PA v Abrotonite - [2024] SASC 130

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
PA v ABROTONITE
[2024] SASC 130
Judgment of the Honourable Justice Kimber
15 November 2024
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT
This is an appeal from the refusal of a Magistrate to confirm an interim intervention order pursuant to s 23(1)(c) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The appellant and the respondent had been involved in an intimate relationship (‘the relationship’) which the appellant ended in April 2019. Both before and after the end of the relationship, the appellant, his family and his employer received anonymous messages which were abusive and potentially defamatory. In the hearing before the Magistrate, five such messages (‘the messages’) became exhibits and were particularly relied upon to justify the order sought by the appellant.
The appellant and the respondent gave evidence before the Magistrate. The respondent denied sending any message and, through her counsel, submitted that another woman (or women) may have been responsible. Tendered by the appellant during the hearing was an email (‘the email’) authored by a person who had been involved in investigating whether a computer available to the respondent at her workplace might have been the source of the final message tendered.
Following a hearing conducted over four separate days and during which the appellant and the respondent gave evidence, the Magistrate was not satisfied on the balance of probabilities the respondent had sent any message and refused to confirm the order sought. In so finding, the Magistrate declined to place any weight on the email as the author had not been called to give evidence.
The appellant appealed on three grounds, which can be summarised as follows:
1.That the email was a business record and having been admitted in evidence pursuant to s 53(1) of the Evidence Act 1929 (SA) (‘EA’), the Magistrate erred in not giving it weight (Ground 1);
2.That the hearing miscarried by reason of counsel for the appellant before the Magistrate not calling the author of the email to give evidence and by that counsel not expressly putting to the respondent in cross‑examination that she had sent the messages (Ground 3);
3.That in concluding that it had not been established that the respondent had sent any of the messages, the Magistrate failed to have regard to certain evidence and that the ultimate conclusion was wrong (Ground 2).

Held, allowing the appeal:
With respect to Ground 1:
1.The email having been admitted in evidence pursuant to s 53(1) of the EA, the Magistrate was not obliged to give it weight. Before the appellant closed his case, he was on notice that the position of the respondent was that the author of the email should be called. The submission of…

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.

Continue reading PA v Abrotonite

Details

AGLC: PA v Abrotonite [2024] SASC 130
Case: [2024] SASC 130
Decision Date: 15 November 2024

CaseChat Overview and Summary

The appeal in the matter of PA v Abrotonite was heard in the Supreme Court of South Australia. The appellant, a medical practitioner, appealed against a decision made by a Magistrate, which found that the respondent, a pharmacist, was responsible for sending a series of messages to various recipients. The messages contained allegations of inappropriate sexual conduct by the appellant. The central legal issue in the appeal was whether the Magistrate erred in their assessment of the evidence and the weight given to certain documentary evidence. Specifically, the appellant argued that the Magistrate should have given some weight to a document admitted as a business record under s 53 of the Evidence Act 1929 (SA), regardless of any subsequent objections to its accuracy. The court found that the Magistrate did not err in their assessment, as s 53(3) allows for consideration of the accuracy and source of the document when determining its evidentiary weight.

