South Australia

Supreme Court - Full Court

  • R v Hibeljic [2018] SASCFC 35 (11 May 2018) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Emotional and psychological abuse’ – ‘Following, harassing and monitoring’ – ‘Imprisonment’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Sexual and reproductive abuse’ – ‘Women’ – ‘Young people

    Charges: Blackmail x 1; Knowingly distributing an invasive image x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant had been in a relationship with the victim. They were both 18 years old. He threatened to distribute a video of the victim with her breasts exposed unless she had sex with him, and in fact distributed it to three people (her friend, new boyfriend and father). He knew that her father was of Syrian background, very strict and was likely to react harshly if he became aware of the video ([10]). Upon watching the video, her father subjected her to ‘significant physical harm’ in a ‘frightening and vicious physical attack’ ([22]). The victim’s relationship with her family was significantly damaged, and she was forced to leave Adelaide and abandon her tertiary education ([24]).

    The sentencing judge sentenced the appellant to 3 years and 3 months’ imprisonment with a non-parole period of 15 months.

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The Court of Appeal dismissed the appeal, holding that the sentence was not manifestly excessive. It was significant that both offences involved a sexually explicit video of the victim, and the appellant’s gross betrayal of trust involved in distributing it ([45]). The blackmail was a ‘particularly serious instance’ of this type of offending ([46]). The appellant was aware of the likelihood of a serious and significant reaction on the part of the victim’s father ([51]).

    The appellant submitted the sentencing judge did not properly take into account his youth, lack of criminal history, general good character and likelihood of rehabilitation ([60]). However, the Court held that the sentence of imprisonment, without suspension or home detention, was reasonably imposed ([63], [68] [81]).

  • R v Taheri [2017] SASCFC 115 (8 September 2017) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Character reference’ – ‘Imprisonment’ – ‘Physical violence and harm’ – ‘Risk of deportation’ – ‘Systems abuse’ – ‘Women’ – ‘Written reference

    Charges: Aggravated serious criminal trespass in a place of residence x 1; Aggravated threatening harm x 2; Aggravated threatening life x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and complainant were married but separated. An intervention order was in place. The appellant broke into the complainant’s house while the complainant and her sister were inside. He cut through a flyscreen window with a knife and put a rope around the complainant’s throat. The appellant threatened to kill the complainant and hurt her sister if she did not withdraw the complaint she made to the police about him ([10]). The appellant came to Australia as a refugee and was living on a permanent residence visa.

    The appellant was sentenced to a head sentence of five years’ imprisonment with a non-parole period of 2 years ([5]). The judge ordered partial concurrency to the extent of 12 months ([34]).

    Issues: The appellant appealed on 4 grounds, that the judge erred in:

    1. failing to make a finding as to the risk the appellant posed to community safety in declining to make a home detention order under s 33BB Criminal Law (Sentencing) Act 1998 (SA) ([15]);
    2. the approach in relation to partial concurrency;
    3. her treatment of a written reference provided on behalf of the appellant;
    4. failing to consider the risk of deportation in imposing a sentence of more than 12 months ([7]).

    Decision and Reasoning: The appeal was dismissed.

    On the first ground, Nicholson J held that s 33BB Criminal Law (Sentencing) Act 1998 (SA) does not require a sentencing judge to make a specific finding as to the risk that an offender poses to the community. Nicholson J held that declining to order home detention was within the judge’s discretion ([31]).

    On the second ground, Nicholson J held that it was open to the judge to discount the written reference as to character. The reference did not consider the appellant’s character apart from how he presented himself in a social setting ([20]-[22]).

    On the third ground, Nicholson J held that concurrency between the sentences was within the judge’s discretion ([36])

    On the fourth ground, Nicholson J held that on the assumption that the risk of deportation was relevant, the sentencing judge considered those matters ([46]).

