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 emotional or psychological harm to Ms Duffield. I reject ground 1 (at [36] - [38]).
2. Ground 2 is misconceived. The magistrate was only required to make findings of fact sufficient for her to satisfy the statutory test one way or another. Not only were the findings of fact that were made open on the evidence, they are findings I am satisfied were justified on the evidence before the magistrate. I reject ground 2 (at [40] - [41]).
3. The premise of ground 3, at least in part, is that in order to justify the confirmation of the interim intervention order the magistrate had to find that the appellant had threatened harm to Ms Duffield. That proposition cannot be sustained. I reject ground 3 (at [42] - [45]).
4. Ground 4 is a complaint that the magistrate made findings against the weight of the evidence. I do not accept that submission. I reject ground 4 (at [46] - [56]).
5. The appellant seeks, in the alternative, to have orders 3, 6, 7, 8 and 10 struck out. Those orders are necessary for the intervention order to be effective. No error has been demonstrated in the terms of the orders made by the magistrate. I reject ground 5 (at [57] - [59]).
6. Permission to appeal granted. Appeal dismissed (at [60]).
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 23, s 6, s 7(1)(a), s 8, s 8(2)(b), s (3)(c), s 8(4), s 10, s 12, s 10(1)(b), s 10(1)(d)(iv); Magistrates Court Act 1991 (SA) s 42(1a)(c), referred to.
Police v Groom (No 3) (2013) 231 A Crim R 1; Van Reesema v Police [2009] SASC 8; Martin v Department of Transport, Energy and Infrastructure (2010) 269 LSJS 403; Cook v Galloway [2015] SASC 36; Police v Giles [2013] SASC 11; George v Rockett (1990) 170 CLR 104; Fox v Percy (2003) 214 CLR 118; House v The King (1936) 55 CLR 499, considered.

MARLEY-DUNCAN v POLICE
[2015] SASC 146
Magistrates Appeal
STANLEY J:
Introduction

This is an 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) (the Act).
The 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. The trial occurred over nine days. There were 14 witnesses called in the case.
On 5 May 2015 the magistrate gave judgment and confirmed the intervention order. The intervention order was in the following terms:
1.The defendant must not assault, threaten, harass or intimidate the protected person.
2.The defendant must not follow or keep the protected person under surveillance.
3.The defendant must not be within 10 metres of the protected person.
4.The defendant must not contact or communicate with the protected person directly in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc).
5. The defendant must not enter the place of residence or place of employment of the protected person(s).
6.The defendant must not damage or interfere with the premises where the protected person is staying, residing or is employed.
7.The defendant must not damage or take possession of personal property belonging to the protected person(s).
8.The defendant must not enter the following locations: any property displaying a Ray White Real Estate sign unless at the request of the owner of the property.
9.The defendant must not enter any education or care facility attended by the protected person(s) and/or including specifically the following: Xavier College, Gawler Belt, St Brigids Primary School, Evanston.
10.The defendant must not publish on the internet or by any electronic means any material about the protected person(s).
11.The defendant must not cause, allow or encourage another person to do anything forbidden by this order.
12.Any firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm must be surrendered to the Registrar of Firearms forthwith.
13.For so long as this intervention order remains in force, any licence or permit held by the defendant authorising possession of a firearm is suspended and the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm including in the course of his or her employment.
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.
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.
The telephone call which constituted the second incident was made from the appellant’s office. The security system captured some of the words spoken by the appellant. The appellant called expert evidence that the audio recording had not been tampered with and described efforts that had been made to enhance the sound recorded. The audio recording of the call was not completely decipherable. The phone call lasted for approximately 47 seconds. A transcript was admitted into evidence.[2] It only records part of what was said by the appellant and nothing of what was said by Ms Duffield. It is in the following terms:
Hello Kylie, Hayley Marley Duncan here
Well I’m gunning for you now cause you made a Statement that … indecipherable
You and your little clan yesterday were out there clapping and cheering on
Today Tonight has been following us around for eight months and we set that guy up
Indecipherable… And then he went to First National..
Every rental appraisal you go on now, watch your fuckin back (indecipherable) you fuckin whore
Keep your fucking nose out of my business, you know nothing about me.
You heard me… bye bye now
[2] Exhibit D27.
