Peters v Commissioner of Police - [2025] SASCA 95

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
PETERS v COMMISSIONER OF POLICE
[2025] SASCA 95
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Stanley)
22 August 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
This is an application for leave to appeal against a decision by a Supreme Court judge (the appeal judge) to dismiss conviction and sentence appeals from the decisions of a magistrate.
The appeal judge’s decision concerned the applicant’s convictions by a magistrate for trespass, contrary to s 17A(1) of the Summary Offences Act 1953 (SA), and assault, contrary s 20(3) of the Criminal Law Consolidation Act 1935 (SA), together with her appeal against sentence concerning the recording of convictions and the imposition of fines.
The case concerns the applicant’s conduct toward her former domestic partner and his partner in connection with disputed parenting arrangements.
After granting the applicant an extension of time, the appeal judge concluded that the magistrate had made no material error and upheld the applicant’s convictions, together with the sentence imposed.
The applicant sought permission to appeal against the appeal judge’s decision on numerous grounds.
Held (the Court), refusing an extension of time, refusing permission to pursue a second appeal and dismissing the application for permission to appeal:
1.Where the applicant is pursuing a second opportunity to appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal.
2.The applicant has failed to demonstrate that it is arguable that the appeal judge made any material error in dismissing the appeals and, insofar as it is required, the respondent has demonstrated that there has been no miscarriage of justice.

3. It is not in the interests of justice to grant the applicant permission to appeal.
4.As permission to pursue a second appeal should be refused, there is no utility in granting an extension of time.

Criminal Law Consolidation Act 1935 (SA) ss 15(3), 20(3); Joint Criminal Rules 2022 (SA) r 204.2(1)(c); Magistrates Court Act 1991 (SA) s 42; Summary Offences Act 1953 (SA) s 17A(1), referred to.
BC v MC [2024] SASC 81; Charisteas v Charisteas (2021) 273 CLR 289; McDonald v State of South Australia [2022] SASCA 43; Mijolic v City of Onkaparinga Council [2025] SASCA 2; Peters v Commissioner of Police [2025] SASC 33; PJ Nash Pty Ltd v Food and Beverage Australia Ltd [2021] SASCA 86; Police (SA) v Mahon (2022) 141 SASR 374; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; Rowe & Anor v National Australia Bank [2025] SASCA 86; Shmandiy v Police (No 2) [2024] SASCA 90; Walters v The King [2023] SASCA 133, considered.

PETERS v COMMISSIONER OF POLICE
[2025] SASCA 95
Court of Appeal – Criminal: Livesey P and Stanley JA
THE COURT (ex tempore):
Introduction

On 18 March 2025, a judge dismissed the applicant’s appeals, brought under s 42 of the Magistrates Court Act 1991 (SA). These concerned the applicant’s convictions by a magistrate for trespass, contrary to s 17A(1) of the Summary Offences Act 1953 (SA), and assault, contrary s 20(3) of the Criminal Law Consolidation Act 1935 (SA), together with her appeal against sentence concerning the recording of convictions and the imposition of fines.[1]
[1] Peters v Commissioner of Police [2025] SASC 33 (Hughes J) (the appeal judge), concerning the decisions of Magistrate Wells delivered 29 April 2024 and subsequently.
After granting the applicant an extension of time, the appeal judge concluded that the magistrate had made no material error and upheld the applicant’s convictions, together with the sentence. The applicant now seeks permission to appeal under s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA).
The applicant was not legally represented at trial but was represented before the appeal judge. The applicant is no longer legally represented and has prepared her own appeal papers and has appeared today by an audio-visual link.
At the fortnightly callover on 18 August 2025 the application for permission to appeal was set down for hearing today before two judges.[2]
[2] See Rowe & Anor v National Australia Bank [2025] SASCA 86, [4]-[6] (Livesey P and Stanley JA).
For the following reasons, permission to pursue a second appeal should be refused.
