Police v MARTIN - [2016] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MARTIN
[2016] SASC 194
Judgment of The Honourable Justice Peek
14 December 2016
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - REQUIREMENTS FOR MAKING ORDER
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - PROCEDURE AND EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - PARTICULAR CASES INVOLVING ERROR OF LAW - FAILURE TO GIVE REASONS FOR DECISION
Appeal against the imposition of an Intervention Order.
The appellant pleaded guilty to being on premises without lawful excuse (contrary to s 17(1) of the Summary Offences Act 1953), and two further charges arising out of a later police search of his motor vehicle. The incident at the premises also led to a police interim intervention order being issued against the appellant with respect to the occupiers of the premises.
The Magistrate released the appellant on a 12 month good behaviour bond, and, pursuant to s 19A of the Criminal Law Sentencing Act 1988, imposed an intervention order against the appellant with respect to the same occupiers. The appellant appeals on the basis that the Magistrate erred in making the intervention order.
Held (granting permission to appeal in so far as necessary, and allowing the appeal):
1. Section 19A of the Criminal Law (Sentencing) Act 1988 does not create a freestanding power to issue final Intervention Orders. Regard must be had to the legal and procedural requirements set out in the Intervention Orders (Prevention of Abuse) Act 2009.
2. The sentencing Magistrate made no reference to the requirements set out in the Intervention Orders (Prevention of Abuse) Act 2009, such that it was impossible to assess whether he was aware of their application in the circumstances and whether he attempted to comply with them. This lack of reasons frustrated the ability of the appellate Court to properly discharge its function in considering the matter. There is an unacceptable risk that the Magistrate took an incorrect approach to s 19A of the Criminal Law (Sentencing) Act 1988.
3. The Intervention Order made by the Magistrate is quashed, and the police interim Intervention Order is to continue in force until either it is withdrawn, or a confirmation hearing pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 either confirms or dismisses it.
Intervention Orders (Prevention of Abuse) Act 2009 ss 6, 23, 28, 29; Criminal Law (Sentencing) Act 1988 s 19A, referred to.
Rana v Gregurev [2015] SASC 37; Cook v Galloway (2015) 124 SASR 444; Police v Kriticos [2016] SASC 28; The Queen v M, AG [2013] SASCFC; Moore-Macquillan v Police [2001] SASC 95, discussed.
Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68, considered.

POLICE v MARTIN
[2016] SASC 194
Magistrates Appeal

PEEK J. Appeal against the imposition of a final intervention order.
Introduction
On 19 August 2016, the appellant pleaded guilty before the Magistrate on the basis of agreed facts to the following counts on complaint:
1.   On the 8^th day of October 2015 at WALLAROO in the said State, was on premises at 1 Seeley Lane without lawful excuse.
Section 17(1) of the Summary Offences Act 1953.
…
4.   On the 8^th day of October 2015 at KADINA in the said State, without lawful excuse had possession of a dangerous article.
Section 21C(2)(b) of the Summary Offences Act 1953.
5.   On the 8^th day of October 2015 at KADINA in the said State, without lawful excuse carried an offensive weapon.[1]
Section 21C(1) of the Summary Offences Act 1953.
[1]    The appellant took no point in relation to duplicity regarding count 5 which charged two separate articles, a small knife and a hammer, as to which separate considerations might well apply. Since there is no appeal concerning that count, in relation to conviction or penalty, I do not take the matter any further.
The facts agreed for the purposes of the plea hearing were that the appellant had been having an affair with a married woman who had assured him on a number of occasions that her marriage was over. He had become concerned that she was not telling the truth about that matter and on 8 October 2015 he went to her house (where she lived with her children) to speak to her. The further agreed facts as to what occurred were summarised by the Magistrate thus:
[3]     Leading up to the time of the offences, you had been in a relationship with a Ms SP who resided at a Wallaroo address. The background was that you were in a relationship with Ms P who was married to Mr P and who together had two children. You understood, the relationship had suffered an estrangement. You maintained your relationship with Ms P by visiting her during the day when you believed her children were not at home and indeed were not at home. The reason for attending at that time was that there was a desire on the part of you both that you not have contact with her children. Although you had met them, you did not want to play the role of a stepfather. You too have a child which complicated any further relationship with other children.
