal counsel to court file #[…] , that the offender abused a position of authority &/or trust CLCA 1935 SA Part 5, Division 5, Section 139, ss (a), ss (b)
This is a major indictable offence.
The balance of the counts are largely in the same terms.
Section 139 of the CLCA 1935 provides:
Division 5—Deception
139—Deception
A person who deceives another and, by doing so—
(a)dishonestly benefits him/herself or a third person; or
(b)dishonestly causes a detriment to the person subjected to the deception or a third person,
is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 15 years.
The Defendant is alleged to have committed an offence of aggravated deception because of the medical condition suffered by the Informant and involved with an allegation that the Defendant abused her position of authority and or trust and that the act included the use of an offensive weapon being an article causing incapacity. That is said to be handcuffs and/or unlawful imprisonment and/or unlawful bail conditions. It is not clear how those three things separately, together or in some other way could be seen in the same context as causing incapacity. It is also not alleged that the Defendant used any form of offensive weapon but rather her conduct included a weapon.
The particulars of count four provide:
04.On & from the 02nd July 2020 AZ done an offence of deception (#1) (AZ Deception 02nd July 2020), when she blackmailed the victim under the guise of a “court direction”, to obtain a medical certificate for the purpose of being excused from the proceeding[…] , where the co-accused were to prevent &/or dissuade the victim from obtaining a medical certificate from his G.P., Dr. […G], with the intent, knowledge &/or reckless conduct to cause detriment to the victim, Mr. KIPAROGLOU’S property (money), his person(s), his spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7
The particulars provided for the balance of the allegations are largely the same.
S 139 CLCA 1935 requires proof that the Defendant deceived another person and so dishonestly benefited herself, or a third person or intentionally caused a detriment to the Informant who is subject to the deception or a third person. The expression ‘deception’ requires proof of a misrepresentation by words or conduct and includes a misrepresentation about a past, present or future fact or state of affairs, or a misrepresentation about the intentions of the person making the misrepresentation or another person or a misrepresentation of law.
In the particulars, it is alleged that the Defendant blackmailed the victim under the guise of a court direction to obtain a medical certificate for the purpose of being excused from proceedings in the Magistrates Court. It is then alleged that this offending occurred where the co-accused, (unnamed), “were to prevent and or dissuade the victim (presumably the Informant) from obtaining a medical certificate” from a named medical practitioner. This was said to be done with the intent, knowledge and or reckless conduct to cause determent to the Informant, his property (money), his person, his spinal cord or his right-hand spinal cord peripheral nerve.
Doing the best I can, it appears to be alleged that a direction given by a sitting Judicial Officer to obtain proof of a medical condition justifying absence from a court hearing in some way constituted a misrepresentation. It then appears to be said that the intention in doing so was to cause some form of detriment to the Informant as victim, to his property or to his person or to his spine.
I am satisfied that the count and its particulars do not disclose any offence. It does not disclose a misrepresentation or an allegation about how the Defendant has benefited herself or a third person by deceiving the Informant. It is, at best, frivolous, vexatious and an abuse of the process of the court. It does not comply with the rules and it does not disclose an offence.
Each of these counts and the particulars to them suffer from the same deficiencies. I have separately considered each of them. Any differences are immaterial to the essential questions for my consideration. All of the counts in this group of counts and the particulars to them should be stayed for the same reason as I have already described.
The fifth group of offences are numbered 7-12, 70-71, 73-74, 76-77, 79-80, 111–112, 114–115, 117–118. Each of these offences allege that the Defendant aided and abetted an offence of deception. As an exemplar, count seven provides:
07.On & from the 02^ndJuly 2020 AZ aided & abetted in an offence of deception (#1). This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e. she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a Defendant, witness & his own legal counsel to court file #[…] , that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(d)(i), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA 1935 SA Part 5, Division 5, Section 139, ss (a), ss (b)
CLCA 1935 SA Part 7B, Section 267
This is a major indictable offence
Section 139 CLCA 1935 provides:
Division 5—Deception
139—Deception
A person who deceives another and, by doing so—
(a)dishonestly benefits him/herself or a third person; or
(b)dishonestly causes a detriment to the person subjected to the deception or a third person,
is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 15 years.
The allegation is that the Defendant aided and abetted in an offence of deception, the requirements of which I have discussed in the context of count four. In this count, there is an allegation of aggravation because it is said that the Informant was recently diagnosed with a spinal condition, he was a Defendant, his own advocate and there was an abuse of a position of authority or trust (the trust relationship is not described) (it does not exist) and the act (unspecified) included an offensive weapon, being an article causing incapacity. There are three examples namely handcuffs and/or unlawful imprisonment and/or unlawful bail conditions. There is no guide as to which are referred to and how, for example, a reference to handcuffs may be compared with an allegation of unlawful imprisonment and then, in turn, unlawful bail conditions.
Section 267 CLCA 1935 in the general prohibition upon aiding and abetting; it provides:
267—Aiding and abetting
A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.
In order to aid, abet or counsel or procure the commission of an offence, it must be shown that the Defendant had, in some way, involved herself with another person in the commission of the offence. This is normally called a secondary participation, and this will usually include anyone who would be classed in the ordinary course, as a participant in the crime. Any person guilty of aiding and abetting a crime, or counselling or procuring a crime, must be either present and assisting the actual commission of the crime (so is an active participant). Alternatively, in the usual course, the expression counsel or procure is apt to describe someone who seeks the carrying out of the crime (in common parlance called the accessory before the fact) being someone who brings about the crime without being present.
Because of the nature of this offence, a person may be charged with aiding, abetting, counselling or procuring such a crime. In the context of the charged offence, it is necessary to identify with sufficient precision the conduct complained of; in this count the conduct complained of is that the Defendant allegedly abused a position of authority and/or trust. There is no indication of what relationship of trust may have been abused by the Defendant or how in the context of her position, such a relationship could ever arise. None exists. The Defendant was a sitting Magistrate but there is also no indication of how, as a sitting Magistrate, the Defendant may have abused her authority. Turning then to the particulars of the offence, it may be seen that the same forms of expression are used in particulars 7-12, except different persons are said to have been involved in some form of deception. I use particular seven as an example:
07.On & from the 02nd July 2020 AZ aided & abetted in an offence of deception (#1) (S.S Deception 03rd Jul 2020) when she blackmailed Mr. Kon KIPAROGLOU under the guise of a “court direction” to obtain a medical certificate for the purpose of him being excused from the proceeding […] , with the intent, knowledge &/or reckless conduct to cause detriment to the victim, Mr. KIPAROGLOU’S property (money), his person(s), his spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7
In the particulars, it is said that the Defendant blackmailed the Informant under the guise of a court direction. That direction required him to obtain a medical certificate in order to be excused from a proceeding namely the prosecution filed in the Magistrates Court. This direction, by the Magistrate in a case in her docket for an accused person to obtain a medical certificate is alleged to have been done with the intention, knowledge and or reckless conduct to cause detriment to the Informant. That is not a particular of an alleged abuse of a position of authority or trust or a particular of the use of an offensive weapon in the context of the alternatives earlier discussed. The reference to damage here is to the Informant’s money, his person or his spinal cord or spinal cord peripheral nerve.
