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application to confirm the interim intervention order was dismissed by a Magistrate, and the interim intervention order was revoked.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 person was precipitated at least in part by a row arising from the respondent’s suspicion that the protected person had an affair with a work colleague, referred to in the Magistrate’s reasons as SC.
After the separation the protected person lived first at her mother’s address. She then formed a relationship with a man named Troy, and moved to live with him. She did not provide the respondent with their address as she did not want him to know it.
The agreed custody arrangements were that the parties would have the children during alternating weeks. The school the children attended required their home address for its records. The protected person provided her address to the school on the understanding that it would not be revealed to the respondent. The school sent a letter to both parties in December 2014 to confirm the home addresses for the following year. In error the letter revealed the protected person’s address to the respondent. The letter also included reference to the protected person’s request that her address not be revealed to the respondent.
The Magistrate found that the respondent subsequently sent the protected person three letters.
The first letter was sent by the respondent to the protected person’s home address in February 2015 in an envelope containing two documents. One was a manual for operating the sound system in the protected person’s car. The other document was a letter from the local Council dated 19 July 2013 concerning a dog registration renewal with an attached dog tag. The letter from the Council related to the registration of the dog which had belonged to the protected person, but which had remained with the respondent after the separation because she could not take it to her mother’s home. The dog had died in late 2013. The respondent suspected that the dog was poisoned by a neighbour who objected to the dog barking. The protected person suspected the respondent of having poisoned the dog.
The second and third letters were sent in March 2015 to the protected person’s address, but addressed to her partner Troy. These letters were anonymous and contained Facebook correspondence between SC and another person whose name had been excised. They related to SC’s relationship with the protected person.
Both the respondent and the protected person gave evidence as to these letters. As to the first letter, the protected person said she was upset by the letter for two reasons. First, because she believed that the respondent was making a point of using her address knowing that she did not want it disclosed to him. She said that she and the respondent had together intimidated the respondent’s first wife by driving past her home earlier in their relationship, and that she was worried that she would suffer similar harassment. Secondly, the letter was a gratuitous and hurtful reminder of her dog’s awful death.
The respondent on the other hand stated that he came across both items as he was sifting through property from the shed with a view to sending property of the protected person to her. He said he undertook this process with his eight year old daughter. He said that she saw the dog tag, recognised it as belonging to her mother and asked the respondent to send it to her. The respondent was going to put both documents in his daughter’s school bag to give to the protected person, but forgot to do so on the day she was going to school. After realising he had forgotten, he decided to post them to the protected person instead. He said his actions were entirely innocent and the letter from the Council with the attached dog tag was sent at the request of, and to please, his daughter. He also denied the alleged harassment of his first wife, and claimed that she was in Court and was supporting him.
As to the second and third letters, the respondent denied all knowledge and involvement. However, the protected person explained that she had access to SC’s Facebook account and had been able to make her own copy of the correspondence. Her copy showed the name of the other party which had been excised from the versions sent to Troy. The excised name was that of the respondent’s sister, Angelina.
As the Magistrate summarised in his reasons, the protected person also gave evidence alleging earlier acts of abuse by the respondent during the course of their marriage. The allegations involved incidents of physical abuse in 2007 and 2010, and a threat to “put her six feet under” made in 2013 during the breakup of their marriage. The protected person gave evidence that the respondent was controlling and jealous. She also claimed that the respondent had a gun, a taser and knives hidden in the house. The respondent, on the other hand, denied each of these allegations. Police searched the respondent’s house and found no weapons.
Having recited these allegations, and then made reference to the protected person’s admission that she lied in an affidavit filed in the Family Court (in which she denied having an affair with SC), the Magistrate said that in his view “the earlier alleged acts” were not proven on the balance of probabilities as there was no satisfactory basis for preferring the evidence of the protected person over that of the respondent, particularly given her admission about her Family Court affidavit.
On the appeal, counsel for the appellant contended that this finding (that the earlier alleged acts were not proven) was confined to the acts of alleged abuse. However, in my view, the Magistrate’s reasons should be read as finding that the allegation in relation to the respondent’s possession of weapons was also not proven. It is less clear what finding, if any, the Magistrate made as to the broader allegation that the respondent was controlling and jealous.
