O, GL v Police - [2016] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
O, GL v POLICE
[2016] SASC 73
Judgment of The Honourable Justice Bampton
31 May 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against Magistrate’s refusal to revoke an intervention order – whether appellant has demonstrated a miscarriage of justice arising out of his complaint that the Magistrate erred in having regard to two affidavits, that were not tendered, without notice – whether, on the hearing of the application for revocation, the court had access to the circumstances and evidence underlying the confirmation of the interim intervention order.
Held:
1. The affidavits were not properly before the Court on the hearing of the revocation application.
2. It is not possible to determine whether there has been a miscarriage of justice as the circumstances and evidence underlying the confirmation order are not apparent from an inspection of the Magistrates Court file and cannot be ascertained other than by supposition.
3. In the circumstances, the application for revocation should be reheard.
4. Appeal allowed, orders of the Magistrate made 29 October 2015 are set aside, and the matter is remitted to the Magistrates Court for rehearing.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6, s 11, s 15, s 18, s 22, s 23, s 26, s 28; Family Law Act 1975 (SA) s 81, referred to.

O, GL v POLICE
[2016] SASC 73
Magistrates Appeal: Criminal

BAMPTON J: Mr O applies for permission to appeal a Magistrate’s decision refusing to revoke an intervention order.
Permission to appeal
As the order appealed against is interlocutory, Mr O must show special reasons why it would be in the interests of the administration of justice to have the appeal determined. The respondent submitted permission should be granted on the basis that the appeal provides the Court with an opportunity to clarify the Magistrates Court jurisdiction on an application to revoke an intervention order.
On 3 February 2016, I gave Mr O permission to appeal. As it transpired this matter is not the vehicle for clarification of the Magistrates Courts jurisdiction. It is appropriate, however, for the reasons that follow to allow the appeal, set aside the decision of the Magistrate and remit the application for revocation of the intervention order for rehearing.
Files MCCHB-15-1925 and MCMUB-12-1834
Following the institution of the appeal, the Registrar of the Supreme Court requested that the Registrar of the Magistrates Court provide file MCCHB‑15‑1925 to the Supreme Court. Accordingly, the Registrar of the Magistrates Court forwarded file MCCHB-15-1925 to this Court. The documents received by this Court also comprise file MCMUB-12-1834, being the Murray Bridge Magistrates Court file created following the issuing of a police interim intervention order on 29 October 2012.
Other documents on MCCHB-15-1925 forwarded to this Court include:
·Application for Variation or Revocation of Intervention Order date stamped 1 May 2015 on file MCMUB-12-1834;
·Confirmation of intervention order dated 12 November 2012;
·Transcript of evidence of hearing of application on 29 October 2015 to revoke the intervention order;
·Ex tempore judgment of Magistrate Davis dated 29 October 2012;
·List of exhibits;
·Exhibit D1 – copy of two photos of mobile phone;
·Exhibit D2 – copy of photos of text messages on mobile phone comprising three pages;
·Exhibit D3 – copy of photos of text messages on mobile phone comprising two pages;
·Two affidavits of the protected person affirmed on 18 June 2015 purportedly provided to a police officer on 5 November 2012; and
·Federal Circuit Court Order dated 21 April 2015.
The two affidavits of the protected person are a matter of concern in this matter. As counsel for the respondent said:[1]
If there is one aspect of this matter that has concerned me it’s where the original affidavits are. I inspected the original intervention order file as it came from the lower court and there is no trace of the original affidavits on that file.
I, too, have been unable to locate any material pertaining to the confirmation of the interim intervention order pursuant to s 23(1)(a) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“the Act”) on 12 November 2012 on MCMUB-12-1834 other than the electronic record and a copy of the order dated 13 November 2012. Attached to that order is an envelope addressed to the protected person marked “return to sender” and a Courts Administration Authority With Compliments slip with the following handwritten note “[Given name of protected person] This Intervention Order has now been confirmed. Juanita”.
[1] T35/4-9.
Background
Mr O and the protected person were married for 22 years. They separated on 26 October 2012.
The intervention order
On 26 October 2012, Mr O was served by police with an interim intervention order issued pursuant to s 18 of the Act. Section 18 of the Act provides for the issuing of interim intervention orders by police. Pursuant to s 18(5) of the Act, upon service of the interim intervention order issued by a police officer, the police issuing the order will be taken to have made an application to the Court for an intervention order and the defendant will be taken to have been issued a summons to appear before the Court as specified in the order for the purposes of the hearing and determination of the application for an intervention order under s 23 of the Act.
In accordance with s 18(3) of the Act, the interim intervention order required Mr O to appear before the Court within eight days of the order on 30 October 2012. At Part B of the interim intervention order headed “Grounds for issuing of the order”, the following handwritten notation appears, “Defendant arrested on 26 October 2012 for aggravated assault after the protected person was and felt threatened with a firearm”.