  • R v Saunders [2017] SASCFC 86 (27 July 2017) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Breach of bail’ – ‘Contravention of a protection order’ – ‘Damage to property

    Charges: Property damage x 1; Breach bail x 1; Contravening term of intervention order x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant went to the complainant’s residence, knocked on her bedroom window and then smashed the window by punching it ([10]). The appellant was subject a bail agreement and intervention order that prohibited him from approaching the complainant ([11]). The sentencing judge imposed a head sentence of 10 months and 22 days ([2]-[3]).

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed (see [29], [30] and [47]). Justice Stanley commented that ‘the very point’ of the appellant’s bail agreement and intervention order was that the complainant could feel safe and protected in her own home ([26]). His Honour emphasised that ‘the purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical’ and which ‘can have profound consequences for the victim’ ([27]). Justice Hinton added that ‘it is important to the maintenance of confidence in the protection that intervention orders are intended to provide that the courts treat any breach as very serious’ (emphasis added), not only physical violence ([44]). The sentence was at the high end of the permissible range, but was not plainly wrong (see [28], [47]).

  • R v Sykes [2017] SASCFC 59 (31 May 2017) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Burglary’ – ‘Contravention of a protection order’ – ‘Kidnapping’ – ‘Separation’ – ‘Sexual and reproductive abuse

    Charges: Aggravated serious criminal trespass in a place of residence x 1; Aggravated kidnapping x 1; Aggravated threaten life x 1; Aggravated indecent assault x 1; Aggravated assault causing harm x 1; Aggravated threaten harm x 2; and threaten harm x 1; Breach intervention order x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and victim had been in a relationship ([6]-[7]). Shortly after the relationship had ended, the appellant entered the victim’s house at midnight ([9]). He bound her arms and legs, blindfolded her and removed her clothes ([11]). He told her that he was going to cut off her nipples, breasts and fingers, break her nose, penetrate her with objects, and drive her to a secluded place to make her suffer ([12]-[16]). The offending continued for at least several hours ([22]). The appellant pleaded guilty to the offences. He was sentenced to 11 years and one month imprisonment with a non-parole period of six years.

    Issues: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Parker J, Vanstone J and Blue J agreeing, held that the sentence took into account all relevant factors, and the sentence was within an appropriate range.

    Parker J stated at [33]:

    ‘Every person has a right to feel safe in their house and the appellant had violated the security and safety of the victim and also violated her personally. He had terrorised her for what must have been hours in her own home. In her view his behaviour appeared to have been deliberately designed to inflict the maximum amount of terror.’

    Counsel for the appellant referred to two other cases concerning home invasions (R v Siviour [2016] SASCFC 51 and R v Stephen John Forbes DCCRM 15-1418 and 15-340). Parker J emphasised that conduct giving rise to charges of trespass and kidnapping may be extremely varied, and therefore the length of reasonable sentences may differ ([58]). His Honour considered that the appellant’s sexual offending against a former domestic partner was an aggravating factor not present in Siviour and Forbes ([59]). His Honour held that the sentencing judge balanced the appellant’s lack of criminal history, expression of remorse and strong work history, against the serious nature of the offending and the enormous impact on the victim ([62]).

  • R v Nelson [2017] SASCFC 40 (8 May 2017) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    General and specific deterrence.’ – ‘People affected by substance abuse’ – ‘Traumatic brain injury

    Charges: Causing serious harm with intent to cause serious harm x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The victim and defendant were formerly in a domestic partnership. The offences occurred on one occasion. In the presence of other people at their home, the defendant: grabbed the victim and dragged her outside; began to call her names; repeatedly hit her head and kick her head and body ([6]). The victim sustained an extremely severe traumatic brain injury, and was likely to be left with long-term cognitive defects ([7]). The sentencing judge had regard to the defendant’s disadvantaged background and low level of cognitive functioning (attributed to the defendant having sniffed petrol since he was four years old) (see [10]-[20], [26]-[27]).

    The defendant was sentenced to 3 years and 3 months’ imprisonment, with a non-parole period of one year and six months.

