McIntyre v McIntyre - [2009] SASC 62

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCINTYRE v MCINTYRE
[2009] SASC 62
Judgment of The Honourable Justice Anderson
12 March 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
Appeal against order of magistrate discharging an ex parte restraining order - respondent is the appellant's son - allegations that respondent interfered with appellant or appellant's property - magistrate found some allegations proved but held these allegations did not justify the making of an order confirming the ex parte restraining order - whether magistrate was in error - whether sufficient evidence to arouse a reasonable apprehensioin that respondent may behave in an intimidating or offensive manner - whether magistrate correctly exercised her discretion under s 99(1)(b) of the Summary Procedure Act 1921.
Held: Magistrate not in error - magistrate's findings on the evidence were correct - magistrate not shown to have erred in exercise of discretion - appeal dismissed.
Summary Procedure Act 1921 (SA) s 99, referred to.

MCINTYRE v MCINTYRE
[2009] SASC 62
Magistrates Appeal: Criminal

ANDERSON J. In this matter, the appellant, Mr Allan Maxwell McIntyre, appeals against the judgment of a magistrate in which the magistrate discharged an ex parte restraining order that was in place against his son, the respondent, Mr Andrew Maxwell McIntyre. The appellant contends that the magistrate erred in failing to confirm the ex parte restraining order in that the evidence established that there was a reasonable apprehension that the respondent may behave in an intimidating or offensive manner within the meaning of s 99 of the Summary Procedure Act 1921 (SA) (“the Act”). The appellant seeks an order from this Court that the ex parte order be made final or that the matter be remitted for hearing.
Background
The parties’ relationship
The appellant is in his late seventies. He has six children, of whom the respondent is the second eldest. The relationship between the parties is very poor, to the extent that father and son are estranged. During the trial before the magistrate there were allegations of abuse and disagreement over many years and allegations of inappropriate and, in some case cases, illegal activity on the part of both of the parties.
The appellant owns a property at Stansbury. He had previously lived in Melbourne and Adelaide and he and other members of the family used the Stansbury property for holidays. The respondent has kept some personal possessions there and has used a shed on the property for his hunting and fishing activities from time to time.
It appears that there was some form of dispute between the parties about 15 years ago regarding the erection of the shed on the Stansbury property. At the hearing before the magistrate, the appellant stated that he authorised the erection of the shed on a particular section of land but that the respondent erected it elsewhere. The respondent, in turn, made allegations against the appellant that he had coerced and forged signatures on planning applications. Despite the shed being erected contrary to his wishes, the appellant still allowed the respondent to use it for fishing and shooting. The appellant claimed at the trial that his relationship with the respondent deteriorated after the respondent started to use the shed.
Some time in 2005, the respondent was living at Edwardstown in a house owned by the appellant. The appellant became aware that the respondent was growing cannabis at the house. This led to a disagreement between them and eventually the police became involved. It appears that this episode caused a further deterioration in the parties’ relationship.
In 2006 the appellant moved back to the Stansbury property. According to the appellant, the respondent was using the property to the exclusion of his siblings and this led to a further dispute between the parties. Despite the appellant’s attempts to counsel the respondent and remedy the situation, the dispute escalated further. In the latter half of 2006, the appellant told the respondent he could no longer use the Stansbury property, nor enter it again, unless it was for the purpose of removing his shed. In that event he required the police to accompany the respondent when he came onto the property.
The specific allegations raised at the trial
At the trial, the appellant relied on specific allegations that he claimed supported his application to confirm the restraining order. These incidents allegedly took place after the appellant told the respondent to leave the Stansbury property. The incidents are conveniently summarised in the magistrate’s reasons at [11], the relevant parts of which are set out below.
(a)On 3 February 2007 the respondent was at the property, inside the applicant’s shack, going through some papers. The applicant’s son Daniel McIntyre witnessed this.
(b)The applicant also relies on the respondent’s access to firearms as reason to fear for his safety. I place no reliance on hearsay evidence in the applicant’s affidavit sworn on 7 March 2007 in which he deposes to information obtained from the respondent’s former wife (paragraph 12). However the applicant’s son Daniel McIntyre gave evidence of his observation of firearm use by the respondent. In the result, it was not in dispute that the respondent owned firearms. His own evidence confirms that, although he denies any improper use of them.
(c)The respondent attended the Stansbury property at 3.30 am one Saturday. The applicant awoke and in the dark could see a figure at the foot of his bed. He thought it was his son Daniel’s friend, Kylie. He said: “Is that you Kylie?” and I got a mumbly answer and then I had my testicles crushed and I was paralysed with pain and I couldn’t move and I thought, “My God, it’s Andrew, he’s going to kill me”.
