Scott v Police - [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

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).
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 dispute in relation to a tree, which the applicant describes as an enormous 100-year-old oak tree. Arborists attended the boundary of the applicant’s property to remove the tree in May 2023.[2] The interactions between the applicant and the arborists gave rise to the subsequent involvement of police.
[2] The applicant submitted that she was the registered proprietor of seven eighths of the property with her brother being the owner of the other one eighth share.
The notice of appeal and the appeal grounds assert that a permanent stay should have been granted on the grounds of abuse of process.[3] It is said that the applicant’s arrest was unlawful, for wrongful purpose and an abuse of process. There are three grounds of appeal which are addressed below.
[3] See FDN 1 and FDN 2.
The permanent stay of proceedings was sought on 23 July 2024. On 13 December 2024, the learned Magistrate dismissed the application for a stay on the basis it had no merit.[4] The ruling also dealt with other applications filed by the applicant.
[4] Respondent’s Appeal Book (FDN 10) being Exhibit R1 at 21. Ruling of learned Magistrate Semmens dated 13 December 2024.
The respondent submits that the questions to be determined on the appeal are:[5]
-Firstly, has the applicant demonstrated there are special reasons justifying a grant of permission to appeal; and
-Secondly, did the learned Magistrate err in determining there was no basis for a permanent stay of proceedings?
[5] Respondent’s Submissions (FDN 6) at [7].
The respondent submits there are no special reasons that justify a grant of permission to appeal and therefore permission should be refused and the appeal dismissed. The respondent submits that the learned Magistrate was correct to dismiss the application for a permanent stay of proceedings. Further, the respondent submits that each ground of appeal complains of matters that can either be reagitated prior to trial or properly dealt with by the trial Magistrate without any unfairness or prejudice caused to the applicant.[6]
[6] Ibid at [9].
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.
The following day on 24 May 2023, the applicant appeared in the Magistrates Court and was granted bail by the learned Magistrate with conditions not to appear at the premises adjacent to her property, nor to approach or communicate directly or indirectly with any arborist present at the adjoining property and various other conditions.[17]
[17] Exhibit R1 at 70-72. Record of Outcome dated 24 May 2023 (MCCRM-23-019311, FDN 4).
It is alleged that on the day immediately following the grant of bail, the arborist and his colleagues were at the property adjacent to the applicant. At around midday on that day, the applicant stood under the tree on her side of the fence hindering the arborist and his colleagues from their work. It is alleged that the arborist asked the applicant to move on two occasions, but the applicant ignored them. This resulted in police being called.[18]
[18] Exhibit R1 at 34-36. Affidavit of Alister Wenham dated 23 May 2023.
That same day on, on 25 May 2023 at around 2:40 pm, police attended the applicant’s property. The applicant did not answer her door when police knocked and they observed her walking through her backyard and called out to her, the applicant is said to have failed to present herself to police on that occasion.[19] Police were said to have observed the applicant through a rear back window and spoke with her, but she refused to exit the house. It is alleged that after about 30 minutes police forced entry and arrested the applicant for breaching her bail agreement. As police escorted the applicant out of the address she stalled the walk, grabbed and pinched at the hands of the police and at one point stood on the right foot of one of the officers.[20] Following this arrest, the applicant was re-released on bail.[21]
[19] Exhibit R1 at 59–62. Affidavit of Bonnie Wells dated 17 November 2023. Exhibit R1 at 63–66. Affidavit of Madeleine Murray dated 23 November 2023.
[20] Ibid.
[21] Ibid.
A number of days later, on 30 May 2023, arborists again attended at the property adjoining the applicant’s at around 9:30 am. The applicant told them that they had no right to cut the tree down. The applicant is said to have stood under the tree such that the arborists could not continue in their work. Again, police were called.[22] Police were said to have attended that afternoon and the applicant was again arrested for breaching her bail agreement.[23]
[22] Exhibit R1 at 67–69. Affidavit of Clement Emmanuel Delrue dated 30 May 2023.
[23] Exhibit R1 at 31–33. Information Rev. 1 (MCCRM-23-022108).