[4]     You became concerned, for reasons that were not explained and are not necessary to go in to, that Ms P was maintaining her relationship with her husband, while at the same time, seeing you in what obviously was an intimate relationship. There were difficulties in your relationship with Ms P as a result of that and you confronted her on a number of occasions about that issue. She continued to deny that she maintained an intimate relationship with her husband during the course of your relationship with her.
[5]     On the afternoon of the offence, arrangements were made for you to meet with Ms P. You met at a car wash away from her premises. During the course of a discussion you again raised with her what you believed, or suspected, was an ongoing relationship with her husband. She continued to deny that relationship. Although there had been some estrangement between the two of you, she attempted a reconciliation and attempted to hug you. You did not respond and she left. That was late in the afternoon at about 6 pm or so.
[6]     I am told by your counsel that you felt bad about the way you had treated her and rebutted her approach and decided to visit her at home. This was unusual in that it fell outside the times that you saw Ms P at her home. It would seem that there was obviously a risk that you would come into contact, at least with her children by attending. Notwithstanding that, you attended. You could not see her or raise her and went into the backyard and called out to her. As a result, the occupants Ms P and her husband contacted the police.
It was further agreed that the appellant left the premises without making any threat or committing any act of violence. Police later that day approached him at his home, spoke to him and searched his vehicle.[2] That search located a can of OC spray, a hammer and a small knife, but it was agreed that the appellant did not take any of those articles onto Ms P’s premises on 8 October 2015 and that they had all been in the appellant’s car continuously for a substantial period of time prior to that date.
[2] This search was apparently conducted as a perceived matter of routine; the legality of the search has not been raised at any stage.
Mr Perrotta, who appeared as counsel for the appellant before the Magistrate and on the appeal, deposed in an affidavit sworn on 1 December 2016 that he informed the Magistrate that the factual basis of the pleas of guilty including the following uncontested matters:
g)The appellant’s intention was to patch things up (as Mrs P had wanted to). He accepts he should not have attended given the children were likely to be there. He accepts he was there without lawful excuse. Whilst there, he lingered – trying to arouse Mrs P’s attention. This included going around the back of the house. He accepts he should not have lingered. This is the conduct the subject of count 1.
h)In relation to counts 4 and 5, the police attended the premises of the appellant and searched his motor vehicle. In it, they found a can of “OC Spray” (count 4), a knife and a hammer (count 5).
i)In respect of the OC Spray, the appellant kept it in his car for protection. He had no reason to feel the need for protection, but kept it just in case. The appellant did not know it was an offence to possess the OC Spray.
j)The appellant purchased the knife for less than $10 in Katherine and has used it quite often over the years. It is only a small knife. He has a sentimental attachment to it. He keeps it in his car.
k)The hammer was used when working on his car engine. The appellant must have put the hammer in his car after he finished but forgotten to take it out. He did not intend to leave the hammer in his car.
The applicant was then arrested and was placed in custody where he remained for some seven days before being bailed. A police interim intervention order was issued against him with respect to Ms P, her husband and their children.
The procedural history
Both the charges (Magistrates Court file MCPIR-15-1888) and the police interim intervention order (Magistrates Court file MCPIR-15-1890) were listed together in the preliminary stages when it appeared that both would be the subject of contested hearings. The charges were listed for a pre-trial conference on 19 August 2016, but prior to that date a plea agreement concerning those charges was come to, including the favourable basis of facts referred to above. That agreement did not extend to the police interim intervention order and that matter was intended to be adjourned for further mention, possibly to go to a contested confirmation hearing if necessary.
Thus, Ms Oehme of the South Australia Police, Kadina Prosecution Unit, who prosecuted herein, deposed in an affidavit sworn on 30 November 2016 as follows:
2.On 8 October 2015, the appellant was arrested and charged with the following offences: … [Charges reproduced]
3.Magistrates Court file MCPIR-15-1888 relates to the criminal charges. I exhibit a true copy of the Certificate of Record for the court file and mark it “FSO-2”.
4.That same day, an Interim Intervention Order was issued by police against the appellant (”PIIO”) pursuant to s 18 of the Intervention Orders (Prevention of Abuse) Act 2009. The circumstances that gave rise to the issue of the PIIO were the matters that formed the subject of the criminal charges on Magistrates Court file MCPIR-15-1888. The protected persons were the victim of the criminal charges [Mr P], his wife [Ms P] and their two children […]. The PIIO was served on the appellant on 9 October 2015.
