Police v Giles - [2013] SASC 11

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLICE v GILES
[2013] SASC 11
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
15 January 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Police appeal against a Magistrate's refusal to confirm an interim intervention order - whether the evidence was sufficient to prove the interim order should be confirmed.
Held: The Magistrate erred in not making findings about disputed evidence - reasonable suspicion exists that the defendant will commit further acts of abuse - appeal allowed - order of the Magistrate revoking the interim intervention order set aside - order made confirming the interim intervention order.
Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 8, 10, 18, 21, 23, 28, referred to.

POLICE v GILES
[2013] SASC 11
Magistrates Appeal: Criminal

KOURAKIS CJ (ex tempore): The object of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act) is to assist in preventing domestic and non-domestic abuse by providing for the making of intervention orders by police and the Magistrates Court of South Australia. Section 8 of the Act defines ‘an act of abuse’ to include an act which results in, or is intended to result in, physical injury or emotional or psychological harm. ‘Emotional or psychological harm’ includes distress, anxiety or fear that is more than trivial.[1]
[1] See s 8(3) of the Act.
Police and the courts are empowered to issue intervention orders[2] if it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the person and the issuing of the order is otherwise appropriate.[3]
[2] See ss 18 and 21 of the Act.
[3] See s 6 of the Act.
On 24 October 2012 a Magistrate revoked, pursuant to s 23(1)(c) of the Act, an interim intervention order which had been made ex parte by the court on 13 August 2012 pursuant to s 21 of the Act. The interim order had restrained the respondent, to whom I will refer as the defendant, from assaulting, threatening or harassing his former de facto partner, and to that end had prohibited him from being in her vicinity or communicating with her.
The police have appealed against the Magistrate’s refusal to confirm the interim order. This appeal raises for consideration the meaning of “trivial” distress, anxiety or fear and the degree of the suspicion which is sufficient to found an intervention order. For the reasons which follow I find that the Magistrate erred in finding that there was no reason to suspect that the defendant would if unrestrained commit an act of abuse which was to result in more than trivial emotional harm.
The evidence
In August 2012 the police, on behalf of Ms M, sought and obtained an interim intervention order against the defendant. The defendant and Ms M met while serving in the Royal Australian Navy. They cohabited in a domestic relationship for 13…

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 Police v Giles

Details

AGLC: Police v Giles [2013] SASC 11
Case: [2013] SASC 11
Decision Date: 15 January 2013

CaseChat Overview and Summary

In the matter of Police v Giles, the South Australian Supreme Court was called upon to review a decision made by a Magistrate, concerning the refusal to confirm an interim intervention order. The applicant, represented by the police, sought the order on behalf of Ms M, who alleged that the defendant, her former partner, had engaged in a pattern of abusive and violent conduct. The key issues revolved around the interpretation of the term "trivial" emotional harm, and the level of suspicion required to justify an intervention order.

The court had to determine whether the Magistrate's decision to not confirm the interim order was legally sound. Specifically, the court needed to assess whether the Magistrate correctly applied the relevant legal criteria when considering the evidence presented. The central question was whether the Magistrate erred in finding that there was insufficient evidence to suspect that the defendant would commit an act of abuse resulting in more than trivial emotional harm.

The Supreme Court found that the Magistrate had indeed erred in his decision. The court held that the Magistrate failed to properly consider the evidence of past incidents of abuse, which were relevant to the nature of the relationship and the degree of anxiety Ms M might feel about future acts of abuse. The court emphasised that the Magistrate’s role was to resolve the evidential disputes, which he failed to do. Consequently, the Supreme Court allowed the appeal, setting aside the Magistrate’s decision and directing that the interim intervention order be confirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The police have appealed against the Magistrate’s refusal to confirm the interim order. This appeal raises for consideration the meaning of “trivial” distress, anxiety or fear and the degree of the suspicion which is sufficient to found an intervention order. For the reasons which follow I find that the Magistrate erred in finding that there was no reason to suspect that the defendant would if unrestrained commit an act of abuse which was to result in more than trivial emotional harm.The evidence In August 2012 the police, on behalf of Ms M, sought and obtained an interim intervention order against the defendant. The defendant and Ms M met while serving in the Royal Australian Navy. They cohabited in a domestic relationship for 13 years and have two children, who were aged eight and four at the time of the application. In an affidavit in which the police relied Ms M deposed that the relationship was marked with violence from about the time she became pregnant with their elder son. She deposed that in the first violent incident, which occurred when she was pregnant, the defendant threw things at her and verbally abused her. In his evidence-in-chief the defendant denied that that incident had occurred. However, in cross-examination, he admitted that it may have occurred but claimed that, if it did, he could no longer recall it. Ms M deposed that in the first week after the birth of their eldest son the defendant became upset and punched a hole in the wall of their home and threw a stroller across a room. The defendant did not deny that incident but again claimed that, if it did occur, he could no longer recall it. The Magistrate did not make any findings about those incidents. The Magistrate erred in failing to determine the evidential dispute between Ms M and Mr Giles. The incidents, if they occurred, were relevant to the nature of the defendant’s relationship with Ms M which, in turn, was probative of Ms M’s other allegations. The incidents were also capable of affecting the degree of anxiety Ms M was likely to feel about any apprehended future acts of abuse. The passage of time might attenuate the evidential significance of those incidents but they nonetheless remained important considerations. Ms M deposed to an escalation of the defendant’s aggressive conduct in 2007. She deposed that the defendant abused her, calling her a ‘whore’ and a ‘slut’ when they were eating dinner at a restaurant. Ms M deposed that when they returned home, the defendant hit and punched her. She claimed that the defendant pushed her to the ground and continued to verbally abuse and slap her. At the time he was holding a long kitchen knife with which he poked Ms M in the upper torso and neck, threatening to cut her throat. Ms M escaped from the house in her dressing-gown with her young son. She deposed that the defendant struck her head with a cordless telephone as she left. With the help of a neighbour, Ms M got into a car and travelled to her sister’s home. Several weeks later the defendant picked her up from that house and they returned to their home. On the way the defendant said to Ms M: ‘This will never happen again because I will just kill you and [our son]’.

Decision

Reasons for decision

KOURAKIS CJ

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Ratio Decidendi

Legal Principle Established

Established by: KOURAKIS CJ

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