On this night, the applicant says he got a “pretty good” look at his assailant who had a cloak over his head. He did not see his assailant’s face, but says he knew it was the respondent because:
“A.    Well you can’t mistake your own son by his height and his build and his strength. I am totally convinced it was Andrew McIntyre.
Q.    Had you seen him wearing a cloak over his head on other occasions.
A.    Yes, when he finishes in front of my property he wears similar gear and it’s very hard to identify him as the fisherman.”
(d)Although the applicant had not, until the day of that nocturnal visit, personally been threatened by the respondent, he had been told by others that threats had been made. Daniel McIntyre, the applicant’s son, and the half brother of the respondent, gave evidence that the respondent told him he had “a bullet” for the applicant.
(e)The applicant slept with the light on every night for about two weeks after that nocturnal visit. Then his brother came to stay, so the applicant was no longer in fear, and he turned the light off when he went to bed. At about 3 or 4.00 am he awoke with a person he describes as “exactly the same figure” standing at the foot of the bed again. The applicant was terrified and called out to his brother, at which stage the hooded figure vanished.
(f)Since the ex parte order was first made, the applicant states that he has seen the respondent fishing in front of the property. That order prevents the respondent from attending within 200 metres of the property. He says that the respondent wearing the same cloak he had on when he appeared at the foot of the applicant’s bed in the middle of the night.
(g)After the initial ex parte restraining order was made, Daniel McIntyre stated it was his practice to walk around and check the property at night. On 4 February 2007 at 3.15 am when he was walking around he saw the respondent in the applicant’s shed looking through some papers with a torch. He confronted the respondent who eventually left.
(h)Daniel McIntyre stated that he saw the respondent at the property on a further occasion taking photographs. Gregory Stocker, a friend of Daniel McIntyre who was present, confirmed this. They also saw him drive past twice (or more in Stocker’s case), and fishing in front of the property. They both said the respondent made a rude gesture on these occasions, but there was no other communication.
(i)There were also assertions made by the applicant about vandalism to his property in January 2007, but there is no evidence linking those acts with the respondent.
The ex parte restraining order
The ex parte restraining order was originally made on 13 March 2007 and varied on 29 June 2007. The order as varied was as follows:
1.Defendant restrained until further order from attending within 200 metres of Lot 1/195 Government Road, Stansbury unless with the express permission of Allan Maxwell McIntyre and in the immediate presence of a serving police officer who is on current duty.
2.From approaching, molesting, harassing, interfering, abusing or otherwise communicating with Allan Maxwell McIntyre or causing or permitting a third party to do so, save and except there can be communication through a legal representative.
3.That any firearm in your possession be confiscated and held by the Registrar of Firearms, to be returned to you if this Restraining Order is not confirmed.
4.That a member of the Police Force is authorised to enter any premises in which any firearm in your possession is suspected to be and to search for and take possession of any such firearm.
5.That you be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.
6.That any licence or permit to be in possession of a firearm that you currently hold be suspended until a court determines whether to confirm this restraining order.
Relevant legislation – Section 99 Summary Procedure Act 1921
I set out below the relevant parts of s 99 of the Act.
99—Restraining orders
(1) On a complaint under this Division, the Court may make a restraining order against the defendant if—
(a)there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b)the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) For the purposes of this section, a defendant behaves in an intimidating or offensive manner if on two or more separate occasions—
(a)the defendant follows a person; or
(b)the defendant loiters outside the place of residence of a person or some other place frequented by the person; or
(c)the defendant enters or interferes with property occupied by, or in the possession of, a person; or
(d)the defendant—
(i)gives or sends offensive material to a person or leaves offensive material where it will be found by, given to, or brought to the attention of a person; or
(ii)publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, a person; or
(da)the defendant communicates with a person, or to others about a person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication; or
(e)the defendant keeps a person under surveillance; or
(f)the defendant takes any other action in relation to a person or a person's property,
so as to reasonably arouse in the person apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
The Magistrate’s findings
The magistrate said that she was not in a position to accept or reject any of the assertions arising out of the historical relationship between the parties. Her Honour did not make any findings about those allegations. That is not surprising. The allegations and suggestions by both parties can only be described as bizarre.
