Scott v Commissioner of Police
[2025] SASCA 83
•30 July 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SCOTT v COMMISSIONER OF POLICE
[2025] SASCA 83
Judgment of The Honourable Acting Chief Justice Livesey and the Honourable Justice David (ex tempore)
30 July 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - GENERALLY - STAY OF PROCEEDINGS AND ABUSE OF PROCESS
This is an application for permission to appeal against a decision by a Supreme Court judge (the appeal judge) to refuse permission to appeal from a decision by a magistrate.
The applicant is being prosecuted in the Magistrates Court. A magistrate dismissed the applicant’s application for a permanent stay of proceedings, finding that the matters raised in support of the application comprised issues relevant to the trial and did not amount to an abuse of process.
The applicant then sought permission to appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA). The appeal judge refused permission to appeal. The applicant objects to a number of judges sitting on this matter.
The three questions that arose before this Court were:
1.Has the applicant demonstrated a proper basis for Livesey ACJ and David JA to conclude that they should not sit in this matter;
2.Is the refusal to grant a stay an “interlocutory judgment” within the meaning of ss 3 and 42(1a) of the Magistrates Court Act 1991 (SA), for which permission to appeal is required; and
3.Has the applicant demonstrated that it is in the interests of justice that permission to appeal be granted by this Court?
Held (Livesey ACJ and David JA), refusing the application to disqualify, refusing an extension of time and refusing permission to appeal:
1.The applicant has failed to demonstrate any proper basis upon which Livesey ACJ and David JA should refrain from sitting on this matter.
2.The applicant has failed to demonstrate that it would be in the interests of justice to grant permission to appeal.
3. As permission to appeal should be refused, there is no utility in granting an extension of time.
Criminal Law Consolidation Act 1935 (SA) ss 20ab(1)(B), 20(3), S20AA(3); Joint Criminal Rules 2022 (SA) rr 193.1(3), 196.2; Magistrates Court Act 1991 (SA) ss 3, 42; Summary Offences Act 1953 (SA) s 6(2); Supreme Court Act 1935 (SA) s 50(4)(a)(ii), referred to.
Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69; Fede v Police; Di Fede v Police [2023] SASCA 47; DT v Chief Executive of the Department for Child Protection [2021] SASC 138; DT v Chief Executive of The Department for Child Protection [2022] SASCA 28; Ebner v Official Trustee and Bankruptcy (2000) 205 CLR 337; Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36; Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168; Kharisteas v Kharisteas (2021) 273 CLR 289; Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd & Anor [2017] SASCFC 17; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; McDonald v Attorney-General for the State of South Australia [2023] SASCA 132; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Oatley v Commonwealth Director of Public Prosecutions [2021] SASCA 108; Obeid v The Queen (2016) 90 ALJR 47; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) ALJR 419; Re JRL; ex parte CJL (1986) 161 CLR 342; Rogers v Police [2017] 130 SASR 190; R v Geoffrey (a pseudonym) [2024] SASCA 40; R v Marshall [2023] SASCA 105; R v Rich (Ruling No 21) [2009] VSC 32; Schneider v Curtis [1967] Qd R 300; Sedmak v Police [2008] SASC 307; Scott v Police [2025] SASC 64; Scott v Scott [2022] SASCA 33, considered.
SCOTT v COMMISSIONER OF POLICE
[2025] SASCA 83
Court of Appeal – Criminal: Livesey ACJ and David JA
THE COURT (ex tempore):
Introduction
The applicant is being prosecuted in the Magistrates Court. A magistrate dismissed her application for a permanent stay. A single judge refused her permission to appeal that decision. This appeal is against that decision of the single judge.[1] The applicant again seeks permission to appeal.
[1] The decision of the single judge is Scott v Police [2025] SASC 64 (Gray J) (the appeal judge), concerning the ruling of Mr Semmens SM dated 13 December 2024.
In addition, the applicant has objected to Livesey ACJ and David JA, together with a number of other members of this Court, sitting on this matter.