Relevant background
Broadly, the trespass and the assaults occurred in the course of a dispute between the applicant and her former domestic partner, Mr Blank, over access to their two children. They had been in a relationship for a few years until 2012. Initially, the children lived with the applicant. There were proceedings in the Family and Federal Circuit Court concerning parenting orders. In late 2020, the children were removed from the applicant’s care by the Department for Child Protection. After that, they lived with Mr Blank.
On 5 July 2021, the applicant and Mr Blank entered into a parenting plan agreement. It permitted the applicant to see her children on Friday afternoons after school and, when the children felt comfortable, at the applicant’s home and at other times as they wished. No other person was to be present if the children were at the applicant’s home.
As the appeal judge recorded, the “arrangement broke down almost immediately”.[3] The children said that another person was present when they visited the applicant at her home. Mr Blank took the view that the parenting plan agreement no longer applied.
[3] Appeal judge, [9].
The following Friday, 23 July 2021, the day of the offending, the applicant went to the home of Mr Blank and his domestic partner, wanting to see her children. The applicant climbed over a gated fence, entered the property and refused to leave despite being told to do so. It was as the applicant was being removed from the premises that she bit Mr Blank’s partner on two occasions. The magistrate described the assault as “violent and unnecessary”.[4]
[4] Sentencing remarks, p 5.
The magistrate rejected the applicant’s case on self-defence, preferring the evidence of Mr Blank and his domestic partner. Although the magistrate found that the assaults were “not pro-active or aggressive”,[5] he recorded convictions and imposed fines, explaining that there was “too much violence in the context of family handovers and disputes within families”.[6]
[5] Sentencing remarks, p 3.
[6] Sentencing remarks, p 5.
The decision under appeal
The applicant raised a number of appeal grounds before the appeal judge. It is not necessary to address these other than broadly for the purposes of this application. The appeal judge addressed them in a careful and comprehensive manner.
It was contended for the first time before the appeal judge that the magistrate ought to have recused himself from hearing the trial because a few months before the trial the applicant had applied to the magistrate for an intervention order against Mr Blank. The applicant had sworn an affidavit in support of the application comprising nearly 100 paragraphs, over 17 pages. She described what she said was an assault on her on 23 July 2021 at the home of Mr Blank and his partner. She complained that SA Police were pursuing charges against her in retaliation for her complaints about SA Police. She said that she had made a complaint to the Office of Public Integrity, and she was distressed about being “misidentified as the perpetrator” when it was Mr Blank who had contravened parenting orders made by the “Federal Circuit Court” in 2016.[7]
[7] Appeal judge, [27].
The appeal judge considered this objection in some detail even though any right to object appeared to have been waived because no objection was taken by the applicant at the trial.[8] Nonetheless, having carefully considered the merits of the objection, with the benefit of a report from the magistrate, the appeal judge rejected it. Central to her Honour’s reasons was that the magistrate did not determine the application but merely adjourned it. The application was determined by another magistrate.[9] The magistrate reported that he heard nothing more than “preliminary matters” and he could not determine the application without oral evidence from the applicant.[10]
[8] Police (SA) v Mahon (2022) 141 SASR 374, [41]-[45] (Livesey P, Lovell and Doyle JJA).
[9] Appeal judge, [30]-[35].
[10] Appeal judge [40]-[42], quoting the Magistrate’s Report (Exhibit A 5), p 4, citing BC v MC [2024] SASC 81.
Insofar as it was relevant, the magistrate explained that he did not recall the applicant’s intervention order application at the time he commenced the trial. After addressing the relevant authorities, the appeal judge dismissed the ground of appeal relating to disqualification.[11]
[11] Appeal judge, [48]-[53], citing QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419, [38] (Kiefel CJ and Gageler J); Charisteas v Charisteas (2021) 273 CLR 289, [12], [20]-[21] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
Otherwise, the appeal judge dismissed the applications to lead fresh or further evidence on appeal, found that the magistrate made no error in connection with his factual findings or conclusions of guilt, and found that there was no error in the exercise of the sentencing discretion.
The application for leave to pursue a second appeal
The applicant filed an initial notice of appeal on 23 June 2025. At the initial callover before Stanley JA on 21 July 2025, counsel for the respondent argued that the grounds did not disclose errors but suggested that they be reviewed by the applicant and that the applicant review the requirement for an extension of time.