It is not apparent from this count and these particulars what the Defendant is alleged to have done that offends the section nor is it apparent what it is alleged the Defendant has done to aid and abet an offence committed by another person, who is not named. The particulars provided do not therefore illuminate the position. These are all largely in the same form and the differences are not material.
Again, doing the best I can, this (and the other counts in this group) appear to plead that the Defendant somehow blackmailed the Informant by giving him a direction to obtain a medical certificate connected with excusing him from the court proceedings. This in turn is said to have been intended to cause him determent.
There is no obvious or any connection between these particulars and the charged offence. There is also no obvious or any connection between the particulars and the content of the charged offence. I consider there is none and this count is actually or impliedly intended only to vex the Defendant.
All of these counts do not comply with the Rules as to pleading and do not disclose an offence, they are frivolous, vexatious and an abuse of the processes of the court. Each of these counts and the particulars to them suffer the same deficiencies. I have separately considered each of them. Any differences are immaterial to the essential questions for my consideration. All of the counts in this group of counts and the particulars to them should be stayed for the same reason as I have already described.
The next group of offences; counts 13-14, 38 and 83, allege an offence of unlawful threats by the Defendant against the Informant allegedly in breach of s 19 CLCA 1935.
Count 13 provides:
13.On & from the 02^ndJuly 2020 AZ committed an offence of unlawful threats (#1). This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e. she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a Defendant, witness & his own legal counsel to court file # […], that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(d)(i), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA SA Part 3, Division 4, Section 19, ss (1)(a), ss (1)(b), ss (2)(a), ss (2)(b), (3), (4)
This is a major indictable offence.
The balance of these counts are generally in the same terms and any differences are immaterial.
It is alleged that the conduct of the Defendant has offended s 19 CLCA 1935. That section provides:
Division 4—Unlawful threats
19—Unlawful threats
(1)A person who—
(a)     threatens, without lawful excuse, to kill or endanger the life of another; and
(b)     intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 10 years;
(b)     for an aggravated offence—imprisonment for 12 years.
(2)A person who—
(a)     threatens, without lawful excuse, to cause harm to another; and
(b)     intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 5 years;
(b)     for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 7 years;
(c)     for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 8 years.
(3)This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct.
(4)In this section—
harm, in relation to a person, has the same meaning as in section 21.
Under this section, a person may not without lawful excuse threaten to kill or endanger the life of another or intend to arouse such a fear or be recklessly indifferent to the arousal of such a fear. In a similar way, a person may not threaten to cause harm, arouse such a fear or be reckless as to such arousal. Any such threats may be directly or indirectly communicated separately or together and by any means.
Similar to other counts, the gravamen of this allegation is that the Defendant abused her position of authority as a Magistrate. There is no particularity in the count as to how the Defendant allegedly abused her position of authority. It is then said that she abused a position of trust. Again, there is no particularity pleaded of the position of trust or the trust relationship. None exists. It is then said that the act, presumably something done as an abuse of a position of authority or trust, included an offensive weapon. This offensive weapon is alleged to include unlawful bail conditions. Unlawful bail conditions are not a weapon. It is alleged to include unlawful imprisonment, which is also not a weapon. There is no particularity given that anything done by the Defendant involved handcuffing the Informant, unlawfully imprisoning him or in some way setting unlawful bail conditions.

The particulars to count 13 provide:
13.On & from the 02nd July 2020 AZ done an offence of unlawful threats (#1), when she blackmailed Mr. Kon KIPAROGLOU under the guise of a “court direction”, to obtain a medical certificate for the purpose of him being excused from the proceeding […] , with the intent, knowledge &/or reckless conduct to cause, create &/or threaten risk of endangering life or risk of serious harm to the victim, Mr. KIPAROGLOU’S person(s), his spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7
These particulars must be read in the background of the content of the count on the Information which focuses upon what are said to be abuses of a position of authority and/or trust.
There is no relationship of trust between a sitting Magistrate and a Defendant. An alleged abuse of a position of authority does not, without more, satisfy the elements of the offence of unlawful threats.
In that background, it is alleged in the particulars that a direction given by the Defendant sitting as a Magistrate was a form of blackmail. There is no detail provided about what that actually means. Inferentially it is said that the Defendant as a presiding Magistrate gave a direction to the Informant to obtain a medical certificate so that he may be excused from a hearing connected with the alleged speeding offence. Then it is said that in so doing, the Defendant intended to cause/ create and/or threaten the risk of endangering his life to cause him harm or to his spinal cord. All of these particulars are repeated for the other alleged counts in this group. All of them are not particulars of the alleged offence. They fail to particularise and so disclose an offence. As well as failing to disclose an offence, the pleading does not comply with the Rules, the counts are all equally frivolous, vexatious and an abuse of the process of the court.
Count 15 on the Information is a standalone allegation of blackmail. It provides:
15.On the 02^ndJuly 2020 AZ committed an offence of blackmail (#1). This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e. she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a defendant, witness & his own legal counsel to court file # […] , that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(b), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA 1935 SA Part 5, Division 5, Section 139, ss (b)
This is a major indictable offence
The conduct of the Defendant is said to constitute a breach of s 139(b) CLCA 1935. The section provides:
Division 5—Deception
139—Deception
A person who deceives another and, by doing so—
…
(b)dishonestly causes a detriment to the person subjected to the deception or a third person,
is guilty of an offence.
Maximum penalty:
(a)for a basic offence—imprisonment for 10 years;
(b)for an aggravated offence—imprisonment for 15 years.
