Rana v Police

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of restraining order made by magistrate in absence of appellant - whether appellant prejudiced by unsworn and outdated affidavit - whether appellant provided with sufficient particulars - whether particulars provided in affidavit show reasonable apprehension - whether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Held: Appeal dismissed - appellant not prejudiced by unsworn and outdated affidavit - appellant provided with sufficient particulars - particulars provided in affidavit show reasonable apprehension - confirmation of restraining order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 280

Magistrates Appeal

DAVID J.

Introduction

1. 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.

2. 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

3. 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…