Accordingly, three questions arise:
1.Has the applicant demonstrated a proper basis for Livesey ACJ and David JA to conclude that they should not sit in this matter;
2.Is the refusal to grant a stay an “interlocutory judgment” within the meaning of ss 3 and 42(1a) of the Magistrates Court Act 1991 (SA) (the Magistrates Court Act), for which permission to appeal is required;
3.Has the applicant demonstrated that it is in the interests of justice that permission to appeal be granted by this Court?
The applicant requires an extension of time. If permission to appeal should not be granted, there will be no utility in granting the extension.[2]
[2] Being and extension of 14 days pursuant to r 193.1(3) of the Joint Criminal Rules 2022 (SA).
The prosecution case
Given the careful and extensive reasons of the appeal judge, a brief overview of the prosecution case is sufficient.
The applicant is charged with the following offences:
·Committing a prohibited act involving human biological material, contrary to s 20AB(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
·Committing aggravated assault, contrary to s 20(3) of the CLCA.
·Committing assault against a prescribed emergency worker, contrary to s 20AA(3) of the CLCA.
·Hindering or resisting police, contrary to s 6(2) of the Summary Offences Act 1953 (SA).
The prosecution case is that on 23 May 2023, arborists attended the home adjacent to the applicant’s home to remove a large tree in the backyard near the boundary fence. It is alleged that the applicant shouted at the arborists and used a hose to spray them with water. The applicant is alleged to have entered the neighbouring property, approached an arborist and spat in his face before hitting him on the face with rolled sheets of paper. Police attended but could not find the applicant.
The applicant is alleged to have returned and again sprayed the arborists with water. Police again attended. They saw the applicant and spoke with her in the driveway of her home. The applicant was agitated and argumentative. She was told that she was under arrest and, when police attempted to handcuff the applicant, she resisted. It is alleged that the applicant stomped on the right foot of one of the police officers.
The applicant was taken to the Port Adelaide police station and refused police bail. The following day she was released on bail by a magistrate. Her bail agreement conditions prevented her from going to the neighbouring home or approaching or communicating with any arborist there.
The arborists reattended on 25 May 2023. It is alleged that the applicant again approached them and took photographs in contravention of her bail agreement. Police again attended. The applicant refused to comply with their requests. Police entered the applicant’s home and again arrested her. It is alleged that she again resisted police.
The applicant was granted police bail pursuant to an agreement with conditions which prevented her from entering her own backyard whilst any arborist was present in the neighbouring property. She was also prohibited from coming within 15 metres of any tree whilst it was being worked on by an arborist. It is alleged that on 30 May 2023 the applicant breached these conditions as well.
The decision of the magistrate
In the Magistrate’s Court, the applicant sought a permanent stay of proceedings, contending that the prosecution was an abuse of process.
The magistrate refused to order a permanent stay, finding that the matters raised in support of the application comprised issues relevant to the trial and did not amount to an abuse of process.
The decision of the appeal judge
The applicant sought permission to appeal pursuant to s 42 of the Magistrates Court Act:
42—Appeals
(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).
(1a) An appeal does not, however, lie against an interlocutory judgment unless—
(a) the judgment stays the proceedings; or
(b) the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c) the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
As can be seen, the right to appeal depends upon the identification of a “judgment given in the action”. By s 3 of the Magistrates Court Act, the term “judgment” is defined to mean “a judgment, order or decision and includes an interlocutory judgment”.
In the case of an interlocutory judgment, there are constraints on the right to appeal. In particular, in this case it was necessary for the applicant to satisfy the appeal judge that there were “special reasons why it would be in the interests of the administration of justice” to allow the appeal to be determined before the trial and, in addition, it was necessary for the applicant to obtain permission to appeal.[3]
[3] Magistrates Court Act 1991 (SA), s 42(1a)(c).
In the course of detailed reasons, the appeal judge found that there were no “special reasons”, and she refused permission to appeal.[4]
[4] Scott v Police [2025] SASC 64.
