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 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]’.
The defendant testified that when they were out to dinner he had called Ms M a ‘snake’ but had not used the other denigrating terms alleged by her. He accepted that he had abused Ms M when they returned home, and that he pushed and slapped her. The defendant admitted that he also abused and shook Ms M while she was on the floor of their home, but did not recall using a knife or threatening to cut her throat. The defendant claimed that the portable telephone “flew off” a kitchen cabinet and struck Ms M as he brushed past it.
The Magistrate did not make findings of fact with respect to this incident. For analogous reasons to those given in [8], it was important that he do so. Needless to say, the probative weight of this incident, if it was found to have occurred, was substantial.
In late 2008, Ms M left the navy. At that time the defendant and Ms M were residing in Perth. Ms M travelled to the Riverland, where she took up work. The defendant followed in 2009.
Ms M deposed that on an occasion in June 2009, when she and the defendant were both living in the Riverland, she returned home with her sons, to be met by the defendant yelling and screaming at her. Ms M deposed that the defendant pushed her and held a knife against her throat, threatening to kill her. The defendant was charged with assault. He was released on bail on condition that he reside away from the family home. The defendant returned home after he was convicted of the assault and sentenced to a good behaviour bond. When Ms M was cross-examined it was suggested to her that the defendant had pleaded guilty on the basis that a knife had been used to threaten her but had not been held against her body. However the defendant did not dispute Ms M’s account when he gave evidence. Again, it was important that factual findings be made about this incident but the Magistrate failed to do so.
The defendant and Ms M separated at some time between September 2011 and November 2011, Ms M claiming that it was in the earlier month and the defendant the later month. The defendant went to reside in a partially completed home, which the couple had commenced to build on a vacant block. After the separation, Ms M openly saw her new partner. The defendant did not react adversely at first. Indeed they engaged amicably in counsel provided by Relationships Australia.
Nonetheless, Ms M deposed that after the separation the defendant aggressively warned her not to interfere with his access to their children. According to Ms M’s affidavit, the defendant told her many times ‘I’ll kill you if you don’t let me see the kids’. The defendant did not dispute Ms M’s claim, but the Magistrate again failed to make findings on the veracity of Ms M’s account. It was important that he do so. The threats were clearly capable of constituting acts of abuse in themselves and were probative of the way in which the defendant might be reasonably expected to act in the future in the event of differences over access.
Ms M deposed that in October 2011 the defendant broke into the former matrimonial home and took items of jewellery, including an engagement ring which he had given to Ms M. According to Ms M, the defendant then sent her a text reporting what he had done. The jewellery was returned to Ms M after police intervention. The defendant accepted that he had taken the jewellery and claimed that he felt entitled to do so because Ms M had embarked on another relationship.
Ms M deposed that in December 2011 the defendant came to her work and abused her there. The defendant admitted that he had abused Ms M at work but explained that he had done so because he had received voluminous abusive text messages from her. Ms M testified that she had only sent those text messages in response to text messages sent by the defendant. Both Ms M and the defendant were cautioned by police not to send provocative texts to each other.
Ms M deposed that in early 2012 the defendant attended at the former matrimonial home to pick up the children’s old beds which Ms M had replaced with new ones. There was an argument in which the defendant pushed and yelled at Ms M. According to Ms M’s affidavit, she asked the defendant not to argue in front of the children but the defendant responded ‘I don’t care. I’ll smash you in front of the children’. The defendant then left with the children.
The defendant gave evidence that there was an argument on this occasion, in the course of which he said some things to Ms M which were ‘not nice’. He explained that he was angry that the beds had not been dismantled for easy transportation. The defendant did not deny on oath the specific threat to which Ms M had deposed. The Magistrate made no factual findings about this incident. It was plainly capable of constituting a serious act of abuse and, if it had occurred, supported a suspicion that further acts of abuse may be committed in the course of the defendant’s dealings with Ms M.
Ms M deposed and testified that the defendant constantly drove past the former matrimonial home and on occasions had parked his car about three houses down the street. The defendant admitted driving to the house on only one occasion to maintain watch on the house because he was waiting for Ms M’s current partner to leave before contacting her. The defendant also accepted in his evidence that he had visited the home of a neighbour whom he had met socially on a night out.
The Magistrate did not resolve the dispute about the number of occasions on which the defendant had driven down, or parked his car on the street. Nor did he make findings as to the defendant’s purpose in so doing. The allegations were capable on their own of constituting acts of abuse and of, in context, supporting a suspicion that further acts would be committed. Findings on this issue, too, should have been made by the Magistrate.