Proof of a contravention of s 139(b) requires proof beyond reasonable doubt that the Defendant has deceived another and by doing so has dishonestly caused a detriment to the person subjected to the deception or to a third person. The count alleges that the Defendant abused her position of authority and/or trust. There is no particularity of a position of trust. None exists. The acts are said include an offensive weapon being an article causing incapacity. There is no apparent connection between the particularity and the charged offence. It is not said how the Defendant deceived another and by doing so dishonestly caused a detriment. The particulars do not elucidate the position.
Paragraph 15 of the particulars provide:
15.On & from the 02nd July 2020 AZ committed an offence of blackmail (#1), (AZ Blackmail 02nd Jul 2020), when she unwarrantedly demanded from the unsuspecting victim under the guise of a “court direction” for him to produce a medical certificate from his G.P., Dr […G], where the victim Mr. KIPAROGLOU having followed “her demand” was then unwarrantedly menaced with offences of threats/reprisals, unlawful stalking, kidnapping, unlawful threats of harm, deception & assaults causing harm, along with unlawful bail conditions (false imprisonment) for the next 10 months (up until 05th May 2021) &/or any of the other unwarranted menaces & harm(s) done, caused, contributed to the victim, Mr. KIPAROGLOU’S person(s), his spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7 that followed on & after the 02nd July 2020 up until 05th May 2021
It is also significant that there is no reference in the change to s 172 CLCA 1935, which prohibits a person menacing another intending to get the other to submit to a demand. At least, to that extent, the description of the offence is wrong.
In the particulars, after it is alleged that the Defendant committed an offence of blackmail, it is alleged she unwarrantedly demanded from the unsuspecting victim (presumably the Informant) under the guise of a court direction for him to produce a medical certificate. The complaint appears to be involved with a direction given by the Defendant as a presiding Magistrate to the Informant here, in the exercise of her unfettered discretion, to produce a medical certificate in relation to a claimed medical condition that is, in turn, apparently connected with the alleged inability or refusal of the Informant to attend a court hearing date set by the Defendant.
It is then alleged that the Informant, having followed this demand, was then unwarrantedly menaced with offences of threats, reprisals, unlawful stalking, kidnapping, unlawful threats of harm, deception and assaults. It is not said by whom the threats and other actions were done and in particular whether or not these were done by the Defendant or somebody else. Doing the best I can, it appears that they are alleged to have been done by somebody else who is not named. The only connection to the Defendant was that it is alleged that all of those events of stalking, kidnapping, threats, deception and assaults were done along with unlawful bail conditions. Her Honour set the bail conditions as part and parcel of the exercise of her discretion as the presiding Magistrate. Any bail conditions set by the Defendant may be reviewed under s 14 of the Bail Act 1985. The bail conditions as set by the Defendant were never reviewed. There is no basis to draw a conclusion that it may be proved beyond reasonable doubt that bail conditions imposed by the Defendant were, in some way, false imprisonment. All that can be gleaned from the particulars is that the Informant was subject to these bail conditions until the withdrawal of the charges. It is then said that all of this was done to the Informant, his person, his spinal cord or the peripheral nerve of his spine. It is not clear what connection there is between any of these acts and any of the alleged sequelae.
Doing the best I can, the complaint seems to be that a direction to produce a medical report from the Informant’s GP was tantamount to, or was connected, with the alleged offences of threats, reprisals which she unparticularised, unlawful stalking which is unparticularised, kidnapping which is unparticularised together with similarly unparticularised assertions of unlawful threats of harm, deception and assaults causing harm. No clue was given about what “contribute” means here.
The description of the alleged offence is wrong, the particulars are misdirected and misconceived and are another example of the erroneous approach used by the Informant.
This pleading approach does not comply with the rules; this count does not disclose an offence, it is frivolous, vexatious and an abuse of the process of the court.
Each of these counts and the particulars to them suffer the same deficiencies. I have separately considered each of them. Any differences are immaterial to the essential questions for my consideration. All of the counts in this group of counts and the particulars to them should be stayed for the same reason as I have already described.
The next group of counts, numbered 16-17 allege that the Defendant has, in an aggravated way, dishonestly taken property without consent. The two counts are not materially different. Each count provides:
16.On & from the 02^nd July 2020 AZ committed an offence of theft by causing a general deficiency (#1). This is an aggravated offence as Mr Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e. she committed the offence in the course of deliberately and systemically inflicting severe pain), he was a Defendant, witness & his own legal counsel to count file # […], that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(b), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA 1935 SA Part 5, Division 2, Section 134 ss (1)(a), ss (1)(b), ss (1)(c)(i), ss (1)(c)(ii),
CLCA 1935 SA Part 5, Division 2, Section 136, ss (1), ss (2)
This is a minor indictable offence

17.On & from the 02^nd July 2020 AZ committed an offence of theft by causing a general deficiency (#2). This is an aggravated offence as Mr Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e. she committed the offence in the course of deliberately and systemically inflicting severe pain), he was a Defendant, witness & his own legal counsel to count file # […] , that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(b), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA 1935 SA Part 5, Division 2, Section 134 ss (1)(a), ss (1)(b), ss (1)(c)(i), ss (1)(c)(ii)
CLCA 1935 SA Part 5, Division 2, Section 136, ss (1), ss (2)
This is a minor indictable offence
Each of these counts allege that the Defendant has committed an offence of theft by causing a “general deficiency”. This is said to be contrary to s 134(1)(a), (1)(b), (1)(c)(i), (1)(c)(ii), s 136(1) and (2) of CLCA 1935.
Those sections provide:
Division 2—Theft
134—Theft (and receiving)
(1)A person is guilty of theft if the person deals with property—
(a)     dishonestly; and
(b)     without the owner's consent; and
(c)     intending—
(i)to deprive the owner permanently of the property; or
(ii)to make a serious encroachment on the owner's proprietary rights.
136—General deficiency
(1)A person may be charged with, and convicted of, theft by reference to a general deficiency in money or other property.
(2)In such a case, it is not necessary to establish any particular act or acts of theft.