On 15 August 2025, the applicant filed a number of new documents. Relevantly, the applicant filed amended grounds of appeal. Those grounds are really in the nature of submissions and are as follows:
GROUND 1 – ERROR IN UPHOLDING TRESPASS CONVICTION
Justice Hughes erred in law by upholding Magistrate Wells’ finding that the Appellant’s presence at Mr Blank’s residence on 23 July 2021 constituted unlawful trespass. Her Honour failed to properly consider the binding 2016 Family Court parenting orders granting the Appellant primary care, and misapplied the legal relevance of those orders to the issues of lawful excuse and claim of right under s 17 of the Criminal Law Consolidation Act 1935 (SA).
Ground 2 – Error in Rejecting Lawful Excuse Defence
Justice Hughes erred in rejecting the Appellant’s lawful excuse defence. Her Honour failed to give proper effect to the evidence that the Appellant attended in response to Mr Blank’s unilateral and unlawful suspension of parenting arrangements, and that her actions were reasonably directed to enforcing federal parenting rights. This amounted to a misapplication of s 17 of the Criminal Law Consolidation Act 1935 (SA).
Ground 3 – Error in Admitting Parenting Plan as Determinative
Justice Hughes erred by relying on the informal parenting plan (Exhibit P1) as determinative of the Appellant’s access rights, rather than the binding 2016 Family Court orders. By treating the plan as legally significant when it was not enforceable under the Family Law Act 1975 (Cth), her Honour misapplied the law of evidence and elevated irrelevant material to decisive weight, contrary to authority (Makita v Sprowles [2001] NSWCA 305), while disregarding the FCFCOA Orders of 2022 already on the evidence that specifically stated that the FCC 2016 orders were valid until those further orders suspended them.
Ground 4 – Procedural Unfairness in Conduct of Appeal
Justice Hughes erred by proceeding with the appeal hearing on 24 October 2024 in the Appellant’s absence, without facilitating her request for remote attendance under r 18.4 of the Joint Criminal Rules 2022 (SA). This denied the Appellant the opportunity to make oral submissions and amounted to a breach of natural justice (Kioa v West (1985) 159 CLR 550).
Ground 5 – Error in Failing to Consider Coercive Control Context
Justice Hughes erred by failing to consider relevant evidence of systemic abuse and coercive control by Mr Blank, including the unlawful removal of the children by SAPOL and DCP in November 2020. By disregarding this context, her Honour mischaracterised the Appellant as the aggressor and failed to take into account material considerations relevant to both trespass and self-defence.
Ground 6 – Verdicts Unreasonable and Against Weight of Evidence
Justice Hughes erred in concluding that the convictions were safe, reasonable, and supported by the evidence. Her Honour failed to resolve inconsistencies in prosecution evidence, ignored relevant defence material (including hospital records), and upheld verdicts that were contrary to the weight of evidence, amounting to a miscarriage of justice (M v The Queen (1994) 181 CLR 487).
Ground 7 – Misapplication of Bias Law
Justice Hughes erred in dismissing the bias ground by misapplying the test in Ebner v Official Trustee (2000) 205 CLR 337. Her Honour focused on the Magistrate’s claimed lack of recollection rather than applying the correct standard of whether a fair-minded lay observer might reasonably apprehend partiality, given the Magistrate’s prior exposure to prejudicial material in the Appellant’s affidavit.
Ground 8 – Misapprehension of Facts Regarding Removal of Children
Justice Hughes erred in finding, at para 5 of her Honour’s reasons, that “in late 2020, the children were removed from the appellant’s care by the Department for Child Protection.” That finding was contrary to the sworn affidavit of the Appellant dated 24 March 2023 (on the Magistrates Court file and annexed to the appeal record), which corrected that representation and explained that the children were removed through the actions of SAPOL and Mr Blank, with subsequent reporting to the Department, not by any lawful removal or intervention by the Department itself.
By relying on the misrepresentation and failing to engage with the Appellant’s sworn evidence to the contrary, her Honour misapprehended critical facts and failed to take into account relevant material, resulting in an error of law and miscarriage of justice (House v The King (1936) 55 CLR 499 at 505; Minister for Immigration v SZMDS (2010) 240 CLR 611).