The court examined the entire body of evidence presented to the Magistrate, finding significant evidence pointing to the respondent's responsibility for the messages. The court disregarded one particular piece of evidence, P9, due to circumstances surrounding its obtainment. However, even without considering P9, the evidence against the respondent remained strong. The appellant's credibility was accepted, and the respondent's evidence was found to be inconsistent and lacking in certain aspects. The court concluded that the Magistrate's findings were supported by the evidence, and the appeal was therefore dismissed. The original decision of the Magistrate stands affirmed.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, I allow the appeal. Some factual background Both the appellant and the respondent gave oral evidence before the Magistrate, and both were represented by counsel. The appellant is a medical practitioner. The respondent is a pharmacist. Between about 1 July 2018 and about 28 April 2019, the appellant and the respondent had a sexual relationship (the relationship) which commenced when both worked at a hospital in Victoria. The relationship between the appellant and the respondent was not an exclusive one. Throughout that relationship, the appellant was engaging in intimacy with several other women. One of the other women was Ms C. In April 2019, Ms C, whom by this time was living with the appellant, became aware that she was not the only woman with whom the appellant was being intimate. Ms C agreed to continue her relationship with the appellant on the condition that he bring his other relationships to an end. The appellant agreed. Consistent with that agreement, the appellant communicated to the respondent, and other women with whom he was being intimate, that he wanted to engage in an exclusive relationship with Ms C. In this way, the relationship with the respondent came to an end. The method of communication chosen by the appellant was a message. There is no dispute that the receipt of this message provoked a response from the respondent. Consistent with both the evidence of the appellant and the respondent, the Magistrate found that the respondent attended the home of the appellant. Consistent with the evidence of the appellant, but contrary to the evidence of the respondent, the response of the respondent was one of dissatisfaction. The Magistrate found the respondent attended the home of the appellant in an emotional and angry state. The messages A set out above, the relationship was not ended by the appellant until on or about 28 April 2019. The messages which were the primary foundation for the application before the Magistrate were sent both before and after that date. The five messages were exhibits and may be summarised as follows: 1.The first message (P4) was a letter sent to the home address of the appellant in Victoria in February 2019 which informed the appellant he had sex with someone with syphilis. That letter included the following ‘You are a narcissistic lying manipulative sociopath. You will get what you deserve for all the horrible things you do. And you are shit in bed; I faked every orgasm just to get you to stop’. 2.The second message (P3) was sent to the address of the parents of the appellant in Victoria in April 2019. The evidence did not establish whether it was sent before the end of the relationship on or about 28 April 2019. The message included a picture of the appellant and described him as a ‘sexual predator who hunts vulnerable young women on Tinder and lures them to his house to rape them’. 3.The third message (P7) was sent to the address of the mother of the appellant in Victoria and received on 13 April 2021. The message had a photograph of the appellant and was headed ‘Your day of reckoning is coming’. The message went on to say ‘women are standing up for themselves and people are taking notice. The revolution has started. Men like you will not get away with it any longer you disgusting pathetic man’. 4.The fourth message (P6) was a letter received by the appellant’s then employer in South Australia on/about 19 October 2021. By this time, the appellant had moved to this State and was working in a GP practice. The letter referred to issues that arose during [the appellant’s] medical training [in Victoria], referred to the appellant being difficult to work with, being argumentative, requiring extremely close supervision, being removed from rotations due to being a serious risk to patients and made other assertions about issues which had arisen during the employment of the appellant in Victoria. The letter also made other serious allegations about the conduct of the appellant in the workplace and privately, including that there had been allegations of sexually inappropriate behaviour by the appellant made by patients and staff; that the appellant had viewed pornography at work; that he had been the subject of allegations of sexual assault, domestic violence; and was subject to domestic violence orders. The letter referred to allegations being brought to the attention of a professional body (AHPRA) and the police. The letter asserted that the appellant had lied about being the father of a child. 5.The fifth message (P9 – Appendix 1) was a message received on 23 November 2021 at another GP practice at which the appellant worked in South Australia. The message purported to be from Ms C and alleged the appellant was a rapist. Within the message was a phone number purporting to be that of Ms C which was a past mobile number of the appellant known to the respondent. That message provided a link to a news article which claimed that the Tinder dating app helped sexual predators hide and asserted that the article was about the appellant.