5.Magistrates Court file MCPIR-15-1890 relates to the PIIO. I exhibit a true copy of the Certificate of Record for the court file and mark it “FSO-3”.
6.On 12 November 2015, the PIIO proceedings (MCPIR-15-1890) were ordered to be listed together with the related criminal proceedings (MCPIR-15-1888).
7.The two sets of proceedings were subsequently listed for mention at the same time in the Magistrates Court on 8 February 2016, 20 May 2016, 1 April 2016, 1 July2016 and 19 August 2016.
19 August 2016
8.On 19 August 2016, I appeared before Magistrate Alexandrides at the Kadina Magistrates Court on court files MCPIR-15-1888 and MCPIR-15-1890. The appellant appeared, represented by Mr Perrotta.
9.In relation to MCPIR-15-1888, I recall that the criminal charges were listed for pre-trial conference. Prior to the hearing, negotiations with defence had occurred, and it was determined that the criminal proceedings would resolve with some amendment to the charges and on an agreed fact basis.
10.Accordingly, when the matter was called on, with the leave of the Court, I withdrew count 2 (dishonestly take property without consent) and count 3 (threaten to cause harm to another). I amended count 1 from the charge of being on premises for an unlawful purpose to the charge of being on premises without lawful excuse.
11.     The appellant then pleaded guilty to all counts.
12.I informed Magistrate Alexandrides that the parties had negotiated a set of agreed facts before the hearing and that the appellant had pleaded guilty on the basis of those agreed facts.
…
18.Magistrate Alexandrides informed Mr Perrotta that he intended to issue an intervention order as part of sentencing (pursuant to s19A of the Criminal Law (Sentencing) Act 1988) and invited him to make submissions in that regard.
19.Mr Perrotta and Magistrate Alexandrides discussed the intervention order at length. I do not recall all of what they said. I recall that Mr Perrotta opposed the intervention order. Mr Perotta informed the Magistrate that the PIIO[3] on Magistrates Court file MCPIR-15-1890 was contested and likely to go to trial. I recall that Mr Perotta questioned whether or not the Magistrate had the power to issue an intervention order pursuant to s19A of the Criminal Law (Sentencing) Act 1988.
20.I did not apply to Magistrate Alexandrides for an intervention order on Magistrates Court on court file MCPIR-15-1888.
…
22.The PIIO on Magistrates Court file MCPIR-15-1890 was adjourned for further mention.
23.     The PIIO proceedings are still before Court.
[3]    Police interim intervention order.
The hearing on 19 August 2016
The Magistrate rejected the appellant’s submission that no conviction should be recorded on count 1 and convicted the appellant of all three charges. His Honour imposed one penalty for the offences, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988, and pursuant to s 39 discharged him upon entering into a bond for a period of 12 months to be of good behaviour in the amount of $100.
An imposition of an intervention order pursuant to s 19A Sentencing Act
During the course of submissions, the Magistrate of his own motion raised the possibility of the imposition of an intervention order pursuant to s 19A of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”). Counsel for the appellant vigorously opposed that course. As noted in the passage from Ms Oehme’s affidavit reproduced above, no such application was made by the prosecution.
In his affidavit sworn on 1 December 2016, Mr Perrotta further deposed to dialogue between the Magistrate and himself concerning this topic as follows:
6.During submissions, the learned stipendiary magistrate appeared to raise the possibility the count 4 and 5 items might be used at [Ms P]’s house. I submitted in response that was not the case, and that the appellant possessed them for innocent purposes save for the OC Spray (which was for a defensive purpose).
7.The learned stipendiary magistrate also raised whether he should order the issue of an intervention order for the purposes of s 19A Criminal Law (Sentencing) Act 1988. In doing so, to the best of my recollection, his Honour mentioned the fact that there was an application for an intervention order on foot, which suggested that the protected persons wanted an intervention order.
8.I made submissions opposing this course of action. The effect of my submissions were that there was not a proper basis for the making of such an order.
9.To the best of my recollection, I believe I addressed further factual circumstances at this point. I believe I said words to the effect that the fact there is an application for an intervention order on foot does not mean it is the desire of the applicants, in particular [Ms P], to proceed with it.
