Kiparoglou v Fantinel - [2021] SASC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
KIPAROGLOU v FANTINEL
[2021] SASC 90
Judgment of the Honourable Chief Justice Kourakis (ex tempore)
7 July 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
This is an application for permission to appeal against the decision of a Magistrate to dismiss an application made by the appellant for a private intervention order under s 21(1)(b) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) against the respondent, a police officer.
The application is related to the respondent’s involvement as a police officer in charging the appellant with: a speeding offence on 2 October 2018; and fail cease loiter, disorderly behaviour and resist arrest on 8 July 2020. These charges were dismissed on 5 May 2021.
The appellant’s pleaded grounds for the intervention order were that it was reasonable to suspect that the respondent would commit a further act of abuse against the appellant by causing personal injury, emotional or psychological harm, damage to property or would lead to interference with the appellant as a defence witness.
Held per Kourakis CJ refusing permission to appeal and dismissing the appeal:
1. No error of law has been established by the Magistrate arriving at his factual conclusions.
2. The charges which constitute the basis for the application of the intervention order have been dismissed. Therefore, the premise that the application would prevent the respondent from dissuading the appellant from obtaining evidence to defend those charges is diminished.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) , referred to.

KIPAROGLOU v FANTINEL
[2021] SASC 90

Magistrates Appeal: Criminal

KOURAKIS CJ: On 23 October 2020 the appellant, Mr Kiparoglou, applied for an intervention order pursuant to s 20(1)(b) of the Intervention Order (Prevention of Abuse) Act 2009 (SA) (the IO Act) against Senior Constable Tristan Fantinel (Fantinel), a police officer stationed at Roxby Downs. An earlier intervention order application was brought against Fantinel and dismissed by another Magistrate on 16 July 2020. Mr Kiparoglou is a resident of Andamooka.
The dismissal of an ex parte application for an intervention order is an interlocutory order. It is necessarily so because the respondent is not present. There cannot be a final determination of any issue as between an applicant and any other person in the absence of an opposing party.
For that reason, notwithstanding the dismissal of an ex parte application for an intervention order, another application might subsequently be made. True it is that as a matter of procedure the Magistrates Court, on a subsequent application, may insist on the identification of a change in circumstances. That requirement is not based on the finality of the earlier order of dismissal. It is a rule of practice governing the hearing of interlocutory applications which is calculated to guard against an abuse of process.
If a respondent were present, findings made on the application for an intervention order may bind the parties as to whether past alleged incidents did or did not occur and whether these justified the making of an intervention order. An issue estoppel would arise. However, that is not generally the case on an application for an interim intervention order and it is not this case.
An appeal against an interlocutory order of the Magistrates Court can only be brought with permission. Accordingly, it is necessary for Mr Kiparoglou, not only to establish error by the Magistrate who dismissed the application, but also to show an error of a kind, or an effect on him, which would justify the grant of permission. For the reasons which follow Mr Kiparoglou has established neither.
To understand Mr Kiparoglou's application it is necessary to go back to 2 October 2018. On that day, Mr Kiparoglou was given an expiation notice for exceeding the speed limit on Andamooka Road at Andamooka. He chose to be prosecuted. The speeding charge was brought in the Port Augusta Magistrates Court. Mr Fantinel and another police officer, Senior Constable Starkey, swore statements in those proceedings in October and November 2019. Those proceedings were adjourned from time to time. I will return to that topic, but it suffices to say the speeding charge was finally set down for hearing on 6 August 2020 but did not proceed on that day and was later dismissed on 5 May 2021.
From at least May 2020 Mr Kiparoglou consulted his general practitioner at the Roxby Downs Doctors Surgery, and neurosurgeons in Adelaide about the degeneration condition of his spine. It appears from Mr Kiparoglou's submissions that those consultations were marred by misunderstanding, miscommunications and conflicts over the consultations, quotes for proposed surgery and whether surgery was, indeed, indicated. Those consultations occurred in the months leading up to what was to be the trial of the speeding charge in August 2020.
Concerned about his position and the upcoming trial, Mr Kiparoglou consulted his general practitioner at the Roxby Downs Doctors Surgery on 6 July, but forgot to ask for a medical certificate to excuse his attendance at the trial. I also understand from Mr Kiparoglou’s submissions on the request of the receptionist, he signed a blank medical authorisation form. After he left the surgery Mr Kiparoglou became anxious about the fact that he had signed a blank form and that he had not obtained a certificate.
Mr Kiparoglou experienced significant back pain overnight on 7 and 8 July and made an online appointment at about 2.00 am to see his general practitioner 8 July 2020. Mr Kiparoglou was further concerned about obtaining a medical certificate to support his application for an adjournment, his position being that he could not prepare his defence whilst suffering from back pain.
At about 10.00 am on 8 July 2020, the principal of the Roxby Downs Doctors Surgery phoned Mr Kiparoglou and told him that his general practitioner did not want to see him for the appointment he had booked in the afternoon on 8 July 2020. The reason given was that she had felt uncomfortable about their interactions on 6 July 2020. Nonetheless, Mr Kiparoglou attended at the surgery at 4.00 pm on 8 July 2020. Officers Fantinel and another Officer, Cardino, were also in attendance at the surgery at that time.
I pause to mention that those officers were also involved in an incident on 1 December 2018 when Mr Kiparoglou was charged with a minor street-type offence. Those proceedings were eventually withdrawn by police in January 2020.