The Magistrate proceeded on the basis that it was the three letters that substantially formed the basis for the intervention order.
In relation to these letters, the Magistrate largely rejected the respondent’s evidence. He said that while he had not accepted the protected person’s evidence as to the earlier alleged acts (referred to above), he had also formed an unfavourable impression of some aspects of the respondent’s evidence. He did not accept his denial of any involvement in the second and third letters. He noted that they were sent very soon after the first letter was sent, and that the enclosures were altered to delete the respondent’s sister’s name, thus linking them to the respondent. The Magistrate found that the respondent’s likely motivation for sending the letters was an attempt to mar the relationship between the protected person and her new partner, Troy. The Magistrate found that the strong inference was that the respondent was involved in sending the second and third letters. He held that the inference was sufficiently strong to reject the respondent’s evidence and find that he probably caused the letters to be sent. He said that even with the reservation he had expressed about the protected person’s reliability as a witness, he considered it unlikely that she was responsible for manufacturing the second and third letters.
As to the first letter, the Magistrate also rejected the respondent’s claim to have sent the dog tag simply to please his daughter. He considered it quite unlikely that a young child would feel a sentimental attachment to the registration renewal and then request that it be sent to her mother. Further, the Magistrate considered that anyone with the slightest concern for the protected person’s feelings would have explained to the child that it would be upsetting for the mother to be reminded of her dog. The Council renewal letter was addressed to the respondent and not addressed to the protected person, and no useful purpose could have been achieved by forwarding it in 2015. Further, the explanation the respondent gave for posting the letter, rather than sending it to his daughter, was unconvincing. The Magistrate accordingly rejected the respondent’s claim that his daughter was involved, and found on the balance of probabilities that the respondent sent the first letter out of spite and to upset the protected person.
Thereafter the Magistrate reasoned as follows:
The conduct in sending the three letters can be characterised as spiteful however on balance I am not satisfied that they were intended to, and caused, psychological or emotional harm within the meaning of the Act. I have had regard to the examples of conduct causing emotional or psychological harm in section 8(4) of the Act. The closest example is to be found in s 8(4)(j). I am not satisfied that conduct could reasonably be expected to cause emotional or psychological harm to the protected person. I consider that it is reasonable to expect that the correspondence would cause upset, annoyance and anger but not harm.
It is not a pre-requisite to the application to find that there has been an act of abuse committed. The question is whether it is reasonable to suspect the defendant will commit an act of abuse unless restrained. Repeated instances of such unsolicited correspondence, despite it having been made clear that such letters should not be sent, would likely comprise an act of abuse in my view. Harassment by the repeated nature of such conduct could well cause psychological or emotional harm. Accordingly, if it is reasonable to suspect that the defendant will continue to send letters of this kind then it would become reasonable to suspect the defendant will commit an act of abuse.
The defendant’s false denials of having sent P5 and P6 and his disingenuous explanation for sending P2 do not inspire confidence. His evidence does not provide any direct reassurance that the conduct will not continue. Three letters were sent before the interim intervention order was made. There has been no repeat of the conduct but that may simply be the interim intervention order performing its function. I accept that it is reasonable to suspect that the defendant would continue with this conduct without intervention.
I turn to consider whether it is appropriate to make the intervention order in the circumstances. In the exercise of that discretion I have concluded that it would be appropriate to allow the defendant the opportunity to show that he will not persist with the conduct I have referred to. An intervention order is a significant imposition as the defendant is now aware. If my judgment is misplaced and the defendant abuses this opportunity the protected person will have the ready remedy of making application for a further interim intervention order.
In exercising my discretion in this way I refer to the finding that it is not reasonable to suspect that the defendant will cause physical harm to the protected person. Apart from the findings I have made in relation to the earlier allegations, I note that the protected person is a personal trainer by profession, coaches kick boxing and holds a black belt, first dan, in martial arts. The defendant has no similar qualifications.
I revoke the interim intervention order.
The legislative scheme
One of the objects in s 5 of the Act is to assist in preventing domestic and non-domestic abuse by providing for the issuing of intervention orders by police and the Magistrates Court.