The Disqualification Application
The applicant objects to a number of judges sitting on this matter.[5]
[5] Apart from Livesey ACJ and David JA, the applicant objects to Kourakis CJ, Doyle and Stanley JJA sitting as well.
In the case of Livesey ACJ, the applicant complains that he previously made a decision which was adverse to the applicant and, before his appointment, he had been briefed as counsel by the Independent Commissioner Against Corruption (SA), by the Office for Public Integrity (SA), and by the Crown Solicitor (SA) at a time when the applicant had filed complaints against each of these bodies.
In the case of David JA, it is a little harder to determine the basis upon which the objection is made. Presumably, the application is also based on her Honour having previously made a decision adverse to the applicant, because both Livesey ACJ and David JA sat with Doyle JA in the matter of Scott v Scott, decided in 2022.[6]
[6] Scott v Scott [2022] SASCA 33 (Livesey P, Doyle and David JJA), an ex tempore decision made on 7 April 2022 concerning the making of provision out of the estate of the applicant’s deceased mother in favour of her disabled siblings, as well as other issues. The applicant’s appeal was dismissed.
An apprehension of ostensible bias will arise where the “fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.[7] It is necessary for an applicant seeking disqualification to:[8]
(1)Identify the factor that might lead the judge to resolve the question arising for decision other than on its legal and factual merits;
(2)Articulate the logical connection between that factor and the apprehended deviation from deciding the question on its merits; and
(3)Assess the reasonableness of that apprehension from the perspective of a fair‑minded lay observer.
[7] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) ALJR 419 (QYFM v Minister), [37] (Kiefel CJ and Gageler J), citing Kharisteas v Kharisteas (2021) 273 CLR 289, [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
[8] QYFM v Minister, [38] (Kiefel CJ and Gageler J) citing Ebner v Official Trustee and Bankruptcy (2000) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
It is the duty of any judge presiding over the cases allocated to that judge to hear those cases and to not too readily accede to applications to disqualify on the grounds of apprehended bias.[9]
[9] Re JRL; ex parte CJL (1986) 161 CLR 342, 352 (Mason J), cited with approval in QYFM v Minister, [277]-[278] (Jagot J).
In addition, it is necessary for an applicant to do more than simply point to an earlier adverse decision, especially where that decision does not involve the same parties or the same issues. In the circumstances of this case, the fact that Livesey ACJ and David JA were previously members of a Court which decided an appeal adversely to the appellant on issues disconnected with the issues arising in this case does not, without more, demonstrate ostensible bias.
As for the retainers to which the applicant has pointed regarding the role of Livesey ACJ when a barrister:[10]
[T]he fair-minded lay observer may be taken to know that barristers will advise and represent a number of clients and call a number of witnesses on instructions from solicitors in the course of practice. There is no reason to think that, in the event of appointment as a judge, that former association, without more, gives rise to the requisite apprehension.
[10] Contract Mining Services Pty Ltd v Adelaide Brighton Cement Ltd [2020] SASC 69, [66] (Livesey J).
Whilst it may be relevant to consider other factors concerning prior retainers or the association of a judge, such as the nature, duration, intensity and proximity of that association between the judge and a party,[11] the mere fact that Livesey ACJ was formerly retained by various parties at a time when the applicant had made complaints against them does not, without more, give rise to the requisite apprehension. In particular, there is no suggestion that he represented those clients or advised them concerning the applicant’s complaints, still less that he knew of the applicant before his appointment.[12]
[11] QYFM v Minister, [256] (Gleeson J).
[12] Livesey ACJ made disclosures to this effect during the course of the argument in this matter.
In all of these circumstances, the applicant has failed to demonstrate any proper basis upon which Livesey ACJ and David JA should refrain from sitting on this matter. The application to disqualify should be dismissed.
