Kiparoglou v Fantinel - [2021] SASCA 84

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KIPAROGLOU v FANTINEL
[2021] SASCA 84
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Kelly and the Honourable Justice Livesey)
20 August 2021
APPEAL AND NEW TRIAL
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT
In October 2020, the applicant applied for an intervention order against the respondent. This application was dismissed by a Magistrate. The applicant sought permission to appeal from the Chief Justice, sitting as single Judge of this Court. That application was refused on 7 July 2021. The applicant now seeks leave to appeal to the Court of Appeal.
Held (by the Court), dismissing the application for leave to appeal:
1. The applicant’s grounds of appeal only complain about the Magistrate’s findings in refusing to grant the intervention order. Where the applicant has not, whether by his grounds of appeal or any submission to this Court, alleged, let alone demonstrated any error in the Chief Justice’s reasons or decision, leave to appeal must be refused.
Intervention Order (Prevention of Abuse) Act 2009 (SA); Supreme Court Act 1935 (SA) s 50(4), referred to.
Kiparoglou v Fantinel [2021] SASC 90, discussed.

KIPAROGLOU v FANTINEL
[2021] SASCA 84
Court of Appeal – Criminal: Kelly P and Livesey JA
THE COURT:
Introduction

On 23 October 2020, the applicant, Mr Kiparoglou, applied for a private intervention order pursuant to s 20(1)(b) of the Intervention Order (Prevention of Abuse) Act 2009 (SA) (the Intervention Order Act) against the respondent, Senior Constable Tristan Fantinel, a police officer stationed at Roxby Downs. The application was dismissed by a Magistrate.
The applicant sought permission to appeal against the Magistrate’s dismissal of his application from a Judge of this Court. Kourakis CJ dismissed that application on 7 July 2021 because no error had been established. The applicant now seeks leave to appeal to the Court of Appeal against the Chief Justice’s order. The applicant asks that this Court overturn the decisions of the Chief Justice and the Magistrate and impose an intervention order.
The applicant has today attended the hearing by telephone. Initially, he sought a suppression order. Whilst Mr Kiparoglou explained why he wanted that order, ultimately, he did not proceed with his application for a suppression order.
The applicant also applied for an extension of time in which to obtain further medical and psychological evidence. Mr Kiparoglou helpfully explained that he was obtaining that evidence in support of a civil action which he proposes to pursue against the respondent in any event. Mr Kiparoglou was not able to explain how that evidence would be relevant to the questions of fact or law that would arise on the hearing of any appeal before this court.
In all of the circumstances, it is both desirable and appropriate that Mr Kiparoglou's application for leave to appeal be brought to a conclusion. The applicant requires leave to appeal.[1] For the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] SASCA 84
Decision Date: 20 August 2021

CaseChat Overview and Summary

This matter concerns an application for leave to appeal by Mr Kiparoglou against a decision of the Chief Justice of the Supreme Court of South Australia. The dispute arose from an application for a private intervention order made by Mr Kiparoglou against a police officer, Mr Fantinel. Mr Kiparoglou sought the intervention order on the basis that it was necessary to protect him from assault and interference with his attempts to defend a separate speeding charge.

The legal issues before the court were whether the Chief Justice erred in dismissing Mr Kiparoglou's application for an intervention order, and consequently, whether leave to appeal that decision should be granted. Specifically, the court considered whether Mr Kiparoglou had demonstrated any arguable error in the Chief Justice's reasoning or decision, as required for an appeal under section 50(4)(a)(ii) of the *Supreme Court Act 1935* (SA).

The Chief Justice had identified a central theme in Mr Kiparoglou's application for the intervention order, which was his belief that the police officers intended to prevent him from obtaining a medical certificate to adjourn the speeding charge trial. This, in turn, was perceived by Mr Kiparoglou as an attempt to prevent him from gathering evidence for his defence. However, the Chief Justice found that Mr Kiparoglou had neither alleged nor demonstrated any arguable error in the reasons or decision that would warrant granting leave to appeal.

Consequently, the application for leave to appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

In all of the circumstances, it is both desirable and appropriate that Mr Kiparoglou's application for leave to appeal be brought to a conclusion. The applicant requires leave to appeal.[1] For the reasons that follow, the application for leave to appeal must be dismissed. The applicant has neither alleged nor demonstrated any arguable error in the Chief Justice’s reasons or decision.[1] Supreme Court Act 1935 (SA), s 50(4)(a)(ii).Background On 2 October 2018, the applicant was issued an expiation notice for exceeding the speed limit (the speeding charge). After numerous adjournments, the speeding charge was finally set down for hearing on 6 August 2020. For reasons that are not relevant to this application, the hearing did not proceed on that day and the speeding charge was ultimately dismissed on 5 May 2021. The applicant was concerned whether a medical condition might affect his conduct of the speeding charge trial. Accordingly, he consulted his general practitioner on 6 July 2020. He forgot to ask for a medical certificate to excuse his attendance at the trial. The applicant booked another appointment to again see his general practitioner on 8 July 2020. On 8 July 2020 at 10am, the applicant received a phone call from the principal of the doctor’s surgery, informing him that his general practitioner did not want to see him. She felt uncomfortable about their interaction on 6 July 2020. The applicant nevertheless attended the surgery at the time of his appointment. The respondent and another police officer were in attendance at the surgery at that time. The applicant was told to leave the surgery. He was shepherded into the car park. He then attempted, on three occasions, to enter a nearby hospital to obtain a medical certificate. However, as the hospital was in the same building as the doctors’ surgery, he was repeatedly told to leave by the police officers. He was charged with fail to cease loiter, disorderly behaviour and resist arrest. Ultimately, those charges were dismissed on 5 May 2021. The Chief Justice identified “[a] theme running through Mr Kiparoglou’s application for the invention order”,[2] being that the applicant believed that the police officers intended to prevent him from obtaining a medical certificate and adjourning the speeding charge trial. This, in turn, was apparently designed to prevent the applicant from obtaining the evidence necessary to defend the speeding charge.[2] Kiparoglou v Fantinel [2021] SASC 90, [14]. The intervention order application On 23 October 2020, the applicant brought an application under s 20(1)(b) of the Intervention Order Act seeking a private intervention order against Mr Fantinel, a police officer. The applicant sought this order on the basis that it was necessary “to protect … against the threat of any assault and, in particular, interference with his attempts to defend the speeding charge.”[3] The applicant claimed that a failure to make the intervention order sought would cause him “personal injury, emotional or psychological harm” and “would result in damage to his property” which would interfere with his role as defence witness.[4][3] Kiparoglou v Fantinel [2021] SASC 90, [15]. [4] Kiparoglou v Fantinel [2021] SASC 90, [15].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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