At trial the appellant’s husband gave evidence of overhearing the appellant in this telephone call. He denied hearing any threat to stab or kill being made by his wife.
Following the second incident Ms Duffield made a complaint to the police that during this telephone call the appellant had threatened to stab and kill her with a knife. Three days later the appellant was arrested and charged with threatening life. She was granted bail on condition that she did not contact or approach Ms Duffield. On 10 January 2013 the appellant was advised that the charge was to be withdrawn. At trial the appellant gave evidence that in consequence she believed that she was no longer subject to the bail conditions imposed in August 2012.
In relation to the third incident, evidence was given by an independent witness, Natasha Woulleman, who was present in the car park in front of Officeworks on 27 January 2013 when the appellant and some friends confronted Ms Duffield while she was in her car in the car park. She observed the confrontation and the distressed state of Ms Duffield immediately afterwards. Evidence was also called from Ms Duffield’s treating general practitioner, Dr Michael Brown, who prescribed anti-anxiety medication.
Evidence was also called from Ray White employees, Cassandra Van De Ven, Sarah Heeley and Sarah Parham. They gave evidence of the first incident which was generally corroborative of the evidence given by Ms Duffield. Ms Parham and Ms Heeley also gave evidence of the fourth incident.
In addition, an affidavit of Megan Lowe was tendered which referred to receiving in a private mailbox material from Ray White Real Estate relating to their services as property managers.
The magistrate’s reasons
The magistrate made findings in relation to the first three incidents described above. The magistrate did not make findings in relation to the fourth incident. The fourth incident did not actually involve Ms Duffield. She was not present in the office at the time of this incident.
In relation to the first incident of 2 August 2012 the magistrate found:[3]
(i)the appellant walked “in an assertive manner” to the Ray White office where Ms Duffield worked;
(ii)the appellant twice knocked on the door and rattled the door handle;
(iii)the appellant yelled to those inside the office to “come on, open your door”;
(iv)the appellant referred to those inside Ray White as “fucking pathetic”;
(v)the appellant knocked on the door again, pulled on the door again, and then walked away; and
(vi)Ms Duffield’s description of that incident was not accurate and had been exaggerated.
[3] Police v Marley-Duncan, judgment of Ms C Deland, 5 May 2015 at [9] and [30] – [31].
In relation to the second incident of 3 August 2012 the magistrate found:[4]
(i)the appellant obtained Ms Duffield’s telephone number from the real estate agency’s website;
(i)the appellant telephoned Ms Duffield on 3 August 2012;
(iii)there was an audio recording of the call that was difficult to hear;
(iv)the appellant said to Ms Duffield that she could turn up at any appraisal Ms Duffield did and to watch her back;
(v)that when the words “watch her back” were uttered, the appellant was angry;
(vi)that in context, the comments made by the appellant amounted to threats to follow Ms Duffield and to keep her under surveillance; and
(vii)the appellant was using the “Today Tonight” program to “intimidate” Ms Duffield.
[4] Police v Marley-Duncan, judgment of Ms C Deland, 5 May 2015 at [10], [32] – [33] and [52].
In relation to the third incident on 27 January 2013 at the Officeworks car park, the magistrate found:[5]
[5] Police v Marley-Duncan, judgment of Ms C Deland, 5 May 2015 at at [36] – [37].
(i)the incident occurred in broad daylight;
(ii)there were other people around;
(iii)the appellant, accompanied by two friends, approached Ms Duffield in an “aggressive” manner;
(iv)the appellant and her companions stopped Ms Duffield from leaving the car park and surrounded Ms Duffield’s car in an aggressive manner;
(v)the appellant was in the company of children when she acted in that manner;
(vi)the video footage itself showed the appellant harassing and abusing Ms Duffield;
(vii)that immediately after the incident, Ms Duffield was shaking and crying and could not control her distress; and
(viii)Ms Duffield was in the presence of her own two-year-old child which added to her distress and was therefore relevant to determining whether the distress, anxiety and fear felt by Ms Duffield was more than “trivial”.