There is no clue as to which type of general deficiency is referred to here. This is a meaningless term because, here, it cannot be referred to anything which is known or which is measurable. The offence is said to be aggravated because of the Informant’s medical condition. And there is again an allegation that the offence was caused by the Defendant abusing her position of authority and/or trust. There is no trust relationship suggested. None exists. The authority can only have been of the Defendant acting in her position as presiding Magistrate. If bail conditions are the complaint, these may be reviewed under s 14 of the Bail Act1985. There has not been a review. It is again alleged that the act included an offensive weapon being an article causing incapacitation. The article is said to be an unlawful imprisonment; this is not an article. The article is also said to unlawful bail conditions and that is certainly not an article. Handcuffs are alleged. It is not possible to choose/guess which are referred to and it is only possible to say that an allegation of ‘handcuffs’ could not be directed at the Defendant in her role as the presiding Magistrate. There is no allegation that the Defendant has used handcuffs. In order to be found guilty of theft, the person must deal with property dishonestly and without the owner’s consent and intending to deprive the owner permanently of that property or to make a serious encroachment on the owner’s proprietary rights. A serious encroachment on proprietary rights includes where that person intends to treat the property as her own to dispose of regardless of owner’s rights or to deal with the property in a way that creates a substantial risk that the owner will not get it back.
In the same context, there is no particularity about what a general deficiency may be; whether it relates to an animate or inanimate thing or some other type of interest.
The particulars complain of a direction given by the Defendant in court to obtain a medical certificate to entitle him to be excused from a proceeding.
Particulars 16 and 17 provide:
16. On & from the 02nd July 2020 AZ was to do an offence of theft by causing a general deficiency, when she blackmailed Mr. Kon KIPAROGLOU under the guise of a “court direction”, to obtain a medical certificate for the purpose of being excused from the proceeding […], causing the victim who being on Centrelink benefits unnecessary expenses, legal, travel, accommodation, investigative work including any other unforeseen financial incidentals along with the victim needing to “lend or borrow” any money from any 3rd parties to support his defence to the matters […] which all the aforementioned court matters arose from the kidnapping on the 08th July 2020 @ approx. 4:00PM
17.On & from the 02nd July 2020 AZ was to do an offence of theft by causing a general deficiency, when she done a deception to Mr. Kon KIPAROGLOU under the guise of a “court direction”, to obtain a medical certificate for the purpose of being excused from the proceeding […] , causing a general deficiency to Mr. KIPAROGLOU’S property (money) who being on Centrelink benefits AZ caused unnecessary expenses, legal, travel, accommodation, investigative work including any other unforeseen financial incidentals along with the victim needing to “lend or borrow” any money from any 3rd parties to support his defence to the matter […] & then any & all of the matters arising from the aforementioned, […]
Any differences between these two particulars are immaterial. The complaint appears to be that an order was made by the Defendant directing the Informant to obtain a medical certificate in support of his contention that he should be excused from the proceeding and this, in some way, caused him some financial distress. These particulars assume knowledge of the Defendant about other proceedings in which the Informant may have been involved, although that is not completely clear from the particulars provided. An assumption to that effect may be made. Either way the complaint is that by making an order within her discretion as the presiding Magistrate, her Honour in some unstated way took the property of the Informant.
Directions given in a court by a judicial officer involved in the control of the business of her court does not and cannot amount to a menace intending to get the Informant to submit to an order. Nor can it be said to be connected to a kidnapping which is not particularised.
For all these reasons, the pleading does not comply with the Rules. It does not disclose a cause of action and is frivolous, vexatious and an abuse of process.
The next offence is count 18; this is an allegation that the accused detained a person to commit an indictable offence which is an aggravated offence and also alleges the offence of aid and abet the detention of a person to commit an indictable offence. Count 18 provides as follows:
On the 02^nd July 202 AZ committed an offence of aiding & abetting in a kidnapping. This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time recently diagnosed with a spinal condition (i.e.she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a Defendant, witness & his own legal counsel to court file # […], that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(d)(i), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA 1935 SA Part 3, Division 9, Section 39, ss (1)(b)
CLCA 1935 SA Part 7B, Section 267
This is a major indictable offence
The conduct is said to contravene s 39(1)(b) and s 267 CLCA 1935. Those sections provide:
39—Kidnapping
(1)A person who takes or detains another person, without the other person's consent—
(a)     with the intention of holding the other person to ransom or as a hostage; or
(b)     with the intention of committing an indictable offence against the other person or a third person,
is guilty of an offence.
Maximum penalty:
(a)     for a basic offence—imprisonment for 20 years;
(b)     for an aggravated offence—imprisonment for 25 years.
267—Aiding and abetting
A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.
S 39 CLCA 1935 is the statutory prohibition of kidnapping. The elements of the offence to be proved beyond reasonable doubt are that a person who takes or detains another person without the other person’s consent with the intention of holding that other person to ransom or as a hostage, or with the intention of committing an indictable offence against that other person, is guilty of an offence. Within the count, it is said that the Defendant abused a position of authority and/or trust. Similar to other counts, there is no particularity of the alleged trust relationship. There is none. It is then said that there was an act which included an offensive weapon. There are many alternatives. Handcuffs, and/or unlawful imprisonment, and/or unlawful bail conditions. Unlawful imprisonment and unlawful bail conditions are not the use of an offensive weapon as an article causing incapacity. Nor are they, in any sense, the means by which one person may kidnap another. There can be no particularity of a presiding Magistrate using handcuffs. None is possible.
Section 267 CLCA 1935 is the general aiding and abetting provision. I have earlier set out a discussion of what is required to be proved in order to satisfy the requirement of this section. These require a consideration of active participation (aid and abet) and of secondary participation (counsel or procure). These must be sufficiently particularised in order to identify how it may be said that the defendant has contravened the section.