In effect, Mr Kiparoglou was, to use his term, evicted from the surgery and shepherded into the car park. He attempted on three occasions to go into the hospital to obtain a certificate; the hospital is in the same building as the doctors’ surgery. He was told to leave by the officers.
Mr Kiparoglou was charged with fail to cease loiter, disorderly behaviour and resist arrest. I say immediately that all of those charges were also dismissed on 5 May 2021.
A theme running through Mr Kiparoglou's application for the intervention order is that the purpose of the police officers who evicted him was to prevent him seeing his general practitioner in an attempt to stop him adjourning the trial which, in turn, was designed to obstruct him from obtaining the evidence he needed to defend it.
On 23 October 2020, Mr Kiparoglou brought his second application for an intervention order against Mr Fantinel to protect himself against the threat of any assault and, in particular, interference with his attempts to defend the speeding charge. The application claimed that if not restrained Mr Fantinel would cause Mr Kiparoglou personal injury, emotional or psychological harm, would result in damage to his property and would lead to interference with him as a defence witness.
In an affidavit in support of the application, which Mr Kiparoglou adopted when he gave evidence before the Magistrate on 25 November 2020, Mr Kiparoglou gave the following account:
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.
Mr Kiparoglou filed further affidavits and written material in support of the application. Much of it took a similar form to Mr Kiparoglou's Notice of Appeal. It is difficult to discern in it much meaningful information or much in the way of a precise legal issue. The Magistrate recorded that Mr Kiparoglou, when he testified, adopted the affidavits and supporting material he had previously submitted.
The Magistrate asked Mr Kiparoglou why he considered that without intervention there would be further acts of abuse by Mr Fantinel. Mr Kiparoglou informed the Magistrate the defendant and police prosecutions were concerned to ensure that the trial of the speeding offence was not adjourned because of his medical condition. He explained to the Magistrate that he wanted an adjournment hoping it would give him the time he needed to defend the charge. Mr Kiparoglou testified that Mr Fantinel and prosecutions were trying to obstruct his defence. Mr Kiparoglou agreed with the Magistrate's characterisation of his case which was that the prosecution and Mr Fantinel were attempting to prevent him from properly defending the charge.
Mr Kiparoglou provided audio visual material of interactions with the police primarily on 8 July 2020 but also on some other occasions. The disks or DVDs were not playable in court. The Magistrate was eventually able to view it after he had reserved his decision, applying what he described as VLR software. Mr Kiparoglou informed the Magistrate that he had not viewed the video recordings. Mr Kiparoglou tells me he is yet to view the video recordings. I asked Mr Kiparoglou whether he disputed the Magistrate's summary of what was in it. Mr Kiparoglou told me that he did, even though he had not seen it. On another occasion, however, he told me that he doubted that the video would show any of the assaults which he alleged were committed, for example by bashing his head against the screen in the cells.
After viewing the DVDs, the Magistrate found the following at paragraph [36]:
The recordings contain no evidence that the applicant was subjected to unlawful, excessive or unreasonable force by the police officers in the exercise of their powers under s 17A of the Summary Offences Act, or doing his arrest at the Roxby Downs Medical Centre, or when he was being conveyed to the Roxby Downs Cells, or at the police cells while he was being charged and bailed, or after he returned to the Medical Centre to collect his car.
The Magistrate noted that Mr Kiparoglou had not produced any other evidence independently of his sworn account of the events to prove his case.
As to events at Roxby Downs Doctor Surgery, the Magistrate found that it was apparent from the recordings that Mr Kiparoglou was given numerous warnings to leave the area and desist from his behaviour before he was arrested. The Magistrate found that the behaviour of Mr Kiparoglou depicted on the video, was abusive, offensive and provocative. The Magistrate observed that the police officers appeared frustrated and concluded:
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.
In paragraph 41 of his reasons, the Magistrate rejected Mr Kiparoglou's testimony. The Magistrate, for similar reasons, found that there was no risk or likelihood that if a restraining order were not made that Mr Fantinel would cause Mr Kiparoglou emotional or psychological harm, damage his property or deny him financial, social or personal autonomy or engage in any witness dissuasion or other illegal detainment or harassment. His Honour found, insofar as the video showed interaction on 9 July 2020, when an expiation notice was served, nothing untoward in the behaviour of Mr Fantinel and Cardino, who was with him. For those reasons the Magistrate was not satisfied that there were reasonable grounds for issuing an interim intervention order against the defendant and that it was not reasonable to suspect that Mr Fantinel would, without intervention, commit any other act or abuse against the applicant.
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 of the video taken from the time that 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 improbability of police acting in the way alleged in order to obstruct a defence to a speeding charge and the inherent probability 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.
Therefore no error of fact has been established.
In any event, an application for permission to appeal will not ordinarily be granted merely because an error of fact is alleged.
There are further reasons to not grant permission. As I earlier observed, both the speeding charge and the charges arising out of the incident at the surgery on 8 July 2020 have now been dismissed. The very premise of Mr Kiparoglou's application is that the police were attempting to dissuade him and prevent him from obtaining evidence to successfully defend those charges, or at least the speeding charge, at that time. They have now been dismissed.
For all of the above reasons, I refuse Mr Kiparoglou's application for permission to appeal and dismiss the appeal.
The ordinary rule is that costs will follow the event. $500 is a small proportion of the real cost of appearing in a Magistrates Appeal like this. No reason not to apply the ordinary rule has been advanced by Mr Kiparoglou. I order Mr Kiparoglou pay costs in the sum of $500.