White v Police - [2018] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WHITE v POLICE
[2018] SASC 124
Judgment of The Honourable Justice Nicholson
5 September 2018
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - REQUIREMENTS FOR MAKING ORDER
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against decision of Magistrate to issue a final intervention order.
On 15 May 2017, police issued an interim intervention order against the appellant. The matter was heard by a Magistrate in order to determine whether a final intervention order should be issued in accordance with section 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant opposed the making of the order.
After hearing evidence of the appellant, his wife and two of the protected persons named in the interim order, the Magistrate issued a final intervention order against the appellant on 9 May 2018. His Honour found that it was reasonable to suspect that the appellant would, without intervention, commit acts of abuse against the protected persons and that it was appropriate in the circumstances to issue a final order.
The appellant appeals against the Magistrate’s decision on 13 separate grounds. A number of the grounds complain of specific findings of fact made by the Magistrate as to the previous interactions between the appellant and the protected persons. The appellant also contends that the Magistrate erred with respect to evidentiary matters and in applying the statutory requirements for the making of a final intervention order to the facts before his Honour.
The respondent contends that the appeal is against an interlocutory judgment and that special reasons do not exist to permit an appeal against the Magistrate’s order. The appellant contends that the judgment in question was final and that an appeal is available as of right.
Held per Nicholson J, granting permission to appeal but dismissing the appeal:
1.       The order made by the Magistrate was interlocutory and special reasons must be established in order to obtain permission to appeal.
2.       The features of a final intervention order, together with the fact that the appellant has no right to apply for a variation or revocation for at least 12 months, are sufficient to establish special reasons, at least where there is an arguable case on appeal.
3.       Bearing in mind the usual advantages possessed by a trier of fact when assessing oral evidence, each of the contested findings of fact were open to be made by the Magistrate on a balance of probabilities on the evidence that was before his Honour.
4.       The Magistrate did not err with respect to the evidentiary matters complained of by the appellant.
5. The Magistrate did not err in applying the statutory requirements of section 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The findings made in satisfaction of these requirements were open on the evidence.
Bail Act 1985 (SA) s 10; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6, s 8, s 15, s 18, s 20, s 23; Magistrates Court Act 1991 (SA) s 10, s 42; Magistrates Court Rules 1992 (SA) r 4.07, referred to.
Fox v Percy (2003) 214 CLR 118; Martin v The Department of Transport, Energy and Infrastructure [2010] SASC 141, applied.

WHITE v POLICE
[2018] SASC 124
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 15 May 2017, at the request of Patrick Larkins, police issued an interim intervention order against the appellant pursuant to section 18 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act). The protected persons named in the order were Mr Larkins, his wife Priscilla Larkins, his child Laura and three other children in his care, Jonte Charra, Rameth Thomas and Navana Inkamala.
The background to and the circumstances underlying the making of the complaint to the police by Mr Larkins which precipitated the issue of the interim order derive from the very poor relationship which has developed over time between Mr Larkins and his wife and the appellant and his wife. Both couples live in a relatively small country town some 850 kilometres north of Adelaide. Their respective houses are on the same street about five houses away from each other.[1] The front of the appellant’s house can be observed from Mr Larkins’ house. Mr and Mrs Larkins are Indigenous Australians; Mrs Larkins works at a local health service and Mr Larkins has been a local police officer for 22 years or so. The appellant and his wife have separated but remain on good terms and continue to reside under the same roof. There appears to be some “history” between, at least, the appellant’s wife and Mrs Larkins, in that for an extended period Mrs Larkins has been involved in Federal Court proceedings relating to unspecified issues with the appellant’s wife.
[1] There was evidence to the effect that the houses were 100 metres or up to 200 metres apart.
On 21 March 2018, the matter came before a Magistrate for hearing in order to determine whether or not the interim intervention order should be confirmed as a final intervention order or a final intervention order be issued in substitution, in accordance with section 23 of the Act. On 8 May 2018, the Magistrate delivered reasons confirming that a final intervention order would be issued subject to hearing further submissions as to its precise terms.[2]
[2]Police v White, judgment of Magistrate Milazzo, 8 May 2018, MCPAU-17-1113.