Based on those findings the magistrate concluded:[6]
The manner in which the Ray White staff behaved on that particular day [2 August 2012] cannot be described as inappropriate or offensive, but Ms Marley-Duncan was offended by it. She went to their office to challenge them, rang Ms Duffield the following day and then the very first opportunity when she saw Ms Duffield after her bail conditions had been revoked, she has approached Ms Duffield in the manner described by Ms Woulleman. On 27 January 2013, not only has she approached her in order to challenge her over Ms Duffield’s statement to police, she has also approached her deliberately with the intention of obtaining footage which she believed would be useful for the “Today Tonight” program. Throughout her evidence the defendant made it plain she believed “Today Tonight” would not paint Ray White and Kylie-Anne Duffield in a very good light. When Ms Marley-Duncan spoke to Ms Duffield on the phone on 3 August 2012, she told Ms Duffield that Ms Duffield or the Ray White business would not look good on national television. Even though at that stage there appears to have been very little that had occurred on 2 August 2012 which would have had any negative impact on Ray White at all, the defendant appears in that comment to be using the “Today Tonight” programme to intimidate Ms Duffield.
…
It is quite apparent from her evidence throughout these proceedings that the defendant feels very strongly the Ray White office and in particular, Ms Kylie-Anne Duffield, have been trying to damage Ms Marley-Duncan’s business. She believes members of the Ray White office and in particular, Ms Duffield have created false rumours about her with regard to the status of her marriage and concerning the theft of money from her business. She also believes Ms Duffield has been responsible for attempting to poach some of her clients from her; a belief reinforced by the statement of Megan Lowe. She believes Kylie Duffield lied to the police. These appear to be long-standing and strongly held beliefs on the part of Ms Marley-Duncan. The very fact she approached Ms Duffield at Officeworks in the manner that she did, at a time when she believed the bail had been revoked, strongly indicates she would approach Ms Duffield again in the future if there was no impediment to her doing so.
The current proceedings have led to a good deal of ill feeling on the part of Ms Marley-Duncan. It is quite apparent she is not a person who will simply let bygones be bygones. I am left with no doubt that if the intervention order is not confirmed, she will wish to confront Ms Duffield about what she will perceive as being inappropriate behaviour on Ms Duffield’s part. That the defendant should have confronted Ms Duffield as soon as she believed the bail conditions had been revoked (even though in fact they had not), gives weight to the belief she will confront Ms Duffield if she believes she is able to do so and in a similar manner.
Her own evidence as to what she said to Ms Duffield in the phone call on 3 August 2012, added to the footage of what occurred in the Officeworks’ carpark, are strong evidence of the likelihood she would approach Ms Duffield again if she was given the opportunity, and she would do so in a manner which is aggressive and harassing and is likely to cause emotional or psychological harm to Ms Duffield.
The distress, anxiety and fear exhibited by Ms Duffield and described by Ms Woulleman and Dr Michael Brown is “more than trivial”. Whilst I accept Ms Duffield’s evidence is exaggerated, I do not need to be satisfied her evidence is accurate to be satisfied it is necessary for an intervention order to be in place against the defendant to protect Ms Duffield. I place no weight on Ms Duffield’s assertion that Ms Marley-Duncan said she had a knife and would stab her in the back. There is sufficient evidence in the video footage and in the defendant’s own evidence to support the need for an intervention order to stop ongoing abuse and harassment of Ms Duffield.
[6] Police v Marley-Duncan, judgment of Ms C Deland, 5 May 2015 at [52] – [58].
Permission to appeal

A confirmation order is interlocutory in nature.[7] Accordingly, permission to appeal is required. Pursuant to s 42(1a)(c) of the Magistrates Court Act 1991 (SA) permission will be granted where there are special reasons why it would be in the interests of the administration of justice to have the appeal determined.
[7] Groom v Police (No. 3) [2013] SASC 93 at [32], (2013) 231 A Crim R at 7.
In Van Reesema v Police[8] Bleby J considered the meaning of “special reasons”. He said:[9]
The phrase “special reasons” is not defined in the Magistrates Court Act. It is an expression that “must always be interpreted in light of its context”. Section 42(1a) permits appeals from interlocutory judgments only in limited circumstances. The purpose of limiting the right of appeal from interlocutory orders and judgments is to prevent summary proceedings from being delayed and fragmented. If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final, substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of the interlocutory order is not yet known. I consider that, for there to be “special reasons” to grant permission to appeal under s 42(1a)(c), there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases. An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal.
