Thakur v Police

Case [2016] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

THAKUR v POLICE

[2016] SASC 75

Judgment of The Honourable Justice Stanley

3 June 2016

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS

MAGISTRATES - JURISDICTION - SUBJECT MATTER - MINOR, SIMPLE OR SUMMARY OFFENCE AND SUMMARY TRIAL OF INDICTABLE OFFENCE - CONSENT OR ELECTION OF ACCUSED - REFUSAL OR WITHDRAWAL AND CONSEQUENCES THEREOF

This is an application for permission to appeal against an order of a magistrate made on 20 May 2015 confirming an intervention order pursuant to s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The order was made after Mr Thakur (the appellant) consented to the making of the order while disputing the grounds on which the intervention order was sought.

The appellant sought to withdraw his consent to the confirmation of the intervention order and to have that confirmation set aside.   He did so on the basis that his consent to the confirmation was given in error or by mistake.  The error or mistake was that during the period between 7 May 2015, when the police took custody of his phone, and 20 May 2015, the appellant considered he had no satisfactory alternative but to consent to the confirmation of the intervention order in order to recover his phone.  There was a further ground of appeal that the appellant’s consent was contrary to the facts and was procured by way of reference to “uncharged” acts.  This ground was not pressed on the hearing of the application for permission to appeal.

The appeal was commenced out of time.  Pursuant to rule 281 of the Supreme Court Civil Rules 2006 (SA) the appellant had 21 days within which to appeal.  A notice of appeal was filed on 18 January 2016.  The appeal was more than seven months out of time. 

The respondent opposed the grant of an extension of time within which to appeal and permission to appeal.

Held (per Stanley J):

1.  In these circumstances basic fairness requires that in order to find the existence of “special reasons” no more than an arguable case on appeal is necessary. On this case, there is an arguable case (at [26] - [27]). 

2.  Permission to appeal is granted (at [27]). 

3.  The grant of an extension of time would occasion no real prejudice to the respondent (at [31]).

4.  An extension of time within which to appeal is granted (at [31]).

5. A court will allow an appeal from the confirmation of an intervention order made pursuant to s 23(3) Intervention Orders (Prevention of Abuse) Act 2009 (SA) in circumstances where the defendant’s consent was not freely given in the sense that the consent was not properly informed, was made inadvertently or was made by mistake or in error…

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Thakur v Police [2016] SASC 75
Case
[2016] SASC 75
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CaseChat Overview and Summary

In the case of Thakur v Police, the appellant sought an extension of time and permission to appeal against the confirmation of an interim intervention order made by the Magistrates Court of South Australia. The appellant argued that his consent to the confirmation of the order was given in error or by mistake, due to his belief that he had no satisfactory alternative but to consent to recover his mobile phone, which contained sensitive information. The court was required to determine whether the appellant's consent to the confirmation of the intervention order was freely given and informed, and whether it could be withdrawn to set aside the order.

The court found that the appellant's consent to the confirmation of the intervention order was indeed freely given and informed. The appellant, who was legally represented, had ample time to consider his position and take legal advice. The court noted that the appellant had forensic advantages in consenting to the order, such as avoiding a contested hearing and the risk of adverse findings against him, as well as avoiding prosecution for the alleged breaches of the interim intervention order. The court rejected the appellant's argument that his consent was vitiated by a failure to direct his mind to relevant considerations, holding that more was required to demonstrate that the consent was not freely given. The court concluded that the appellant's consent was not contingent, and that the confirmation of an intervention order made on the basis of the defendant's consent is not subject to the defendant's subsequent withdrawal of consent.

The court granted an extension of time within which to appeal and permission to appeal, but dismissed the appeal. The court held that the appellant's consent to the confirmation of the intervention order was freely given, and that it was not in the interests of justice to set aside the order. The court ordered that the parties would be heard as to costs.

