Rana v Police - [2020] SASC 21

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RANA v POLICE
[2020] SASC 21
Judgment of The Honourable Auxiliary Justice David
13 February 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY
The appellant filed an application in the Magistrates Court for revocation of an intervention order that was issued against him in 2008. The appellant did not attend the hearing of the application. The Magistrate summarily dismissed the application pursuant to s 26(4) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
The appellant seeks permission to appeal against the Magistrate’s decision to refuse his application for the revocation of the intervention order. The submissions raised on appeal were three-fold:
1. The Magistrate applied the wrong onus, as the burden of proof applied was proof beyond reasonable doubt rather than proof on the balance of probabilities;
2. There was an apprehension of bias as the matter was decided in his absence; and
3. A psychological report the appellant sought to tender on appeal stated he would benefit from release of the order.
Held; it was open to the Magistrate to dismiss summarily the appellant’s application for the revocation of the intervention order. Permission to appeal is refused.
Summary Procedure Act 1921 (SA) s 99, s 99C; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 26, s 28, s 37, referred to.
Rana v Police [2008] SASC 280, considered.

RANA v POLICE
[2020] SASC 21
Magistrates Appeal: Criminal

DAVID AJ: The appellant appeals against a decision of a Magistrate refusing his application for the revocation of an intervention order which was made against him on 17 January 2008. Both before the Magistrate and on this appeal, he represented himself.
On 17 January 2008, a restraining order was issued against the appellant pursuant to ss 99 and 99C of the Summary Procedure Act 1921 (SA). That order was confirmed on 2 July 2008 and now continues in force pursuant to s 37(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“IO Act”).
The intervention order included allegations that the appellant sent letters to the protected person (a female), presented at the protected person’s door on a number of occasions, caused the protected person to install additional security in her home and other matters, all of which are set out in the decision of Rana v Police.[1]
[1] [2008] SASC 280.
The protected person has always stated that she did not feel safe on a daily basis and felt the appellant was capable of inflicting harm as she did not consider him to be mentally stable.
On 7 January 2019, the appellant filed an application for revocation of the intervention order pursuant to s 26(1) of the IO Act.
The application was listed on 4 February 2019 and after further preliminary dates it was finally listed for 2 September 2019. However, on 29 July 2019 it was administratively adjourned to 27 September 2019. A letter was sent to the appellant on 30 July 2019 advising of the new hearing date and time. The application was heard on that date. The appellant did not attend and the application was dismissed.
The Magistrate had before him an extensive affidavit of 7 January 2019 which contained an extensive narrative of events of the relationship between Mr Rana and the protected person. Included in that affidavit were submissions that he is a changed man. Also included was a psychologist report which the Magistrate found was not helpful and not relevant to the issues that he had to determine.
The Magistrate found the following:
5I note the defendant has had mental health problems of a significant nature in the past. They are outlined in the judgment of Rana v Police [2008] SASC 280. In particular I refer to the Honourable Justice David’s comments and findings concerning the state of health of Mr Rana. I refer to paragraphs 11, 12, and 12. The judgment referred to Ms NG’s position as well. It is quite clear that the Supreme Court thought that the order was more than justified.
6I note that the Applicant is a prolific litigant in the Supreme Court. He has appealed to the Supreme Court on a number of occasions against various persons both natural and corporate. His appeals have been dismissed on every occasion. There is no doubt he litigates when he feels aggrieved. He feels aggrieved by the continuing of this order.
7This application has no merit. The Applicant’s proposed questions do not demonstrate any insight into the issues or the reasons behind the order that is legally binding him. The questions and the affidavit demonstrate an obsessive nature about events in some cases over 20 years ago. Nothing of substance concerning the future is evident.
8The police apply to summarily dismiss the application. The protected person NG has instructed them she wishes the order to remain. I note the Applicant’s mental health issues as described in 2008 and I note the brief report from the psychologist attached to his affidavit. Mental health issues of this type are unfortunately life‑long. There is no reason to believe that, even assuming his state of mental health is good now, it is a guarantee to be good for the remainder of his life.
9There is a power to summarily dismiss an application under the Act. I refer to s.26(4)(a) and s.26(4)(b). On application for revocation of a final intervention order the court may, without receiving submissions or evidence from the protected person, dismiss the application
(a) if satisfied the application is frivolous or vexatious or
(b) if not satisfied there has been a substantial change in the relevant circumstances since the order was issued or last varied.
10I form the belief in this case beyond reasonable doubt that the materials supplied by the Applicant Mr Rana of itself demonstrate that both limbs of this test are applicable to his application.
11I dismiss his application of 7 January 2019.
12There is no order as to costs.
As the Magistrate indicated, there is power to dismiss summarily the application under ss 26(4)(a) and (b) of the IO Act:
(a) if satisfied that the application is frivolous or vexatious; or
(b) if not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied.
Appeal
Mr Rana now complains that the Magistrate has erred in rejecting his application. His arguments are as follows.
The Magistrate applied the wrong test when, in his reasons, the burden of proof which he applied was proof beyond reasonable doubt as distinct from proof on the balance of probabilities as required by s 28 of the IO Act
This matter can be dealt with briefly. Mr Rana is correct and the Magistrate did apply the wrong onus, but that could have only been to the benefit of Mr Rana. By applying the higher onus of proof beyond reasonable doubt clearly the Magistrate was satisfied on the balance of probabilities either that the application was frivolous or vexatious or he was not satisfied that there was a substantial change in the circumstances.
Mr Rana argues there is an apprehension of bias because the matter was decided in his absence
The Magistrate had before him a detailed submission from Mr Rana set out in his affidavit of 7 January 2019. The basis of Mr Rana’s submissions in that affidavit does not go to the question of whether there has been a change in the relevant circumstances. Rather, as the Magistrate found, the submissions demonstrate a preoccupation with past events.
Mr Rana sought to tender on appeal a psychological report from Ms Nicole Gross-Parsons dated 22 August 2019
In that report, the psychologist says, “[i]t is my professional opinion that Mr Rana is a different person now that [sic] in the past and would benefit from release of the order”.
Even allowing for the onus of proof, that conclusion falls far short of there being a change in the relevant circumstances since the order was last issued.
In my view, there is no merit in the appeal and permission is refused.
Conclusion
Permission to appeal is refused.