Thakur v Police - [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 in the sense that the person giving the purported consent did not appreciate to what it was he or she was consenting (at [38]).
6. The appellant’s consent to the confirmation of the intervention order in this case was freely given. It is not accepted 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 (at [40]).
7. Appeal dismissed (at [42]).
Intervention Orders (Prevention of Abuse) Act 2009 (SA) s21(1), 23, s 5, s 6, s 7(1), s 8, s 10(1), s 12(1), s 20, s 21, s 23(4), s 15, s 26(5), s 26(4), s 28, s 31; Supreme Court Civil Rules 2006 (SA) r 281; Magistrates Court Act 1991 (SA) s 42(1a)(c), referred to.
van Reesema v Police [2009] SASC 8, distinguished.
Jackamarra v Krakouer (1998) 195 CLR 516; Collins v State of South Australia and Parole Board of South Australia [2000] SASC 62; Gallo v Dawson (1990) 93 ALR 479; Groom v Police [2014] SASCFC 125; Groom v Police (No. 3) [2013] SASC 93; Groom v Police (No. 4) [2014] SASC 41, considered.

THAKUR v POLICE
[2016] SASC 75
Magistrates Appeal
STANLEY J:
Introduction

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 Act”). 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 appeal was commenced out of time. Pursuant to 6SCR 281 the appellant had 21 days within which to appeal. A notice of appeal was filed on 18 January 2016. The appeal is more than seven months out of time.
An order confirming an intervention order is interlocutory in nature.[1] Pursuant to s 42(1a)(c) of the Magistrates Court Act 1991 (SA) there is no appeal against an interlocutory judgment unless the appeal court finds there are special reasons why it would be in the interests of the administration of justice to have the appeal determined and grants permission for an appeal.
[1] Groom v Police (No. 3) [2013] SASC 93 at [32], (2013) 231 A Crim R 1 at 7.
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.
While there are four grounds of appeal, three can be distilled to the single complaint that the appellant consented to the confirmation of the intervention order in circumstances where he considered that he had no alternative in order to protect the confidentiality of the client information which was on his phone.
In addition, there is a fourth ground 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 scheme of the Act
The objects of the Act are enshrined in s 5. Principally they are to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of such abuse. The instrument for achieving this objective is the issuing of intervention orders by police and the Magistrates Court. The grounds for issuing an intervention order against a person are where it is reasonable to suspect that the person will, without intervention, commit an act of abuse against a person and the issuing of the order is appropriate in the circumstances.[2] An intervention order may be issued for the protection of any person against whom it is suspected a defendant will commit an act of abuse or any child who may hear or witness, or otherwise be exposed to, the effects of an act of abuse committed by the defendant against a person.[3] Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.[4] Section 10(1) prescribes the principles relevant to the issuing of an intervention order. It is the following terms:
[2] Section 6.
[3] Section 7(1).
[4] Section 8.
(1) The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order:
(a)     abuse occurs in all areas of society, regardless of socio-economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion;
(b)     abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour;
(c)     it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse;
(d)     as far as is practicable, intervention should be designed—
(i) to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse; and
(ii) to minimise disruption to protected persons and any child living with a protected person and to maintain social connections and support for protected persons; and
(iii) to ensure continuity and stability in the care of any child living with a protected person; and
(iv) to allow education, training and employment of a protected person and any child living with a protected person, and arrangements for the care of such a child, to continue without interruption; and
(v) if the defendant is a child—
(A) to ensure the child has appropriate accommodation, care and supervision; and
(B) to ensure the child has access to appropriate educational and health services; and
(C) to allow the education, training and employment of the child to continue without interruption.
An intervention order is ongoing and continues in force (subject to any variation or substitution of the order under the Act) until it is revoked.[5] An intervention order may, inter alia, prohibit a defendant from specific conduct or from being on or within the vicinity of premises or a specified locality, or prohibit a defendant from being within a specified distance of a protected person, or prohibit a defendant from taking possession of specified property.[6]
[5] Section 11(1).
[6] Section 12(1).
An interim intervention order may be issued by police or by a magistrate upon application by a specified class of persons including a police officer, a person against whom it is alleged the defendant may commit an act of abuse or a child or a representative of a child who is led to or may hear or witness or otherwise be exposed to the effects of an act of abuse.[7] Where the application to issue an intervention order is made to a magistrate, the court must hold a preliminary hearing that must be conducted and either an interim intervention order made or the application dismissed on the grounds it is frivolous, vexatious, without substance or has no reasonable prospect of success or on any other grounds considered sufficient by the court.[8]
[7] Section 20.
[8] Section 21.
An interim intervention order issued by the court comes into effect when served on the defendant personally or in some other manner authorised by the court.[9] Once an interim intervention order is served on a defendant, the defendant will be required to appear before the court for the purposes of hearing and determining an application for a final intervention order.[10]
[9] Section 21(8).
[10] Section 21(9).
On the hearing of an application for an intervention order the court may confirm the interim intervention order or issue an intervention order in substitution for an interim intervention order, or dismiss the application and revoke the interim intervention order.