Orders

Orders of the court

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Background

Background to the litigation

The respondent opposes the grant of an extension of time within which to appeal and permission to appeal.Factual background On 13 January 2015 the Magistrates Court issued an interim intervention order against the appellant pursuant to s 21(1) of the Act. The protected person was the appellant’s wife. The application was supported by an affidavit sworn by her. On 5 February 2015 the application was set down for hearing for 20 May 2015 after the appellant indicated that he wished to contest the confirmation of the order. During the period between 13 January 2015 and 7 May 2015 the appellant was reported for five breaches of the interim intervention order. On 7 May 2015 the appellant was interviewed by police in relation to those alleged breaches. On legal advice the appellant declined to answer the police’s questions. During the course of the interview the police took custody of the appellant’s mobile telephone. Upon request the appellant provided the police with the passcode to his phone. By an affidavit affirmed by the appellant on 9 March 2016, he deposes to the fact that he provided the passcode to his phone upon request in the belief that the request constituted a lawful direction with which he was required to comply. On the same day the police prosecutor contacted the appellant’s solicitor and offered to resolve the trial if the appellant consented to the confirmation of the intervention order. The prosecutor further offered not to proceed with the fresh charges in relation to the alleged breaches of the interim intervention order in those circumstances. On 13 May 2015 the appellant’s solicitor responded indicating that his client was prepared to resolve the matter on that basis. On 20 May 2015 the matter came before the Magistrates Court where the court confirmed the intervention order. No order was made fixing a date after which the appellant could apply for the variation or revocation of the order. Subsequently the appellant’s mobile phone was returned to him without being subject to analysis by the electronic crimes section of SAPOL. The charges in relation to the alleged breaches of the interim intervention order were never laid. The police returned the appellant’s phone on 25 May 2015. On 9 December 2015 a complaint was laid charging the appellant with two counts of contravening the confirmed intervention order on 31 July 2015. That complaint is listed for trial on 29 April 2016. The grounds of appeal The appellant seeks to withdraw his consent to the confirmation of the intervention order and to have that confirmation set aside. He does so on the basis that his consent to the confirmation was given in error or by mistake. The error or mistake was that during the period between 7 May 2015, when the police took custody of his phone, and 20 May 2015, the appellant considered he had no satisfactory alternative but to consent to the confirmation of the intervention order in order to recover his phone. The appellant was a director of an international accounting firm. He was responsible for major contracts, including those of major banks and other significant clients. His phone contained an application which permitted access to contracts and sensitive financial information that had the capacity to affect the businesses of his clients and financial markets. He was concerned that this information could be used to affect adversely the interests of his clients. Against this background, the appellant accepted legal advice he could not recover his phone from police until such time as the matters concerning the making of the intervention order and the alleged breaches of that order had been resolved.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appellant was legally represented. There was no error or mistake in the sense to which I have referred. He can have been in no doubt as to the effect of his giving his consent to the confirmation of the order. By consenting, the intervention order was made with him disputing the grounds upon which the order was sought. He thereby avoided a contested hearing and the risk of adverse findings being made against him in relation to those grounds. He further avoided being prosecuted for the alleged breaches of the interim intervention order. These are all forensic advantages which attached to the giving of his consent to the confirmation of the intervention order. No doubt he was anxious to recover his phone. His interest in doing so does not render his consent being anything other than informed and freely given. He had ample time within which to consider his position and take legal advice. I am reinforced in this view by the fact that he took no steps to withdraw his consent until many months after he recovered his phone and only when he was charged with further breaches of the confirmed intervention order. Conclusion I would grant an extension of time within which to appeal. I grant permission to appeal. I dismiss the appeal. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

It cannot have been the intention of the Parliament that the confirmation of an intervention order made pursuant to s 23(3) on the basis of the defendant’s consent is contingent, such that the defendant can have the order set aside by a subsequent election to withdraw consent. It is to be remembered that the object of the Act is the prevention of domestic and non-domestic abuse and the exposure of children to the effects of such abuse. The principal instrument for achieving this objective is the making of intervention orders. Section 23 provides for the determination of applications for intervention orders. An intervention order can be confirmed by the court, pursuant to s 23(1), after a contested hearing, or, pursuant to s 23(2), in the absence of the defendant if the defendant fails to appear at the hearing of the application, or, pursuant to s 23(3), if a defendant disputes some or all of the grounds on which the intervention order is sought but consents to the order. An intervention order, once confirmed, is ongoing and continues in force until it is varied or revoked. This is so irrespective of the mechanism by which the intervention order was confirmed. This is necessary for the achievement of the objectives of the Act. Accordingly, this Court, on appeal from the confirmation of an order made pursuant to s 23(3), will not permit a defendant to withdraw the consent given, which enabled the making of the order, unless that consent was vitiated in such a way that leads to the conclusion that true consent to the making of the order had not been given. I reject the submission that it is sufficient to set aside the order that a defendant only establishes that he or she consented to the confirmation of the order without due consideration to material matters, if that proposition is understood as requiring merely a failure on the part of the defendant to direct his or her mind to some relevant consideration in giving consent. In my view, more is required. It must be demonstrated that the consent was not freely given in the sense to which I have referred. Consideration I am satisfied that the appellant’s consent to the confirmation of the intervention order in this case was freely given. I do not accept that the appellant had no satisfactory alternative but to consent to the confirmation of the intervention order. The appellant can have been under no misapprehension as to what it was to which he was consenting. The appellant was legally represented. There was no error or mistake in the sense to which I have referred. He can have been in no doubt as to the effect of his giving his consent to the confirmation of the order. By consenting, the intervention order was made with him disputing the grounds upon which the order was sought. He thereby avoided a contested hearing and the risk of adverse findings being made against him in relation to those grounds. He further avoided being prosecuted for the alleged breaches of the interim intervention order. These are all forensic advantages which attached to the giving of his consent to the confirmation of the intervention order. No doubt he was anxious to recover his phone. His interest in doing so does not render his consent being anything other than informed and freely given. He had ample time within which to consider his position and take legal advice. I am reinforced in this view by the fact that he took no steps to withdraw his consent until many months after he recovered his phone and only when he was charged with further breaches of the confirmed intervention order. Conclusion