    Issues: The prosecution argued that the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was allowed. The Court (Parker J, with Kourakis CJ and Nicholson J agreeing) found that this was an exceptional case that required intervention by the appellate court ([36]). Parker J considered that the sentence did not give enough weight to the need for general and specific deterrence in domestic violence offences. Parker J stated (at [45]-[47]) that:

    “It was necessary for the sentencing judge to take into account, as his Honour did, the defendant’s background of disadvantage and social deprivation arising from his upbringing in a traditional and remote Aboriginal community. However, the fact that … the defendant had very recently been released after a period of imprisonment imposed for two assaults on a different female drinking companion operated to reduce the leniency that his personal circumstances might otherwise have attracted. Moreover, the attack by the defendant upon his domestic partner was particularly brutal and has had grave consequences for her … The sentence did not give appropriate effect to the views consistently expressed by this Court concerning the need to give significant weight to considerations of specific and general deterrence when sentencing defendants who have engaged in serious domestic violence.”

    The defendant was sentenced to 5 years imprisonment, with a non-parole period of 3 years.

  • R v Neilson [2016] SASFC 90 (19 August 2016) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    People who are gay, lesbian, bisexual, transgender, intersex and queer’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Women

    Charges: Causing harm with intent to cause harm x 1; Aggravated assault x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and one of the complainants (J) were divorced ([8]). The appellant went to the matrimonial house, where J lived with her new partner (M), the other complainant ([10]). The appellant pushed the J and M into the house. The appellant grabbed M around the throat, pushed her against a wall and punched her ([11]). The appellant picked J up off the floor and threw her onto the dining table ([13]). M suffered ongoing damage to her eye and both women suffered psychological consequences ([17]).

    Issues: Whether the judge erred in not suspending the sentence.

    Decision and Reasoning: The appeal was dismissed. The appellant had favourable personal circumstances, including his lack of criminal history, little risk of reoffending, remorse and lack of planning in the attack ([25]-[33]). Bampton J held that the sentence was within range, and those factors were reflected in the fixing of the non-parole period at approximately 42 percent of the head sentence ([41]). The favourable factors were appropriately balanced with the unfavourable factors, including the seriousness of the offence, the ongoing injuries, the fact that the offences were committed in the victims’ home, and the fact that the offences constituted domestic violence ([43]).

  • R v Ritter [2016] SASCFC 88 (16 August 2016) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Assault causing harm’ – ‘Causing harm with intent’ – ‘Fresh evidence’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Rehabilitation

    Charge/s: Assault causing harm, causing harm with intent.

    Appeal Type: Appeal against sentence.

    Facts: The male applicant and the female victim had been in a relationship for two years. His behaviour towards her had been violent and controlling. On 19 March 2014, the applicant was yelling abuse at the victim and she became so fearful she ran into the streets. He chased her and punched her in the face. On 22 April 2014, the applicant verbally abused the victim, hit her around the head with a pillow and punched her to the left side of her mouth. The second assault caused injuries requiring surgery. As a result of the two incidents, the victim had scars on the left and right sides of her mouth. There was also evidence of a number of uncharged acts. The applicant was sentenced to a total head sentence of six years and eleven months imprisonment, with a non-parole period of five years.

    Issue/s:

    1. Fresh evidence, a psychologist’s report and a report from an officer of the Department of Correctional Services, ought to be admitted.
    2. The head sentence and the non-parole period were manifestly excessive.
    3. The sentencing judge erred in not having or seeking materials on which a proper assessment could be made of the applicant’s prospects for rehabilitation.

    Decision and Reasoning: The appeal was dismissed. First, Parker J held that the reports were not to be received as fresh evidence. The psychologist report could have been obtained with reasonable diligence for use at the trial, it added very little to what was before the sentencing judge, and the psychologist was not completely briefed on the applicant’s substantial criminal history. The report from Correctional Services also did not add anything significant to what would have been before the sentencing judge (see [50]-[67]).

    Second, the head sentence was not manifestly excessive. This was in light of the gravity of the offending conduct, the abusive nature the relationship and the applicant’s significant criminal history of violence. Parker J further rejected the submission that the two sentences ought to have been served concurrently. The offending conduct occurred almost five weeks apart (see [78]-[86]). The non-parole period was also not manifestly excessive. Considerations of deterrence, prevention and punishment militated towards a relatively higher non-parole period, as did the nature of the offences and the context in which they occurred (see [87]-[91]).