10.I believe I also said words to the effect that [Ms P] had separated, and that the fear of an adverse order in family proceedings taken, or that might be taken, by [Mr P], meant that she presents a false factual scenario to [Mr P] about contact from the appellant.
11.During the course of the matter it then appeared that his Honour would put aside the fact of the application for an intervention order, but that was not clear to me.
12. The prosecutor did not make submissions on the s 19A issue.
13.Following the completion of submissions his Honour immediately imposed sentence and provided remarks ex tempore.
It was in the above circumstances that the Magistrate proceeded to make an order in the following terms:
[20] Pursuant to s 19A of the Criminal Law (Sentencing) Act, an intervention order will be made with respect to the following persons, SF, DEF, ERF and RJF. The terms of the order will be:
1.     The defendant must not assault, threaten, harass or intimidate the protected persons.
2.     The defendant must not follow or keep the protected persons under surveillance.
3.     The defendant must not be within 250 metres of the protected person(s).
4.     The defendant must not contact or communicate with the protected persons either directly or indirectly in any way (including phone, letter, cards, SMS messages, E-mail, Facsimile, Facebook, Skype etc).
5.     The defendant must not enter or remain within 250 metres of the boundary of the place of residence or place of employment of the protected persons.
6.     The defendant must not damage or interfere with the premises where the protected persons is staying, residing or is employed.
7.     The defendant must not publish on the internet or by any electronic means any material about the protected persons.
8.     The defendant must not cause, allow or encourage another person to do anything forbidden by this order.
9.     Any firearm, ammunition or part of a firearm in the possession of the defendant and any licence or permit held by the defendant authorising possession of a firearm, ammunition or part of a firearm must be surrendered to the Registrar of firearms forthwith.
10.     For so long as this intervention order remains in force, any licence or permit held by the defendant authorising possession of a firearm ammunition or part of a firearm is suspended and the defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm ammunition or part of a firearm. The defendant is prohibited from possessing a firearm ammunition or part of a firearm in the course of his or her employment.
The grounds of appeal
The appellant makes no complaint on appeal about the Magistrate’s disposition of the three charges. His sole complaint relates to the making of the intervention order and his grounds of appeal are as follows:
1. the learned Stipendiary Magistrate erred in the exercise of his discretion to issue the intervention order against the appellant pursuant to s 19A(1) Criminal Law (Sentencing) Act 1988 or at all because:
a)there was no proper basis in law or in fact for the order to be issued in that:
i)there was no factual or other basis from which it was reasonable to suspect the appellant would, without intervention, commit an act of abuse against any of the protected persons listed in the order or at all; and
ii)the issuing of the order was not otherwise appropriate;
b)[Not pressed]
c)[Not pressed]
2. the learned Stipendiary Magistrate did not give any, or adequate, reasons for issuing the intervention order.
Permission to appeal
There is a question as to whether permission to appeal is here required. Without deciding that question, I consider that there is ample reason to grant such permission and will therefore make an order that insofar as it may be necessary, permission to appeal is granted on grounds 1(a) and 2 of appeal.
Consideration

The central question here concerns the relationship between s 19A of the Sentencing Act, on the one hand, and the procedures and requirements laid down in Intervention Orders (Prevention of Abuse) Act 2009 (“the Intervention Orders Act”) on the other hand. Section 19A provides as follows:
19A—Intervention orders may be issued on finding of guilt or sentencing
(1)     A court may, on finding a person guilty of an offence or on sentencing a person for an offence, exercise the powers of the Magistrates Court to issue against the defendant a restraining order under the Summary Procedure Act 1921 or an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 as if a complaint or application had been made under that Act against the defendant in relation to the matters alleged in the proceedings for the offence.
(1a)   Before issuing an order under this section the court must consider whether, if the whereabouts of the person for whose benefit the order would be issued are not known to the defendant, the issuing of the order would be counterproductive.
(1b)   If a court, in accordance with this section, determines to exercise the powers of the Magistrates Court to issue a restraining order under section 99AAC of the Summary Procedure Act 1921, section 99KA of that Act applies to proceedings relating to the restraining order as if—
(a)     the court were the Magistrates Court; and
(b)the proceedings were child protection restraining order proceedings within the meaning of that section.