The applicant first appeared in the Magistrates Court proceedings on 26 June 2023. The applicant was represented in a number of her appearances in the Magistrates Court, however, by April 2024, the applicant appeared in court self-represented and has continued to represent herself since that time. The applicant was self-represented on her appeal and filed detailed written submissions and made detailed oral submissions.[24] Various applications have been brought in the Magistrates Court proceedings by the applicant, however, as indicated above, the application for permission to appeal and the appeal before this Court concerns an interlocutory application filed in the Magistrates Court by the applicant on 23 July 2024, seeking a permanent stay of the proceedings.[25] The learned Magistrate on 13 December 2024, delivered a ruling dismissing the application for a permanent stay of proceedings.[26] The learned Magistrate’s reasons also addressed a number of other applications and orders sought by the applicant. The notice of appeal in this Court was filed by the applicant on 9 January 2025.[27]
[24] The applicant has been able to articulate her submissions both in writing and orally at the hearings on 2 April 2025 and 30 April 2025.
[25] Exhibit R1 at 111–112. Interlocutory Application dated 23 July 2023 (FDN 21).
[26] Exhibit R1 at 17–24. Ruling of learned Magistrate Semmens dated 13 December 2024.
[27] Notice of Appeal (FDN 1).
Appeal provisions
An order refusing a stay has no final effect in relation to the issues between the parties and is not a final order or decision.[28] The Magistrate’s ruling in this case dismissing the application for a permanent stay is interlocutory in nature. In accordance with the requirements of s 42(1a) of the Magistrates Court Act 1991 (SA), the applicant is required to establish “special reasons” as to why it would be in the interest of the administration of justice to have the appeal determined before the commencement or completion of the trial and a grant of permission to appeal is necessary.[29]
[28] Sedmak v Police [2008] SASC 307 at [19] (‘Sedmak’).
[29] Ibid at [20].
Special reasons require that there be some feature of the case that takes it out of the ordinary and distinguishes it from usual cases. An arguable case will generally not suffice to establish sufficient reasons.[30]
[30] Van Reesema v Police (2009) SASC 8 at [23] (Bleby J).
Matters that may be considered as special reasons include if a question of law arises,[31] or if there is some misunderstanding or confusion about the correct procedures to be employed such that there is a risk that a miscarriage of justice has occurred.[32] The question of what could amount to special reasons in the context of a refusal to stay an abuse of process was considered by Doyle CJ in Sedmak v Police (‘Sedmak’).[33]In that case, the application for permission to appeal resulted from a decision that has been made refusing the stay before any evidence had been heard at trial. The Chief Justice considered in Sedmak that any challenge to the Magistrate’s ruling should be made and decided based on the evidence. [34] His Honour went on to note that the application for a stay for an abuse of process could be renewed at trial, or the refusal of the application prior to trial could be a ground for an appeal concerning any conviction.[35]
Principles on stay of proceedings
[31] Shahin v El-Shafei (2018) 132 SASR 126 at [48] (Parker J).
[32] De Jong v Police (2010) 201 A Crim R 227 at [46] (Gray J).
[33] [2008] SASC 307 (‘Sedmak’).
[34] Ibid at [22].
[35] Ibid at [21].
As the respondent points out in what were very clear and concise written submissions filed in this court, the Magistrates Court has power to stay criminal proceedings permanently where the prosecution of criminal proceedings will result in a trial that is unfair and an abuse of process of the Court.[36] The power to order a permanent stay of proceedings is only exercised in the most exceptional circumstances.[37] There are no defined or closed categories disclosing what constitutes an abuse of process.[38] Generally an abuse of process can be categorised into two cases:
1.Firstly, where proceedings are vexatious or oppressive and cause unfairness to a party.
2.Secondly, where the matter brings the administration of justice into disrepute or would otherwise diminish public confidence in the Court as an institution.[39]
[36] Gray v Police (2003) 85 SASR 1 at [16]; DPP v George (2008) 102 SASR 246 at [89].
[37] R v B, P [2016] SASCFC 30 at [38]; Barton v The Queen (1980) 147 CLR 75 at 116; Jago v District Court (NSW) (1989) 168 CLR 23 at 34 (Mason CJ) and 76 (Gaudron J).
