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made by the Magistrate is quashed, and the police interim Intervention Order is to continue in force until either it is withdrawn, or a confirmation hearing pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 either confirms or dismisses it.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

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 MARTIN

Details

AGLC: Police v MARTIN [2016] SASC 194
Case: [2016] SASC 194
Decision Date: 14 December 2016

CaseChat Overview and Summary

The case of Police v Martin was heard by a magistrate and involved an appeal regarding the issuance of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009. The central issue was the interplay between section 19A of the Sentencing Act and the requirements laid down in the Intervention Orders Act. Specifically, the court needed to determine whether the magistrate was required to give reasons when deciding not to issue an intervention order under section 19A of the Sentencing Act, particularly in cases involving sexual offences.

The court was required to decide whether the magistrate’s failure to provide reasons for not issuing an intervention order constituted an error of law. This involved interpreting section 19A of the Sentencing Act and assessing whether it mandates the provision of reasons when an order is not issued. The court also needed to examine whether the magistrate's decision to not issue an intervention order was subject to appeal and whether the appellant was entitled to permission to appeal on the grounds of the magistrate's failure to give reasons.

In its reasoning, the court considered the statutory requirements of section 19A and the procedural obligations under the Intervention Orders Act. The court noted that section 19A(3)(b) mandates that if a court determines not to issue an order, it must give reasons for that determination, and this determination is subject to appeal. The court concluded that the magistrate's failure to provide reasons was indeed an error of law. Despite this, the court granted permission to appeal on the specified grounds, noting that there were ample reasons to do so. The court ultimately decided that the appeal would proceed, recognising the importance of ensuring procedural fairness and adherence to statutory mandates in issuing intervention orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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.