(2)     An order issued under this section—
(a)     has effect—
(i)as a restraining order under the Summary Procedure Act 1921; or
(ii)as a final intervention order issued by the court under the Intervention Orders (Prevention of Abuse) Act 2009,
as the case may require; and
(b)     is not a sentence for the purposes of this Act.
(3)     A court must, on finding a person guilty of a sexual offence or on sentencing a person for a sexual offence—
(a)consider whether or not an order should be issued under this section; and
(b)if the court determines that an order should not be issued under this section—give reasons for that determination (and the determination is subject to appeal as if it were an order of the court made on sentence).
(4)     In this section—
sexual offence means—
(a)     rape; or
(b)     compelled sexual manipulation; or
(c)     indecent assault; or
(d)any offence involving unlawful sexual intercourse or an act of gross indecency; or
(e)     incest; or
(f)any offence involving sexual exploitation or abuse of a child, or exploitation of a child as an object of prurient interest; or
(fa)an offence of sexual exploitation of a person with a cognitive impairment under section 51 of the Criminal Law Consolidation Act 1935; or
(g)any attempt to commit, or assault with intent to commit, any of the foregoing offences.
Before turning to the relationship between s 19A of the Sentencing Act and the Intervention Orders Act, I first consider the structure of that latter statute.
The Intervention Orders (Prevention of Abuse) Act 2009
The Intervention Orders Act creates two originating streams of intervention orders. The first stream consists of Interim Intervention Orders issued by the Magistrates Court, and the spring from which it rises is the group of ss 20, 21 and 22 in Division 3 of the Intervention Orders Act. The second stream consists of Interim Intervention Orders issued by police, and the spring from which it rises is the group of ss 18 and 19 in Division 2 of the Intervention Orders Act.
The confluence of the two streams occurs at a position fixed by reference to the combined effect of s 23 and ss 21(9) and 18(5) of the Intervention Orders Act. Section 23 is the primary section which establishes “the confirmation hearing” which must be held in all cases of interim intervention orders. It relevantly provides as follows:
23—Determination of application for intervention order
(1)     Subject to this section, on the hearing of an application for a final intervention order, the Court may—
(a)confirm the interim intervention order issued against the defendant as a final intervention order; or
(b)issue a final intervention order in substitution for an interim intervention order issued against the defendant; or
(c)dismiss the application and revoke the interim intervention order issued against the defendant.
…
(2)     An interim intervention order issued against a defendant may be confirmed as a final intervention order, or a final intervention order may be issued in substitution for an interim intervention order issued against a defendant, in the absence of the defendant if the defendant failed to appear at the hearing of the application as required by the interim intervention order or by conditions of bail.
(3)     If a defendant disputes some or all of the grounds on which a final intervention order is sought but consents to the order, the Court may confirm the interim intervention order issued against the defendant as a final intervention order, or issue a final intervention order in substitution for the interim intervention order issued against the defendant, without receiving any further submissions or evidence as to the grounds.
(4)     If an interim intervention order is confirmed, the order continues in force against the defendant as a final intervention order without any further requirement for service.
(5)     A final intervention order that is issued in substitution for an interim intervention order comes into force against the defendant when served on the defendant personally or in some other manner authorised by the Court (and until the order is so served the interim intervention order continues in force against the defendant).
(6)     If an interim intervention order is revoked, the Principal Registrar must serve written notice of the revocation on the defendant personally or by post at the address for service provided by the defendant under this Act or in some other manner authorised by the Court.
…
As to the first stream, s 23 must be read in conjunction with s 21(9) which provides that on an interim intervention order issued by the court being served on the defendant:
… the defendant will be taken to have been issued a summons to appear before the Court… for the purposes of hearing and determining an application for a final intervention order.
As to the second stream, s 23 must be read in conjunction with s 18(5) which provides that on an interim intervention order issued by a police officer being served on the defendant:
… the police officer issuing the order will be taken to have made an application to the Court for an intervention order and the defendant will be taken to have been issued a summons to appear before the Court as specified in the order for the purposes of the hearing and determination of the application under section 23.
The nature of the s 23 confirmation hearing
It can be seen, from both the Act’s overall structure and the content of s 23 itself, that a person the subject of a proposed, or interim, intervention order is to be afforded the opportunity of fully contesting the making of a final intervention order. Of course, it is possible for the defendant to consent to the making of an order, although disputing the asserted grounds, and s 23(3) provides:
23(3). If a defendant disputes some or all of the grounds on which a final intervention order is sought but consents to the order, the Court may confirm the interim intervention order issued against the defendant as a final intervention order, or issue a final intervention order in substitution for the interim intervention order issued against the defendant, without receiving any further submissions or evidence as to the grounds.