[38] Jago v District Court (NSW) (1989) 168 CLR 23 at 25-26 (Mason CJ).
[39] Rogers v The Queen (1994) 181 CLR 251 at 256 (Mason CJ).
In the case of a criminal matter, the onus is on the accused who seeks the permanent stay to demonstrate the existence of facts which enliven the discretion to order a stay. It is generally required that, in all the circumstances, a stay is the only remedy available to prevent the abuse.[40] In determining whether or not to grant a permanent stay the Court should consider whether there is no realistic prospect of a fair trial for the accused.[41] There are generally two steps involved in a court assessing whether a stay of proceedings should be granted:
1.The first of these is that the Court must consider whether any unfairness, injustice, prejudice or oppression has been established to enliven the power to grant the stay.[42] The Court must also consider the mechanisms that will be available to address or neutralise the potentially unfair consequences.[43]
2.Secondly, the Court is required to balance the interest of justice.[44] Considerations that the Court will consider in determining the interest of justice are not closed categories but generally include matters such as the legitimate public interest in the determination of serious charges, the conviction of those guilty of crimes, fairness to the accused, and the maintenance of public confidence in the administration of justice. The Court is required to balance and weigh relevant factors and the interest of the accused cannot be considered in isolation.[45]
[40] Jago v District Court (NSW) (1989) 168 CLR 23 at 34 (Mason CJ); Gray v Police (2003) 85 SASR 1 at [21].
[41] R v B, P [2016] SASCFC 30 at [38] (Kourakis CJ, Kelly J, Bampton J)
[42] R v Perre [2019] SASCFC 100, [40], [58], and [84] (Nicholson J, Parker J, Doyle J).
[43] Williams v Spautz (1992) 174 CLR 509 at 519-520; R v Perre [2019] SASFC 100, [40], [57], and [84] (Nicholson J, Parker J, Doyle J).
[44] R v Perre [2019] SASCFC 100, [40], [58], and [84] (Nicholson J, Parker J, Doyle J).
[45] Jago v District Court (NSW) (1989) 168 CLR 23 at 33 (Mason CJ); Walton v Gardiner (1993) 177 CLR 378 at 395-396 (Mason CJ, Deane J, Dawson J); Rogers v The Queen (1994) 181 CLR 251 at 256 (Mason CJ).
To justify a permanent stay of proceedings there must generally be such a fundamental defect such that there is nothing that a trial judge or Magistrate can do in the conduct of the trial which can relieve against any unfair consequence.[46]
[46] Jago v District Court (NSW) (1989) 168 CLR 23 at 34 (Mason CJ); Dupas v The Queen (2010) 241 CLR 237 at [18].
The learned Magistrate’s reasons
The learned Magistrate in the ruling of 13 December 2024, addressed a number of applications that had been brought by the applicant.
The learned Magistrate identified that police indicated that they are proceeding with all the charges and that they oppose the dismissal of charges. The police position in the Court below was that there was no abuse of process, nor should there be any stay of proceedings. The learned Magistrate indicated that he interpreted the application to “quash” the charges as an invitation to dismiss the charges.[47] As the learned Magistrate identified, he had not heard a pre-trial conference at that stage.[48] The learned Magistrate then held: [49]
The prosecution, in their discretion and judgment, appear to be simply proceeding against Dr Scott’s wishes and insistence otherwise. That is not an abuse of process; it is the prosecution following the usual course of charges being heard in this court. Just disagreeing with the conduct of a matter is not an abuse of process, nor is it a ground for a stay of proceedings or quashing anything, even if I had the power.
[47] Exhibit R1 at 21. Ruling of learned Magistrate Semmens dated 13 December 2024 at 5.
[48] Ibid.
[49] Ibid.

The learned Magistrate then indicated that he had not received submissions, nor received any evidence which would suggest that any of the grounds complained of were established.[50] The learned Magistrate recognised that the applicant submitted that she was unlawfully arrested. The learned Magistrate found that was the “nub of her defence” however, as the learned Magistrate recognised, that is a matter for trial. The learned Magistrate recognised that findings of fact needed to be made, and the only way that can occur is at trial. The learned Magistrate held that what fell from a later decision, or in the course of a trial is a matter to be dealt with later.[51] The learned Magistrate went on to hold:[52]
Of that which I have heard, Dr Scott’s complaints are legal about the entirety of the tree dispute and the attendance of the arborists, factual in what may have happened and again, legal in the sense of an allegation of false arrest. I do not of course, cast aside Dr Scott’s presumption of innocence and the burden the prosecution bear in such matters to prove each fact and charge beyond a reasonable doubt.