The magistrate was not satisfied on the balance of probabilities that the respondent was the person who entered the appellant’s bedroom on two separate occasions as alleged in (c) and (e) of [11]. Her Honour was not prepared to find that either the appellant or respondent was lying about their opposing versions of these incidents. As to the appellant, the magistrate stated the following at [20]:
[20]I accept the applicant has done his best to be truthful in his evidence. The two most serious allegations made in support of the order sought are the nocturnal visits by the hooded man that the appellant claims was the respondent. The applicant did not see the man’s face but relies on other features to identify him. If the applicant were lying about these events, it would have been simpler to assert that he did in fact see his son’s face.
In relation to the respondent, Her Honour said, “The respondent denies these two visits, and there is no reason to disbelieve him about that either”.
I agree with the magistrate that the two allegations in [11] (c) and (e) are the most serious, and I agree that the magistrate was correct in her finding that the allegations were not made out by the evidence.
As to the allegations regarding the firearm use in [11] (b), the magistrate also found that they had not been proved and I also agree with that finding.
It seems that the magistrate did not deal specifically with the allegations in [11] (d). The allegation is that the applicant had been told by others about threats made by the respondent. The only evidence was from Daniel McIntyre, the half-brother of the respondent, and from the respondent himself.
The respondent denied the allegation when he gave evidence. He denied making any such statement as that alleged and maintained that denial when he was cross-examined. The appellant said he had been told about the threat by Daniel McIntyre. That of course does not advance the matter.
The magistrate, in my view, could not have concluded on the state of the evidence that any “threat” had been proved.
Her Honour does deal with the allegation in [11] (f) in her reasons at [15]. This relates to fishing in front of the property and within 200 metres of the property, but the evidence is equivocal and denied by the respondent. Her Honour clearly was not prepared to find that allegation proved, and I agree with that conclusion.
In relation to the allegation in [11] (i) concerning vandalism, Her Honour found that there was no evidence to link any such acts with the respondent. I agree with that finding.
As to the remaining allegations, that is, in [11] (a), (g) and (h) regarding visits to the Stansbury property by the respondent, the magistrate found that these allegations had been established on the evidence. However, Her Honour held that in any event these incidents did not justify the making of a restraining order. This is really the main basis of the appellant’s appeal.
The magistrate concluded there were no reasonable grounds to confirm the ex parte restraining order. The magistrate found that there was no reasonable apprehension that, unless restrained, the respondent may cause personal injury or damage to property or behave in an intimidating or offensive manner as required by s 99 of the Act. Her Honour refused the application and discharged the restraining order. Her Honour’s concluding remarks are set out below at [24]:
[24]I do not doubt that is the applicant’s view of matters, and perhaps it is true. The respondent’s view of the relationship and that of some of the other members of the family who appeared in the trial may be that the applicant is the one responsible for the split in the family. As unfortunate as the situation is, I do not consider that gives rise to a reasonable apprehension that unless restrained the respondent may cause personal injury, or damage to property or behave in an intimidating or offensive manner as contemplated by s 99(1) of the Act. I am not satisfied that the making of an order is appropriate.
Report from magistrate
There was uncertainty as to what the magistrate meant by the reference to the “remaining allegations” at [22] of her reasons.
I therefore sought a report from the magistrate as to whether she had included the allegations set out in paragraph [11] (a), (g) and (h) in her description of the “remaining allegations”. I had indicated to counsel during the hearing that I was considering obtaining such a report. I formed the view that without the report, the matter would have to be sent back for further hearing, with the associated further delay and additional expense to the parties.
The magistrate reported that those allegations in [11] (a), (g) and (h) were in fact included in what she meant by the “remaining allegations”. The significance, of course, is that Her Honour has found those allegations to have been proved.
Her Honour held, notwithstanding that the allegations had been proved, that they did not justify her making a restraining order in the circumstances.
Upon receiving the report from Her Honour, I invited both counsel to make further written submissions in light of that report. Mr Richards made further submissions. I will deal with those further submissions shortly.
The ground of appeal
There is only one ground of appeal. That ground, as contained in the Notice of Appeal, dated 28 November 2008, is set out below:
1.The learned Magistrate erred in failing to confirm the ex parte restraining order (initially made on 13 March 2007 and amended on 29 June 2007) in that the evidence established that there was a reasonable apprehension that the defendant may behave in an intimidating or offensive manner within the meaning of s 99 of the Summary Procedure Act 1921 sections 99(2)(b), 99(2)(c), 99(2)(e) and 99(2)(f).