Ms M deposed that about a fortnight before applying for the intervention order she received a text from the defendant saying ‘I am in the house’. She was later told by her children that the defendant had gained entry by making the children climb through a window to then open the door for him. The defendant testified that he had sent the text but claimed that he had not actually entered the house. The defendant explained that he was with the children and attempting to return them to Ms M, who had earlier left the children with him, without warning, when it was not his access week.
Ms M agreed in cross-examination that the incident concerning the text had occurred after she had left the children with the defendant when it was not his access week, but testified that she and the defendant had spoken and exchanged texts about her intention to do so. The Magistrate did not make findings about this incident.
Ms M deposed that in the month before she sought the order, the defendant attended her workplace threatening to get her sacked. The defendant agreed that he had attended her workplace but claimed that he went there only to discuss the dropping off of the children when it was not his access week. Ms M agreed that in the weeks before she sought the intervention order, she had attended at the partially completed home in which the defendant resided to attempt to discuss a property settlement and, in particular, to persuade the defendant not to consult lawyers.
The defendant had testified that this discussion had occurred on the same occasion the children had been dropped off when it was not his access week. Ms M maintained that the discussion took place on a different occasion. Nonetheless, Ms M accepted that the defendant had rejected her proposal that they reach a settlement directly between themselves. However, Ms M denied that the failure to come to an agreement about property had motivated her application.
Ms M deposed that in the month before she sought the restraining order the defendant and her had recommenced exchanging abusive texts.
Ms M gave the following explanation for seeking the intervention order:[4]
[22]I have tried to ignore the things that he has been doing and tried to remain calm and I have come to the belief that at some stage Andrew will kill me. I am terrified of him and his erratic and unpredictable behaviour and have accepted that he probably will kill me. I used to worry that the car would blow up one morning or he would stab me with a knife but I have been too scared to report any of the things he does in case it enrages him. I have moved on with my life but Andrew hasn’t and hasn’t seemed to accept this and that is what concerns me.
[23]I am also scared of what he will do when he is issued with an intervention order but I have accepted that I need to try and protect myself. I would like the intervention order to prevent Andrew from coming to my house and to my work. I don’t want to speak with Andrew at all and would like to communicate with him about the children through a third party. I would nominate any of his or my family members for this. We could use a communication book to write any information about the children for each other, like if they are sick or have something on at school but apart from that I do not want any contact. I am happy if he arranges to collect property from the shed with the police present and at my knowledge on one occasion.
[4] Affidavit of Ms M sworn 13 August 2012 at [22]-[23].
The Magistrate’s reasons
The Magistrate’s reasons for refusing to confirm the order appear in the following paragraphs:
[42]Other than this passage and taking even into consideration the fact of previous occurrences which I acknowledge may have in the past given rise to a fear and apprehension that the protected person may come to harm or be subject to any of the provisions of the Act as I have particularly referred to, there is in my view nothing before me to give consideration to and to acknowledge as a matter of fact that since their separation be it in September 2011 or in November 2011 there has been any untoward incident or event that in my view should require the intervention by the court under the Act.
[43]I acknowledge that the protected person particularly in paragraph 23 of Exhibit P1 expresses a concern, but in my view at its highest it is only an expression of distress, anxiety or fear of a nature which in my view does not come to that degree as envisaged particularly by s 8(3)(c) that any distress, anxiety or fear that is more than trivial.
The Act
The primary ground for the making of an intervention order is the reasonable suspicion that the defendant will commit an act of abuse. Proof that the defendant has committed an act of abuse in the past is not expressly made a precondition to the making of an intervention order. It is at least theoretically possible to hold a prescribed suspicion without making any finding of fact, or any firm finding of fact, as to past events. However, the Act appears to contemplate that the court will make findings of fact about past events and provides that it is to make those findings on the balance of probabilities.[5]
[5] Section 28 of the Act.
Analysis
I will proceed in this matter on the basis that the reasonable suspicion that the defendant will, if unrestrained, commit an act of abuse must be founded on findings of fact made on the balance of probabilities about past events. However, I would make two observations about the grounds for making an intervention order. First there is no requirement that the facts from which the reasonable suspicion is drawn themselves constitute an act of abuse. Secondly it is not a statutory requirement that those facts or events be recent, or have occurred before or after the breakdown of a relationship.
As to the first observation, there is no doubt that an order could be based on evidence of a statement of an intention to commit an act of abuse even if the communication was not made to the victim or, indeed, in the case, for example, of a personal diary note, to anyone else at all. As to the second observation, the temporal connection of the past event to the application is a relevant consideration, but, depending on the nature of the circumstances, an event occurring many years earlier may nonetheless found a reasonable suspicion that the defendant will commit an act of abuse.
