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)…