They are matters for the trial Magistrate. This application has no merit in my view, and I dismiss it.
[50] Ibid.
[51] Ibid.
[52] Ibid.
The reasons of the learned Magistrate correctly recognise that the prosecution has a wide discretion to select the charges it lays and pursues. It is not the role of the Court in the ordinary course to review or supervise the exercise of that discretion.[53] As the respondent submits, the fundamental purpose of criminal proceedings is to determine whether an accused has engaged in conduct which amounts to an offence and warrants punishment.[54] There is no complaint in the grounds of appeal about the adequacy of the Magistrate’s reasons.
[53] R v Koolamatrieand others (1989) 52 SASR 482 at 495 (Perry J).
[54] Jago v District Court(NSW) (1989) 168 CLR 23 at 47 (Brennan J).
Additional materials sought to be received on appeal
The applicant sought on this appeal for the audio recordings of the following hearings on the following dates in the Port Adelaide Magistrates Court to be admitted into evidence, 24 May 2023, 26 June 2023, 10 August 2023 and 29 October 2024.
The applicant also seeks admission of the body-worn footage of the police officers who attended her premises on or around 23 May 2023.
The respondent notes that the audio recordings of previous hearings were not before Magistrate Semmens, although his Honour had access to the court outcomes and could have accessed the audio recordings if necessary.[55] The respondent submits that even if the audio recordings are properly categorised as fresh or further evidence, it is not in the interests of justice for them to be received on this appeal.[56] The respondent submits that the audio recordings have no bearing on whether there are special reasons justifying a grant of permission to appeal, nor on whether the Magistrate erred in not granting a permanent stay of proceedings.[57]
[55] Respondent’s Supplementary Submissions (FDN 12) at [12].
[56] Ibid at [13].
[57] Ibid at [14]-[15].
The applicant submits that the audio reveals that there was no independent prosecution and nor was there any judicial independence.
During the course of the submissions, I ruled that the audio recordings would be received into evidence. I did so having regard to the interest of justice and on the basis that the grounds on which an abuse of process may be established are broad and the audio recordings are of potential relevance to the complaints that the applicant makes. However, for the reasons outlined further below, the audio recordings support the position that this matter was proceeding in the Magistrate’s Court without any procedural irregularity and the applicant was accorded procedural fairness.
The respondent also objected to the receipt of the body-worn footage of the police officers as fresh or further evidence on the basis that the Magistrate did not view the footage when determining whether a permanent stay of proceedings should be granted.[58] It is further submitted by the respondent that the learned Magistrate found the question of whether the applicant was lawfully arrested is a matter for the trial court, upon evidence being heard and findings of fact being made.[59]
[58] Ibid at [18].
[59] Ibid at [21].
The applicant submitted that the body-worn footage is relevant to this appeal, as part of the applicant’s complaint is that the prosecution is an abuse of process as the applicant was subject to a false arrest. The applicant submits that police were attacking her when she was arrested and that was evident on the body-worn footage and therefore should have been viewed by the Magistrates Court as part of assessing the applicant’s submission that was made before the Magistrates Court concerning an abuse of process.
The respondent submitted that the body worn footage was not relevant to the questions arising on this appeal and should not be viewed by this Court.
Whilst the relevance of the body-worn footage to these appeal proceedings is in some respects questionable, in other respects it may be finely balanced and, given the broad nature of the matters relevant to an abuse of process, and the seriousness of the allegations made by Dr Scott concerning her being attacked by police, I determined to view part of the body-worn footage in court, limited though to that showing the arrest of Dr Scott prior to ruling on the question of the admissibility of that evidence.
