Scott v Police

Case [2025] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

SCOTT v POLICE

[2025] SASC 64

Judgment of the Honourable Justice Gray (ex tempore)

30 April 2025

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - GENERALLY - STAY OF PROCEEDINGS AND ABUSE OF PROCESS

CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS

The applicant seeks to appeal a ruling by which the Magistrate refused a permanent stay of proceedings.  As the refusal of a permanent stay of proceeding is an interlocutory decision, permission to appeal is required.

The proceedings in the Magistrates Court concern the prosecution of the applicant in respect of several offences which arose following a disagreement between the applicant and arborists who sought to remove a boundary oak tree.

The notice to appeal asserts that a permanent stay should have been granted on the grounds of an abuse of process.  It was said that the applicant’s arrest was unlawful, for a wrongful purpose and an abuse of process.

Held at [44]-[46], [58]-[60], [69]-[71] refusing permission to appeal in respect of all grounds and dismissing the appeal; the applicant has identified no unfairness, injustice, prejudice, oppression or procedural unfairness that would amount to an abuse of process or justify the grant of a permanent stay of proceedings.

Bail Act 1985 (SA) s 17; Criminal Law Consolidation Act 1935 (SA) s 20, s 20AA, s 20AB; Magistrates Court Act 1991 (SA) s 42; Public Sector (Data Sharing) Act 2016 (SA); Summary Offences Act 1953 (SA) s 6, referred to.

Sedmak v Police [2008] SASC 307, applied.

Di Fede v Police; Di Fede v Police [2023] SASC 30; Van Reesema v Police (2009) SASC 8; Shahin v El-Shafei (2018) 132 SASR 126; De Jong v Police (2010) 201 A Crim R 227; Gray v Police 85 SASR 1; DPP v George (2008) 102 SASR 246, 265; R v B, P [2016] SASCFC 30; Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23; Rogers v The Queen (1994) 181 CLR 251; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; Dupas v The Queen (2010) 241 CLR 237; R v Koolamatrie & others (1989) 52 SASR 482; Wondimu v Police [2019] SASC 62; R v Perre [2019] SASCFC 100, considered.

SCOTT v POLICE
[2025] SASC 64

Magistrates Appeal:   Criminal

  1. GRAY J (ex tempore): The applicant appeals a ruling by which the Magistrate refused a permanent stay of proceedings.  As the refusal of a permanent stay of proceedings is an interlocutory decision, permission to appeal is required.[1]

    [1]     Magistrates Court Act 1991 (SA) (Magistrates Court Act) s 42(1a).

  2. The proceedings in the Magistrates Court concern the prosecution of the applicant in respect of several offences with which the applicant was charged in May 2023.  The circumstances giving rise to the offending concerned a…

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AGLC
Scott v Police [2025] SASC 64
Case
[2025] SASC 64
Decision Date

CaseChat Overview and Summary

The applicant in this matter appeals against the decision of the Magistrates Court to refuse to stay the proceedings against them on the basis of an alleged abuse of process. The applicant is charged with a number of offences across three files in the Magistrates Court, including prohibited act with human biological material, aggravated assault, assault on a prescribed emergency worker, and hinder or resist police. The applicant has indicated an intention to plead not guilty to all charges, and a trial date has not been fixed. The factual background is largely based on allegations, including the applicant yelling at arborists, spraying them with a hose, spitting on an arborist, striking an arborist with rolled-up paperwork, and resisting arrest by police. The applicant seeks to appeal the Magistrates Court decision to refuse to stay the proceedings on the basis of an alleged abuse of process.

The legal issues the court was required to decide were whether permission to appeal should be granted and, if so, whether the appeal should be upheld on the basis that the Magistrates Court erred in refusing to stay the proceedings on the basis of an alleged abuse of process. The court found that the applicant had not established that there were arguable grounds of appeal in relation to the decision of the Magistrates Court to refuse to stay the proceedings. The court noted that the applicant had failed to demonstrate that the Magistrates Court had made an error in law or had acted beyond its jurisdiction in refusing to stay the proceedings. The court also found that the applicant had not demonstrated that the decision of the Magistrates Court was so plainly wrong as to justify interference by the Supreme Court. The court therefore refused permission to appeal and dismissed the appeal.

