Police v Kriticos - [2016] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
POLICE v KRITICOS
[2016] SASC 28
Judgment of The Honourable Justice S Doyle
10 March 2016
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - OTHER MATTERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS - GENERALLY
An interim intervention order was made against the respondent. An application to confirm the interim intervention order was dismissed by a Magistrate, and the interim intervention order was revoked.
The appellant appealed on the ground that the Magistrate erred in the exercise of his discretion. In particular, it was contended that the Magistrate did not give sufficient weight to the protected person’s evidence that the defendant’s acts of abuse resulted in harm; erred in not finding that the respondent’s conduct could reasonably be expected to cause emotional or psychological harm to the protected person; erred in finding that he needed to be satisfied that the respondent’s conduct was intended to cause, and, did cause harm; and erred in not admitting certain evidence the prosecutor had intended to lead from the protected party as to the effect of the respondent’s conduct on her.
The appellant also contended that the Magistrate erred by failing to have proper or adequate regard to the principles for intervention, and ought to have found that the making of an intervention order was appropriate in the circumstances.
Held (per Doyle J), dismissing the appeal:
1. No error in the exercise of the Magistrate’s discretion has been established.
Intervention Orders (Prevention of Abuse Act) 2009 s 5, s 6, s 6(a), s 6(b), s 7(1)(a), s 8, s 8(1), s 8(2), s 8(2)(c), s 8(3), s 8(3)(c), s 8(4), s 8(4)(j), s 8(5), s 10, s 10(1), s 10(1)(b), s 23; Magistrates Court Act 1991 (SA) s 42; Supreme Court Rules 2006 (SA) r 286, referred to.
Wade v Australian Railway Historical Society (2000) 77 SASR 221; House v The King (1936) 55 CLR 499, considered.

POLICE v KRITICOS
[2016] SASC 28
Magistrates Appeal.
DOYLE J:

On 11 March 2015 an interim intervention order was made against the respondent under the Intervention Orders (Prevention of (Abuse) Act 2009 (SA) (the Act). A Magistrate heard an application to confirm the interim intervention order under s 23 of the Act. On 2 October 2015 the Magistrate dismissed the application and revoked the interim intervention order. This is an appeal from that dismissal and revocation.
The protected person is the respondent’s former wife. They married in 2004 and had two children, born in 2006 and 2008. They separated in April 2013 and Family Court orders were made with the consent of both parties on 11 February 2014.
The Magistrate’s reasons
The Magistrate heard evidence from both the protected person and the respondent. He made findings to the following effect, which were not under challenge on this appeal.
The separation of the respondent and the protected…

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 Kriticos

Details

AGLC: Police v Kriticos [2016] SASC 28
Case: [2016] SASC 28
Decision Date: 10 March 2016

CaseChat Overview and Summary

In the matter of Police v Kriticos, the appeal was against the decision of a Magistrate who declined to make an intervention order against the appellant. The respondent had applied for an intervention order to protect herself from the appellant's conduct, which she claimed included acts of abuse. The appeal was heard in the higher court which examined the Magistrate's decision to refuse the intervention order.

The primary legal issues before the court were whether the Magistrate had properly exercised his discretion in declining to make an intervention order and whether he had adequately considered the principles and criteria set out in the relevant legislation for granting such orders. The court was tasked with determining if the Magistrate's interpretation and application of the statutory provisions were correct and whether his decision was unreasonable or unjust.

The higher court found that the Magistrate had not misapplied his discretion and that his decision was not unreasonable or unjust. The court upheld the Magistrate's findings, particularly that no act of abuse had been established as required by the legislation. The court held that the Magistrate was entitled to consider the evidence presented and conclude that the appellant's conduct, while spiteful, did not amount to an act of abuse as defined under the law. The court also found that the Magistrate had adequately considered the statutory principles for intervention orders and was not required to make such an order in the circumstances. Consequently, the appeal was dismissed.

Orders

Orders of the court

dismiss the appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Bearing in mind the matters set out in the preceding paragraph, and the reasoning of the Magistrate, I am not satisfied that the Magistrate’s discretion miscarried. I am not satisfied that his decision that it was not appropriate to make (or confirm) the intervention order was unreasonable or plainly unjust within the meaning given to those terms in House v The King. Conclusion For the reasons given, I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

The second aspect of the appellant’s challenge relates primarily to the Magistrate’s approach to the second limb of s 6. The contention was that the Magistrate:1.failed to have proper or adequate regard to the principles for intervention pursuant to s 10 of the Act; and2.ought to have found that the making of an intervention order was appropriate in the circumstances.ConsiderationThe first aspect of the appellant’s challenge This aspect of the appellant’s challenge focuses upon the Magistrate’s finding that no past act of abuse had been established. I have set out earlier the Magistrate’s reasoning in relation to this issue. Essentially the complaint is that his Honour approached the concepts of abuse and harm too narrowly in concluding that he was not satisfied that the respondent’s conduct engaged in involved an act of abuse. The Magistrate correctly identified s 8(4)(j) as confirming that a letter or letters which “could reasonably be expected to cause emotional or psychological harm” may constitute an act of abuse resulting in emotional or psychological harm. However, the Magistrate reasoned that, while spiteful, he was not satisfied the letters were intended to cause, and did cause, psychological or emotional harm. Nor could they reasonably be expected to cause such harm. The Magistrate held that it was reasonable to expect that the letters would cause upset, annoyance and anger, but not harm. Various criticisms were made of the Magistrate’s approach. It was pointed out that the Magistrate did not refer to s 8(3)(c) which provides that emotional or psychological harm includes “distress, anxiety or fear that is more than trivial”. While it would have been preferable to have expressly addressed this definition, I do not think the Magistrate overlooked it. Indeed, he expressly referred in the relevant paragraph of his reasons to psychological or emotional harm “within the meaning of the Act”. In my view, his reasons are to be read as involving a finding that the correspondence was reasonably expected to cause “upset, annoyance and anger” in contradistinction to non-trivial “distress, anxiety or fear”. I also read his Honour’s reasons as finding that the letters were motivated by spite, but intended to cause and in fact causing (or resulting in) something less than non-trivial “distress, anxiety or fear”. In my view, the Magistrate was entitled to make these findings on the evidence before him. While the protected person gave evidence of being scared of the defendant, and of fear and anxiety, the Magistrate was entitled to consider the protected person’s evidence as a whole and form his own conclusion as to the impact upon her of the letters. Particularly in circumstances where the Magistrate had expressed reservations about some aspects of her evidence, I am not satisfied that the Magistrate fell into error in finding that he was not satisfied that the letters resulted in harm to the protected person.