Whether the refusal to order a stay comprises an interlocutory judgment
Whilst it may be accepted that whether a decision comprises an “interlocutory judgment” may depend upon the circumstances of the matter, viewed in its statutory context,[13] in Sedmak v Police Doyle CJ held that an order refusing a permanent stay of proceedings in the Magistrates Court was an interlocutory judgment:[14]
However, I consider that the decision is an interlocutory judgment. The order refusing a stay has no final effect in relation to the issues between the parties. The application for a stay can be renewed, in particular at the close of the prosecution case or at the close of the defence case. While it might not be right to call the decision a mere procedural decision, it is certainly not a final order or decision.
It follows that an appeal lies only if I am satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined at this stage, the trial not having begun.
[13] Rogers v Police [2017] 130 SASR 190, [49] (Peek J); R v Marshall [2023] SASCA 105 (Livesey P, David JA and Kimber AJA); R v Geoffrey (a pseudonym) [2024] SASCA 40 (Livesey P, Bleby and David JJA).
[14] Sedmak v Police [2008] SASC 307, [19]-[20] (Doyle CJ).
There is no reason to question this ruling. Accordingly, the magistrate’s decision was an “interlocutory judgment” as defined and the appeal judge could not entertain the appeal unless she found that there were “special reasons” and, in addition, she granted permission to appeal. The appeal judge found that there were no special reasons and, in any event, she refused permission to appeal.
Should permission to appeal be granted by this Court?
The appeal to this Court is only by permission pursuant to s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA). See also r 196.2 of the Joint Criminal Rules 2022 (SA).
This is the applicant’s second opportunity to pursue an appeal. Whether permission to pursue a second appeal should be granted ultimately depends upon the interests of justice. That will often turn on whether the judgment for which permission to appeal is sought (here, the judgment of the appeal judge) is plainly wrong or unjust.[15] Usually an applicant must demonstrate that the proposed appeal raises a point of law or principle of general importance or, exceptionally, that there has been a miscarriage of justice.[16]
[15] Oatley v Commonwealth Director of Public Prosecutions [2021] SASCA 108, [39] (Livesey P, Lovell JA and Stanley AJA).
[16] Oatley v Commonwealth Director of Public Prosecutions [2021] SASCA 108, [40] (Livesey P, Lovell JA and Stanley AJA).
It is necessary for the question of permission to be determined recognising two matters: first, that this is a second attempt to appeal and, second, that there is a particular reluctance to entertain second appeals against interlocutory judgments:[17]
There is a particular reluctance to entertain second appeals against interlocutory rulings.[18] Special reasons were not demonstrated and no real attempt has been made to show otherwise. As the proposed appeals appear to be without merit, and as the question of disclosure can theoretically be reagitated at or following the trial in June 2023, it is not in the interests of justice to grant permission to appeal to this Court.
[17] Di Fede v Police; Di Fede v Police [2023] SASCA 47, [37] (Livesey P and David JA).
[18] See, for example, DT v Chief Executive of The Department for Child Protection [2022] SASCA 28, [7]-[8] (Livesey P, Doyle and David JJA); as well as Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36, [16] (Livesey P and Lovell JA); McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21]-[22] (Livesey P and Bleby JA), citing Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168, [14] (Bleby J).
The applicant’s proposed four grounds of appeal are as follows:
Ground 1: The application of appeal is of the refusal of permanent stay of proceedings as abuse of process by police of denial of the appellant's human, civil and property rights and the failure of protection of the integrity of the justice system; Ridgeway v. The Queen (1995) 129 ALR 41, Nicholas v The Queen [1998] HCA 9N ; United Nations Office on Drugs and Crime (UNODC) implementation United Nations Convention Against Corruption (UNCAC), Article 11, of central role of judiciary and prosecution services in preventing corruption and abuse of power.
The judgment of Justice Gray [2025] SASC 64, failed to give proper, genuine and realistic consideration to the merits of the case. The judgment as constructive failure to exercise jurisdiction, as error of law, as jurisdictional error and as constructive failure to protect the integrity of the justice system, Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 ; Craig v South Australia - [1995] HCA 58 - 184 CLR 163; Resource Pacific v Wilkinson [2013] NSWCA 33 .