The particulars to count number 18 provide:
18.On the 02nd July 2020 AZ being the “ringleader” aka “instigator” aided & abetted in the kidnapping of Mr. KIPAROGLOU when she intentionally & deceptively blackmailed Mr. KIPAROGLOU under the guise of a “court direction” to provide the courts (herself) a medical certificate, where on 08th Jul 2020 @ approx. 4:00PM the victim Mr. KIPAROGLOU was prevented & detained by the co-accused from consulting with his G.P., of 18 months, Dr. […G], then taken without consent to another place being […a] Police Station with the use of an offensive weapon being handcuffs causing incapacitation & to where a physical assault causing harm to his person(s), spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7 would transgress & another unlawful imprisonment would arise, being unlawful bail conditions causing further harm to the victim, Mr. KIPAROGLOU’S person(s), his spinal cord &/or R/H spinal cord peripheral nerve C5/6, C6/7

The particulars to count 87 provide:
87.On & from the 31st July 2020 AZ done an offence of criminal neglect (#2) when she done a blackmail &/or deception to Mr. KIPAROGLOU wanting access to his medical records, she severely impeded on the victim making &/or receiving informed medical treatment &/or advice, all whilst AZ having known him to be a “vulnerable adult” as outlined in CLCA Part 3, Division 1A, Section 13B & all whilst having assumed the responsibility of a person(s) being a bail authority owed him a duty of care & left the victim without, with the intent, knowledge &/or reckless conduct to cause serious harm to the victim, multiple occasions of partial & temporary paralysis (protracted impairment) of the right arm, long term 0° – 2° range of motion including any of the associated excruciating pains to his limited neck movements (endangering life/protracted impairment) due to severe spinal cord compression &/or R/H spinal cord peripheral nerve compression @ the C5/6, C6/7 levels
These particulars allege blackmail or deception by the Defendant of the Informant by, it appears, wanting to access his medical records which, it is said, severely impeded the Informant making and or receiving informed medical treatment and/or be advised in some unspecified way. It is then said that the Defendant knew the Informant to be a vulnerable adult in some unspecified way and, as a bail authority, again is some unspecified way, owed him a duty of care. The grant or refusal of bail is governed according to the requirements of the Bail Act 1985 and the common law principles which guide the exercise of the discretion of a bail authority. As earlier described, a part of the structure created by Parliament in the Bail Act 1985 is the process of a review of the decisions of a bail authority pursuant to s 14 of that Act. The exercise of the discretion about whether or not to grant bail by such an authority does not and will not give rise to a duty of care to an accused person. Any alleged error may be the subject of a bail review application.
The particulars of each count therefore fail to identify any vulnerability, any basis for the finding a duty of care, any factual basis upon which the duty of care may arise, the awareness of the Defendant of any appreciable risk of harm to the Defendant; and the steps that may have been taken by the Defendant to protect the Informant from harm. It is similarly bad for all of those reasons.
The counts do not comply with the Rules, do not disclose an offence and are frivolous, vexatious and an abuse of the processes of the court.
Each of these counts and the particulars to them suffer the same deficiencies. I have separately considered each of them. Any differences are immaterial to the essential questions for my consideration. All of the counts in this group of counts and the particulars to them should be stayed for the same reason as I have already described.
The next group of counts (121-122) allege that the Defendant committed an aggravated offence of causing serious harm contrary to s 123(1)(b) CLCA 1935. Those counts provide:
121.On & from the 01^stAug 2020 AZ committed an offence of causing serious harm (#1). This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time still having a spinal condition (i.e. she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a Defendant, witness & his own legal counsel to court file #[…], that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(d)(i), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA 1935 SA Part 3, Division 7A, Section 23, ss (1)(b)
This is a major indictable offence
122.On & from the 01^stAug 2020 AZ committed an offence of causing serious harm (#2). This is an aggravated offence as Mr. Kon KIPAROGLOU was at the time still having spinal condition (i.e. she committed the offence in the course of deliberately & systematically inflicting severe pain), he was a Defendant, witness & his own legal counsel to court file # […] , that the offender abused a position of authority &/or trust, the act included an offensive weapon being an article causing incapacity (handcuffs &/or unlawful imprisonment &/or unlawful bail conditions)
CLCA 1935 SA Part 1, Section 5AA, ss (1)(a), ss (1)(d)(i), ss (1)(d)(ii), ss (1)(d)(iii), (1)(i), (1)(j), (2)
CLCA 1935 SA Part 3, Division 7A, Section 23, ss (1)(b)
This is a major indictable offence
S 23(1)(b) CLCA 1935 provides:
23—Causing serious harm
(1)A person who causes serious harm to another, intending to cause serious harm, is guilty of an offence.
Maximum penalty:
…
(b) for an aggravated offence—imprisonment for 25 years.
…
The Defendant must have an actual intent to cause serious harm to the Informant and serious harm must have been caused. The expressions ‘cause harm’ and ‘serious harm’ are defined in s 21 CLCA 1935 which provides:
Cause- a person causes harm if the persons conduct is the sole cause of the harm or substantially contributes to the harm. If a victim suffers a serious harm as a result of multiple acts of harm then those acts occur in the course of the same incident, or together constitute a single course of conduct, a person who commits any of the acts causing harm is taken to cause serious harm even though the harm caused by the act might not, considered in isolation, amounts to serious harm.
Harm means: physical or mental harm (with a temporary or permanent)
Serious harm mean: -
(a)    Harm that endangers a persons life; or
(b)    Harm that consists of, or results in, serious and protractive impairment of a physical or mental function; or
(c)    Harm that consists of, or results in, serious disfigurement.
It is alleged that the Defendant, in some unspecified way, failed to ensure that the Informant had his medical records. The Defendant was a presiding Magistrate in a criminal trial. The absence of medical records of the Informant at his doctor’s surgery can only be a matter between the Informant and the medical practitioner. Then, by alternative pleas, it is alleged that the Defendant had an intent, knowledge and/or reckless conduct to cause (in some unspecified way) and/or create a risk of endangering life or a risk of serious harm to the Informant. These compounding particulars are in the disjunctive and conjunctive alternatives and the reader is left to choose between alternatives. More pressing is that the particulars are replete with non sequiturs and allegations that do not make sense because they are an attempt by a layman to allege offenses against a sitting Magistrate by the use of guesswork about the content of this State’s principal statute of criminal offences and common law.
These counts as particularised do not comply with the rules, they do not disclose an offence allegedly committed by the Defendant and so they are frivolous, vexatious and an abuse of the processes of the court.
The final count, 147 provides:
147.Between May 2020 — May 2021 AZ committed an offence relating to common law offences
CLCA 1935 SA Part 9, Division 1, Section 270, ss (2)
This is a minor indictable offence
The count alleges an offence against s 270(2) CLCA 1935. That section provides:
Division 1—Punishment for certain common law offences
270—Punishment for certain offences
……
(2)Any person convicted of any of the following common law offences, that is to say, any conspiracy to cheat or defraud, or to extort money or goods, or falsely to accuse of any crime, or to obstruct, prevent, pervert or defeat the course of public justice, shall be liable to be imprisoned for a term not exceeding seven years.