Pursuant to s 23(3) if a defendant disputes some or all of the grounds on which an intervention order is sought but consents to the order, the court may confirm or issue the intervention order issued against the defendant without receiving any further submissions or evidence as to the grounds.[11]
[11] As the sub-section existed at the time. It was amended with effect from 1 December 2015.
If an interim intervention order is confirmed, the order continues in force against the defendant as a final intervention order without any further requirement for service.[12]
[12] Section 23(4).
When issuing or varying an intervention order, other than an interim order, the court may fix a date after which the defendant may apply for variation or revocation of the order, which must fall at least 12 months after the date of issue of the order. If the court does not include in an intervention order such a term, the order will be taken to include a term fixing a date falling 12 months after the date of issue of the order as the date after which the defendant may apply for variation or revocation of the order.[13]
[13] Section 15.
On an application for variation or revocation of an intervention order, other than an interim order, the court must have regard to the same matters that the court is required to have regard to in considering whether or not to make an intervention order and in considering the terms of an intervention order.[14] On such an application a court may, without receiving submissions or evidence from the protected person, dismiss the application if satisfied that the application to vary or revoke is frivolous or vexatious or if it is not satisfied that there has been a substantial change in the relevant circumstances since the order was issued or last varied.[15]
[14] Section 26(5).
[15] Section 26(4).
In proceedings for the making, variation or revocation of intervention orders, the court is to decide questions of fact on the balance of probabilities.[16]
[16] Section 28.
Pursuant to s 31 it is an offence to contravene a term of an intervention order.
Application for permission to appeal
The test for the granting of permission to appeal is that there must be special reasons why permission to appeal an interlocutory order or judgment would be in the interests of the administration of justice.[17] In van Reesema v Police[18] Bleby J considered the meaning of the phrase “special reasons” in the context of s 42(1a) of the Magistrates Court Act. He identified that the need for the existence of special reasons was to limit the right of appeal from interlocutory orders and judgments to prevent summary proceedings from being delayed and fragmented. He said:[19]
… If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final, substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of the interlocutory order is not yet known. I consider that, for there to be “special reasons” to grant permission to appeal under s 42(1a)(c), there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual cases. An arguable case by itself will generally be insufficient. There must be something about the unusual features of the case that calls for the granting of permission to appeal.
[Citations omitted].
[17] Magistrates Court Act 1991 (SA) s 42(1a)(c).
[18] [2009] SASC 8.
[19] [2009] SASC 8 at [23].
In my view, those principles correctly state the approach a court is to take to finding the existence of “special reasons” in deciding whether permission to appeal is to be granted on an appeal from the usual categories of interlocutory orders or judgments. However, it is necessary to adopt a different approach to the consideration of whether there are special reasons why it would be in the interests of the administration of justice to have an appeal determined from an interlocutory order of this particular kind. Since the judgment of Sulan J in Groom v Police (No. 3)[20] it has been accepted that an order confirming an intervention order is interlocutory in nature. Yet it is important to recognise that an intervention order is ongoing and continues in force until it is revoked, subject to any variation or substitution of the order.[21] While the order is interlocutory in nature, it has the appearance and the practical effect of a final order, but because it is capable of being varied or revoked, it is not. Nonetheless, in my view, for the purposes of determining whether it is in the interests of justice to have an appeal from such an order determined, the application for permission is not to be decided by the same considerations identified by Bleby J in van Reesema’s case. For the purpose of finding the existence of “special reasons” to grant permission, I consider that an arguable case by itself will generally be sufficient. If not, a defendant in many cases effectively will be deprived of a right of appeal. In these circumstances I consider that basic fairness requires that in order to find the existence of “special reasons” no more than an arguable case on appeal is necessary.
[20] [2013] SASC 93, (2013) 231 A Crim R 1.
[21] Section 11(1).

In this case I am satisfied that there is an arguable case. I would grant permission to appeal, subject to being satisfied that it is appropriate to grant an extension of time within which to institute the appeal.
Application for extension of time
The granting of an extension of time within which to appeal is an evaluative exercise. The court must consider four matters in the exercise of its discretion. Those matters are the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal and the degree of prejudice to the respondent.[22] The discretion to extend time is conferred for the sole purpose of doing justice between the parties.[23] In this matter the length of the delay is extensive. No reason has been given for the delay. The respondent submits that it has suffered some, albeit, limited prejudice by reason of the delay because it has lost the opportunity to analyse the contents of the appellant’s mobile telephone for the purpose of searching for evidence relevant to the making of the intervention order and the alleged breaches of the order. The respondent submits that the prejudice which flows from this factor is limited because the basis for seeking an intervention order was wider than the matters in respect of which evidence may have been obtained from electronic analysis of the contents of the phone. The appellant submits that the respondent has suffered little or no prejudice by reason of the delay and, to the extent that it has, this can be properly compensated by an award of costs.
[22] Jackamarra v Krakouer [1998] HCA 27 at [4], (1998) 195 CLR 516 at 520; Collins v State of South Australia and Parole Board of South Australia [2000] SASC 62 at [3].
