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…

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] SASC 90
Decision Date: 7 July 2021

CaseChat Overview and Summary

Kiparoglou v Fantinel is an appeal against a decision of a Magistrate to dismiss an application made by the appellant for a private intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant sought the order against the respondent, a police officer, on the basis of the respondent's involvement in charging the appellant with various offences, which were later dismissed. The appellant argued that it was reasonable to suspect that the respondent would commit further acts of abuse against them. The appeal was brought before the Supreme Court of South Australia.

The legal issues before the court were whether the Magistrate had erred in dismissing the application for an intervention order and whether there were grounds to grant permission to appeal. Specifically, the court had to consider whether the Magistrate's factual conclusions were correct and whether the dismissal of the charges that formed the basis of the intervention order application affected the merits of the appeal.

The court held that no error of law had been established by the Magistrate in arriving at his factual conclusions. Given that the charges forming the basis of the intervention order application had been dismissed, the court found that the premise for the application was significantly diminished. The court refused permission to appeal and dismissed the appeal. The court concluded that the Magistrate's decision was sound and that there were no grounds for overturning it. Consequently, the appeal was dismissed without any further orders.

Orders

Orders of the court

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.

Background

Background to the litigation

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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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