Having viewed the body-worn footage limited to the arrest of Dr Scott, and having regard to the interests of justice, I determined not to receive that evidence of the body-worn footage showing the arrest of Dr Scott and not to receive the other body-worn footage of other matters and other attendances by police and other officers that Dr Scott sought to be received on this appeal.
The respondent submitted that even if the body-worn footage was included in the evidence on the application for a permanent stay of proceedings before the Magistrates Court it would not have resulted in a different decision. The respondent submits that the body-worn footage alone would not establish there had been any irreparable unfairness to the applicant such that she would not receive a fair trial.
I accept the submissions of the respondent that the body-worn footage is not relevant to the question of permission to grant the appeal, nor the ground of appeal. I find that the question of whether the applicant was lawfully arrested is primarily a matter for the trial court upon hearing evidence and making findings of fact. The complaint of any improper editing of the body-worn footage are also matters for the trial court.
I find there is no matter put before me on the application for the receipt of the fresh evidence on this application for permission to appeal which persuades me that the evidence of the body-worn footage is relevant to the arguments that the applicant advances on this appeal concerning the application for permission to appeal from the refusal of an application for a permanent stay on grounds of an abuse of process. I made that ruling having viewed the body-worn footage limited to the arrest of the applicant. The footage viewed did not show matters establishing an abuse of process which would call for a permanent stay of the proceedings.
Grounds of appeal
Ground 1
The applicant’s first ground of appeal alleges a breach of Article 9 of the International Covenant on Civil and Political Rights. Article 9 concerns the rights of persons to liberty and security of persons. It is unnecessary to consider the independent legal effect of that Article and the references to other Articles relied upon by the applicant. The applicant develops this complaint to articulate matters relevant to the grant of a permanent stay on the basis of an abuse of process and the complaints made in respect of other grounds based upon the International Covenant on Civil and Political Rights.
The applicant alleges that the use of the legal process of arrest on 23 May 2023, was a collateral abuse of process. The applicant alleges that the arrest was for a wrongful purpose and as such, the imposition of bail conditions was unlawful. A similar allegation is made in respect of the process of arrest of the applicant on 25 and 30 May 2023.
The respondent submits that the learned Magistrate was correct in concluding that the question of whether the applicant was lawfully arrested is a matter for the trial court,[60] and a matter upon which findings of fact can be made following the hearing of evidence.
[60] Exhibit R1 at 21. Ruling of learned Magistrate Semmens dated 13 December 2024 at 5.
The respondent alleged that the applicant’s complaint that she was arrested unlawfully cannot amount to grounds for a permanent stay of proceedings at this stage of the proceedings. Further, the respondent alleges there has been no unfairness, injustice, prejudice or oppression caused to the applicant in the context of the criminal proceedings. These matters, as the respondent identifies, can be raised by the applicant and be dealt with by the trial Magistrate.
Whilst what is recorded in this judgment is a summary of the applicant’s key submissions in relation to this ground, I have considered all of the written material the applicant has advanced in support of this ground of appeal.[61] I have also considered the detailed oral submissions that the applicant advanced at the hearing of this matter in support of this ground of appeal.
[61] Applicant’s Submissions (FDN 4); Applicant’s Submissions in Reply (FDN 9).
I find that the applicant has not identified any unfairness, injustice, prejudice or oppression caused to her in the context of the criminal proceedings in a manner which would establish an abuse of process or justify the grant of a permanent stay. I find that the learned Magistrate was correct in the finding that the prosecution in the exercise of their discretion and judgment are proceeding against the applicant’s wishes and insistence otherwise. The learned Magistrate held that the prosecution was following the usual course and there was no abuse of process. I agree with the finding of the learned Magistrate in these respects. I also agree with the learned Magistrate’s finding that just disagreeing with the conduct of a matter is not an abuse of process, nor is it a ground for a stay of proceedings.
In my view, for similar reasons to those provided by Doyle CJ in Sedmak, in this case I consider that the applicant has not established special reasons to warrant the appeal prior to the commencement or completion of the trial. The grant of a permission to appeal would unduly fragment the trial process, and for the reasons I explain below, the applicant has not on this appeal provided any evidence or pointed to any material before the learned Magistrate which would be sufficient to provide special reasons.