The reasonable suspicion may, relevantly to this appeal, be broken down into two further elements. The first, a reasonable suspicion that the defendant will act in a certain way. The second, a reasonable suspicion that those acts, if committed, will have the prescribed effect on the protected person which, relevantly to this case is anxiety, of something more than a trivial kind.
The Magistrate erred in finding that the evidence of Ms M, taken at its highest, disclosed no more than a trivial anxiety about the defendant’s conduct. Anxiety that the defendant would kill her could not possibly be characterised as trivial and yet, taken at its highest, that is plainly what Ms M deposed to.
Mr McGee for the defendant submitted that the Magistrate’s order and reasons should be understood on the basis that he had rejected Ms M’s evidence. The Magistrate made no express finding rejecting, disbelieving, or doubting Ms M’s affidavit. The reference to ‘taking the evidence at its highest’ suggests that he proceeded from an acceptance of the matters deposed to by Ms M. Mr McGee nonetheless submitted that the Magistrate must have disbelieved Ms M about the level of her anxiety because of Ms M’s testimonial admission that she voluntarily and unaccompanied visited the defendant to discuss a property settlement. I do not accept that submission. If that was the Magistrate’s views, I would have expected him to have recorded a finding to that effect. To my mind, Ms M’s voluntary attendance to discuss a property settlement does not much detract from the weight of her evidence.
In the difficult circumstances of a strained relationship breakdown, parties to that relationship, and in particular vulnerable parties, must sometimes act courageously, notwithstanding the fears that they hold. I have not heard the testimony. I am not in a position, on the basis of the transcript, to make a finding that Ms M did not genuinely hold the fears to which she deposed. Mr McGee’s submission must be rejected in the absence of any adverse finding by the Magistrate.

As I have already observed the Magistrate also erred in not making findings about the disputed evidence to which I have referred. One option is for me to send the matter back to the Magistrate’s Court for those findings to be made. I cannot resolve those matters without hearing the defendant and Ms M, although, looking at the inherent probabilities of the events in question, I view some of the defendant’s denials and lack of recollection with some scepticism.
Although I cannot resolve all of the disputed matters on the face of the transcript, I can proceed on the basis of the following facts and circumstances, which are not disputed. First, the defendant committed serious assaults against Ms M in 2007 and 2009. It is common ground that the 2009 incident involved in some way, the use of a knife. Secondly, Ms M and the defendant separated, as I said, somewhere between September and November 2011 and, despite some periods of relative peace, the separation has been acrimonious and has been marred by the mutual exchange of provocative texts. Their separation has yet to be resolved. Questions of access to their children are not regulated by formal court orders. There has been no resolution of the division of their property.
Thirdly, in October 2011 or, alternatively, some time shortly after November 2011, the defendant entered the former matrimonial home without Ms M’s consent and took items of jewellery from the home.
Finally, it is common ground that there have been heated exchanges over access to the children.
In addition to those four matters which are not in dispute, I am prepared to make the following findings on Ms M’s affidavit and testimony because of the defendant’s failure to expressly deny the allegations when he gave evidence. First, I find that the defendant did use a knife in the course of committing the offence in 2007. Secondly, I find that on the occasion in early 2012, when the defendant attended to pick up the beds, he became angry and said ‘I don’t care. I’ll smash you in front of the children’. Thirdly, I find that in July 2011, the defendant attended Ms M’s workplace and argued with her there.
On the basis of the facts, both those not in dispute and those ones I have just found, I suspect that the defendant will, at times of discord over the children and their domestic property, make further serious threats against Ms M. There is reason to suspect that there will be further acrimony over the children and property because those matters, as I have just said, remain unresolved. I also suspect that those threats will cause her anxiety which is more than trivial having regard to the defendant’s past assaults on Ms M and, the nature of their more recent exchanges.
It remains for me to consider whether it is otherwise appropriate to make the intervention order. Having formed the prescribed suspicion there is no reason in the circumstances of this case not to make the intervention order sought. There is a clear statutory policy manifested by s 10 of the Act that, in weighing the discretionary considerations on the appropriateness of restricting a defendant’s freedom of movement, great weight is to be given to the welfare and personal autonomy of the protected person.
For the above reasons I allow the appeal. I set aside the order of the Magistrate made on 24 October revoking the interim intervention order. I make an order instead pursuant to s 23(1)(a) of the Act confirming the interim order made on 13 August 2012.