However, the obvious corollary is that if the defendant disputes the asserted grounds, and does not consent to the making of an order, then the asserted grounds for the making of the order must be established by the proponent of the order. Evidentiary matters in this connection are addressed at ss 28 and 29, but the existence of those provisions only serves to both confirm and underline that the asserted grounds must be established by the proponent, albeit subject to the evidentiary aids provided by those two sections.
The relationship between s 19A of the Sentencing Act and the Intervention Orders Act
I now revert to the critical matter of the relationship between s 19A of the Sentencing Act 1988 and the Intervention Orders Act. Bearing in mind that we are here concerned with an intervention order under the Intervention Orders Act (rather than a restraining order under the Summary Procedure Act 1921), the critical words in s 19A of the Sentencing Act are as follows:
(1) A court may, on finding a person guilty of an offence or on sentencing a person for an offence, exercise the powers of the Magistrates Court to issue against the defendant ~~a restraining order under the Summary Procedure Act 1921 or~~ an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 as if an ~~complaint or~~ application had been made under that Act … . (Emphasis added)
It is to be emphasised that s 19A does not create a freestanding power to issue final intervention orders in vacuo and it does not permit a court to sidestep the requirements as set out in the Intervention Orders Act. Section 19A does no more than enable a court hearing substantive charges – in this case it happened to be a Magistrate – to issue an intervention order as if a complaint had been made under the Intervention Orders Act; the critical question of whether an order is to be made pursuant to such a complaint (or “as if a complaint had been made”) will depend on the substantive provisions of the Intervention Orders Act. Thus s 6 of the Intervention Orders Act provides:
6—Grounds for issuing intervention order
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.
It is well settled that the court must be positively satisfied on the balance of probabilities[4] that first, it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and second, that it is “appropriate” to issue a final intervention order.
[4] Section 28 establishes the requisite burden of proof.
Accordingly, a judicial officer proceeding by way of s 19A of the Sentencing Act must carefully determine whether both limbs of s 6 of the Intervention Orders Act are made out. Thus, in Rana v Gregurev, I stated:[5]
[15] However, because the concept of abuse is so broadly defined, it is also necessary for the courts to ensure that this broad jurisdiction is not itself abused by specious or unwarranted claims with their associated detrimental consequences to both the limited resources of the courts and to persons the subject of unmeritorious allegations. The necessary balance is achieved by investing the Magistrates with a great deal of discretion in the course they may take in any given case.
The grounds for issuing intervention orders
[16] Section 6 of the Act deals with the grounds for issuing an “intervention order” which is defined[6] so as to include both an interim and final order. The structure of s 6 (including the use of the conjunctive “and”) makes it quite clear that both interim and final orders may only be issued when the Magistrate finds that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person (s 6(a)) and, the Magistrate also considers that it is appropriate to issue such an order (s 6(b)).
[5] [2015] SASC 37.
[6] Section 3 of the Act.
And in Cook v Galloway, Nicholson J stated:[7]
The role of a court in determining whether to confirm an intervention order will involve two inquiries. First, the court must be satisfied that it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against the applicant. Such a determination, ordinarily, will be informed by findings of fact about past events, made on the balance of probabilities. Second, the court must also be satisfied that the order is appropriate in the circumstances.
[7] [2015] SASC 36.
And in Police v Kriticos, Doyle J stated:[8]
[47] 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.
[48] 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.
[8] [2016] SASC 28.
This approach of applying the criteria and principles of the Intervention Orders Act was expressly adopted by the Court of Criminal Appeal in The Queen v M, AG.[9] Sulan J (with whom Vanstone and Peek JJ concurred) there set out s 19A of the Sentencing Act and then stated that “Section 6 of the Intervention Orders (Prevention of Abuse) Act 2009 provides the grounds for issuing an order.”
[9] [2013] SASCFC 39, [56] – [65]; (2013) 116 SASR 219.
A situation with some procedural parallels to the present case occurred in Moore-Macquillan v Police. Bleby J there stated:[10]
[10] [2001] SASC 95.
