Marley-Duncan v Police - [2015] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MARLEY-DUNCAN v POLICE
[2015] SASC 146
Judgment of The Honourable Justice Stanley
24 September 2015
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal from a decision of a magistrate confirming an intervention order pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
An interim intervention order was made against the appellant in February 2013. The protected person is Ms Kylie-Anne Duffield. The appellant opposed the confirmation of the order. The matter proceeded to trial. On 5 May 2015 the magistrate gave judgment and confirmed the intervention order.
The appellant is a real estate agent at Gawler. She operates her own real estate firm. Ms Duffield also is a real estate agent. She is employed by Ray White, a large Australia-wide real estate agency which has an office in Gawler. The two offices are located in one of the main streets of Gawler within close proximity to each other. There are four incidents that gave rise to the application for the intervention order which were the subject of evidence before the magistrate. The first incident occurred on 2 August 2012 outside the Gawler premises of Ray White. The appellant attempted to enter the office. The door was locked. She was calling through the door, knocking on it and trying the door handle. She was swearing and agitated. The second incident concerned a telephone call on the following day, 3 August 2012, made by the appellant to Ms Duffield. The respondent’s case at trial was that the appellant made a threat to attack Ms Duffield with a knife during this call. The third incident occurred on 27 January 2013 in a car park outside of the Officeworks store at Elizabeth. Ms Duffield was in a car. She was approached by the appellant and other women and children. They obstructed the car and the appellant approached the driver’s door and shouted at Ms Duffield, trying to get her to get out of the car. The fourth incident occurred on 7 February 2013 again outside the Ray White office in Gawler.
Whether there was insufficient evidence to justify a finding that the appellant would, without intervention, commit an act of abuse towards Ms Duffield. Whether the magistrate erred in failing to make relevant findings and in making findings that were contrary to the evidence or against the weight of the evidence. In the alternative, whether the magistrate erred in determining that that the terms of the intervention order were appropriate in the circumstances.
Held (per Stanley J) dismissing the appeal:
1. The basis for confirming an interim intervention order is a reasonable suspicion that, unless restrained, the appellant would cause harm to Ms Duffield. Not only was the critical finding open on the evidence but having conducted an independent review of the evidence before the magistrate, I am satisfied that the evidence established a reasonable basis to suspect that, unless restrained, the appellant would cause…

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: [2015] SASC 146
Decision Date: 24 September 2015

CaseChat Overview and Summary

In the matter of Marley-Duncan v Police, the appellant, Ms Marley-Duncan, sought to appeal the decision of the magistrate who had confirmed an intervention order against her. The order was made pursuant to the Family and Domestic Violence Protection Act 2012 (SA) and required Ms Marley-Duncan to refrain from engaging in behaviour that may cause fear or concern to Ms Duffield. The application for the intervention order arose from four incidents of alleged intimidation and harassment directed at Ms Duffield. Ms Marley-Duncan contended that the magistrate erred in confirming the intervention order as there was no reasonable suspicion that she would, if unrestrained, commit an act of abuse against Ms Duffield.

The court was required to determine whether the magistrate had made the necessary findings in order to confirm the intervention order in accordance with the Act. The respondent submitted that the magistrate had correctly evaluated the evidence and had made the necessary findings to justify the confirmation of the order. The court had to consider the magistrate’s assessment of the evidence and determine if it was open to the magistrate to conclude that an intervention order was necessary to protect Ms Duffield.

The court found that the magistrate had undertaken an evaluation and assessment of the evidence given by Ms Duffield. The magistrate found her evidence to be exaggerated but held that, based on the rest of the evidence, including the appellant’s evidence and the video evidence, an intervention order was necessary to protect Ms Duffield. The court held that this finding was open to the magistrate and was justified by an independent review of the evidence relied upon by the magistrate. The court further held that the basis for confirming an interim intervention order is a reasonable suspicion that, unless restrained, the appellant would cause harm to Ms Duffield. The court concluded that the magistrate’s decision to confirm the intervention order was justified.