    Third, the sentencing judge did not err in concluding that the appellant had extremely poor prospects for rehabilitation. The appellant had a long criminal history, including numerous convictions for assaults (many involving domestic violence). He also had many convictions for breach of restraining orders, failure to comply with bail agreements and breaches of bonds (see [92]-[96]).
  • R v Gardiner [2015] SASCFC 107 (5 August 2015) – Supreme Court of South Australia (Full Court)
    Circumstantial evidence’ – ‘Evidence’ – ‘Expert testimony’ – ‘Grievous bodily harm’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm’ – ‘Post-offence conduct’ – ‘Relationship evidence

    Charge/s: Murder.

    Appeal Type: Application for permission to appeal against conviction.

    Facts: The applicant was convicted of the murder of his domestic partner. The applicant had camped with the victim in his car in an isolated location. The victim’s body was found in the car. Medical evidence relating to the nature of the injuries and the cause of death was led at trial. The trial judge found on the basis of this evidence that the victim suffered a severe beating. There was no dispute that the injuries were caused by the applicant. The trial was concerned with whether the evidence could prove that the injuries that the applicant inflicted caused her death and whether they were inflicted with an intention to cause grievous bodily harm.

    Issue/s:

    1. Whether the guilty verdict was unreasonable because the evidence did not prove beyond reasonable doubt the requisite intent for murder.
    2. Whether the judge misinterpreted the medical evidence in concluding that severe force was required to cause a certain injury.
    3. Whether the judge misused evidence of the applicant’s post-offence conduct, such as not calling an ambulance while claiming he had.

    Decision and Reasoning: Leave to appeal was granted but the appeal was dismissed.

    1. There was a long history of violence in the relationship. The applicant had previously been charged with assaulting the victim. In this context and also taking into account the extent and number of injuries suffered by the victim, Kourakis CJ (with whom Blue J and Stanley JJ agreed) held that the trial judge was correct in concluding that the evidence showed beyond reasonable doubt that the applicant intended to cause grievous bodily harm.
    2. The Court acknowledged that the judge did mistakenly conclude that the doctor’s evidence indicated that severe force was required to cause an injury to the victim’s liver. However, the judge did not reason from this misunderstanding to reach her conclusion. Instead, the judge reasoned that the applicant had the requisite intention from evidence of all the injuries, not just evidence of the liver injury. The judge then correctly reasoned from the nature and extent of the injuries that the applicant had intended to cause grievous bodily harm.
    3. The applicant lied to various witnesses that he had called an ambulance but it had not arrived. In fact, he did not call an ambulance. The Court found that the judge correctly used this evidence to show that he was aware how badly the victim was injured, and that his failure to call an ambulance showed he possessed the requisite intention.
  • R v McDonald [2015] SASCFC 99 (29 July 2015) – Supreme Court of South Australia (Full Court)
    Contemporaneity between intention and action’ – ‘Directions and warnings for/to jury’ – ‘Evidence’ – ‘Intent’ – ‘Murder’ – ‘Physical violence and harm

    Charge/s: Murder.

    Appeal type: Appeal against conviction.

    Facts: The appellant was convicted by a jury of murdering his de facto partner. It was not in dispute that he inflicted the blows that caused her death. The pathologist’s view was that the appellant inflicted at least 50 blows. The injuries were inflicted over several hours, possibly intermittently. The issue at trial was whether he had inflicted these blows with the requisite intent to cause death or grievous bodily harm. The appellant was highly intoxicated at the time of the incident.

    Issue/s:

    1. Whether the verdict was unreasonable and not supported by the evidence.
    2. Whether the trial judge erred by not directing the jury of the following - that it is necessary that the intention to cause death or grievous bodily harm exists contemporaneously with the infliction of the injuries that caused the victim’s death.