The court's reasoning and outcome were based on the applicant's failure to establish arguable grounds of appeal. The court found that the applicant had not demonstrated that the Magistrates Court had made an error in law or had acted beyond its jurisdiction in refusing to stay the proceedings. The court also found that the applicant had not demonstrated that the decision of the Magistrates Court was so plainly wrong as to justify interference by the Supreme Court. The court therefore refused permission to appeal and dismissed the appeal. The court found that the applicant had not established that there were arguable grounds of appeal in relation to the decision of the Magistrates Court to refuse to stay the proceedings. The court noted that the applicant had failed to demonstrate that the Magistrates Court had made an error in law or had acted beyond its jurisdiction in refusing to stay the proceedings. The court also found that the applicant had not demonstrated that the decision of the Magistrates Court was so plainly wrong as to justify interference by the Supreme Court. The court therefore refused permission to appeal and dismissed the appeal.

Orders

Orders of the court

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Background

Background to the litigation

It is convenient to address both the question of the grant of permission to appeal at the same time as addressing the grounds of appeal.Background The applicant is charged with a number of offences across three files in the Magistrates Court. These may be summarised as follows:MCCRM-23-019311[7] [7] Exhibit R1 at 25–27. Information Rev. 1 (MCCRM-23-019311).1.Prohibited act with human biological material, contrary to s 20AB(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’).2.Aggravated assault, contrary to s 20(3) of the CLCA. 3.Assault prescribed emergency worker, contrary to s 20AA(3) of the CLCA.4.Hinder or resist police, contrary to s 6(2) of the Summary Offences Act 1953 (SA) (‘SOA’).MCCRM-23-023269[8] 1.Fail to comply with a bail agreement, contrary to s 17(1) of the Bail Act 1984 (SA) (‘BA’).2.Hinder or resist police, contrary to s 6(2) SOA.3.Hinder or resist police, contrary to s 6(2) SOA.MCCRM-23-022108[9]1.Fail to comply with a bail agreement, contrary to s 17(1) BA.2.Fail to comply with a bail agreement, contrary to s 17(1) BA.[8] Exhibit R1 at 28–30. Information Rev. 1 (MCCRM-23-023269).[9] Exhibit R1 at 31–33. Information Rev. 1 (MCCRM-23-022108). It is not in dispute that the applicant has indicated an intention to plead not guilty to all the charges. A trial date has not been fixed in the Magistrates Court. The following factual background is based upon the materials filed in the Magistrates Court. It is important to note that these background matters largely constitute allegations which have not been tested through a trial process. The alleged offending is said to have commenced on 23 May 2023, at about 7:00 am in the morning when arborists arrived at the property adjacent to the applicant’s property in Woodville. The arborists attended the adjacent property to remove a large oak tree.[10] At about 8:30 am, the applicant started yelling at the arborist and his colleagues about the tree. She is also said to have started spraying them with water from a hose. The applicant then approached the arborist, stood in front of his face and waved paperwork towards him. The arborist informed the applicant that she was spitting on him. The applicant is alleged to have continued to speak whilst purposely spitting in the face of the arborist.[11] The applicant is then said to have struck the arborist on the left side of his face with some rolled-up paperwork. Following this the arborist walked away. [12][10] Exhibit R1 at 34-36. Affidavit of Alister Wenham dated 23 May 2023.[11] Ibid.[12] Ibid. At about 9:00 am on the same day, police attended the applicant’s property. They entered the applicant’s yard at Woodville, however the applicant failed to answer the knocks of police on her door.[13] Immediately after the police left at around 9:20 am, the applicant started spraying the arborist’s colleagues with the hose again.[14] This resulted in police re-attending at about 10:05 am. Police allege they saw the applicant in her backyard and asked her to come to her door to speak with police. The applicant met police in her driveway and was described as being argumentative and belligerent and not willing to engage in conversation.[15] Police then arrested the applicant. During the arrest the applicant is said to have purposefully stomped on the right foot of Sergeant Colclasure. The applicant is said to have resisted arrest by repeatedly twisting her wrists and body away from police and stiffening her body.[16] [13] Exhibit R1 at 43-48. Affidavit of Estelle Helena March dated 15 November 2023. Exhibit R1 at 49–54. Affidavit of Melissa Morgan dated 10 November 2023. [14] Exhibit R1 at 34-36. Affidavit of Alister Wenham dated 23 May 2023.[15] Exhibit R1 at 43-48. Affidavit of Estelle Helena March dated 15 November 2023. Exhibit R1 at 49–54. Affidavit of Melissa Morgan dated 10 November 2023. Exhibit R1 at 55–58. Affidavit of Thomas Colclasure dated 23 May 2023.[16] Ibid.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
I would not grant permission to appeal in respect of this ground and I would, in any event, dismiss Ground 3 of the appeal.Conclusion I would refuse permission to appeal and I would dismiss the appeal. Even if I was inclined to grant permission to appeal I would, having considered each of the grounds, dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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