[41] An interim restraining order had been made against the appellant in respect of the victim some time after the incident occurred. That was more than 18 months before the hearing of the assault charge in the Magistrates Court. The Magistrate was aware that confirmation proceedings were pending. He merely said that in the interests of Mr Rice’s safety and privacy, and with a view to avoiding the duplication of evidence and proceedings, he intended to make a restraining order under s 19A of the Sentencing Act “as part of the penalty”. That itself was a misapprehension, because s 19A specifically provides in subs (2)(b) that an order under that section is not a sentence for the purpose of that Act. He went on to make the order in substantially the same terms as the interim order. It was the Magistrate’s understanding that if he made such an order, the prosecution would withdraw the part-heard restraining order proceedings. I have not been informed whether that has occurred.
…
[43]    When speaking of an order made under s 99 of the Summary Procedures Act, Duggan J in Moore-McQuillan v Police (1997) 192 LSJS 162 said (at 166):
The question for the court is not simply whether the appellant has been involved in certain conduct in the past, but whether, on the material before the court, there is a reasonable apprehension that the defendant, unless restrained, will behave in the manner set out in s99(1) and the making of the order is appropriate in all the circumstances. (cf Brunsgard v Daire (1984) 36 SASR 391 at 395).
[44]    As I myself also said in Moore-McQuillan v Police (1998) 196 LSJS 488 at 498:
In considering whether or not to confirm the restraining order under s99 of the Summary Procedure Act 1921, a magistrate is required to consider if there is ‘a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner’, and a court must be satisfied that the making of the order is appropriate in the circumstances. It is essentially an order preventing the defendant from engaging in future conduct of the prescribed type. It will obviously be relevant to the exercise of the court’s discretion as to whether or not to grant an order, and in what terms, to inquire as to what has been the cause of the allegedly offensive conduct and to make some inquiry as to the likelihood of its recurrence. These are all matters which need to be weighed up by the magistrate. If the offensive conduct is not likely to arise again, or there is no reason for the antagonistic parties to make contact, that will be a relevant but not necessarily decisive factor in determining whether an order should be made.
The observations in those cases are equally applicable to s 19A of the Sentencing Act.
[45]    In some cases, the circumstances of an assault and the relationship of the parties will be sufficient to infer an apprehension of ongoing violence in order to justify the making or confirmation of an order. In this case, the parties were relative strangers, although they had previously encountered each other in the course of legal proceedings. There was no suggestion that the assault would ever be repeated or that any future contact was likely, particularly after some 18 months. Besides, the Magistrate had just offered, by way of a suspended sentence and good behaviour bond, a powerful inducement to be of good behaviour generally, at least for a further period of 18 months.
[46]    In my opinion, the Magistrate failed to address the issues relevant to the making or continuation of a restraining order. There was no justification for making the order in the circumstances as they presented themselves to the Magistrate. Furthermore, there was no justification for doing so without warning to the appellant that the Magistrate was contemplating making the order. If there was no justification for the restraining order, there was likewise no justification for the firearms order. The restraining order and the firearms order are set aside.
Consideration
The Magistrate indicated during the course of a plea hearing, without prior notice to the defendant, that he might impose a final intervention order. The circumstances were that counsel for the appellant and the police prosecutor were both proceeding on the basis that only penalty on the substantive charges was to be determined that day and that the matter of the highly contested police interim intervention order was to be further adjourned. Importantly, as should have been obvious and was expressly confirmed by both parties on the hearing of this appeal, the prosecution accepted that the pleas of guilty to the criminal charges could be disposed of on the basis of the narrow band of facts corresponding to the facts admitted by the appellant; but that the section 23 confirmation hearing, which both parties expected might require the setting of a full contested hearing at a future date, might proceed on the basis of a broader band of allegations not accepted by the appellant and positively contested by him. In all of the circumstances, it was not appropriate for me to be informed as to the nature of those contested allegations.
Further, as appears from the portion of the affidavit of the police prosecutor reproduced above, the PIIO on Magistrates Court file MCPIR-15-1890 was adjourned by the Magistrate for further mention and those PIIO proceedings are in fact still before the court. This would seem to be an outcome quite inconsistent with the Magistrate having properly disposed of the question of whether there should be an order made for a final intervention order arising out of the events of 8 October 2015.