Evidence

Evidence Before The Court

It is necessary to set out s 53 of the Evidence Act 1929 (SA) which deals with the approach to be taken to a business record. Section 53 provides: 53—Admission of business records in evidence(1)An apparently genuine document purporting to be a business record—(a) is admissible in evidence without further proof; and(b) is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).(2)A document must not be admitted in evidence under subsection (1) if the court is of the opinion—(a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or(b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or(c) that it would be otherwise contrary to the interests of justice to admit the document in evidence.(3)For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.(4)In this section—business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;business record means—(a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or(b) any reproduction of any such record by photographic, photostatic, lithographic or other like process. The appellant directs attention to s 53(1) and submits that once Appendix 5 was admitted, no further proof was required. The appellant submits that Appendix 5 having become an exhibit on 8 December 2022, s 53(2)(a) which provides that a document must not be admitted into evidence if the Court is of the opinion that the person who prepared the document should be called (i.e. – Mr O’Brien), was not engaged. The appellant submits that s 53(2)(a) only deals with the issue of whether the document should become an exhibit, an issue that the appellant submits had been determined on 8 December 2022. The appellant submits that Appendix 5 having been admitted in evidence, it was not open to the Magistrate to consider the matter set out in s 53(2)(a) in considering what weight should be given to Appendix 5. I reject the submissions of the appellant. The submissions of the appellant assume that once a business record has been admitted into evidence, it must be given some weight. The appellant overlooks s 53(3) which deals with the approach to be taken to determining the evidentiary weight to be given to a document admitted in evidence. The words ‘if any’ within s 53(3) cannot be reconciled with an obligation to give at least some weight to a document admitted pursuant to s 53(1). Section 53(3) provides that in evaluating whether any weight is to be given to a document admitted in evidence pursuant to sub‑s (1) there is an obligation to consider the source from which the document was produced, the safeguards (if any) taken to ensure accuracy, and any other relevant matter. Before the Magistrate, in articulating the objection to Appendix 5 being relied upon without Mr O’Brien being called, counsel for the respondent had raised issues which, at the very least, went to the question of the accuracy of the matters asserted in Appendix 5. All that was known by the Magistrate about the source of the email, or the information within it, was that Mr O’Brien was employed within RVEEH, that it could be inferred he had responsibilities with respect to the computer network within RVEEH and that some investigation of systems had been conducted by him or on his behalf. As the Magistrate observed, the materials relied upon to make the findings within Appendix 5 had not been produced.

Decision

Reasons for decision

For the above reasons, I reject that the Magistrate erred in not referring to the matters relied on by the appellant with respect to Ms AT. Was the decision of the Magistrate wrong? Having considered the whole of the admissible evidence before the Magistrate, there was a significant body of evidence which pointed in the direction of the respondent being responsible for the messages. I will not refer to all the evidence, just those aspects which I consider most significant. On the hearing of the appeal, the respondent submitted that no regard should be had to P9 given the circumstances in which that document had been obtained by the appellant. The respondent submitted that the tender of P9 was in breach of a ‘Harman undertaking’. Without determining the merits of that submission, I will not have regard to any aspect of P9. This includes having no regard to P9 – Appendix 1. Nevertheless, having no regard to P9, and in particular Appendix 1, does not assist the respondent. The appellant gave oral evidence about the content of Appendix 1. It is clear from that evidence that the appellant had seen that message on the day it was received[45] and his evidence about the content of the message was not disputed. Hereinafter, I will refer to the evidence of the appellant about the content of that message as ‘the final message’. [45] TT, 8 December 2022 (AB 200–201, T43.14–T44.17). On the hearing of the appeal, the respondent did not challenge the approach of the Magistrate to the honesty of the appellant and the respondent. Having reviewed the evidence, and bearing in mind the advantage enjoyed by the Magistrate, I see no reason to doubt the conclusion of the Magistrate that the appellant was an honest witness; to doubt that the Magistrate was correct to reject the aspects of the evidence of the respondent he outlined; or to question that the Magistrate was correct to doubt the evidence of the respondent that she did not know the name of Ms C. There is no dispute that the message which was certainly before the relationship came to an end (P4) was at a time when the respondent knew that the appellant was engaging in relationships with others. Given the behaviour of the respondent on or about 28 April 2019 upon learning that the relationship was at an end (i.e. – behaviour consistent with her not wanting the appellant to have a relationship with another), that the respondent had a motive at the time of a message(s) before that date cannot be discounted. Having reviewed the evidence, and accepting that the appellant was honest, I agree with the characterisation of the Magistrate as the respondent being angry and upset. Those emotions are not inconsistent with the sending of the messages. After the appellant ended the relationship, the respondent alleged that she had been sexually assaulted by the appellant. That the appellant had committed a rape or was a ‘sexual predator’ was an allegation expressly made in P3, P6 and the final message and at least implicitly made in P7. The appellant had given evidence that no other partner had made such an allegation. There is no reason to doubt the appellant was honest about that.

Ratio Decidendi

Legal Principle Established

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