    Decision and Reasoning:

    1. This argument was dismissed – see at [4].
    2. The Court agreed that parts of the judge’s directions amounted to an error of law. A correct direction was initially given by the trial judge. This was – ‘The prosecution must prove that at the time that McDonald struck any collection of blows the combined effect of which was to cause a degree of internal bleeding…which caused LT’s death, he intended to kill her or cause her grievous bodily harm’ (see at [29]). However, the judge then gave subsequent directions to the jury. These directions stated that it was sufficient that the appellant formed an intention to kill or cause grievous bodily harm when any of the blows were struck, even if that particular blow (struck with the requisite intent) did not contribute to or cause the internal bleeding that led to her death. Other directions given by the judge were not capable of correcting this error. However, the appeal was dismissed pursuant to the proviso.

      See also at [33] where Kourakis CJ (with whom Sulan J and Parker J agreed) noted that the inference of intention, ‘overwhelmingly supported as it is by the evidence of the beating, is reinforced by the evidence of the prior violence to which the appellant subjected LT in their relationship and his admission that he was enraged at the time. The appellant is more likely by reason of those related circumstances to have formed an intention to cause grievous bodily harm relatively early on in the course of the beating.’

  • R v Capaldo [2015] SASCFC 56 (28 April 2015) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravating factor’ – ‘Mitigating factors’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Possession of firearm’ – ‘Sentencing’ – ‘Where the offender is also a victim

    Charge/s: Various offences relating to the possession of a loaded, semi-automatic handgun.

    Appeal Type: Appeal against sentence.

    Facts: At trial, evidence was put before the judge relating to the violent behaviour of the appellant’s former partner. The appellant made a statement to police indicating that she obtained the handgun for her own protection. She pleaded guilty and was sentenced to one year and six months’ imprisonment with a non-parole period of 5 months.

    Issue/s: Whether the sentence should have been suspended and whether the trial judge demonstrated pre-judgment and an appearance of bias.

    Decision and Reasoning: The appeal was upheld. In a joint judgment, Gray and Sulan JJ found that the Judge impermissibly intervened in the trial process, giving rise to an appearance of bias in the eyes of a fair-minded lay observer. The judge constantly interrupted and in cross-examining the appellant, suggested that she was not willing to participate in a police interview, which was false. The Judge was also in error by not accepting the appellant’s explanation for the reasons that she possessed the firearm. The sentencing therefore proceeded on errors of fact. In resentencing, Gray and Sulan JJ acknowledged the serious nature of the offending, particularly that the gun was loaded and easily concealable. Counsel for the appellant conceded that a sentence of imprisonment was warranted. In mitigation, the appellant had no criminal history and had suffered serious abuse at the hands of her former partner, to the extent that she suffers from PTSD. As such, the head sentence was reduced to 17 months with a reduced non-parole period of 4 months and the sentence was also suspended upon the appellant entering into a good behaviour bond for 3 years. Kelly J also upheld the appeal but dissented with respect to re-sentencing and concluded that it should be remitted back to the District Court, given the disputed facts.

  • Rana v Gregurev [2015] SASCFC 58 (27 April 2015) – Supreme Court of South Australia (Full Court)
    Appeal’ – ‘Emotional and psychological abuse’ – ‘Following, harassing, monitoring’ – ‘Interim intervention order’ – ‘Purpose of intervention orders

    Appeal Type: Application for permission to appeal against a decision of a single judge of the Supreme Court who dismissed an appeal against a decision of a Magistrate who refused to make an interim intervention order.

    Facts: The applicant brought an application for an interim intervention order in the Magistrates’ Court against the respondent (the applicant’s former girlfriend’s mother). The applicant claimed that the respondent had been bullying, cyber stalking and contacting his psychiatrist online and in person, as well as defaming him on the internet. The basis of his application was that it was reasonable to suspect that the respondent would commit an act of abuse against him by causing personal injury and criminal defamation on the internet. In the original appeal to a single judge of the Supreme Court, Peek J dismissed every ground of appeal - see Rana v Gregurev [2015] SASC 37. The applicant had a long history of psychiatric issues, and a psychiatrist’s report detailed the impact of the websites on his general well-being (See at [31] of Peek J’s decision).