Counsel for the appellant submits under ground 2 of appeal that it is striking that the Magistrate made no reference, expressly or impliedly, to the requirements set out in s 6 of the Intervention Orders Act; or to the factors relevant thereto; or to the Intervention Orders Act at all, or to any relevant authorities. Counsel submits that it is impossible to tell from his Honour’s remarks whether he did conform with the requirements of that Act or whether his Honour considered (erroneously) that he could proceed by reference to s 19A of the Sentencing Act without any need to have regard to the requirements of the Intervention Orders Act.
I conclude that the appellant’s submission concerning ground 2 of appeal must be accepted. The power under s 19A of the Sentencing Act may only be exercised by a judicial officer in circumstances where its precise nature, extent and limitations are properly understood. The lack of reasons given by the Magistrate in this respect frustrates the ability of this appeal Court to properly discharge its function in considering whether the Magistrate approached this matter incorrectly and, as occurred in Moore-Macquillan v Police[11] referred to above, “failed to address the issues relevant to the making or continuation of a restraining order”.[12]
[11] [2001] SASC 95.
[12] There are many authorities in this area, some of which are collected in Papps v Police (2000) 77 SASR 210 and R v Keyte (2000) 78 SASR 68.
But quite apart from the matter of inadequate reasons, I also consider that ground 1(a) of appeal is made out. In my view, there is here an unacceptable risk appearing from the course of the proceedings, and the content and structure of his Honour’s judgment, that his Honour took an incorrect approach to s 19A and failed to have sufficient regard to the requirements of the Intervention Orders Act including: the need for satisfaction of each of the two s 6 requirements; and the need to give the appellant (who was expecting to defend himself at a normal section 23 confirmation hearing at some time in the future) a full opportunity to oppose the making of a final intervention order.
Accordingly, on both bases, the intervention order imposed by his Honour must be quashed.
If, after full consideration, the police wish to contend that a final intervention order should be made in this case, then that matter is to be resolved at a substantive s 23 confirmation hearing to be held in the normal way consequent upon the making of the original police interim intervention order on 8 October 2015.
It is therefore neither necessary nor appropriate for me to resolve the questions posed by s 6 of the Intervention Orders Act as to whether it “is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and whether the issuing of the order is appropriate in the circumstances” particularly having regard to the live possibility that allegations against the appellant may include additional or broader matters than those which were considered on the pleas hearing concerning the criminal charges and on the appeal hearing.
I simply observe that, upon the narrow allegations made and accepted by the parties at that plea hearing taken alone, one might consider it very difficult to establish the s 6 requirement that it is reasonable to suspect that the defendant “would, without intervention, commit an act of abuse against” any of the stated persons.
Further, such a difficulty concerning the first limb of s 6 might be exacerbated if there were to be no suggestion that there was any breach of the police interim intervention order between when it was made on 8 October 2015 and the date of the plea hearing on 19 August 2016; and if compliance had continued up to the date of the hearing of this appeal on 8 December 2016, the total period of compliance would have exceeded 14 months. Such a period would have followed a situation in October 2015 where the sexual relationship between the appellant and one of the protected persons had come to an end, and it might be said in such circumstances that the elapse of such a period without adverse incident further militates against an ability to establish that it was reasonable to suspect that the defendant “would, without intervention, commit an act of abuse against” any of the stated persons.
The question of the appellant’s behaviour since the incident on 8 October 2015 would also be relevant to the second limb of s 6, as to which reference may be made to the observations of Doyle J in Kriticos referred to above.
However, as I say, the above observations are speculative in view of the possibility of the presentation of further allegations at a confirmation hearing if it is deemed necessary to continue with the extant PIIO rather than withdrawing it in the Magistrates Court.
Disposition of the appeal
I make the following orders:
1Insofar as it may be necessary, permission to appeal is granted on grounds 1(a) and 2 of appeal.
2The appeal is allowed.
3The intervention order made by Magistrate Alexandrides on 19 August 2016 is quashed.
4The original police interim intervention order is declared to be continuing in force until either it is withdrawn or a confirmation hearing convened by the Magistrates Court pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 either confirms or dismisses it.
5If police determine that the police interim intervention order is not to be withdrawn, the date of a confirmation hearing, to be presided over by a Magistrate other than Magistrate Alexandrides, is to be fixed by the Magistrates Court as soon as reasonably practicable.