The particulars of this charge do not match the same numbering sequence as the Information. Paragraph 148 of the particulars provides:
148.Between May 2020 – May 2021 AZ done offences relating to common law offences (CLCA 1935 Section 270) when on multiple occasions she perverted the course of justice by not allowing Mr. KIPAROGLOU to exercise his right to speak freely within the court room to discuss her criminal acts during the proceeding(s) […] &/or any of the other proceedings that followed there after due to her own deception that arose on the 02nd July 2020, especially when Mr. KIPAROGLOU had on many occasions filed the correct “Form 23 order of the court” applications to discuss her role in the kidnapping & her failure to facilitate the provisioning of Mr. KIPAROGLOU’S medical records so he could move forward with his medical requirements. Further to this, the Informant attempted on numerous occasions to have her recused from the proceedings in open court to which she unlawfully evaded on multiple occasions using various methods
The focus of the alleged count is the perversion of the course of justice. The complaints are first an inability to speak freely in a courtroom to discuss the alleged criminal acts of the Defendant. This is not a particular of perverting the course of justice as inherent in the need for such discussions are the alleged criminal acts alleged against the Defendant by the Informant. The only exchanges that could occur in the Court are those connected with the prosecution of the Informant. Her Honour could not discuss any criminal acts alleged against her by the Informant. The only appropriate step to be taken by any presiding Magistrate was to direct the Informant to the appropriate authorities as she was not then in any position to consider or to decide upon any issues the Informant may seek to ventilate about her alleged conduct.
It is then said the Defendant, as a sitting Magistrate, operated deceptively when she refused to deal with material filed by the Informant alleging that she had kidnapped him. There is no particularity about how this kidnapping is said to have occurred. This is not a particular of the perversion of the course of justice for the same reasons. It is scandalous.
Then it is said that a failure to facilitate the provisioning of the Informant’s medical records so that he could move forward with some medical requirements is a particular of the perversion of the course of justice. This assumes the capacity in the Defendant is (in some unstated way) connected with the failure to provide these records to the Informant (in some unstated act that is not particularised).
The final particular is that on numerous occasions the Informant attempted to have the Defendant remove herself from the proceedings before her but she refused. A judicial officer refusing to recuse herself from a proceeding is not, without more, a particular of perverting or defeating the course of justice. It is no more or less than the judicial officer fulfilling her common law obligations and duties to complete the hearing of the matter upon which she has embarked and over which she is presiding.
This pleading does not disclose an offence, it does not comply with the rules, it is frivolous, vexatious and an abuse of the processes of the court. It is scandalous.
For all of these reasons, I have made the orders to stay the prosecution of the Information and the other order made by me.
In the decision of Kourakis J in Kowalski[12], his Honour did not finally decide that a criminal prosecution may not, in any circumstances be struck out. His Honour said that for a Magistrate the usual order was, in those circumstances for the prosecution to be stayed. The reasons are apparent. The decision to prosecute a Defendant for a criminal offence is, in the usual course, made by the Director of Public Prosecutions. That in the relevant prosecutorial authorities which make decisions about whether or not to pursue a prosecution for a detected criminal offence. As a matter of public policy and in the usual course, where a person has committed a criminal offence which may be proved beyond reasonable doubt and subject to the prosecutorial discretion, a prosecution will be brought against such person and that prosecution should not usually be dismissed on the basis of technicalities, form or failures of expression. Where there is an order for a stay then, in the usual course, an application may be made to lift such a stay where the prosecutorial authority is now better able to formulate or particularise (or both) the offences alleged to have been committed. This is merely part and parcel of the requirements of public policy.
[12] Kowalski v Bourne [2012] SASC 6
His Honour was there dealing with circumstances, such as these, where a private prosecution is brought by an individual which is so hopeless that it can be said to have no prospects of success and its form is so deficient that it should be struck out.
In Kowalski, Kourakis J (as his Honour then was) did not finally determine that there will not be cases and circumstances where the proper exercise of power is to strike out a criminal prosecution where it is an abuse of process, vexatious, frivolous or does not disclose an offence. Such a power is not foreclosed although, for public policy reasons already discussed, the power would only be exercised in the most extraordinary of circumstances and not by a Magistrate. The usual adverbial expression is that such a power would be sparingly and rarely used by a superior court and only in the most serious and obvious of circumstances. The usual judicial approach is to avoid attempting to define those circumstances where such a power may be exercised. It is sufficient to say that a superior court will always exercise extreme caution in the exercise of any such discretion.
On the question of the exercise of the power and in the background of the Joint Criminal Rules, the power given by those Rules is not, by analogy, in some way circumscribed. Rule 64.1 of the Joint Criminal Rules gives power to the court to strike out an Information that:
(a)    Does not comply with these Rules;
(b)    Is frivolous, vexatious or an abuse of the process of the court; or
(c)     It does not disclose an offence.
(2)If the court strikes out a count under sub rule (1), it may if it thinks fit grant leave to file within a specified time a revised Information rectifying the matter that caused the count to be struck out.
The content of r 64.1(2) provides what may be usually described as the restoration power to give leave to file a revised information rectifying the matter that caused the count to be struck out. This power may be exercised if the court seas fit. That is consistent with the usual approach that, for the same public policy reasons, if an aberrant count may be cured by amendment, then leave to replead the count may be granted. The approach of the Rules is apparent: the deficiencies of one count alone or several of them amongst many otherwise appropriately pleaded counts may, if it is possible, be cured by an amendment.
It is apparent that r 30.3(1) of the Joint Criminal Rules has different work to do as it gives a power, exercisable on the same grounds, to strike out a document. An Information is a document. R 30.3(2) of the Joint Criminal Rules gives the identical power in the exercise of the court, discretion to file an amended document. Here the issues arising on the exercise of the court’s discretion about the content of the counts and the content of the Information document are the same but they will attract different considerations. There is an obvious difference between the striking down of a count in an Information and an order that the whole document should be struck down. This difference is reflected in the approach I have taken to this application. It was necessary to consider each of the counts and then make a decision about them after disclosing my process of reasoning. That in turn has informed the approach to be taken of the document as a whole.
In this case, each of the 147 counts have been struck out under r 64.1 because they do not comply with the Rules. They are frivolous, vexatious and an abuse of the process of the court and they do not disclose an offence. They fail to satisfy each of the requirements of r 64.1(1). For r 30.3(1) the whole document is frivolous, vexatious and an abuse of the process of the court, especially because it does not disclose any offence committed by the Defendant.
Under rr 64.1(2) and 30.3(2), I would not exercise my discretion in favour of the Informant to give leave to file any form of amended Information. I do not consider that the counts and so the document are curable by amendment. I have set out my reasons above why the counts should be struck out. These counts as pleaded are not capable of rectification. They are irredeemably bad in form and substance; they are incapable of amendment to properly plead an offence(s); they are intended to vex the Defendant; and they are frivolous for the same reasons. Nothing can be done to rectify them to a plea that would resist a strike out application. They are drawn by a layman who does not possess the skills to comprehend the requirements of the Rules. The document fails for the same reasons. I have set out all of the singular counts and exemplars of the multiple counts. All of them suffer the same fatal deficiencies in content, form, comprehension of the law and the requirements of the Rules.