On 9 May 2018, after hearing further from the parties, the Magistrate issued a final intervention order in relatively limited terms, in substitution for the interim order. The protected persons were unchanged but the terms of the final intervention order differed somewhat from those of the interim order. The terms of the final order are as follows:
Terms of Intervention Order:
This order is declared to address a domestic violence concern.
1.The Defendant must not assault, threaten, harass or intimate the protected person(s).
2.The Defendant must not follow or keep the protected person(s) under surveillance.
3.The Defendant must not enter or remain within the boundary of the place of residence or any other place at which the protected person(s) is staying, residing.
4.The Defendant must not publish on the internet, by email, SMS or other electronic means any material about the protected person(s).
5.The Defendant must not cause, allow or encourage another person to do anything forbidden by this order.
6.Any firearm, ammunition or part of a firearm in the possession of the Defendant and any licence or permit held by the Defendant authorising possession of a firearm, ammunition or part of a firearm must be surrendered to the Registrar of Firearms forthwith.
7.For so long as this intervention order remains in force, any licence or permit held by the Defendant authorising possession of a firearm, ammunition, or part of a firearm is suspended and the Defendant is disqualified from holding or obtaining a licence or permit authorising possession of a firearm, ammunition or part of a firearm. The defendant is prohibited from possessing a firearm, ammunition or part of a firearm in the course of his or her employment.
The appellant (defendant to whom the final intervention order is directed) has appealed against the Magistrate’s judgment on 13 separate grounds. Grounds 2 to 6, 8 and 10 relate to specific purported findings of fact by the Magistrate which are challenged as not supported by the evidence. These grounds are essentially particulars of ground 1 which is in these terms.
1.That the learned Magistrate erred in his use of the evidence, or in reaching his findings by accepting the evidence of the applicants’ witnesses and rejecting the evidence of defence witnesses.
Appeal grounds 7 and 9 also relate to evidentiary matters. By appeal grounds 11 to 13 the appellant challenges the Magistrate’s application of the statutory requirements for the making of a final intervention order to the facts.
Two matters must be satisfied before a court can find grounds for issuing an intervention order against a person. Section 6 provides as follows.
6—Grounds for issuing intervention order
There are grounds for issuing an intervention order against a person (the defendant) if—
(a)it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and
(b)the issuing of the order is appropriate in the circumstances.
By appeal ground 11, the appellant contends that it was not reasonable on the part of the Magistrate to suspect that the appellant “will, without intervention, commit an act of abuse against the protected persons” (section 6(a)). A number of subgrounds in support of this contention are set out. By appeal ground 12, the appellant contends that it was not appropriate in the circumstances for the Magistrate to issue an intervention order (section 6(b)).
By appeal ground 13, the appellant contends that if it was reasonable to suspect that the appellant would commit an act of abuse (which is denied), it was not correct to find in the circumstances that any possible acts of abuse would have the effect of causing distress, anxiety or fear more than of a trivial kind. The burden of this appeal ground is to the effect that any feared conduct by the appellant could not have been such as would satisfy the requisite definition of “act of abuse” which must be satisfied before an intervention order can be issued. The type of “act of abuse” relied on in this case was an act or acts “intended to result in emotional or psychological harm” as provided for by section 8(2)(b) and (3)(c) of the Act.
For the purpose of determining whether a defendant will commit an “act of abuse” within section 6(a), the term “act of abuse” takes its meaning from section 8 of the Act which, insofar as is material, is in these terms.
8—Meaning of abuse—domestic and non-domestic
(1)Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse.
(2)An act is an act of abuse against a person if it results in or is intended to result in—
(a)     physical injury; or
(b)     emotional or psychological harm; or
(c)     an unreasonable and non-consensual denial of financial, social or personal autonomy; or
(d)     damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person.
(3)Emotional or psychological harm includes—
(a)     mental illness; and
(b)     nervous shock; and
(c)     distress, anxiety, or fear, that is more than trivial.