The hearing on 30 October 2012
On 30 October 2012, a hearing was conducted at Mount Barker by telephone before Magistrate McGrath. The Court record for 30 October 2012 on MCMUB-12-1834 records that Mr O appeared. The hearing was adjourned to 12 November 2012 at 10.00am. As submitted by the respondent, the adjournment could only have been pursuant to s 22 of the Act. Further, as the Court had no power to make its own interim order as a police-issued interim order had been issued, reference to the “interim intervention order remains in place in its present terms” must be a reference to the police-issued interim order. The Court record is signed by the Magistrate and under the heading “Notes”, the following hand written notation appears:
There is a signed notebook statement from PP and to be converted to affidavit or the matter will be dismissed. Deft raises issue that the PP works full time in Adelaide. The defendant is currently on a disability pension and is not employed, however, he resides at the couple’s Adelaide address and the PP at the [Murraylands] address. Prosecution to take further submissions as to this matter and call on if need be earlier to resolve it. If defendant’s residence in Adelaide is ongoing then will consider referring to abuse prevention program in Adelaide. There is a related substantive charge of aggravated assault listed in Murray Bridge on 29 January 2013 at 10.00am and this matter should join that.
I note that, by reference to file MCMUB-13-165, Mr O was charged with aggravated assault (no weapon) against child or spouse. The electronic Court record for that file records a notation on 29 January 2013 that the matter may be withdrawn and that, on 25 February 2013, the matter was dismissed for want of prosecution.
The confirmation order
The electronic Court record for MCMUB-12-1834 indicates the order confirming the intervention order pursuant to s 23(1)(a) of the Act (the Order) was made by Magistrate Foley sitting at Mount Barker on 12 November 2012.
The respondent submitted it assumes, having regard to the Court record, the notebook statement was verified by affidavit and Magistrate Foley found on the basis of uncontested evidence that there were grounds pursuant to s 6 of the Act to make the Order as it was reasonable to suspect that Mr O would, without intervention, commit an act of abuse against a person, and the issuing of the Order was appropriate in the circumstances.
It is not clear by reference to the Court record whether or not the notebook statement was “converted to affidavit” as stipulated by Magistrate McGrath on 30 October 2012. All that can be gleaned from the Court record is that the police interim order was confirmed, the conditions of the Order, that Mr O appeared and the police were represented.
The conditions of the Order are:
1.The defendant must not assault, threaten, harass or intimidate the protected person(s).
2.The defendant must not follow or keep the protected person(s) under surveillance.
3.The defendant must not be within 100 metres of the protected person(s).
4.The defendant must not contact or communicate with the protected person(s) either directly or in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc).
5.The defendant must not enter or remain in the vicinity of the protected person(s) place of residence, place of employment or any other place at which the protected person(s) is staying or working.
6.The defendant must not damage or interfere with the premises where the protected person(s) is staying, residing or is employed.
7.The defendant must not enter or be in the vicinity of the following locations: [the Murraylands town].
8.The defendant must not publish on the internet or by any electronic means any material about the protected person(s).
9.The defendant must not cause, allow or encourage another person to do anything forbidden by this order.
10.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.
11.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.
Pursuant to s 11(1) of the Act, upon confirmation, the Order was ongoing and continued in force (subject to any variation or substitution of the Order under the Act) until revoked. As the Order did not include a term under s 15(1) of the Act fixing a date after which Mr O could apply for variation or revocation of the Order, the Order is taken to include a term fixing the date falling 12 months after the date of issue or variation of the Order as the date after which Mr O could apply for variation or revocation of the Order. Accordingly, Mr O could apply for variation or revocation after 12 November 2013.
The decree nisi
Mr O and the protected person divorced on 1 March 2014.
The Federal Circuit Court order
On 21 April 2015, a Judge of the Federal Circuit Court made consent orders pursuant to s 81 of the Family Law Act 1975 (Cth) finalising the financial relationship between Mr O and the protected person.
Those orders record that at the commencement of the relationship Mr O had owned a property in suburban Adelaide. That property is referred to as the former matrimonial home.
The orders also record that Mr O and the protected person had purchased a property in a small town in the Murraylands (“the Murraylands property”) in or around the year 2000. The protected person occupied the Murraylands property upon separation. The orders provided for the protected person to vacate the Murraylands property and to transfer her interest in that property to Mr O. Further, the orders provided for Mr O to transfer his interest in the former matrimonial home to the protected person.
Significantly, paragraph 7 of the Order restrained Mr O from attending at, or in the vicinity of, the Murraylands property.