Arguments on appeal
The Appellant
The appellant submits that the judgment of the magistrate was wrong in that there was sufficient evidence before the court to justify the making of the restraining order. The appellant contends that the magistrate erred in making the following findings:
1.     That the respondent was a truthful witness and that there is no reason to disbelieve his version of events.
2.     That the allegations regarding the firearm use had not been substantiated to the requisite degree.
3.     That the remaining allegations regarding the visits to the Stansbury property by the respondent did not justify the making of a restraining order, despite the fact that the magistrate found that these allegations had been established on the evidence.
Mr Richards for the appellant submitted that these errors in effect caused the magistrate to fail to properly consider the evidence before her. He referred specifically to s 99(2) of the Act and submitted that four of the matters listed in that section had been established on the evidence in this case. He suggested that those matters are: loitering outside the place of residence (s 99(2)(b)); entering or interfering with property (s 99(2)(c)); keeping the person under surveillance (s 99(2)(e)); and taking any other action in relation the person (s 99(2)(f)).
It was submitted by Mr Richards that I should not speculate as to what the magistrate meant by “the remaining allegations” at [22] of her reasons. As I have indicated, after considering the matter I decided that it was necessary to obtain a report from the magistrate. That report does make it clear what Her Honour was including when she spoke of “the remaining allegations”.

Finally, Mr Richards submitted that proof of the matters set out in paragraph 11(d) of Her Honour’s reasons would be sufficient by itself for an order to be made. As I have indicated, there is not sufficient evidence to prove the allegation. Mr Richards submitted that overall there was sufficient evidence to establish that the respondent had “behaved in an intimidating or offensive manner” on “two or more occasions” within the meaning of s 99(2) of the Act.
In his further submissions Mr Richards reiterated his main argument that the proof the “remaining allegations” comprising [11] (a), (g) and (h) would be sufficient to justify the making of an order.
Mr Richards also repeated his submission regarding the allegation in [11] (d) of the threat about “a bullet”. As I have indicated earlier in these reasons, although Her Honour did not deal specifically with this allegation, it is my view that for the reasons I have given, the allegation is not proved.
Mr Richards repeated his submissions in relation to the “fishing” allegations contained [11] (f) and (h). As I have stated earlier in these reasons, I am satisfied with the way Her Honour has dealt with these allegations.
The Respondent
Mr Telfer for the respondent submitted that there was no error in the decision of the magistrate. His principal submissions are that the conclusions reached by the magistrate were open on the evidence before her; that she was correct in identifying the standard of proof as being on the balance of probabilities; and that she correctly considered whether there were any matters that gave rise to a reasonable apprehension of violence on the part of the appellant.
In making these submissions Mr Telfer relied on the principal that an appellate court should be cautious in interfering with the decision of a lower court where that lower court has had the benefit of having seen and heard the witnesses called to give evidence. Mr Telfer submits that this is such a case and that it was for the magistrate to assess the evidence and draw such inferences as were available on the evidence.
Mr Telfer submitted that the decision by Her Honour was a two-stage process. That is correct, of course, because even if the matters set out in s 99(2) are established, the court will not make an order unless the court is satisfied that the making of the order is appropriate in the circumstances: see s 99(1)(b). He concluded his submissions by suggesting that it was the whole background in which the dispute was set which coloured Her Honour’s views in arriving at her decision not to make the order, and that it was in all of the circumstances a reasonable exercise of her discretion.
Mr Telfer made no further submissions following receipt of the report from the magistrate.
Conclusion
The background circumstances in which Her Honour was asked to look at the conduct of the respondent were coloured to a large extent by what can only be described as peripheral and mainly irrelevant evidence. Both sides made unsubstantiated allegations against each other. These allegations were bizarre in the extreme. I can appreciate the difficulty faced by the magistrate in sifting the relevant facts from the mass of irrelevant ones.
The magistrate was called upon to exercise her discretion in that most unsatisfactory setting and she chose not to confirm the ex parte restraining order.
I can see good reason why Her Honour refused the application to confirm the ex parte restraining order. Although she had found some of the allegations proved, she found that the major allegations, as set out in [11] (c) and (e) in her reasons, were not made out on the basis of the evidence before her. I have already indicated that I agree with Her Honour’s conclusion that these were the two “most serious allegations” and with her finding that these allegations had not been proved on the balance of probabilities.
Whilst the other allegations, that is, those described in [11] (a), (g) and (h), were not as serious, they were nevertheless allegations which Her Honour found established. Her Honour had to then exercise a discretion and she chose not to make an order. It is my view that she cannot be shown to have erred in her discretionary exercise. I can find no reason for arriving at a different view from that of the magistrate. The appeal is dismissed.
Order
Appeal dismissed.