Under s 7(1)(a), an intervention order may be issued for the protection of any person (the protected person) against whom it is suspected that the defendant will commit an act of abuse. Under s 6, there are grounds for issuing an intervention order against a person (the defendant) if (a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and (b) the issuing of the order is appropriate in the circumstances. There are thus two limbs to be considered in determining whether grounds for issuing an intervention order exist.
The first requires a reasonable suspicion of a future act of abuse. The concept of abuse is described and defined in broad terms in s 8. Subsection 8(1) provides that abuse may take many forms including physical, sexual, emotional, psychological and economic abuse. Subsection 8(2) then provides:
(2)     An act is an act of abuse against a person if it results in or is intended to result      in—
(a)     physical injury: or
(b)     emotional or psychological harm; or
(c)     an unreasonable and non-consensual denial of financial, social or personal     autonomy; or
(d)     damage to property in the ownershiop or possession of the person or used or otherwise enjoyed by the person.
Subsection 8(3) provides that emotional or psychological harm includes mental illness, nervous shock and distress, anxiety or fear, that is more than trivial. Subsection 8(4) then provides a list of examples of conduct that may comprise an act of abuse against a person resulting in emotional or psychological harm. Relevantly for the purposes of this appeal, the list includes s 8(4)(j); namely, communicating with the person, or to others about the person, by way of mail, telephone, fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person. Subsection 8(5) contains an equivalent list of examples of conduct that might constitute an unreasonable and non-consensual denial of financial, social or personal autonomy.
In terms of the second limb of the inquiry under s 6, namely the appropriateness of issuing an intervention order, s 10(1) provides:
(1)     The following must be recognised and taken into account in determining               whether it is appropriate to issue an intervention order and in determining               the terms of an intervention order:
(a)     abuse occurs in all areas of society, regardless of socio-economic status,      health, age, culture, gender, sexuality, ability, ethnicity and religion;
(b)     abuse may involve overt or subtle exploitation of power imbalances     and    may consist of isolated incidents or patterns of behaviour;
(c)     it is of primary importance to prevent abuse and to prevent children      from being exposed to the effects of abuse;
(d)     as far as is practicable, intervention should be designed—
(i)     to encourage defendants who it is suspected will, without intervention,         commit abuse to accept responsibility and take steps to avoid    committing abuse; and
(ii)    to minimise disruption to protected person and any child living            with a protected person and to maintain social connections and         support for protected persons; and
(iii)     to ensure continuity and stability in the care of any child living            with a protected person; and
(iv)     to allow education, training and employment of a protected        person and any child living with a protected person, and     arrangements for the care of such a child, to continue without             interruption; and
(v)    if the defendant is a child—
(A)     to ensure the child has appropriate accommodation, care                  and supervision; and
(B)     to ensure the child has access to appropriate educational                  and health services; and
(C)     to allow the education, training and employment of the   child to continue without interruption.
It is apparent from a consideration of the objects of the Act, together with the broad definition of abuse in s 8 and the considerations set out in s 10(1), that the Act contemplates a broad range of circumstances in which it may be appropriate to make an intervention order. The provisions I have mentioned above are intended to ensure that in determining whether it is appropriate to make an intervention order the approach is informed by the modern understanding as to the range of conduct that can constitute abuse, and the breadth of circumstances in which it can occur.
Here the Magistrate held that the first limb of s 6 was established. While not satisfied that a past act of abuse had occurred, his Honour was nevertheless satisfied that it was reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the protected person. However, on the facts as found by the Magistrate, his Honour was not satisfied as to the second limb of s 6. He was not satisfied under s 6(b) that it was appropriate that an order be made.
The appeal
This is an appeal under s 42 of the Magistrates Court Act 1991 (SA), and is governed by chapter 13 of the Supreme Court Rules 2006 (SA). In particular, under r 286, the appeal is to be by way of re-hearing. This requires that I undertake an independent review of the evidence and the findings below, and form my own view as to the appropriate outcome. That said, the appeal is not a hearing de novo, and I should not substitute my own view, or otherwise interfere, unless satisfied that the Judge below has made an error.[1]
[1] Wade v Australian Railway Historical Society (2000) 77 SASR 221 at [38]-[40].