[Footnotes omitted].
[8] [2009] SASC 8.
[9] [2009] SASC 8 at [23].
Nature of the appeal
The appeal is by way of re-hearing. The nature of such an appeal was considered in Martin v Department of Transport, Energy and Infrastructure.[10]White J said:[11]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.
[Footnote omitted].
[10] [2010] SASC 141, (2010) 269 LSJS 403.
[11] [2010] SASC 141 at [38], (2010) 269 LSJS 403 at 410.
In Cook v Galloway[12] Nicholson J said those same principles apply to an appeal against a refusal to confirm an intervention order.[13] Likewise, they apply to an appeal against a confirmation of an intervention order.
[12] [2015] SASC 36.
[13] [2015] SASC 36 at [31].
The statutory framework
The object of the Act “is to assist in preventing domestic and non-domestic abuse by providing for the making of intervention orders by police in the Magistrates Court of South Australia”.[14] Section 6 provides that there are grounds for issuing an intervention order against a person if it is reasonable to suspect that the person will, without intervention, commit an act of abuse against a person, and the issuing of the order is appropriate in the circumstances. An order may be issued for the protection of any person against whom it is suspected that person will commit an act of abuse.[15] Section 8 of the Act provides that “abuse” may take many forms including, relevantly, emotional or psychological abuse. Section 8(2)(b) defines “act of abuse” to include “emotional or psychological harm”, and s 8(3)(c) defines “emotional and psychological harm” as including, relevantly, “distress, anxiety or fear, that is more than trivial”. Section 8(4) provides examples of what may constitute “emotional or psychological harm”. The examples are not limitations on what may constitute an act of abuse resulting in emotional or psychological harm.
[14] Police v Giles [2013] SASC 11 at [1].
[15] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 7(1)(a).
In Police v Giles[16] Kourakis CJ considered the approach to be taken by a court in deciding whether an intervention order should be confirmed. He said:[17]
The primary ground for the making of an intervention order is the reasonable suspicion that the defendant will commit an act of abuse. Proof that the defendant has committed an act of abuse in the past is not expressly made a precondition to the making of an intervention order. It is at least theoretically possible to hold a prescribed suspicion without making any finding of fact, or any firm finding of fact, as to past events. However, the Act appears to contemplate that the court will make findings of fact about past events and provides that it is to make those findings on the balance of probabilities.
…
I will proceed in this matter on the basis that the reasonable suspicion that the defendant will, if unrestrained, commit an act of abuse must be founded on findings of fact made on the balance of probabilities about past events. However, I would make two observations about the grounds for making an intervention order. First there is no requirement that the facts from which the reasonable suspicion is drawn themselves constitute an act of abuse. Secondly it is not a statutory requirement that those facts or events be recent, or have occurred before or after the breakdown of a relationship.
[Footnotes omitted].
[16] [2013] SASC 11.
[17] [2013] SASC 11 at [29] – [30].
Submissions of the appellant
The appellant submits that 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. She submits that there was insufficient evidence to justify a finding that the appellant would, without intervention, commit an act of abuse towards Ms Duffield. In particular, the appellant submits that the magistrate erred in failing to find that Ms Duffield lied and that, as a result, her evidence was not a reliable basis for making the requisite findings which would justify confirming the intervention order. In addition, the appellant submits that the findings made by the magistrate in relation to the first, second and third incidents, were contrary to the video and audio evidence. In addition, the appellant submits that the unreliability of the evidence of Ms Duffield coupled with the absence of corroborating evidence, demonstrates that the finding by the magistrate that Ms Duffield was genuinely frightened of the appellant was made in error.
Specifically, the appellant’s grounds of appeal are:
1. The magistrate erred in confirming the intervention order against the appellant in relation to Ms Duffield in that it was not open on the facts to find that there was sufficient evidence that the appellant would, without intervention, commit an act of abuse towards Ms Duffield.
2. The magistrate erred in that she failed to make proper findings of fact in the reasons for judgment. The magistrate was required to make findings of fact that:
a) the appellant had threatened Ms Duffield on 2 August 2012 outside the premises of Ray White Real Estate;
b) the appellant had threatened to stab and kill Ms Duffield on 3 August 2012;
c) the appellant had threatened to harm Ms Duffield on 27 January 2013; and
d) that Ms Duffield was genuinely fearful of the appellant,
where such findings were necessary to justify the confirmation of the said order.