(4)Emotional or psychological harm—examples
Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following:
(a)-(d) …
(e)     following the person;
(f)    loitering outside the place of residence of the person or some other place frequented by the person;
(g)-(j)        …
(k)     keeping the person under surveillance;
(l)    directing racial or other derogatory taunts at the person;
(m)-(p) …
(5)-(9) …
The trial and the Magistrate’s reasons
The police adduced evidence from Mr and Mrs Larkins. The appellant, who had legal representation, and his wife both gave evidence in the defence case. The evidence given by each witness is summarised at some length in the Magistrate’s reasons.[3] The Magistrate made the following general findings concerning the witnesses.[4]
I accept the evidence of Mr and Mrs Larkins entirely. There [sic] evidence was given in a forthright and reserved fashion. In contrast, I found the evidence of Mr White and Ms Molnar to be driven by passion and extravagance. I was satisfied from Mr Larkins [sic] evidence and demeanour that he was genuinely concerned about Mr White’s behaviour towards him.
[3]Police v White, judgment of Magistrate Milazzo, 8 May 2018, MCPAU-17-1113 at [7]-[28].
[4]Police v White, judgment of Magistrate Milazzo, 8 May 2018, MCPAU-17-1113 at [30].
There would appear to be two main incidents alleged by the Larkins in support of the application for the intervention order. However, these are to be viewed against an ongoing background, as perceived by the Larkins, of unpleasant, aggressive behaviour directed at them by the appellant and/or his wife.
According to Mrs Larkins, at about 8.30 am on 30 November 2016 and whilst she was driving past the appellant’s house, his wife “stuck her finger in the air mouthing something with an angry look on her face”.[5] The appellant then got into his car and followed her. The Magistrate’s summary of Mrs Larkins’ evidence on this topic is in these terms.[6]
[The appellant] followed Mrs Larkins in his motor vehicle. He was close behind her. At one stage Mrs Larkins performed a U turn and [the appellant] also performed a U turn continuing to follow her. Mrs Larkins became increasingly anxious and rang “000”. She also rang her husband. On the day [the appellant] had a cold “straight forward look” which Mrs Larkins found intimidating.
The Magistrate’s summary of this incident does not fully replicate the evidence given by Mrs Larkins.[7] Mrs Larkins explained that whilst the appellant was following her, she performed two U-turns (not one) at different locations which the appellant replicated. Further, when Mrs Larkins finally arrived at and pulled into her work carpark, the appellant drove up and down the road outside the carpark “a further two times … just travelling slow, about the running pace of a human”.
[5]Police v White, judgment of Magistrate Milazzo, 8 May 2018, MCPAU-17-1113 at [8].
[6] Police v White, judgment of Magistrate Milazzo, 8 May 2018, MCPAU-17-1113 at [9].
[7] By consent, the evidence in chief of Mrs and Mr Larkins was given by way of affidavit, exhibits P1 and P2 respectively, on which they were cross-examined.
The second incident as recounted by Mr Larkins was said to have occurred on 11 May 2017. Mr Larkins was in his driveway when he saw the appellant drive past. He heard a male voice yell out “fuck” and “hey boong”. He then saw the appellant on the roof of the appellant’s house and heard him yell “Make no mistake, I’m gonna get you” which was repeated. According to Mr Larkins, there was more to this incident than as summarised by the Magistrate in his reasons. The appellant in his evidence acknowledged that, while on the roof, he made obscene gestures to Mr Larkins using his hand and pointing to his genitalia which he rather indelicately acknowledged was intended to convey “suck my cock”.
Mr Larkins also told the Court that two days before the trial (that is, on or about 19 March 2018) the appellant stuck his fingers up at Mr Larkins’ children as they were riding their bikes near his house. Mr Larkins has repeatedly warned the children not to play near the appellant’s house, such is his concern for their welfare.
Under the heading “Consideration of the evidence”, the Magistrate’s findings of fact on the balance of probabilities[8] included the following.