I would not grant permission to appeal in respect of ground 1. Even if I was disposed to grant permission to appeal, I would dismiss this ground of appeal.
Ground 2
This ground relates to what the applicant says is a failure to respect property ownership of the tree in question. Ground 2 also concerns a complaint about the actions of police in taking fingerprints and DNA analysis of the applicant upon her arrest. This ground also appears to concern an allegation by the applicant that police may have accessed documents concerning the applicant in relation to another prosecution against her.
The applicant raises in respect of ground 2, the application of the International Covenant on Civil and Political Rights, Article 17. Article 17 concerns persons being subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence and to unlawful attacks upon their honour and reputation. The applicant also references the application of the Public Sector (Data Sharing) Act 2016 (SA). This Act concerns the facilitation of the sharing of data between public sector agencies.
The applicant also appears to contend in respect of Ground 2 that she was denied legal representation and an opportunity to instruct legal representation at the hearing of her bail application on 24 May 2023.
The applicant in her written and oral submissions developed aspects of this ground of appeal. Although I have summarised above the key matters that the applicant advances in support of this ground, I have also considered the detail of the applicant’s written and oral submissions.
The respondent submits that there is no inference readily available that the police accessed documents relating to any other prosecution of the applicant. Further, the respondent submits that there is no suggestion that such materials were put before the Magistrates Court. The respondent develops this argument saying that if the prosecution did hold prejudicial material about the applicant and sought to admit that material at trial, any unfairness or prejudice caused to the applicant could be remedied by an objection to the material being admitted, or alternatively directions made by the trial Magistrate.[62]
[62] Respondent’s Submissions (FDN 6) at [73].
The applicant has not demonstrated the relevance of Public Sector (Data Sharing) Act 2016 (SA) to the issues in dispute.
The applicant has not identified any evidence to suggest that the taking of fingerprints and DNA was unlawful. In her oral submissions, Dr Scott indicated that she had to the opportunity to obtain legal advice before complying with the requests for fingerprint and DNA analysis.[63] In any event, the lawfulness of the taking of fingerprints or DNA is a matter to be raised at the trial.
[63] Transcript 2 April 2025, page 20, line 31.
In relation to the question of police accessing documents, this has not been established on the evidence before this Court as something that would amount to an abuse of process to justify a permanent stay of the proceedings. In any event, that issue is raised prematurely in circumstances where the discovery process in the Magistrates Court is still ongoing.
I have considered the audio recording of 24 May 2023. Dr Scott was in custody on that date and when brought before the Court she was represented by a duty solicitor. The audio recording of 24 May 2023 supports this finding. The solicitor appearing on that occasion for Dr Scott made submissions in support of the grant of bail and bail was granted.[64]
[64] As to the availability of collateral attack in respect of a bail agreement see further: Wondimu v Police (SA) [2019] SASC 62 (Hinton J).
I reject the submission of the applicant that she was denied legal representation on 24 May 2023.
I have considered the other audio recordings before the Magistrates Court. Those audio recordings do not support the applicant’s allegation of a lack of independent prosecutorial discretion, nor a lack of judicial independence. The audio recordings, in particular the recording of 24 May 2023, demonstrate that Magistrate Semmens was very patient with the applicant.
I find that the applicant has not identified any unfairness, injustice, prejudice or oppression as a consequence of her various arguments in respect of this ground. The applicant has not identified any procedural failing by reference to any of the statutory instruments that she has referred to or any factual matters which would be such as to amount to an abuse of process or to justify the power to grant a stay being enlivened.
I accept the submission advanced by the respondent that the matters raised by the applicant as relevant to this ground are matters to be determined and considered by the trial Judge. The matters raised by the applicant are better considered by the trial Judge by reference to whether, if any prejudice is established, the prejudice can be remedied by objection to the admissibility of the material or by directions of the trial Magistrate. Any application for a stay for an abuse of process can be renewed at the trial.[65]
[65] See Sedmak at [19].
I find that none of the matters identified in Ground 2 identify special reasons that would justify the grant of permission to appeal. I would not grant permission. I would, in any event, dismiss Ground 2 of the appeal.