[23] Gallo v Dawson [1990] HCA 30, (1990) 93 ALR 479 at 480.
In my view, there is little, if any, real prejudice to the respondent by reason of the delay. The phone was returned to the appellant by the police within five days of the court confirming the intervention order on 20 May 2015. That was well within the limitation period of 21 days in which to appeal. The police would have been in exactly the same position they are in now as the phone was returned within the limitation period. The appellant could have instituted his appeal within time and the police would still have been deprived of the opportunity to analyse the phone. Accordingly, no real prejudice results from the delay.
Nonetheless, the delay is substantial. The time within which to appeal was 21 days from the making of the order. The notice of appeal was filed more than eight months after the making of the order. As I have said, the delay is unexplained. I note, however, that the appeal was not filed until after the appellant was charged with breaches of the confirmed intervention order. Further, I observe that if the appellant felt compelled to consent to the confirmation of the intervention order because of the need to recover his phone from police custody, it was open to him to have instituted an appeal once the phone was recovered. He did not do so for many months.
This is a cogent factor against the grant of an extension of time, however, it is but one factor to be weighed in the exercise of the discretion. The discretion exists to do justice between the parties. I have found there is an arguable case and the grant of an extension of time would occasion no real prejudice to the respondent. In these circumstances, I consider it is proper to allow the appellant a hearing. Not without some hesitation, I would grant an extension of time within which to bring the appeal.
Accordingly, I turn to a consideration of the merits of the appeal.
Factors relevant to withdrawal of consent given to the confirmation of an intervention order pursuant to s 23(3)
In Groom v Police (No. 3)[24] Sulan J considered that on an appeal from the confirmation of an intervention order, where the appellant seeks to withdraw a s 23(3) consent, the principles applicable are those relating to applications to withdraw an admission made in civil proceedings, rather than the principles applicable to withdrawing a guilty plea.[25] He cited Drabsch v Switzerland General Insurance Company Ltd[26] where Santow J held that it would usually be appropriate to grant leave to withdraw an admission where circumstances show that the admission was made inadvertently or without due consideration of material matters. Sulan J also referred to Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd[27] where Mansfield J identified three factors relevant to the determination of such an application:[28]
(1)that an error or mistake by or on behalf of the party seeking the amendment has been demonstrated;
(2) that a sensible explanation for the making of the admission has been provided, based on evidence of a solid and substantial character; and
(3) that no injustice will be occasioned to the other party by the withdrawal of the admission, other than hardship by delay or cost which can be accommodated by an appropriate order for costs.
[24] [2013] SASC 93, (2013) 231 A Crim R 1.
[25] [2013] SASC 93 at [43] – [47], (2013) 231 A Crim R 1 at 10 – 11.
[26] Unreported, Supreme Court NSW Santow J, No. 3008 of 1993 delivered 16 October 1996.
[27] (2000) 191 ALR 579.
[28] (2000) 191 ALR 579 at [45].
In Groom (No. 3) Sulan J was satisfied that the appellant’s consent to the confirmation of the intervention order was given in circumstances in which he considered that he had no satisfactory alternative but to agree. At the time he was in custody and believed he could not properly defend the proceedings. He did not have relevant documentation in his possession. He had made unsuccessful efforts to obtain those documents. He was legally unrepresented and was refused an adjournment. He did not understand that he could seek a further adjournment and no application was made for a further adjournment. The appellant had relatively little opportunity to consider whether he should give his consent.
Sulan J concluded that the respondent would not suffer any injustice as a result of the appellant’s consent being withdrawn as the interim intervention order would continue in force. Accordingly, he allowed the appeal and permitted the appellant to withdraw his consent to the intervention order.
Subsequently in Groom v Police (No. 4)[29] Kelly J heard a further appeal by the same appellant who, subsequent to his successful appeal before Sulan J, had again consented to the confirmation of the intervention order pursuant to s 23(3). On this occasion when the order was made by a magistrate, the appellant was legally represented and present in court during the whole proceedings during which he made no objection to the way in which the matter proceeded, and personally confirmed that he would accept service of the confirmed order. Kelly J was satisfied that on this occasion he gave his informed consent to the confirmation of the order. Her Honour considered that this distinguished the circumstances from those with which Sulan J dealt in Groom (No. 3). This was not a case of the appellant being in custody and believing he could not properly defend the proceedings. This was not a case of him not having relevant documentation, and not being aware that he could apply for a further adjournment. On the contrary, on this occasion Kelly J considered that the appellant was well aware of his rights and his consent was freely given.
[29] [2014] SASC 41.
There was an application for permission to appeal to the Full Court from Kelly J’s judgment.[30] Permission to appeal was refused. The Full Court considered the application was without merit.
[30] [2014] SASCFC 125.
The principle that can be distilled from these authorities is that a court will allow an appeal from the confirmation of an intervention order made pursuant to s 23(3) 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 in the sense that the person giving the purported consent did not appreciate to what it was he or she was consenting.
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
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.