1.His Honour was not satisfied that Mrs Larkins had abused the appellant or his wife on the day she was followed. Her behaviour was directed to avoiding, not initiating, confrontation.
2.On the day of the incident involving Mr Larkins, he did not provoke the appellant in any way.
3.The appellant’s behaviour on that day in his intoxicated state was reactive, not contemplative.
4.The appellant did call Mr Larkins a “boong”.
5.Whilst the Magistrate made no specific finding to this effect, his acceptance of Mr and Mrs Larkins’ evidence “entirely” constituted findings that he accepted their accounts of the two respective incidents.
6.The Magistrate also expressed himself satisfied that past behaviours of the appellant towards Mr and Mrs Larkins and at least some of the children “have been abusive within the meaning of the legislation”.
7.The Larkins had been subjected to aggressive, vigilante type behaviour on the part of the appellant.
[8] See section 28 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA).
His Honour proceeded to consider whether – using the language of section 6(a) – “it is reasonable to suspect that [the appellant] will without intervention commit an act of abuse” against any of the persons referred to in the interim intervention order. His Honour reasoned as follows.[9]
Hypothetically, Mr White might have admitted a level of conflict with Mr Larkins but told the court that the conflict related to matters in the past and he had made the decision not to confront Mr Larkins or his family in the future. He did not do this.
Instead the tenor of the evidence adduced by him appeared to be directed at establishing that Mr Larkins was unfit to be a police officer. He presented his evidence as a man who believed that it was appropriate for him to monitor Mr Larkins’ behaviour and sanction it outside useful lawful channels as he saw fit.
Even assuming Mr Larkins had behaved on 11 May 2017 as reported by Mr White, Mr White’s decision to climb onto his roof and direct abuse towards Mr Larkins was an extreme response. Mr White attempted to justify his aggressive, abusive and racist behaviour towards Mr Larkins on 11 May 2017 by asserting a ‘right of reply’.
A right is something which is legally enforceable and the denial of which can be restrained. Even if Mr White was not expressing himself as a lawyer he certainly suggested that he was entitled to behave in the way he did towards Mr Larkins. I am satisfied that to this day he believes his behaviour to be appropriate. Mr White believes that it is appropriate, if he feels inclined, for him to behave abusively towards Mr Larkins and his family.
Neither Mr White nor his former wife have demonstrated any inclination to moderate their behaviour towards Mr Larkins. Accordingly I find it is reasonable to suspect that Mr White, will without intervention, commit further acts of abuse against Mr Larkins.
The negative interactions between the parties are long standing. They have involved Mrs Larkins and at least 2 of the children. I am satisfied that Mr White’s negativity towards Mr Larkins coupled with his relatively unrestrained readiness to engage in abusive confrontational behaviour on occasions, places Mr Larkins and the 3 children he cares for at future risk of being the victims of acts of abuse.
Because of Mrs Larkins’ difficulties with Ms Molnar and her relationship to Mr Larkins she is also at risk. In the circumstances I will issue a final intervention order in terms to be determined.
[9] Police v White, judgment of Magistrate Milazzo, 8 May 2018, MCPAU-17-1113 at [41]-[47].
The appeal
The Act provides for applications for an intervention order to be made before the Magistrates Court.[10] Section 10(2) of the Magistrates Court Act 1991 (SA) makes provision for the assignment of statutorily conferred jurisdiction to a Division of the Court. Rule 4.07 of the Magistrates Court Rules 1992 (SA), provides for the jurisdiction under the Act to vest in the Criminal Division of the Court. Appeals from the Criminal Division including, as in the present case, from an order confirming an intervention order, are to be dealt with in accordance with section 42 of the Magistrates Court Act.[11] Subsections 42(1) and (1a) are in these terms.
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).
(1a)An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
[10] Section 20(1) of the Act; “Court” is so defined in section 3.
[11] Groom v Police (No 3) [2013] SASC 93 at [22]-[28].