Further, it was accepted by the parties on the hearing of this appeal that the decision of the Magistrate involved an exercise of his discretion such that the appellant’s task of establishing error is subject to the principles in House v The King.[2] These principles require that an appellate court only interfere in two broad categories of case. First, if it is established that the Judge below has acted on a wrong principle, has allowed extraneous or irrelevant matters to guide or affect him, has mistaken the facts or has not taken into account some material considerations. Secondly, if it is established that the result embodied in the order made is, upon the facts, unreasonable or plainly unjust, such that it can be inferred that there has been a failure properly to exercise the relevant discretion, despite the precise nature or source of that error not being identifiable.
[2] House v The King (1936) 55 CLR 499 at 504-505.
Here the appellant challenges the Magistrate’s approaches to both limbs of s 6 of the Act.
The first aspect of the appellant’s challenge relates to the Magistrate’s approach to the alleged acts of abuse and the harm suffered by the protected person. In particular, it was contended that the Magistrate erred:
1.in not giving sufficient weight to the protected person’s evidence that the defendant’s acts of abuse resulted in harm;
2.in not finding that the respondent’s conduct could reasonably be expected to cause emotional or psychological harm to the protected person;
3.in finding that he needed to be satisfied that the respondent’s conduct was intended to cause, and, did cause, harm; and
4.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.
While this aspect of the appellant’s challenge relates primarily to the first limb of s 6, it has a potentially broader significance.
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; and
2.ought to have found that the making of an intervention order was appropriate in the circumstances.
Consideration
The 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.
Nor do I consider that the Magistrate fell into error in finding that he was not satisfied that the letters would reasonably be expected to cause harm, or were intended to cause harm. Again, in my view, it was open and appropriate on the evidence to find that while the letters were motivated by spite, and likely to (and intended to) cause upset, annoyance and anger, this nevertheless fell short of a likelihood or intention to cause harm. This might be so either because the contemplated level of distress, anxiety or fear was trivial, or because upset, annoyance and anger are otherwise different from, and lesser than, the level of distress, anxiety or fear contemplated by the definition in s 8(3)(c). Further, there is nothing anomalous in my view in the finding that while the three letters were not intended to, and did not, result in harm, nevertheless more such letters might do so.
The appellant complained that the Magistrate erred in approaching the issue of harm on the basis that he needed to be satisfied that the defendant’s conduct was “intended to, and caused” harm. It was pointed out that in s 8(2) an act of abuse exists if it “results in or is intended to result in” harm. In other words, the complaint was that the Magistrate treated intending harm and causing (or resulting in) harm as conjunctive requirements rather than disjunctive requirements. In the circumstances of this case, it was necessary for the Magistrate to consider three issues. First, whether the letters might reasonably be expected to cause harm (s 8(4)(j)) and then whether they were intended to, and did in fact, result in harm (s 8(2)). While the wording of the Magistrate’s findings is not entirely clear, as explained above, I interpret his Honour as having found in effect that the letters were neither intended to, nor did in fact, result in harm. As such, and bearing in mind my view that both such findings were open and appropriate, no error is disclosed in the Magistrate’s approach to the disjunctive requirements of s 8(2). In other words, his Honour appropriately addressed both the respondent’s state of mind in engaging in the relevant conduct and the (subjective) impact of this conduct on the protected person.
Finally in relation to this first aspect of the appellant’s challenge to the Magistrate’s approach, it was contended that the Magistrate erred in refusing to admit certain evidence from the protected person as to the impact of the defendant’s conduct upon her. On the hearing of the appeal I received an affidavit of the prosecutor deposing to the factual basis for this ground of appeal. The thrust of her evidence was that she had intended to lead additional evidence from the protected person (and to further cross-examine the respondent) as to other aspects of their historical relationship which, it was said, would have been relevant to the determination of whether the harm was intended by, or resulted from, the letters that were sent. I accept that there was at least a theoretical relevance of the excluded evidence both to the issue of harm, and perhaps also to the broader issue of the appropriateness of an order being made under the second limb of s 6. However, in my view, the link to the conduct relied upon by the protected person as constituting abuse was relatively tenuous. The case was not presented or conducted on the basis of an allegation of “unreasonable and non-consensual denial of financial, social or personal autonomy” under s 8(2)(c), and evidence in relation to these matters was not likely to be of material relevance to the impact of the letters. Further, the protected person was given several opportunities to give, and did give, clear evidence as to the effect of the letters upon her. The Magistrate addressed that evidence, in the manner I have described earlier in these reasons. In the circumstances, I am not satisfied that the Magistrate fell into error in making the impugned rulings on the evidence. Nor am I satisfied that the evidence, if admitted, would have made a difference to the outcome.