3. The magistrate failed to make proper findings rejecting the evidence that:
a) the appellant had not threatened to harm Ms Duffield at all;
b) the appellant had no intention of causing any harm to Ms Duffield or of interfering with her;
c) the appellant had not contacted Ms Duffield at all for a period when unrestrained and was therefore not a risk of further contact with her;
d) the appellant herself and her business had been the subject of ongoing harassment by Ms Duffield and those associated with her;
e) character witnesses attested to the appellant’s good character over many years,
where such findings were necessary to justify the confirmation of the said order.
4. The magistrate made findings that were against the weight of the evidence, in particular:
a) her finding that only part of the words spoken by the appellant in the conversation between the appellant and Ms Duffield was tendered in court when the whole of the words spoken by the appellant in that conversation were tendered as an exhibit and where expert evidence was called by the appellant to confirm that the recording had not been tampered with;
b) that the evidence given by the witness Woulleman regarding events at the Officeworks premises on 27 January 2013 was accurate;
c) that Ms Duffield was not leaving the Officeworks car park when she drove towards the appellant;
d) that Ms Duffield was an honest witness but prone to exaggeration where her evidence contradicted filmed incidents or recordings and where witnesses called to support Ms Duffield told the same false evidence;
e) that the term ‘watch your back’ said by the appellant to Ms Duffield was a threatening term;
f) that the appellant’s conduct in the three incidents which were the basis for the application constituted harassment of Ms Duffield by the appellant;
g) that the appellant’s conduct in the three incidents which were the basis for the application constituted abuse of Ms Duffield by the appellant;
h) that the appellant confronted Ms Duffield as soon as she believed she was unrestrained from doing so;
i) that, in the absence of an intervention order, the appellant intends to commit an act of abuse on Ms Duffield;
j) that Ms Duffield was genuinely frightened of the appellant and that any distress was either genuinely held or as a result of the appellant’s conduct.
5. The magistrate erred in determining that that the terms of the intervention order were appropriate in the circumstances.
Submissions of the respondent
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.
Not only was the critical finding open on the evidence but having conducted an independent review of the evidence before the magistrate, including the video and audio evidence, and recognising the natural limitations that exist in the case of an appellate court conducting a rehearing on the record,[20] I am satisfied that the evidence established a reasonable basis to suspect that, unless restrained, the appellant would cause emotional or psychological harm to Ms Duffield. The evidence of the Officeworks incident is a sufficient basis to make this finding. I do not accept that the video evidence is inconsistent with Ms Woulleman’s evidence of these events except with regards to the length of time over which they occurred. In my view, nothing turns on the fact that these events may have taken less time than the impression formed by Ms Woulleman. I am satisfied that the appellant was acting in company with other women in obstructing Ms Duffield’s motor vehicle. The appellant’s conduct towards Ms Duffield was angry, intimidating and coercive. The evidence supports the conclusion the appellant was intent on confrontation. She was trying to get Ms Duffield to alight from the car. The evidence of Ms Woulleman, Dr Brown and Ms Duffield satisfies me that she was greatly distressed emotionally by the appellant’s conduct to an extent which was more than trivial. The preparedness of the appellant to behave towards Ms Duffield in this manner, in public, apparently at the first opportunity that presented itself after she believed she was no longer constrained from approaching her, evidences a sound basis for finding there is reason to suspect that, unless restrained, the appellant would cause emotional or psychological harm to Ms Duffield. Moreover, the evidence from the transcript of the telephone call of 3 August 2012 supports the ultimate conclusion reached by the magistrate. Even excluding Ms Duffield’s evidence of the threat to stab her, the threat “every rental appraisal you go on now, watch your fuckin back (indecipherable) you fuckin whore”, admitted by the appellant, and the tone in which it was uttered, in conjunction with the Officeworks incident, is capable of giving rise to the requisite suspicion. Having reached this conclusion, it remains to consider whether it is otherwise appropriate to confirm the intervention order. Being satisfied as to the existence of the prescribed suspicion there is no reason in the circumstances of this case not to confirm the intervention order made. As the Chief Justice said in Giles,[21] there is a clear statutory policy enshrined in s 10 of the Act that, in weighing the discretionary considerations on the appropriateness of restricting the appellant’s freedom of movement, great weight is to be given to the welfare and personal autonomy of Ms Duffield. In those circumstances I am satisfied that the confirmation of the order was appropriate in the circumstances.