During argument on the appeal, the respondent contended that in this case the appeal is against an interlocutory judgment which does not fall within paragraph (a) or (b) and as to which there are no special reasons sufficient to enliven the discretion under paragraph (c). The appellant contended that the judgment in question was final and that an appeal is available as of right.
A preponderance of authority in this Court, at single Judge level, supports a conclusion that the Magistrate’s final intervention order is interlocutory.[12] Whilst this line of authority, strictly, is not binding on me sitting as a single Judge of coordinate jurisdiction, ordinary principles of respect and comity mean that I should exercise significant caution before departing from it.
[12] De Jong v Police [2010] SASC 191 at [40]-[41], Groom v Police (No 3) [2013] SASC 93 at [29]-[33], Marley-Duncan v Police [2015] SASC 146, Thakur v Police [2016] SASC 75; (2016) 125 SASR 180.
The issue of whether a particular order or judgment is final or interlocutory can, on occasion, be difficult to determine. Conventionally, an order or judgment which has the effect of not finally determining the rights of the parties will be interlocutory. A final intervention order may be varied or revoked pursuant to section 15 of the Act. However, no such application may be made for at least 12 months after the making of the order. The appellant contends that this qualification renders the intervention order itself final rather than interlocutory. However, this argument has not found favour in the line of authority to which I have referred. I see no reason to take a different view.
The order made by the Magistrate was interlocutory and, as such, special reasons must be established as provided for by paragraph (c) of subsection 42(1a).
It has been held that in order to be satisfied of special reasons to grant permission to appeal under paragraph (c) there must be some feature of the case which takes it out of the ordinary and distinguishes it from the usual case. Ordinarily, an arguable case will not be sufficient.[13]
[13] Marley-Duncan v Police [2015] SASC 146 at [27] citing Bleby J in Van Reesema v Police [2009] SASC 8 at [23].
There are features of the type of order under consideration that distinguish it from the more common type of interlocutory order. To be made the subject of an intervention order following a contested hearing is a very serious matter. An intervention order can impose significant restrictions on freedom of movement.[14] It contains obligatory firearms restrictions[15] including the automatic suspension of any licence held and a prohibition from possession of a firearm.[16] Such an order potentially exposes the person to criminal sanctions (including imprisonment) if it is contravened[17] and in certain circumstances the person will lose the presumption of bail otherwise conferred by section 10 of the Bail Act 1985 (SA).[18]
[14] As it happens, the order in this case has quite limited effects in this respect.
[15] Section 15 of the Act.
[16] The appellant is a member of the local gun club and likely will be affected by these restrictions.
[17] Section 31 of the Act.
[18] See section 10A(2)(ba) of the Bail Act 1985 (SA).
These features, together with the fact that the appellant has no right to apply pursuant to section 15 of the Act for a variation or revocation for at least 12 months, in combination, are sufficient to establish special reasons at least where there is an arguable case on appeal.
An appeal pursuant to section 42 of the Magistrates Court Act is by way of rehearing to be conducted in the manner described by White J in Martin v The Department of Transport, Energy and Infrastructure.[19]
In short, on appeals against conviction under s 42 of the Magistrates Court Act, this Court is required to conduct a real review of the evidence put before the Magistrate. On issues which involved an assessment of the quality and reliability of a witness, this Court must make due allowance for the advantage of the Magistrate in seeing and hearing the evidence being given. However, the fact that a Magistrate reached his or her conclusion by an acceptance of the evidence of the witnesses of one party does not prevent this Court carrying out its statutory function. There may be cases in which incontrovertible facts or uncontested testimony or the glaring improbability of the Magistrate’s conclusion will, despite the Magistrate’s preference for the evidence of a particular witness, warrant this Court’s interference. Further, if the question is one of inferences to be drawn from facts found or which are not in dispute, this Court can substitute its decision if it comes to a different conclusion as to the correct inference to be drawn.[20]
[19] [2010] SASC 141 at [38].
[20] See generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-8 at [25]-[29]; Warren v Coombes (1979) 142 CLR 531 at 551.