The application to revoke the intervention order
On 30 April 2015, Mr O made application seeking to revoke the Order and “in the interim he sought that paragraph 7 be revoked”. The application was first heard on 7 May 2015 by Magistrate Kossiavelos. Magistrate Kossiavelos adjourned the application but granted the application to vary order 7 to permit Mr O to attend the Murraylands property. The application to revoke the Order was adjourned a number of times and, on 2 June 2015, was transferred to the Murray Bridge Magistrates Court.
On 23 June 2015, a pre-trial conference was heard by Magistrate Harrap. The certificate of record[2] records; “SAPOL indicate they have spoken with the PP but opposes any revocation of the Order”.
[2] MCCHB-15-1925.
On 30 July 2015, a trial date was set for the application.
The trial
The trial of the application was heard by Magistrate Davis on 29 October 2015. Mr O gave evidence and was cross-examined by the police prosecutor. The effect of his evidence was:
·He had never been physically violent to the protected person but she had been physically violent to him: poking, pushing, and prodding him.
·He now lived in the Murraylands property, having moved back on 20 May 2015.
·The protected person had recently moved to the Murraylands town where the Murraylands property was located which presented him with difficulties and unforeseen stressors.
·There were maybe two dozen houses in the Murraylands town and maybe 200 or 300 people living there, and he had friends living in the Murraylands town.
·He had recently found out the protected person had a new boyfriend.
·That he had become aware of the boyfriend’s full name when he received the police statement.
·He wanted the restraint order removed so that he could move around the town freely and not be worried he was going to get into trouble for accidentally bumping into the protected person, which made him very nervous. The only reason he wanted the Order removed was so that he would not get punished for accidentally bumping into the protected person.
·He had not been in a room with the protected person for exactly three years when the intervention order was brought. The last time he physically saw the protected person was maybe a month or so earlier when he was sitting on the verandah of the Murraylands town pub and she drove past.
·He did not know where the protected person lived in the Murraylands town.
·He believed mutual friends also lived in the town, so there was a possibility he could call in on one of those mutual friends and not be aware that the protected person was there, and he had been warned not to go to certain people’s houses just in case the protected person was there.
·He used to have some guns as he was a shooter of rabbits and targets, but he was not a good enough shot to earn a living from shooting rabbits. He had antique guns bequeathed to him that were in the possession of the police.
The police prosecutor did not call evidence.
Mr O’s counsel said that during the hearing Magistrate Davis requested that the police prosecutor provide him with the affidavit of the protected person that was filed in support of the interim intervention order. The prosecutor provided the Magistrate with the two affidavits affirmed on 18 June 2015 (“the affidavits”). Mr O’s counsel contended that at no time did the prosecution tender the affidavits nor did Magistrate Davis state that he was receiving them into evidence.
The Magistrate’s decision
Magistrate Davis said he generally accepted Mr O’s evidence, but that he would not make a ruling on Mr O’s claim that he has ‘never’ been violent to the protected person. Magistrate Davis said this was because, on an application for revocation of an Order:
... since it has earlier been confirmed, it follows that it was previously found that, unless restrained, the applicant was likely to commit an ‘act of abuse’.
(Emphasis added)
Magistrate Davis said, for the purposes of the application, he must be satisfied that there has been a substantial change in the relevant circumstances since the intervention order was issued or last varied. Section 28 of the Act prescribes that the Court is to decide questions of fact on the balance of probabilities.
In his reasons Magistrate Davis made reference to Mr O having committed two breaches of the Order soon after its confirmation, which were both dealt with without the recording of a conviction. Magistrate Davis said one of the breaches concerned Mr O sending a text message to the protected person, “which contained a horoscope graph or similar attachment, which was an interest they both had in common”. He said:
The second breach occurred directly after the applicant appeared in this court, unrepresented, and (as I understand the submission), wanted to pass on some details of what had happened in court that day to the protected person. The applicant had handed himself in to the police on the first matter and pleaded guilty at an early opportunity”.
Magistrate Davis said he was required to have regard to “the contents of the protected person’s affidavit taking into account questions relating to her safety and so on”.
Magistrate Davis stated he was satisfied there had been a substantial change, but not enough to satisfy that the Order should be revoked in its entirety.
Magistrate Davis was prepared to vary the intervention order by:
·deleting order 3 restraining Mr O from being within 100 metres of the protected person.
·deleting order 5 restraining Mr O from entering or remaining in the vicinity of the protected person’s place of residence, place of employment or any other place at which the protected person is staying or working.
·deleting order 7 of the intervention order, allowing Mr O to attend the property at Murraylands reflecting the transfer of the property to him in accordance with the Federal Magistrates Court property settlement orders.[3]
[3] Police v O (Unreported, Magistrates Court of South Australia, Magistrate Davis, 29 October 2015) at [13].
