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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] SASC 73
Decision Date: 31 May 2016

CaseChat Overview and Summary

Mr O appealed against the decision of Magistrate Davis to refuse to revoke an intervention order made against him. The protected person was Mr O’s wife, with whom he had been married for 22 years before separating in October 2012. An interim intervention order was made against Mr O by police on 26 October 2012, and confirmed by the Court on 12 November 2012. Mr O sought to have the intervention order revoked, claiming that there had been a substantial change in circumstances since the order was confirmed. The legal issues in this case included whether the Magistrate erred in having regard to two affidavits that were not tendered, and 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.

The court considered that the Magistrate had not erred in having regard to the affidavits, as they were available to him for consideration. The court also found that the Magistrate was entitled to have regard to the affidavits because they were relevant to the protected person’s safety and the circumstances of the case. The court further held that the Magistrate was not required to tender the affidavits into evidence, as they were already before the Court and could be considered by the Magistrate. The court also found that the Magistrate had access to the circumstances and evidence underlying the confirmation of the interim intervention order, as the Court had the power to make its own order in the absence of the original affidavits. The court concluded that the Magistrate had not made a substantial error of law, and dismissed the appeal.

The court ordered that the appeal be dismissed, and that the intervention order remain in force. The court also ordered that the costs of the appeal be paid by Mr O to the protected person. The court noted that the protected person had suffered significant trauma and distress as a result of Mr O’s conduct, and that the intervention order was necessary to protect her from further harm. The court further held that the intervention order was in the best interests of the protected person, and that it was appropriate for the order to remain in force until further order.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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