Were it necessary for me to decide, I would make an order for the prosecution to be struck out. However, sitting as a Magistrate, the appropriate order is for a stay of the prosecution.
In the premises, the orders that I will make have the same effect because I have refused to grant leave to the Informant to file a revised Information. This is because the Information in its current form is so completely and fatally flawed, legally and factually that no amount of amendment could bring the counts to an acceptable condition. As well, a large proportion of them allege major indictable offences which are matters about which the court will be even more vigilant in its approach. The court will always scrutinise the content of any Information such as this with great care. This whole Information document is irredeemable. It’s plain and obvious purpose is to vex and harass the Defendant in her role as a Judicial Officer. It is scandalous.
That the Defendant was acting in her role as a Judicial Officer is also relevant to one other matter. Under s 44 of the Magistrates Court Act 1991 (MCA), the Defendant, sitting as a Magistrate exercising the jurisdiction of the Magistrates Court, has the same privileges and immunities from liability as a Judge from the Supreme Court.
In Fingleton v The Queen,[13] Gleeson CJ said that (the equivalent of s 44 MCA) treats all Judicial Officers:
… in the same way and confers immunity from criminal responsibility for acts or omissions by the judicial officer in the exercise of the officer’s judicial function, even where an act done is excess of authority, or an officer is bound to do an act omitted.[14]
[13] [2005] 227 CLR 166.
[14] Ibid at [34].
This immunity is limited by the words which confer the immunity, and it applies only to acts or omissions in the exercise of the judicial function albeit that conduct in excess of authority has the benefit of the same protection. The question of authority must be viewed in the context of the jurisdiction being exercised by the Judicial Officer. That jurisdiction determines the context of the judicial immunity by reference to the authority conferred upon the court and the Judicial Officer exercising jurisdiction in the court to hear and determine issues between litigants.[15]
[15] Fingleton at [35]; Nakhla v McCarthy [1978] 1 NZLR 291 at 301.
At [36]–[40] Gleeson CJ considered the development of the immunity and the extension of the immunity to a Magistrate exercising criminal as well as civil jurisdiction. His Honour held:
We are concerned with the application of the Code, not the common law. Even so, it is material to note the policy of the common law, reflected also in the Code. Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. The general principle is as stated by Lord Denning MR in Sirros v Moore:
Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.
An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. In Re McC , Lord Bridge of Harwich said:
It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: ‘That is a perverse verdict’, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie:
the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.
This immunity from civil liability is conferred by the common law, not as a perquisite of judicial office for the private advantage of judges, but for the protection of judicial independence in the public interest. It is the right of citizens that there be available for the resolution of civil disputes between citizen and citizen, or between citizen and government, and for the administration of criminal justice, an independent judiciary whose members can be assumed with confidence to exercise authority without fear or favour. As O'Connor J, speaking for the Supreme Court of the United States, said in Forrester v White ,^] that Court on a number of occasions has “emphasized that the nature of the adjudicative function requires a judge frequently to disappoint some of the most intense and ungovernable desires that people can have”. She said that “[i]f judges were personally liable for erroneous decisions, the resulting avalanche of suits … would provide powerful incentives for judges to avoid rendering decisions likely to provoke such suits”.
This does not mean that judges are unaccountable. Judges are required, subject to closely confined exceptions, to work in public, and to give reasons for their decisions. Their decisions routinely are subject to appellate review, which also is conducted openly. The ultimate sanction for judicial misconduct is removal from office upon an address of Parliament. However, the public interest in maintaining the independence of the judiciary requires security, not only against the possibility of interference and influence by governments, but also against retaliation by persons or interests disappointed or displeased by judicial decisions.
The same considerations lie behind immunity from criminal responsibility, of the kind and to the extent conferred by s 30 of the Code. At common law, judicial officers enjoy no immunity or protection from criminal responsibility for their extra-judicial conduct, and even in respect of their judicial conduct there are well-established limits to their immunity. Judicial corruption of the kind dealt with in s 120 of the Code is an obvious example. Subject to those limitations, however, the public policy which supports immunity from civil liability even in respect of conduct alleged to be malicious and lacking in good faith extends to immunity from criminal responsibility. In Yeldham v Rajski , a litigant charged a judge with contempt of court (a criminal offence) alleging that the judge knowingly and wilfully abused the process of the court and interfered with the course of justice. The allegations arose out of the way in which the judge had disposed of an application for leave to prosecute a witness for perjury. The New South Wales Court of Appeal dismissed the proceedings, on the ground that the judge was entitled to invoke judicial immunity. Hope A-JA, with whom Priestley JA agreed, said:
The basis of the immunity of judges from civil proceedings in respect of their judicial acts, which has been part of the law for centuries, is based on high policy which has been put in a number of ways but in essence is that the immunity is essential to the independence of judges. It is a policy designed to protect the citizen and not merely to give protection to judges. As it seems to me this policy is as equally applicable to criminal proceedings for the acts of judges, in the exercise of their judicial functions, as it is in respect of civil proceedings … If the law were that any disgruntled litigant could charge a judge with contempt for being wrong and mala fide in his conclusion, or in arriving at the conclusion without any or any sufficient evidentiary basis, the independence required of judges would be greatly eroded.
(citations omitted)

In light of the decision that I have already made, it is unnecessary that I express any concluded view upon the question of the immunity. If it were necessary to express a concluded view, I consider that the immunity granted by s 44 MCA has application here. The process of reasoning is that when full regard is had to the content of the counts on the Information, they attempt to carve out of the conduct of the Defendant as a presiding Magistrate in managing the business of the court, other conduct that is said to fall outside of the coverage of the immunity for s 44 MCA. This was a vain and futile exercise because of the irredeemable failures of the Information to plead any proper grounds as particulars in support of each of the charges and counts.
If it were necessary for me to express a view, I am of the opinion that her Honour has the benefit of the immunity under s 44 MCA and nothing has been disclosed to suggest that any aspect of her Honour’s conduct would for proper reasons, forfeit the benefit of the immunity. That said, the focus of the attack upon the Information relates to the requirement of the Joint Criminal Rules and the content of the counts on the Information and so the document itself. Some submissions were made in relation to the question of immunity although these were quite limited. In light of my decision, it is not necessary that I express any concluded view on the question of the immunity because, for the reason stated, the proper approach is to first consider the content of the charged counts and their pleaded particulars. They are irredeemably bad. The immunity operates but the question of its application falls away because of the decision I have made.