Discussion
Mr O’s amended grounds of appeal are that Magistrate Davis erred in that he:
1misinterpreted and misunderstood the task and jurisdiction imposed upon him by the Act and s 26(4) and s 26(5);
2failed to give any and or adequate reasons as to why he was satisfied that the Court would vary the intervention order but not revoke the intervention order; and
3had regard to the affidavits, which were not tendered during the trial, without notice to Mr O.
The respondent contended that unless Mr O can demonstrate a miscarriage of justice arising out of his complaint that the Magistrate erred in having regard to the affidavits that were not tendered during the trial, and without notice to him, all grounds of appeal should be dismissed.
The respondent argued that Magistrate Davis approached his task with care saying his interpretation of s 26(5)(b) of the Act was that:
….provides that the court can dismiss an application for revocation in certain circumstances. In addition, s 26(5)(b) of the Act provides that the court must, before varying or revoking an intervention order, have regard to the same matters the court is required to have regard to in considering whether or not to make the intervention order and in considering the terms of an intervention order. My interpretation of this section is that I am to have regard to any further evidence that the protected person gives as to any concerns that she has, and, if she does not give further evidence, then I am to consider the applicant’s evidence and submissions and consider the contents of the protected person’s earlier affidavit, taking into account questions relating to her safety and so on.
(Emphasis added)

The respondent said it would have been prudent for the Magistrate to observe that the affidavits could only speak to the circumstances of the original order and could not be assumed to speak to the relationship as at the time of the revocation application.
Obviously the affidavits affirmed 18 June 2015 were not before Magistrate Foley when he confirmed the intervention order on 12 November 2012. As there is a dearth of material on file MCMUB-12-1834, the basis for confirming the order on 12 November 2012 is not apparent. There is nothing on the MCMUB‑12‑1834 file to indicate the signed notebook statement of the protected person was converted to an affidavit as instructed by Magistrate McGrath or whether there were unexecuted versions of the affidavits before Magistrate Foley or affidavits executed prior to 12 November 2012.
Magistrate Davis’ reasons reveal that he relied on the Order. Magistrate Davis says that as the Order had been confirmed “it follows that it was previously found that, unless restrained, the applicant was likely to commit an ‘act of abuse’”.
An application to revoke or vary an intervention order is not an appeal against the original order. It is an application to reconsider whether that order shall continue in the same terms (or any other terms) in the circumstances now asserted to exist.
As submitted by the respondent, at a minimum, a court asked to revoke or vary an intervention order needs to know its terms. As a court of record, the Magistrates Court is entitled to have regard to its own records to find that an intervention order exists and what its terms are.
The Court has power to summarily dismiss if no substantial change in relevant circumstances is demonstrated by the defendant. The respondent submitted that for that test to have any relevant meaning, the Court has to know the original circumstances in which the Order was granted. The respondents contended one way of doing that may be to have regard to the evidence before the Court which made that order. It was submitted that, very strictly speaking, evidence need not be tended upon the application to vary or revoke because it forms part of the Court record about why the original order was made.
The difficulty in this matter is there is nothing on the MCMUB-12-1834 file that assists in understanding what evidence was before the Court that made the Order.
The respondent points out that each of the affidavits of the protected person begins with the assertion that it was provided on 5 November 2012, that is before Magistrate Foley heard and granted the application for the Order, and each refers to incidents allegedly occurring before that date. Each affidavit was affirmed on 18 June 2015, six weeks after Mr O filed his application for revocation and five days before the pre-trial conference. It was submitted that a logical inference to be drawn is that at some stage during the revocation proceedings police filed affidavits which did no more than to reaffirm in 2015 the evidence given in 2012 on the original intervention order application. However, there is no record or reference to any affidavit having been before the Court on MCMUB-12-1834.
Magistrate Davis said part of his task was to consider the contents of the protected person’s earlier affidavit, taking into account questions relating to her safety. It is not clear whether Magistrate Davis treated the “earlier affidavit” as the evidence before the Court on the confirmation of the intervention order.
The police prosecutor should have sought to tender the affidavits before Magistrate Davis, where upon Mr O, if so advised, could have objected to their tender and if admitted into evidence cross-examined the protected person on the matters deposed to. The affidavits were not properly before the court on the hearing of the revocation application. As such Mr O’s third ground of appeal is made out.
As the evidence underlying the confirmation of the intervention order is not apparent and cannot be ascertained other than by supposition, I simply cannot determine whether or not there has been a miscarriage of justice. This coupled with the fact that the third ground of appeal has been made out dictate that Mr O’s application for revocation should be reheard.
In the circumstances, it is not necessary to decide the other two grounds of appeal.
I allow the appeal, set aside the orders of the Magistrate on 29 October 2015 and order that the matter be remitted to the Magistrates Court for rehearing.