Kiparoglou v Fantinel
[2021] SASCA 84
•20 August 2021
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 84Court 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 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].
In an affidavit in support of his application, the applicant gave the following account of the events on 8 July 2020:
8th July 2020 approximately between 4.00 PM – 5.30 PM, falsely arrested, then excessive force used for no reason. I don’t know what else or how else to explain it. There was no reason for any arrest. I was treated by the defendant in an inhumane way. My head was smashed multiple times onto the screen divider in the arrest cells at the Roxby Downs Police Station during the charge process, the handcuffs were placed on so tight that my wrists swelled up for 4-5 days, I was gripped very strongly by the neck where I am most vulnerable given my current medical condition. my arms which were in the rear restraint handcuffed position, were raised to the point where my shoulders almost popped out of their socket(s) & I also suffered severe shoulder and neck pain the following 3-4 days. I WAS NOT punched or kicked but the amount of force used was way beyond what was required given the circumstances or reason for my arrest.
The Magistrate reviewed audio-visual material of the applicant’s interactions with the police on 8 July 2020. In the view of the Magistrate, there was no evidence that the applicant was subjected to unlawful, excessive or unreasonable force.[5] The Magistrate observed:[6]
The allegations of assault are contradicted by the video evidence tendered by the applicant. The allegations appear to be the product of a fevered imagination by the applicant.
[5] Kiparoglou v Fantinel [2021] SASC 90, [20].
[6] Kiparoglou v Fantinel [2021] SASC 90, [22].
Consequently, the Magistrate rejected the applicant’s evidence and found that there was no risk or likelihood that, if a restraining order were not made, the respondent would cause the applicant any emotional or psychological harm, damage his property or deny him the autonomy to defend the speeding charge or dissuade him from defending the charge in any way. Accordingly, the Magistrate was not satisfied that there were reasonable grounds for issuing an interim intervention order against the respondent.
The Chief Justice’s reasons
The applicant sought leave to appeal against the Magistrate’s dismissal of the intervention order application. That application was heard and dismissed by the Chief Justice on 7 July 2021 because the applicant had failed to demonstrate any error by the Magistrate:[7]
Mr Kiparoglou has not shown or established any error in the reasoning of the Magistrate. The Magistrate’s factual conclusions were open to him. Indeed, they were fully and properly supported by the evidence. I acknowledge that if a police officer were to assault someone in his or her custody it is very unlikely that they would leave the video cameras on to record it. However, the point made by the Magistrate is that there is no indication on any video taken from the time the police approached Mr Kiparoglou at the surgery through to him being bailed, and on the delivery of a subsequent expiation notice to suggest that there was any improper or unlawful behaviour of the sort which he has alleged. The Magistrate’s findings are also supported by the inherent probability of police acting in the way alleged in order to obstruct a defence to a speeding charge and the inherent improbability of Mr Kiparoglou being agitated when he attended on 8 July 2020, given the conversations that he had with people from the surgery in the days before.
[7] Kiparoglou v Fantinel [2021] SASC 90, [24].
The Chief Justice explained that there were further reasons weighing against a grant of permission. In particular, the speeding charge and the charges arising out of the incident on 8 July 2020 had been dropped, so the very premise of the applicant’s application was no longer relevant.[8] There was nothing left to defend.
[8] Kiparoglou v Fantinel [2021] SASC 90, [29].
Disposition of the application
In support of his application for permission to appeal to this Court, the applicant filed the following grounds of appeal:
1.Compassionate/Humanitarian/Fear of life&/or safety to life
2.Error in findings of fabricated evidence relied upon in MCPAU-19-1135
3.Error in findings in allegation against respondent in “conspiring” with Roxby Downs Doctors Surgery & Staff … to illegally obtain private & confidential medical record of the appellant Mr. Kon Kiparoglou circa late June – early July 2020.
4.Error in findings in allegation of dissuasion tactics in allowing the appellant to get the surgical intervention he was wanting to get for his spinal condition (Aggravated Assault &/or Endangering life or creating risk of serious harm)
5.Error in findings of the alleged assault which took place at the Roxby Downs Police Station
6.Error in findings of illegal detainment/imprisonment with the use of illegal “Bail Conditions” forcefully & illegally applied unto the appellant Kon Kiparoglou.
These grounds allege no specific error in the reasoning of the Chief Justice, whether of fact or law. They are no more than complaints, made at a high level, of the Magistrate’s findings regarding the conduct of the police at the doctors’ surgery. At most, they assert error in the reasons of the Magistrate.
This Court is not tasked with reviewing the reasoning of the Magistrate in refusing the intervention order application. The role of this Court is to determine whether the applicant should be given leave to appeal against the Chief Justice’s dismissal of his application seeking permission to appeal against the Magistrate’s decision. Whilst a failure to identify error in the Magistrate’s decision might potentially be relevant to an assessment of the Chief Justice’s decision, the applicant did not attempt that task. Where the applicant has not, whether in his grounds of appeal or by way of submission alleged, let alone demonstrated, arguable error in the Chief Justice’s reasons or decision, leave to appeal must be refused.
The application is dismissed. The respondent is awarded costs in the sum of $500.