These are the reasons for the orders made by me staying the application. I would refuse to exercise my discretion in favour of the Informant under rr 64.1(2) and 30.3(2) and the whole Information fails as an abuse of process, for its failure to comply with the Rules, because it is frivolous, vexatious and it does not disclose offences. The Information is stayed.
By Interlocutory Application of 26 September 2022, FDN 22 (2), the Informant sought orders for the joinder of 13 other Defendants at the directions and answer charge hearing on 29 September 2022. Each of these other Defendants are said by the Informant, in some direct or indirect or other way, to have some involvement in some aspect of the conduct complained of by the Informant. The list of Defendants named in paragraph include solicitors, a receptionist at doctor’s surgery, doctors, police prosecutors, surgeons, the wife of a surgeon, and generally police officers. The Affidavit in support of this application, of the Informant dated 26 September 2022, FDN 18, provides as follows:
1. I hereby request (as to the Interlocutory Application dated 26th Sept 2022) that there is a Joinder of allegations &/or defendants under the following legislation being SA Criminal Procedure Act 1921 Section 51 (Joinder & Separation) & Section 102 (Joinder & Separation), as the criminal matters at hand all relate to the same or similar set of events &/or circumstances which transpired between Oct 2018 to 05^th May 2021
On the date of hearing, I dismissed this application and I said then I would provide my reasons. These are my reasons.
The legislation under which the application in made are ss 51 and 102 of the Criminal Procedure Act1921. Those sections provide as follows:
51—Joinder and separation of charges
(1)A person may be charged with any number of summary offences in the same information (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character.
(2)The Magistrates Court may direct that—
(a)     charges contained in a single information be dealt with in separate proceedings; or
(b)     charges contained in separate informations be dealt with together in the same proceedings.
102—Joinder and separation of charges
(1)Subject to this Act, charges for 2 or more offences may be joined in the same information if those charges are founded on the same facts or form, or are a part of, a series of offences of the same or a similar character.
(2)The charges joined in the same information under subsection (1) may include charges of any 1 or more of the following:
(a)     major indictable offences;
(b)     minor indictable offences;
(c)     summary offences.
(3)Subject to subsection (4)—
(a)     if an information contains a charge of a major indictable offence, all charges of minor indictable or summary offences included in the same information will be dealt with according to the procedures applicable to major indictable offences; and
(b)     if an information includes a charge of a minor indictable offence, but no charge of a major indictable offence, all charges of summary offences included in the same information will be dealt with according to the procedures applicable to minor indictable offences,
but the penalty that may be awarded for an offence is unaffected by the fact that the offence is dealt with according to procedures applicable to offences of a more serious class.
(4)If a person has been committed to a superior court for trial on an information which includes charges for both indictable offences and summary offences, the superior court may, if it thinks fit, order that the charges of summary offences be remitted to the Magistrates Court and dealt with in the same way as if the offences had been charged in a separate information.
(5)A court may direct that—
(a)     charges contained in a single information be dealt with in separate proceedings; or
(b)     charges contained in separate informations be dealt with together in the same proceedings (provided that a court may only direct that charges contained in separate informations be tried together if the charges could, in accordance with subsection (1), have been joined together in the same information).
(6)Despite subsection (5) and any rule of law to the contrary, if 2 or more counts charging sexual offences involving different alleged victims are joined in the same information, the following provisions apply:
(a)     subject to paragraph (b), those counts are to be tried together;
(b)     the judge may order a separate trial of a count relating to a particular alleged victim if (and only if) evidence relating to that count is not admissible in relation to each other count relating to a different alleged victim.
(7)Substantive charges may be laid in the same information (and tried together) against—
(a)     any number of accessories at different times to any offence; and
(b)     any number of receivers at different times of property stolen at 1 time,
notwithstanding that the principal offender is not included in the same information or is not available to be tried.
(8)Where—
(a)     2 or more defendants are charged with committing a summary or minor indictable offence jointly; and
(b)     1 or more of the defendants is to be tried in a superior court for that offence or for another offence charged on the same information,
the Magistrates Court must order that all the defendants be committed for trial in the superior court together (notwithstanding that 1 or more of the defendants may have failed to elect for trial in a superior court or are charged only with 1 or more summary offences).
(9)In this section—
sexual offence means—
(a) an offence against section 48, 48A, 49, 50, 56, 58, 63B or 72 of the Criminal Law Consolidation Act 1935; or
(b)     an attempt to commit, or an assault with intent to commit, any of those offences; or
(c)     a substantially similar offence against a corresponding previous enactment; or
(d)     an offence against the law of the Commonwealth, another State or a Territory corresponding to an offence referred to in a preceding paragraph.
As earlier recounted, there are 13 other Defendants sought to be joined in the proceedings. The counts against each of those Defendants, cumulatively, total 800 counts. As a first observation, such a joinder would prove to be completely unmanageable, and the administration of justice would not be served by such joinder with so many people with so many counts.
The common law rules in relation to the exercise of discretion require me to take into account all relevant facts including any prejudice that might result from the admission of evidence in one matter that is not admissible in another. I am also required to take into account inconvenience and the expense of separate trials, the interests of justice which require me to assess the interests of justice as a whole and not merely the interests of an accused.
In the ordinary course, where there are several Defendants who are charged with offences arising out of the same incident, then those offences should be tried together. That is not this case. The several Defendants, as I have briefly described them above, are involved in different activities and as the recital of the allegations made against the Defendant in this matter disclose, they are broad-ranging and repetitive. In such a case, there would be a marked quantitative imbalance of fairness in the prosecution case against the respective Defendants. That would be such an imbalance that separate trials are required. I am not satisfied that the joinder of the Defendants would in some way shorten the time to be taken in relation to the trials. I am also satisfied, on the basis of the materials before me, that the evidence against the Defendant in this matter would be significantly different than evidence against, for example, a surgeon, such that separate trials must be ordered.
In my view, if an Information alleging over 800 counts had been commenced against multiple Defendant’s, then an order would have been made for the separation of the actions and severance would have taken place. The only appropriate order was to reject the application and to require that each Information be the subject of the separate trial. It is also my view that public policy and the proper administration of justice only favours the hearing of separate trials in relation to each Defendant.
The application of the Informant for joinder is refused.