Materiality
Each of the above errors demonstrates that Judice Hughes’ judgment was affected by legal error and procedural unfairness, resulting in a substantial miscarriage of justice.
The applicant also filed an affidavit explaining her delay, together with further written submissions responding to a notice filed by the respondent in answer to the application for leave to appeal. The applicant’s written submissions are as follows:
A. Competence & focus
1.The application is competent. The grounds are confined to appealable error by the single judge in Peters v Police [2025] SASC 33, not a re-agitation of trial complaints.
2.Errors include:
2.1    Misapprehension of the federal parenting orders’ legal effect at the relevant times
2.2     Failure to meaningfully address the reasonableness/lawful authority dimension of attendance to facilitate court-ordered contact; and
2.3     Misapplication of the self-defence/necessity framework to the assault count in circumstances of coercive control and protective parenting.
These are material and outcome-determinative errors.
B.Leave principles (Rowe v NAB)
2. Sufficient doubt: The decision is attended with sufficient doubt because it treats parenting orders as legally irrelevant to trespass and fails to grapple with how those orders and the 2022 suspension interacted in time and content with the charged conduct.
3. Issue of principle/importance: The matter raises systemic issues of public importance: interaction between Commonwealth family orders and State criminal liability for trespass/assault in contexts of coercive control and police reliance on an interim IIO instrumentally. Clarification promotes consistent administration of justice.
4. Substantial injustice: Refusing leave would entrench a conviction(s) reached without proper engagement with dispositive federal orders and with the evidentiary context of misidentification of a DFV survivor and the policing use of an unreviewed interim IIO. The consequences for the applicant’s liberty, reputation, and family‑law status are grave.
C. “On the papers” is inappropriate
5. The Crown’s request to determine leave on the papers should be rejected. The record is complex; credibility and context (coercive control, timing and content of Family Court orders, and the IIO’s weaponisation) require oral clarification before two Justices. That course is contemplated by JCR rr 196.6 & 201.1 and is in the interests of justice given the stakes.
D.Delay
6. Any delay was occasioned by the necessity to defend overlapping proceedings stemming from the same incident on 23 July 2021 (judicial review/stay), a warrant of apprehension with no police bail, and practical impediments to participation/filing. A supporting affidavit is filed contemporaneously. No forensic prejudice arises to the respondent; by contrast, prejudice to the applicant is acute. Leave to extend time should be granted.
E. Discrete clarifications
7. The applicant does not contend parenting orders confer a general licence to trespass; rather, the single judge erred in law by treating those orders as irrelevant to whether the attendance was accompanied by lawful authority/reasonable excuse and to the evaluation of self-defence/necessity on the assault.
8. The ground is posed as an error by the single judge in analysing the legal effect of the Family Court orders when disposing of the appeal.
These submissions were supplemented by the applicant. Submissions were also received from the respondent, in each case limited to three pages.
The determination of the application for leave to appeal
As the applicant’s submissions recognise, the question of permission to appeal is determined by reference to the interests of justice and three inter-related questions:
(1)whether the decision is attended with sufficient doubt to warrant its reconsideration on appeal;
(2) whether the decision raises an issue of principle or general importance; and
(3)whether allowing the decision to stand would work a substantial injustice to the applicant.[12]
[12] Rowe & Anor v National Australia Bank [2025] SASCA 86, [31] (Livesey P and Stanley JA), referring to McDonald v State of South Australia [2022] SASCA 43, [21] (Livesey P and Bleby JA).
In addition, where the applicant is pursuing a second opportunity to appeal, the applicant must be astute to clearly identify real doubt about the decision under appeal.[13] Today, the applicant outlined a new case based on breach by Mr Blank of court orders and the parenting plan agreement which, the applicant contended, demonstrated that she lacked the requisite mental elements to commit the offences.[14]
[13] Rowe & Anor v National Australia Bank [2025] SASCA 86, [32]-[33] (Livesey P and Stanley JA).