Before leaving what I have described as the first aspect of the appeal, I observe that even if I had been of the view that the Magistrate erred in not finding that an act of abuse occurred, this would have been of limited if any significance to the outcome of this appeal. The reason for this is that despite being of the view that there was no proven past act of abuse, the Magistrate nevertheless went on to find both that if more letters were sent then they might constitute abuse, and that it was reasonable to suspect that the respondent would commit such abuse. Accordingly, his Honour held that the first limb of s 6 was made out, despite the absence of any proven act of past abuse. The application below thus ultimately foundered upon, and the outcome of this appeal must turn upon, a consideration of the second limb s 6(b). That said, I accept that a different approach to the concept of harm or abuse might have had some general flow on effect to the determination of whether it was appropriate in the circumstances to make an order under the second limb.
The second aspect of the appellant’s challenge
I have earlier set out the Magistrate’s reasoning in relation to the second limb of s 6, namely the determination under s 6(b) of whether the issuing of an order was appropriate in the circumstances. His Honour’s reasons for concluding that it was appropriate were confined to two paragraphs, albeit against the background of his earlier relatively detailed summary of the evidence, and his own findings in relation to the first limb s 6(a).
The appellant contended that the Magistrate failed to have regard to the principles in s 10, which are principles that must be recognised and taken into account in determining whether it is appropriate to issue an intervention order (and in determining the terms of any order). The Magistrate did not make any express reference to s 10. However, I do not consider that there is anything in his Honour’s reasoning, or the outcome of that reasoning, to suggest that the Magistrate did not have regard to this section, or that his approach was not informed by the principles set out in it.
It was pointed out by counsel for the appellant that s 10(1)(b) makes it plain that abuse may consist of isolated incidents. While the Magistrate held that the three letters relied upon in this case did not constitute abuse, his Honour did not suggest that isolated instances could not constitute abuse. His reasoning was merely that on the facts of this case the letters (neither individually nor cumulatively) were not sufficient to constitute abuse.
The appellant also pointed to the Magistrate’s reference to the protected person being a personal trainer, who coaches kick boxing and holds a martial arts qualification. The relevance of these matters is somewhat obscure. They are probably best understood as being a reference to matters which might have given the protected person some level of personal confidence and physical prowess. While I consider these matters to have been of only marginal relevance, I do not think they are entirely irrelevant or that it was erroneous to take them into account.
The Magistrate referred to giving the defendant an opportunity to show he would not persist with the relevant conduct. While this is not a factor referred to in s 10(1) that does not mean it was not a relevant or appropriate consideration, at least on the facts of this case. Section 10(1) does emphasise the need to prevent and deter abuse, and protect those who might be victims of contemplated abuse. But that does not mean that the defendant’s position is irrelevant. In my view it remains a potentially relevant consideration that the defendant is someone who might respond to an opportunity to change or cease their actions.
I have mentioned earlier that the clear intention of s 10 (both in its own terms, and in conjunction with the objects of the Act (s 5) and the definitions of abuse and harm (s 8)) is to ensure that a broad view is taken of when intervention might be appropriate. But this does not mean that in every case where there is a s 6(a) reasonable suspicion that abuse will occur an order should be made. To the contrary, the very existence of s 6(b) as an additional limb to the s 6 test presupposes that there will be cases where that is not so.
Here there was no proven act of past abuse. While the Magistrate accepted there was a reasonable suspicion abuse would occur in the future without intervention, it might be inferred that the Magistrate did not consider there to be a high likelihood of this occurring. Indeed, the Magistrate’s judgment appears (from his reference to the contingency that his judgment might prove to be misplaced) to have been that the suspicion will probably not come to fruition. It is also relevant that while there was a suspicion of abuse in the broad sense contemplated by the Act (ie extending to emotional and psychological harm), the Magistrate made a positive finding that it was not reasonable to suspect that the defendant would cause physical harm to the protected person.
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.