It follows that I must make a full and independent review of the evidence before the Magistrate and come to my own conclusion. In doing so, I must be mindful of the usual advantages the Magistrate enjoyed in seeing and hearing the witnesses who gave evidence.[21]
[21] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 126-8 at [25]-[29] (Gleeson CJ, Gummow and Kirby JJ).
Appeal grounds 1 to 6, 8 and 10
The specific findings of fact complained of are:
(i)that the appellant had a “cold, straight forward look” when following Mrs Larkins which she found intimidating (ground 2);
(ii)that the appellant followed Mrs Larkins for no reason (ground 3);
(iii)that Mr Larkins heard a comment “hey boong” (ground 4);
(iv)that the appellant impliedly admitted using the term “boong” (ground 5);
(v)that the appellant yelled “make no mistake, I’m gonna get you” (ground 6);
(vi)that it was “unlikely” that the appellant and his wife would have observed exactly the same behaviour of Mr Larkins whilst he was crouched down in the driveway by his motor vehicle and whilst they were driving by (ground 8);
(vii)that the appellant behaved “aggressively” towards Mr Larkins’ children, which allegation was vague and of no assistance (ground 10).
I have read and considered all of the evidence. Each of these contested findings of fact was open to be made on a balance of probabilities by the Magistrate given the evidence that was before his Honour. The appellant has pointed to features of the evidence (largely from his own and his wife’s evidence) that militate against each of the challenged findings. However, his Honour had the usual advantages of a trial Judge when it comes to assessing the credibility and reliability of the evidence of each witness his Honour heard and saw. His Honour made strong findings in this respect. These advantages are to be respected on appeal in the manner summarised by the High Court in Fox v Percy.[22]
[22] [2003] HCA 22; (2003) 214 CLR 118 at [23], [25]-[29].
On my review of the evidence, none of the impugned findings can be said to be contrary to “incontrovertible facts” or “compelling inferences” to be drawn from other evidence or “glaringly improbable” as those expressions were employed by the High Court in Fox v Percy.
I reject appeal grounds 1 to 6, 8 and 10.
Appeal ground 7
The Magistrate stated in his reasons[23] that, during the appellant’s cross-examination, the Magistrate observed him to stare “sternly” at cross-examining counsel “in what I took to be a defiant challenge”. The Magistrate said this immediately after recounting the appellant’s evidence, in relation to his claim that he only followed Mrs Larkins once, that “we haven’t been hunting them for sport you might say”. The complaint under ground 7 is that this conduct should not have been relevant to the Magistrate’s findings on the appropriateness of making an intervention order.
[23] Police v White, judgment of Magistrate Milazzo, 8 May 2018, MCPAU-17-1113 at [23].
The observation was made as part of the Magistrate’s summary of the appellant’s evidence. The Magistrate did not expressly make use of this observation in any particular way with respect to his findings of fact or reasoning process generally. Nevertheless, the Magistrate was entitled to note and rely upon the demeanour of the appellant whilst giving his evidence as part of and relevant to the Magistrate’s task of assessing the credibility and reliability of the appellant’s evidence. He was also entitled to assess, insofar as he could, aspects of the appellant’s character that might be relevant to determining whether it was reasonable to suspect that the appellant will, without intervention, commit an act of abuse in the future (section 6(a)). There is no substance to ground 7.
Appeal ground 9
As best I understand it, this complaint is to the effect that there was such delay between the 30 November 2016 incident and the bringing of the application as to militate against the seriousness of the conduct complained of. Further, the fact that no criminal charges were brought with respect to either of the 30 November 2016 or 11 May 2017 incidents tends to the same conclusion. This ground has no substance.