[14] Though the applicant today mentioned the safety of the children, at the trial her case was self-defence and she did not meet the evidentiary burden required to raise a case concerning “the defence of another”, s 15(3)(a) of the Criminal Law Consolidation Act 1935 (SA), so as to require that it be considered by the magistrate, cf Walters v The King [2023] SASCA 133, [32] (Livesey P and David JA). The applicant’s beliefs were, nonetheless, taken into account in a general way in the courts below, particularly as mitigating factors in connection with sentence.

It is of the first importance in this matter to disengage the issues arising on today’s applications from the broader dispute between the applicant and Mr Blank. That dispute provides context for this matter, but this matter cannot be determined by reference to whether the applicant, or Mr Blank, or both, are at fault regarding their parenting dispute. This Court has no jurisdiction over that dispute and, if it is to be litigated, it will be litigated elsewhere.
Proposed appeal ground 1 represents an attempt to press an appeal in relation to the trespass conviction in circumstances where the appeal against that was abandoned before the appeal judge by counsel then representing the applicant.[15] The applicant is bound by the conduct of her counsel.[16]
[15] Appeal judge, [68].
[16] Police (SA) v Mahon (2022) 141 SASR 374, [47] (Livesey P, Lovell and Doyle JJA).
Proposed appeal grounds 2 and 3 do not demonstrate any arguable error. Proposed appeal ground 4 complains about the applicant’s absence from the hearing before the appeal judge. However, as the applicant was then represented by counsel, she was not denied procedural fairness.
Proposed appeal grounds 5 and 6 do not demonstrate any arguable error. Neither the applicant nor Mr Blank adhered to the terms of their parenting plan agreement and, as the magistrate pointed out, both had alternative legal avenues available. The attempt to lead fresh or further evidence must be rejected because it raises new issues and concerns matters which are not germane to the issues properly arising on today’s applications.[17]
[17] The material comprised a new expert report relating to family violence and coercive control, see Joint Criminal Rules 2022 (SA), r 204.2(1)(c); P J Nash Pty Ltd v Food and Beverage Australia Ltd [2021] SASCA 86, [66] (Lovell, Livesey and Bleby JJA).
As for proposed appeal ground 7, whilst the magistrate’s lack of recollection served to explain why he did not raise the issue at the trial (rather than whether the requisite apprehension arose), it is significant that the material to which he had regard in connection with the applicant’s pursuit of the intervention order was favourable to the applicant. It was her material. It is difficult to see how reading that material prejudiced the applicant, or at the least could be thought by the requisite bystander to have done so. In any event, the magistrate made no finding about any of that material, or the application, and expressed his concern only about whether the applicant may have unintentionally waived legal privilege.
No reason to doubt the decision of the appeal judge has been disclosed.
Proposed appeal ground 8 concerns an asserted error as to whether the applicant’s children were removed by the Department for Child Protection or in fact by “the actions of SAPOL and Mr Blank, with subsequent reporting to the Department”. Even if this finding was in error, which is doubtful, it is far from material to the disposition of the appeal from the magistrate.
Finally, insofar as it is suggested that the decision of the appeal judge was “affected by legal error and procedural unfairness, resulting in a substantial miscarriage of justice”, it is doubtful whether that is an appropriate way of describing the burden on an applicant seeking permission to pursue a second appeal.[18] At all events, the applicant has failed to demonstrate that it is arguable that the appeal judge made any material error in dismissing the appeals and, insofar as it is required, the respondent has demonstrated that there has been no miscarriage of justice.
[18] Cf Police (SA) v Mahon (2022) 141 SASR 374, [81]-[84] (Livesey P, Lovell and Doyle JJA).
Conclusion
In these circumstances, it is not in the interests of justice to grant the applicant permission to appeal.[19] As permission to pursue a second appeal should be refused, there is no utility in granting an extension of time.
[19] Shmandiy v Police (No 2) [2024] SASCA 90, [35] (Livesey ACJ and David JA); cf Mijolic v City of Onkaparinga Council [2025] SASCA 2, [17]-[18] (Livesey P), where summary judgment was ordered.
The application for permission to appeal will be dismissed.