Rana v Police

[2009] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Civil)

RANA v POLICE

[2009] SASC 161

Judgment of The Honourable Justice Gray

9 June 2009

PROCEDURE - INFERIOR COURTS - SOUTH AUSTRALIA - MAGISTRATES COURT

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION

Appeal against an order of Magistrate refusing permission to the appellant to apply for revocation of a restraining order - consideration of section 99F of Summary Procedure Act 1921 (SA) - whether Magistrate erred in finding no substantial change in relevant circumstances.

Held: appeal dismissed - Magistrate correct to conclude that no substantial change in relevant circumstances had been established.

Summary Procedure Act 1921 (SA) s 99, s 99C and s 99F, referred to.
Rana v Police [2008] SASC 280; Rana v Police [2008] SASC 347, considered.

RANA v POLICE
[2009] SASC 161

Magistrates Appeal

GRAY J:

1. This is an appeal against an order of a Magistrate refusing the appellant, Ranjit Shamsher Jung Bahadur Rana, permission to apply for revocation of a restraining order.

2. On 17 January 2008 an application was made pursuant to section 99 of the Summary Procedure Act 1921 (SA) for a restraining order on behalf of Ms G.  The Court made an ex parte restraining order and issued a summons requiring Mr Rana to attend Court on 24 January 2008.

3. On 20 January 2008, Mr Rana was served with a copy of the restraining order and summons.  Attached were two pages of instructions with respect to Mr Rana’s rights and obligations.  Thereafter, following several interlocutory hearings at which Mr Rana appeared, the matter was listed for hearing on 2 July 2008. 

4. Mr Rana did not appear on the day of trial.  The matter was adjourned on two occasions during the morning.  On the last of those occasions, at the direction of the Magistrate, enquiries were made of the Sheriff’s Officer and the Court Registry as to whether Mr Rana had made any contact.  The Magistrate was informed that Mr Rana had not done so.  The Magistrate noted that Ms G had made special arrangements to be present at Court on that day, and then pursuant to his powers under section 99C of the Summary Procedure Act confirmed the restraining order.

5. Mr Rana appealed to this Court against the confirmation order.  A learned Judge, in dismissing the appeal, summarised the evidence before the Magistrate:[1]

   [1]    Rana v Police [2008] SASC 280 at [7] – [9] (David J).

   Both affidavits [of Ms G] contain allegations that the appellant:

   -met the alleged victim in 1989 when both were students at the Kensington Adult Matriculation College;

   -followed her to the gym, became a member and showed up in the pool when she was there in 1989;

   -sent the alleged victim letters with critical religious content in 1991 and 1992 when she resided in Melbourne;

   -presented at the alleged victim’s door on a number of occasions after she moved back to Adelaide in 1993;

   -continued to harass the alleged victim in 1996 and 1997, despite her reporting his behaviour to police on:

   ·20 April 1996 (Police Incident Report 96/K6906 – when he was formally interviewed and cautioned regarding two counts of stalking);

   ·22 November 1996 (Police Incident Report 97/L32200 – regarding five counts of stalking); and

   ·26 January 1997 after he was arrested and bailed (Apprehension Report 97/C63277 – regarding a charge of stalking – which was dismissed for want of prosecution on 30 May 1997);

   -would often approach the alleged victim in an offensive manner and harass her when she was studying at the State Library in Adelaide in 1997;

   -approached the alleged victim’s friends at the Saint Xavier Catholic Cathedral in 1997 to obtain information about her;

   -sent the alleged victim letters between 1997 and 2001 when the alleged victim was a student at the Adelaide University;

   -sent emails in the name of the alleged victim to contacts in her email account when she was a student at the University of South Australia in 2001;

   -caused the alleged victim to install additional security, including security doors and alarms at her home in 2003;

   -sent the alleged victim offensive emails when she was a student at the University of Adelaide in 2005;

   -sent the alleged victim a copy of a confidential “deed of settlement” in relation to court proceedings he had instituted in 2006; and

   -sent the alleged victim a letter containing a copy of an internet clipping in which she featured, together with a photograph of the appellant and his original diary in October 2006.

   [Ms G’s] second affidavit sworn on 16 January 2008 contains further allegations that, in the intervening period, the appellant:

   -hand-delivered a letter to the alleged victim’s mailbox in 2007;

   -sent another letter to the alleged victim in 2007 regarding her allegations of stalking, as well as other allegations against the appellant;

   -sent letters to the alleged victim’s mother in November and December 2007 regarding her daughter’s allegations against the appellant in 2006;

   -sent an email on 21 December 2007 threatening to rape the alleged victim; and

   -sent a letter to the alleged victim on 11 January 2008 regarding her attendance at the Elizabeth Police Station in October 2006 and allegations the alleged victim had made against him;

   [footnotes omitted]

6. The Judge rejected complaints from Mr Rana that he had been prejudiced by receiving an unsworn copy of Ms G’s first affidavit material, and inadequate particulars.  The Judge considered that Mr Rana had notice of the case put against him, and the substance of the evidence said to support that case.  The Judge rejected a submission that there was insufficient evidence to support the Magistrate’s conclusion that the reasonable apprehension existed on the part of Ms G to justify the confirmation of the restraining order.  Finally, the Judge dismissed Mr Rana’s complaint that the decision was manifestly unreasonable.  The Judge concluded:[2]

   The decision of the magistrate to confirm the restraining order was supported by the evidence. The alleged victim’s affidavits supported the orders and she was present to be cross‑examined. Much of the appellant’s affidavit material before the magistrate was irrelevant. The appellant chose not to appear to either challenge the alleged victim’s evidence or to produce evidence showing cause as to why the order should not have been confirmed.