    Issue/s: Some of the issues concerned –

    1. Whether the applicant had a sufficient opportunity to present his application in the Magistrates’ Court.
    2. Whether the Magistrate correctly applied ss 8 and 10 of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act) which define different types of abuse and sets out general principles which the Court must follow in considering intervention orders.
    3. Whether the Magistrate correctly exercised her discretion to refuse the applicant’s application and whether she should have found that there was evidence which gave rise to a reasonable suspicion that the respondent would commit an act of abuse.
    4. Whether the Magistrate correctly applied ss 6, 10 and 28 of the Act which set out what must be proven in an intervention order application.

    Decision and Reasoning: All aspects of the Supreme Court decision (Peek J - Rana v Gregurev [2015] SASC 37) were upheld by the Full Court.

    1. This argument had no substance – he appeared before the Magistrate on four occasions. The Magistrate was concerned to ascertain the detail of the case.
    2. Peek J (in the Supreme Court) noted at [14]-[15] that the purpose of the Act is to, ‘protect people when it is reasonable to suspect that somebody…will, without intervention, commit an act of abuse’. His Honour also noted that because abuse is defined so broadly, it is important for the courts to ensure that this does not result in the Act being abused through ‘specious or unwarranted claims’ which will have ‘detrimental consequences’ to the courts and to people who become the subject of unwarranted orders. The Magistrate correctly applied the Act to conclude that it was not reasonable to suspect that without an intervention order there would be any further abuse.
    3. In dismissing ground 3, the Court noted that the crucial issue is not whether acts of abuse had been committed in the past, but whether, without an intervention order, such acts would be committed again, and whether the imposition of such an order is appropriate in the circumstances.
    4. The Court found the Magistrate correctly approached the task in the application which was to decide whether there was a reasonable suspicion that an act of abuse would occur.
  • R v Koch [2015] SASCFC 31 (27 March 2015) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Causing serious harm with intent’ – ‘General deterrence’ – ‘Impact of offence on victim’ – ‘Physical violence and harm’ – ‘Relevance of guilty plea’ – ‘Sentencing’ – ‘Trespass

    Charge/s: Criminal trespass in a place of residence, causing serious harm with intent and using a motor vehicle without consent.

    Appeal Type: Application for permission to appeal against sentence.

    Facts: The victim of the offending was the mother of the respondent’s former partner. After entering her house by the back door, he questioned her about his relationship with her daughter. He became enraged, at which point he restrained her, pushed her to the floor and punched her multiple times to the side of the head. He provided no medical assistance to her and left her lying unconscious on the floor. The victim sustained lasting injuries as a result of the offending. The sentencing judge’s starting point was 6 years’ imprisonment. Taking into account his pleas of guilty, the respondent was sentenced to four years and six months’ imprisonment with a non-parole period of two years and three months.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning:

    In granting permission and allowing the appeal, the Court noted the high maximum penalties, (life imprisonment for criminal trespass and 20 years for causing serious harm with intent) and the relatively insignificant mitigating factors. The offending was ‘particularly brutal’ (See at [35]). Parker J (Kourakis CJ and Bampton J concurring) held that the notional starting point of 6 years was manifestly inadequate and the sentence itself was not adequate to amount to general deterrence or just punishment. See in particular at [42] – ‘General deterrence is a very important consideration in sentencing for offences of violence committed in the course of domestic disputes. The sentence imposed fails to provide the level of general deterrence necessary to ensure public confidence in the enforcement of the criminal law in this fraught area.’ The Court also found that the trial judge’s 25% discount for the guilty plea was too high. The respondent ‘had no practicable option other than to plead guilty’ (see at [46]), which needed to be taken into account in determining the quantum of the discount. The total effective sentence was therefore increased to six years and eight months (applying a 20% discount for the guilty plea), with the non-parole period set at four years and two months.