Ground 3
The applicant’s third ground of appeal refers to Article 14 of the International Covenant on Civil and Political Rights. Article 14 concerns and deals generally with the right to a fair trial.
The applicant’s complaint appears to relate to the recording of video footage from body-worn video recording equipment of one of the police officers on 23 May 2023. The applicant’s complaint seems to centre around the allegations that the video footage from the body-worn video camera had been extensively edited. In oral submissions the applicant also made a complaint concerning the lawfulness of her arrest.
The complaints under this ground also appear to concern the obligations of disclosure that are placed on the prosecution in criminal matters.
The respondent on this appeal maintains that the prosecution complied with its disclosure obligations and has made all relevant disclosure to the applicant. The respondent submits that in the absence of the evidence to the contrary, a Court will presume that the prosecution has properly discharged its duty of disclosure.[66]
[66] Di Fede v Police; Di Fede v Police [2023] SASC 30 at [27] (Nicholson J).
The respondent submits that the applicant’s complaint relates to and concerns subpoenas that were issued to the Commissioner of Police seeking various materials. The learned Magistrate did not authorise the applicant’s subpoenas as drafted. The learned Magistrate dealt with the subpoenas in the same decision as he dealt with the application for a stay of proceedings, that is in the ruling 13 December 2024. The learned Magistrate held: [67]
Dr Scott can seek disclosure of any other relevant document or thing, as long as the subpoena is properly drafted. I am not denying her the opportunity to issue subpoenas, they just need to capable of being answered without being complaints, pleadings or claims and only for things which may be in SAPOL’s possession or custody or have been. The issue of a legitimate forensic purpose can then be agitated later.
[67] Exhibit R1 at 23. Ruling of learned Magistrate Semmens dated 13 December 2024 at 7.
The learned Magistrate went on to hold: [68]
I indicate that it is likely that compliant subpoenas will be authorised if they are properly drafted. I think SAPOL should answer some of the issues raised in the subpoenas so that we can move forward to trials in this court. Whether such materials or things exist, can also answered with finality by SAPOL on that occasion.
[68] Ibid.
The learned Magistrate struck out the sections of the subpoena which he annexed to his ruling.[69] The learned Magistrate gave leave to the applicant to re‑issue three individual subpoenas relevant to each file within 28 days of the ruling. The Magistrate indicated in his orders that each subpoena is only to list the material relevant to that court file and date of charge.[70]
[69] See Respondent’s Supplementary Appeal Book (FDN 14) being Exhibit R2 at 1-11.
[70] Exhibit R1 at 95-96. Record of Outcome dated 13 December 2024.
In response to Ground 3 of the appeal, the respondent submits that the applicant has not established any unfairness, injustice, prejudice or oppression. The respondent submits that the question of the lawfulness of the applicant’s arrest is a question for trial. The respondent goes on to submit that the duty of disclosure is ongoing and the Magistrate indicated a compliant subpoena seeking disclosure will likely be authorised.[71] The respondent further submits that the learned Magistrate entertained the applicant’s argument and assisted her whenever possible, providing her with a copy of relevant authorities and attempting to focus the grounds of her subpoena.[72]
[71] Respondent’s Submissions (FDN 6) at [83].
[72] In support of this submission the Respondent points to the matters set out of page 4 of the Ruling of the learned Magistrate dated 13 December 2024. Exhibit R1 at 17-24.

I have considered the submissions of the applicant both in her written submissions and in the detailed oral submissions she advanced in relation to this ground. It is my view that the applicant has not, in respect of the matters raised relevant to this ground, established any special reasons for the grant of permission to appeal. In my view, in any event, there is nothing raised in this ground which would suggest or provide an evidentiary basis for suggesting there was any unfairness, injustice, prejudice or oppression to the applicant in the manner in which the subpoenas were dealt with. It is difficult to see how any unfairness could be established when the learned Magistrate has given the applicant leave to file additional subpoenas. The question of the lawfulness of the applicant’s arrest and the question of whether any video footage has been inappropriately edited should be addressed at the trial in the Magistrates Court. The applicant has not adduced any evidence in this Court concerning her arrest that would suggest there is an abuse of process concerning her arrest that would justify the grant of a permanent stay of proceedings.
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.