[20] Fox v Percy [2003] HCA 22 at [22] – [30], (2003) 214 CLR 118 at 125 – 128.
[21] Police v Giles [2013] SASC 11 at [42].
On this basis I reject ground 1.
This conclusion is sufficient to dismiss the appeal. Nonetheless I will address expressly the remaining grounds.
In my view ground 2 is misconceived. The magistrate was only required to make findings of fact sufficient for her to satisfy the statutory test one way or another. It is important to bear in mind the observations of the Chief Justice in Giles that there is no requirement under the Act that the facts from which the reasonable suspicion is drawn must themselves constitute an act of abuse as defined. Further, it is at least theoretically possible to hold the requisite suspicion without any firm finding of fact as to past events. In any event, in this case the magistrate made findings of fact. As I have indicated, not only were those findings open on the evidence, they are findings I am satisfied were justified on the evidence before the magistrate. Accordingly, findings that the appellant had threatened Ms Duffield outside the Ray White office on 2 August 2012, or had threatened to stab and kill her in the telephone conversation on 3 August 2012, or had threatened harm in the Officeworks car park, were not necessary to justify the confirmation of the intervention order. As to the complaint that the magistrate erred in failing to find that Ms Duffield was genuinely fearful of the appellant, the magistrate found that the appellant’s conduct in the third incident had occasioned Ms Duffield distress, anxiety and fear that was more than trivial.[22] I am satisfied this finding was both open on the evidence and warranted.
[22] Police v Marley-Duncan, judgment of Ms C Deland, 5 May 2015 at [37] and [58].
On this basis I reject ground 2.
The premise of ground 3, at least in part, is that in order to justify the confirmation of the interim intervention order the magistrate had to find that the appellant had threatened harm to Ms Duffield. For the reasons explained above, that proposition cannot be sustained for the reasons explained in Giles. Further, for the reasons explained above, I am satisfied that the evidence of the Officeworks incident is a sufficient basis to find that there is a reasonable basis to suspect that, if left unrestrained, the appellant would cause emotional or psychological harm to Ms Duffield. That this is the only evidence of her approaching Ms Duffield in the period between 10 January 2013, when she believed that she was no longer bound by the bail conditions preventing her from approaching Ms Duffield, and 18 February 2013, when the interim intervention order was served upon her, does not undermine the significance of the evidence of the Officeworks incident.

Further, the appellant’s submission that she and her business had been the subject of ongoing harassment by Ms Duffield and those associated with her, even if correct, is a consideration extraneous to the statutory test considered by the magistrate. If the evidence of relevant past events gave rise to the requisite suspicion, that fact is not undermined by Ms Duffield’s conduct, and, even less so, by others who may be associated with her. Similarly, evidence of the appellant’s good character, while not irrelevant, of itself cannot outweigh the legislative intention to protect vulnerable persons from the threat of abuse where it is reasonable to suspect that the appellant would, without intervention, commit an act of abuse against Ms Duffield. In this case, it is clear that the magistrate did not overlook the character evidence adduced by the appellant.[23]
[23] See Police v Marley-Duncan, judgment of Ms C Deland, 5 May 2015 at [53].
In my view the character evidence would not have justified the magistrate in refusing to confirm the interim orders given the existence of the requisite statutory suspicion.
On this basis I reject ground 3.
Ground 4 is a complaint that the magistrate made findings against the weight of the evidence. I do not accept that submission.
First, in my view the finding that the security recording is only of part of the appellant’s end of the conversation is undoubtedly correct. Parts of the recording are indecipherable. The magistrate was correct in finding that all of the conversation cannot be heard on the audio recording.[24]
[24] Police v Marley-Duncan, judgment of Ms C Deland, 5 May 2015 at [10].
Second, for reasons explained above, I consider that the evidence given by the witness Ms Woulleman has not been demonstrated to be inaccurate, except with respect to the length of time the incident occupied. The question of time I consider to be of no significance to the ultimate conclusion.
