SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RANA v POLICE
[2008] SASC 280
Judgment of The Honourable Justice David
21 October 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
Appeal against confirmation of restraining order made by magistrate in absence of appellant - whether appellant prejudiced by unsworn and outdated affidavit - whether appellant provided with sufficient particulars - whether particulars provided in affidavit show reasonable apprehension - whether confirmation of restraining order unreasonable or contrary to evidence.
Held: Appeal dismissed - appellant not prejudiced by unsworn and outdated affidavit - appellant provided with sufficient particulars - particulars provided in affidavit show reasonable apprehension - confirmation of restraining order not unreasonable and was supported by evidence.
Summary Procedure Act 1921 (SA) s 99, s 99C, referred to.
Police v Gray (2001) 213 LSJS 540, applied.
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611, considered.
RANA v POLICE
[2008] SASC 280Magistrates Appeal
DAVID J.
Introduction
This is an appeal against the confirmation of a restraining order made by a magistrate, pursuant to ss 99 and 99C of the Summary Procedure Act 1921 (SA) (“the Act”). The order confirmed was as follows:
1.The defendant is restrained from entering or attending any place that [the alleged victim] may be residing from time to time.
2.The defendant is restrained from entering any place of employment at any time or any place where [the alleged victim] may be present.
3.The defendant is restrained from contacting, communicating or approaching directly or through another person with [the alleged victim].
4.That defendant is restrained from following or watching [the alleged victim].
5.That a member of the police force is authorised to enter any premises in which any firearm in your possession is suspected to be and to search for and take possession of any such firearm.
6.That you be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.
7.The defendant is prohibited from possessing a firearm in the course of his/her employment.
8.That any firearm in your possession be confiscated and held by the Registrar of Firearms, to be returned to you if this Restraining Order/Domestic Violence Restraining Order is not confirmed.
9.That any licence or permit to be in possession of a firearm that you currently hold be suspended until the court determines whether to confirm this Restraining Order/Domestic Violence Restraining Order.
The appellant, who was unrepresented on the appeal, argues for various reasons, that the order should be set aside.
History Leading to the Making of the Order
According to the file and the affidavit of Gregory John Hill sworn on 30 July 2008, the police prosecutor who appeared before the magistrate on 2 July 2008, it appears the following events led to the confirmation of the order:
…
a. On 17 January 2008, an application for a Restraining Order, signed by the victim … was filed at the Magistrate…
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- Case
- [2008] SASC 280
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the appellant was prejudiced by the unsworn and outdated affidavit, whether the appellant had been provided with sufficient particulars, whether the particulars in the affidavit showed a reasonable apprehension of violence, and whether the confirmation of the restraining order was unreasonable or contrary to evidence.
The court found that the appellant was not prejudiced by the unsworn and outdated affidavit as the affidavit contained sufficient details to allow the appellant to respond to the allegations. The court further found that the appellant had been provided with sufficient particulars, as the particulars in the affidavit were detailed enough to enable the appellant to respond to the allegations. The court also found that the particulars in the affidavit showed a reasonable apprehension of violence. Finally, the court found that the confirmation of the restraining order was not unreasonable and was supported by evidence. The appeal was dismissed, and the restraining order was upheld.
The court dismissed the appeal and confirmed the restraining order. The court found that the magistrate had acted within their jurisdiction and that the order was supported by evidence. The court did not find any error in the magistrate's decision to confirm the restraining order.
Orders
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Background
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Evidence
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Decision
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