Ground 2 : Justice Gray erred as legally irrational, as to perversely dismiss the application as bad faith without due process (EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681)
Ground 3. Justice Gray erred as legally unreasonable as lacking an evident and intelligible justification of dismissal of application; Minister for Immigration and Citizenship v Li [2013] HCA 18; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 61; as of principles of judicial discretion, " according to the rules of reason and justice, and not arbitrarily or capriciously or according to private opinion House v The King - [1936] HCA 40 - 55 CLR 499
Ground 4 : Justice Gray demonstrated actual bias in judgment to dismiss application. Callinan J, Johnson v Johnson [2000] HCA 48 , that some claims of apprehended bias ‘may be no more than a polite fiction for no doubt unintended, unconscious and ultimately unprovable, but nonetheless actual bias’; to assert that the decision-maker was ‘so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented’.
It is not necessary to set out all of the submissions which follow these appeal grounds, nor the submissions which have been made by the applicant in response to the respondent’s written submissions or those made today.
There is no merit in any of these proposed grounds of appeal. The appeal judge gave proper consideration to the merits of the case, she did not err in a legally irrational manner, and her decision is not legally unreasonable. Indeed, it is fair to point out that most of the propositions on which the applicant relies are either irrelevant or they ignore the reasons given and the decision in fact made by the appeal judge.
Insofar as the allegation of actual bias is made against the appeal judge, there is simply no basis offered by the applicant for that serious allegation:[19]
An allegation of actual bias should not be lightly made and there is a high bar in making good such an allegation.[20] Any allegation must be distinctly made and clearly proved.[21] Bias cannot be inferred simply from a previous adverse finding against a party.[22]
To establish actual bias, it is necessary to establish that the judicial officer is so committed to a particular outcome that it will not be altered regardless of the evidence or submissions presented.[23]
[19] McDonald v Attorney-General for the State of South Australia [2023] SASCA 132, [29]-[30] (Livesey P and Doyle JA).
[20] DT v Chief Executive of the Department for Child Protection [2021] SASC 138, [38] (Parker J).
[21] R v Rich (Ruling No 21) [2009] VSC 32, [7] (Lasry J).
[22] Kowalski v Mitsubishi Motors Australia Staff Superannuation Pty Ltd & Anor [2017] SASCFC 17, [13] (Nicholson J).
[23] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, [69] (Gleeson CJ and Gummow J), [127] (Kirby J).
Standing back, we agree with the proposition that the applicant has failed to demonstrate the existence of “special reasons”.[24] Indeed, there is much to be said for the conclusion of the magistrate that many of the matters about which the applicant complains are likely issues for determination at the trial. It is better that the evidence be heard, and the facts found, at a criminal trial without unduly fragmenting the criminal prosecution against the applicant.[25] The appeal judge did not overlook or misapprehend these matters.
[24] See, for example, the discussion of these issues in Di Fede v Police [2023] SASCA 37, [15]-[18] (Livesey P and David JA) referring, amongst others, to Sedmak v Police [2008] SASC 307, [19]-[22] (Doyle CJ).
[25] See the discussion in Rogers v Police (2017) 130 SASR 190, [49]-[50] (Peek J), citing Schneider v Curtis [1967] Qd R 300, 306 (Gibbs J, with whom Wanstall and Douglas JJ agreed) and Obeid v The Queen (2016) 90 ALJR 47, [15]-[16] (Gageler J). See also the reference to the Second Reading Speech at [51] (Peek J).
The applicant has, in these circumstances, failed to demonstrate that it would be in the interests of justice to grant permission to appeal the decision made by the appeal judge.
Conclusion
As permission to appeal should be refused, there is no utility in granting an extension of time.
The applications to disqualify, for an extension and for permission to appeal should each be dismissed.
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