   [2]    Rana v Police [2008] SASC 280 at [28] (David J).

7. Mr Rana sought permission to appeal to the Full Court.  On 12 December 2008 the Full Court refused permission:[3]

   Mr Rana’s Notice of Appeal, and his written submissions, indicate that if permission to appeal is granted, Mr Rana wishes to reargue the points that were argued before the single Judge.  Mr Rana challenges the admissibility of the material upon which the Magistrate relied, the adequacy of the material provided to Mr Rana, and the sufficiency of that material as a basis for the making of the confirmation order.

   The proposed appeal raises no issue of legal principle.  If permission is granted the appeal would involve a re-argument of matters already argued before the single Judge and decided by him.  The written material submitted by Mr Rana does not give rise to any reason to doubt the correctness of the decision of the single Judge in dismissing Mr Rana’s appeal.

   The Court will not ordinarily grant permission to appeal to the Full Court unless the case raises some issue of legal principle, and unless the appeal has an arguable prospect of success.  Neither of these conditions are satisfied in the present case.  Nor is there anything arising from Mr Rana’s material that would lead to the conclusion that the interests of justice call for a grant of permission to appeal.

   [3]    Rana v Police [2008] SASC 347 at [9] – [11] (Doyle CJ, Bleby and Kelly JJ).

8. On 22 December 2008 Mr Rana sought permission to apply to revoke the restraining order.  The application was made on the basis that “The defendant is seeking job overseas and does not wish to have anything to do with Ms [G]”. 

9. The Summary Procedure Act governs the variation or revocation of a restraining order where the court is satisfied there has been a substantial change in circumstances.  Section 99F relevantly provides:

   (1)     The Court may vary or revoke a restraining order on application—

   (a) by a member of the police force; or

   (b) by the person for whose benefit the order was made; or

   (c) by the defendant.

   (1a)An application for variation or revocation of a restraining order may only be made by the defendant with the permission of the Court and permission is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.

   …

10. On the hearing of the application for permission the Magistrate was not satisfied that there had been a substantial change of relevant circumstances since the making of the confirmation order.  The Magistrate considered that Ms G, who still resided in South Australia, required the continuing protection of the restraining order.  This led the Magistrate to refuse Mr Rana permission to apply for revocation of the restraining order.  In the course of his reasons, the Magistrate observed:

    In his application before this court now, Mr Rana has set out grounds seeking leave to revoke the restraining order, in a document of some 20 pages dated 22 December 2008. He has stated the grounds for seeking leave to revoke the restraining order as firstly, the inability of the appellant to attend the confirmation hearing; secondly, the fact that at the confirmation hearing he was not given the sworn affidavit of the complainant to take legal advice; thirdly, that at confirmation hearing the applicant could not get a fair hearing as the evidence of police was fabricated and the narrative of the complainant was based on her psychosis called schizo-affective disorder; fourthly, “as of current the situation of the applicant has changed and will no longer have desire to make contact with the complainant”.

    Points 1, 2 and 3 can be disposed of very quickly. They are matters which were considered by the judge on appeal in the Supreme Court, raised again before the Full Court, as inappropriate and without merit to advance matters which have already been considered by the superior courts on appeal. As to condition 4, Mr Rana argues that his circumstances have changed because he is a university student at the University of Deakin at Geelong. In response to questions from me he has said that he attends there some of the time and some of the time his studies are done as an external student from Adelaide. He has also said that the order should be revoked because it interferes with his desire to join the Defence Forces or alternatively to seek employment overseas. There is no evidence before the court that Mr Rana has applied for those jobs or has been refused such jobs because of the existence of the restraining order.

    In his own submissions this morning it has become clear that he is still residing in South Australia. He has further advanced the argument that there should not be a continuing order because he does not have any wish to associate with [Ms G] and he points out that he has not breached the order. My reaction to the last of these matters is that they perhaps indicate that the order is doing its job in keeping the parties apart and allowing Ms [G] the victim to live a peaceful life.

    Mr Rana was a university student when this whole saga began; he still is. His complaint as to effects upon employment appears to be unsubstantiated. My conclusion is that there is no substantial change of relevant circumstances since the order was made. Ms [G] resides in South Australia still and she requires the protection of the order. I refuse leave for the respondent Mr Rana to apply for revocation of the restraining order.

11. On 9 February 2009, Mr Rana instituted the within appeal.[4]  He filed lengthy written submissions.  In the course of oral submission, Mr Rana accepted that in substance he was seeking to argue that the confirmation order should not have been made.  Mr Rana confirmed that he wished to re-agitate the same complaints that were the subject of both his earlier appeal to a Judge of this Court, and of his application to the Full Court.  In both his written submission and his supplementary oral submission, Mr Rana did little more than reiterate the substance of his earlier submissions.

    [4]    During the appeal, there was debate as to the true character of the Magistrate’s order – whether it was final or interlocutory.  Notwithstanding this debate, I have considered the matter on the merits.  Should permission to appeal to this Court be required, I would refuse permission.

12. There was nothing before the Magistrate to suggest that there had been a substantial change of circumstance, and, in particular, such a change of circumstance so as to render Ms G without the need for the protection of a restraining order.

13. The material referred to on the appeal included a considerable body of medical evidence confirming that Mr Rana has, and continues to suffer, from a mental illness.  A psychiatrist, Dr Goldney expressed the view that Mr Rana was suffering from paranoid schizophrenia.  There is nothing advanced by Mr Rana on the appeal that gives any reason to doubt the correctness of the Magistrate’s order.

    Conclusion

14. The appeal is dismissed.