Third, in my view, whether Ms Duffield was leaving the Officeworks car park at the time of the confrontation is also immaterial to that conclusion. The proposition that she could not have been afraid because she did not leave the car park overlooks the evidence that her children were inside the store and the evidence of her obvious distress following the incident.
Fourth, the magistrate did not find that Ms Duffield was “an honest witness”. She did find that some of her evidence was exaggerated. Her reasons were not founded in any great reliance upon the evidence of Ms Duffield. The magistrate expressly found that she did not need to be satisfied Ms Duffield’s evidence was accurate to be satisfied it was necessary for an intervention order to be in place against the appellant to protect Ms Duffield.[25] Complaints about the corroborative evidence given by Ms Heeley, Ms Parham and Ms Van De Ven really go nowhere. They gave evidence of the first incident. Ms Van De Ven said that the appellant was banging on the glass doors and swearing. Ms Heeley gave evidence the appellant was banging on the door and shaking the handle. Ms Parham gave evidence that the appellant banged on the door. That evidence is consistent with the evidence of the video.
[25] Police v Marley-Duncan, judgment of Ms C Deland, 5 May 2015 at [58].
Fifth, for the reasons explained above, I consider that the proved contents of that part of the telephone call of 3 August 2012 made by the appellant, which is decipherable, constitutes a sufficient basis to support the requisite statutory suspicion.
Sixth, the submission that the magistrate’s finding that the appellant’s conduct from the three incidents constituted harassment and abuse of Ms Duffield by the appellant is misconceived for the reasons explained above. It is clear from Giles that proof the appellant has committed an act of abuse in the past is not a precondition to the making of an intervention order.[26]
[26] Police v Giles [2013] SASC 11 at [29].
Seventh, in my view, it was open on the evidence to find that the appellant confronted Ms Duffield at the first opportunity which presented itself after she believed that the bail conditions restraining her from doing so no longer applied. In my view, it was appropriate to draw that inference.
Eighth, for the reasons explained above, I am satisfied that the magistrate’s conclusion that there exists a reasonable suspicion that, unless restrained, the appellant would commit an act of abuse against Ms Duffield, was open on the evidence and appropriate.
Ninth, a finding that Ms Duffield was genuinely frightened of the appellant and that any distress was either genuinely held or as a result of the appellant’s conduct, is not the relevant statutory test. In any event, the evidence supported such a conclusion for the reasons explained above.
On this basis I reject ground 4.
In the alternative to the primary remedy sought on the appeal, the appellant seeks, in the alternative, to have orders 3, 6, 7, 8 and 10 struck out. She submits the evidence did not support the making of those orders.
In my view those orders are necessary for the intervention order to be effective. Orders 3, 6, 7, 8 and 10 form part of a suite of measures ordered by the magistrate to effect the protection of Ms Duffield from the appellant and to prevent an act of abuse occurring. The terms of the orders made by the magistrate involve the exercise of a discretion conferred by the Act for that purpose. Section 12 confers on a court a wide power to determine the terms of an intervention order. Section 10(1)(b) provides that in determining the terms of an intervention order the court must recognise and take into account that abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour. Further, s 10(1)(d)(iv) requires the court to frame an order so as to allow for the employment of a protected person. Because the terms of the intervention order are discretionary, any appeal from the terms of the order is to be decided in accordance with the principles in House v The King.[27]The orders complained of are directed to the protection of Ms Duffield from harassment and abuse which might occasion emotional or psychological harm. The limitations imposed on the appellant from approaching Ms Duffield, or interfering with the premises where she resides or is employed, or undertakes her employment, are sufficiently connected with the purpose of the intervention order as to exclude any error in the making of those orders. Likewise, I consider the terms of the order prohibiting the appellant from damaging or taking possession of personal property belonging to Ms Duffield constitute a reasonable exercise of the power conferred to make orders for the protection of a protected person from the risk of an act of abuse. Where the concern is the infliction of emotional or psychological harm, it would be nonsensical for the order not to protect Ms Duffield from the possibility of acts of abuse via materials published on the internet. The object of the Act is not to be circumvented by piecemeal exclusions from protections. No error has been demonstrated in the terms of the orders made by the magistrate.
[27] [1936] HCA 40, (1936) 55 CLR 499 at 504 – 505.
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.