Appeal ground 11
The appellant contends, in short, that satisfaction of the reasonable to suspect requirement, provided for by section 6(a) of the Act, was not open on the evidence. The reasonable to suspect requirement involves an evaluative judgment as to the future by the Magistrate. However, ultimately it requires a finding of fact based on the evidence. The “test” is not onerous. The Magistrate must, as a fact, form a suspicion that a defendant will, without intervention, commit an act of abuse. Any such suspicion must, according to the evidence, have an objectively reasonable basis. In this respect, it is important to bear in mind the very wide definition in section 8 of the Act of “act of abuse”. It can be an act than results in or is intended to result in emotional harm such as distress, anxiety, or fear, that is more than trivial.[24] It was this type of act of abuse that the Magistrate found established by virtue of the appellant’s behaviour on 30 November 2016 and 11 May 2017.
[24] Section 8(2)(b) and (3)(c) of the Act.
In addition, the Magistrate formed the view that the appellant’s evidence was driven by passion and extravagance. His Honour also had before him concessions by the appellant including his admission that he followed Mrs Larkins as an act of defiance – “that we are not being intimidated” – his evident dislike and anger towards the Larkins and his propensity to verbally and physically, by making obscene gestures, react angrily to behaviours by the Larkins which upset him. Whether or not the Larkins’ behaviour towards the appellant and his wife was or remains provocative, the Magistrate in addressing the reasonable to suspect requirement had to form a view as to how the appellant might react towards the Larkins in the future. In this respect, the following statements by the appellant when giving evidence about the May 2017 incident were telling.
It was bugging me a little bit because I didn’t get a right of reply
.  .  .  .
But if somebody is being abusive to me I believe I’ve got a right of reply and I thought it was just a discussion in between men.
.  .  .  .
But me being intoxicated and not wanting to look like I’m doing a home invasion or something there was no way I was going back down the road because one plus one would have equalled two there would have been a physical altercation.
.  .  .  .
Well we are a little bit disappointed at the way things are going, but we haven’t been hunting them for sport you might say.
On my review of the evidence as a whole, the Magistrate was entitled to make the reasonable to suspect finding. I would have come to the same conclusion.
Appeal ground 12
The appellant contends that it was not “appropriate” to issue the intervention order, being the conclusion mandated by section 6(b) of the Act. In this respect, the appellant relies on the contentions previously considered as to the incorrectness of the Magistrate’s findings, on the asserted “trivial” nature of any emotional harm caused and on the fact that there was no evidence as to any troublesome interactions during the period between the May 2017 incident and the time the matter came for trial in March 2018, thus undermining any legitimate concern for the future.
The challenges to the Magistrate’s findings have already been dealt with and rejected. As far as the “trivial” nature of the abuse contention is concerned, implicit in the Magistrate’s findings and conclusions is that it was not trivial. Emotional harm comprised of distress, anxiety or fear that is trivial is excluded from the definition of an act of abuse under section 8(3)(b). The acts of abuse as found by the Magistrate were such as fell within the protection potentially afforded by the Act. The fact that nothing further of particular note appears to have occurred since the May 2017 incident is a consideration material to the question of appropriateness. However, it must be considered in light of the fact that an interim intervention order was in place throughout virtually all of that period.
In my view, having regard to the Magistrate’s findings, the history of discord between the parties, the racial overtones to the relationship and the close proximity, within a very small community, of the two residences, it was appropriate that an order be made in the quite limited terms of the one made by the Magistrate. I reject ground 12.
Appeal ground 13
The appellant contends that it was not correct to find that any possible acts of abuse in the future would risk causing distress, anxiety or fear that is more than trivial. In my view, such a finding was open on the evidence and is consistent with the Magistrate’s reasons. I reject ground 13.
Conclusion
I have reviewed the evidence of all four witnesses. It was entirely open to the Magistrate to disbelieve the appellant and his wife and to accept the evidence of Mr and Mrs Larkins on the critical issues. Restricted to a reading of the transcript only, as I was, the appellant came across as angry and malevolent towards Mr Larkins and his family. Significant animosity with racial overtones has been directed their way. It is reasonable to suspect that further acts of abuse, of the nature provided for by section 8(2)(b) and 8(3)(c) of the Act, if not more serious acts of abuse, will be engaged in by the appellant in the absence of an intervention order. In all the circumstances, the order as made by the Magistrate was appropriate. I grant permission to appeal but dismiss the appeal.