The appeal was dismissed, and the intervention order was confirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The two offices are located in one of the main streets of Gawler within close proximity to each other. The evidence There are four incidents that gave rise to the application for the intervention order which were the subject of evidence before the magistrate. The first incident occurred on 2 August 2012 outside the Gawler premises of Ray White. The appellant attempted to enter the office. The door was locked. She was calling through the door, knocking on it and trying the door handle. She was swearing and agitated. The second incident concerned a telephone call on the following day, 3 August 2012,[1] made by the appellant to Ms Duffield. The respondent’s case at trial was that the appellant made a threat to attack Ms Duffield with a knife during this call. [1] The magistrate’s reasons incorrectly identify this as 3 February 2013. The third incident occurred on 27 January 2013 in a car park outside of the Officeworks store at Elizabeth. Ms Duffield was in a car. She was approached by the appellant and other women and children. They obstructed the car and the appellant approached the driver’s door and shouted at Ms Duffield, trying to get her to get out of the car. The fourth incident occurred on 7 February 2013 again outside the Ray White office in Gawler. At trial there was evidence by way of video and audio recordings tendered of each of these incidents in whole or in part. Some of this evidence was obtained from the Channel 7 television program “Today Tonight”. Ms Duffield gave evidence of recording part of the third incident in the Officeworks car park on her phone. She said that she gave a USB stick containing this video to the police. The police have no record of receiving this USB stick. The catalyst to these incidents was a confrontation which occurred between the appellant and a former client, Mr Michael Palmer, in front of the appellant’s office on 2 August 2012 immediately prior to the first incident. Mr Palmer had parked his motor vehicle and trailer in front of the appellant’s office. The trailer was adorned with placards critical of the appellant. Mr Palmer was a disgruntled landlord dissatisfied with the work the appellant had performed on his behalf. In particular he was aggrieved by the conduct of the appellant in releasing to the tenants of his rental property the bond they had paid. As a result of his dissatisfaction with the performance of the appellant he had transferred management of his property from the appellant to the Ray White agency in Gawler. The confrontation between the appellant and Mr Palmer was videotaped. At some point during the confrontation a number of spectators can be seen gathered outside the front of the Ray White office observing the fracas. Eventually police attended. Sometime later Mr Palmer left the scene. After this the appellant approached the Ray White office. By this time no-one was in front of the office and when she arrived the office door was locked. During the first incident Ms Duffield was present inside the Ray White office. She alleged that she heard the appellant say words to the effect that she was going to “get youse” and that the banging and knocking on the door by the appellant was a lot more significant than was shown in the video.

Decision

Reasons for decision

On this basis I reject ground 5.Conclusion In this matter I would grant permission to appeal. I consider there are special reasons why it would be in the interests of the administration of justice to have the appeal determined. While the confirmation of an intervention order is interlocutory, because it is capable of being varied or revoked at any time, the order applies indefinitely until it is varied or revoked. The possibility that the order has been made unlawfully is a sufficient basis for the Court to grant permission to appeal in the interests of the administration of justice. In these circumstances, I am satisfied permission to appeal should be allowed. Nonetheless, for the above reasons, I would dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The respondent submits that the magistrate was required to consider relevant past events, make findings as to those past events on the balance of probabilities, and then, upon those findings, determine whether it was reasonable to suspect that the appellant would, if unrestrained, commit an act of abuse. Further, the respondent submits that the findings with respect to past events could be assessed as a whole. While each of the first three incidents was important, there did not need to be a finding of abuse with respect to each of these incidents. There simply had to be findings of fact about these incidents which, taken together, was capable of giving rise to the reasonable suspicion required by the Act. It submits that is precisely the process adopted by the magistrate. The respondent submits that all the necessary findings that were required in order to confirm the intervention order in accordance with the Act were made by the magistrate. Accordingly, it is irrelevant that other findings may have been open but were not made. On the contrary, the respondent submits that it would have been unnecessary, if not problematic, had the magistrate made findings that were unnecessary to dispose of the proceedings. Consideration In considering whether to confirm the intervention order the magistrate undertook an evaluation and assessment of the evidence given by Ms Duffield. The magistrate obviously had reservations about her evidence. The magistrate found her evidence to be exaggerated. She gave no weight to her account of threats to stab her made by the appellant during the phone call of 3 August 2012 but, ultimately, the magistrate held that she was satisfied on the basis of the rest of the evidence, including the appellant’s evidence and the video evidence, that an intervention order was necessary to protect Ms Duffield. In my view, that finding was not only open on the evidence but was justified by an independent review of the evidence relied upon by the magistrate. The basis for confirming an interim intervention order is a reasonable suspicion that, unless restrained, the appellant would cause harm to Ms Duffield. It is important to recognise that the requisite state of mind that must be established is a reasonable suspicion. In George v Rockett[18] the High Court said:[19]Suspicion, as Lord Devlin said in Hussien v. Chong Fook Kam, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty. Ltd. v. Rees, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said:“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’s Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer’s ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”[Footnote omitted].[18] [1990] HCA 26, (1990) 170 CLR 104. [19] [1990] HCA 26, (1990) 170 CLR 104 at 115 – 116.