  • Groom v Police [2014] SASCFC 125 (19 November 2014) – Supreme Court of South Australia (Full Court)
    Breach of intervention order’ – ‘Consent to confirmation of intervention order’ – ‘Interim intervention order’ – ‘Systems abuse

    Appeal Type: Application for permission to appeal against a decision of a single judge of the Supreme Court.

    Facts: After the appeal in Groom v Police (No 3) was upheld, the matter was remitted back to the Magistrates’ Court, where confirmation of the interim intervention order was again made. The applicant consented to the order following negotiation with the prosecution who agreed to withdraw 31 charges for breach of the order. The applicant then appealed to a single judge of the Supreme Court (Kelly J), and argued that consent should be withdrawn because he was under ‘enormous stress’ and had been ‘railroaded’ (See at [7]). Kelly J refused permission to appeal because the applicant’s counsel had been properly briefed to represent him in the Magistrates’ Court, the consent to the confirmation was informed, the applicant was present throughout the process and he raised no objection and confirmed to the Magistrate that he would accept the order. This was different to the hearing considered in Groom v Police (No 3), where the applicant was in custody and believed he could not properly defend the proceedings.

    Issue/s: Whether the appellant could withdraw his consent to the intervention order and have the confirmation set aside.

    Decision and Reasoning: Permission to appeal was refused. The applicant submitted to the Full Court that he was denied natural justice because he was not provided with a copy of the transcript from the Magistrates’ Court hearing, and questioned the ‘officiality’ of the transcript on which Kelly J had relied. He also questioned the behavior of members of Police Prosecutions in relation to their conduct with the transcript. The appeal was dismissed – the Court held that the applicant did not identify how the missing transcript caused prejudice. The differences in the arguments in this appeal compared to Groom v Police (No 3) were stark. It is likely that the applicant’s ‘ongoing and deeply felt grievance against his former partner’ were the cause of the continuing appeals rather than any legal error.

  • R v Barnes [2014] SASCFC 79 (18 July 2014) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated assault causing harm’ – ‘Aggravating factor’ – ‘Damaging property’ – ‘Deterrence’ – ‘Exposing a child’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Aggravated assault causing harm (two counts) – Circumstance of aggravation: that the victim was the defendant’s domestic partner.

    Appeal type: Appeal against sentence.

    Facts: The defendant discovered messages from his cousin to his de facto partner on her phone. After waking her up at 3am to question her about these messages, he hit her on the left side of the head before he gave her time to explain. This caused bleeding. He then pinned her down after she tried to break free. Their son, who was sleeping in the same room, witnessed the defendant hitting the complainant. A similar incident occurred the following evening. The defendant punched her to the right of the face with a closed fist and hit her in the right eye. He tried to strangle the complainant who could still breathe so she pretended to pass out. He held up her phone, put it on a coffee table and stomped on it which caused the phone and the table to break. After carrying their son towards his bedroom, he kicked her on the lower back despite her begging him not to hit her again. His criminal history included many driving offences as well as dishonesty and drug offences. He was sentenced to 18 months’ imprisonment for each count to be served cumulatively, with a non-parole period of 18 months. The judge stated he reduced the sentence by 25% on account of the guilty plea.

    Issue/s:

    1. Whether the sentences were manifestly excessive.
    2. Whether the sentences should have been made concurrent.
    3. Whether the sentence should have been suspended.

    Decision and Reasoning: The appeal was allowed in respect of concurrency.

    1. Gray J (with whom Peek and Stanley JJ agreed) firstly noted that the offences were unprovoked. The defendant was woken from sleep and defenceless. The Court then acknowledged the various mitigating factors, including the defendant taking steps towards rehabilitation and the fact that he had formed a new relationship with no evidence of domestic violence. However, in applying the authorities which indicate the seriousness of domestic violence and the need for strong personal and general deterrence and noting the defendant’s long criminal history of defying court orders, the Court held that a head sentence of 18 months’ imprisonment for each offence was open. See in particular from [17] – [22] for a summary of the relevant authorities.
    2. The Court noted that when there are two truly separate occurrences of criminal conduct, cumulative sentences are likely to be appropriate. When a number of offences form a course of criminal conduct, concurrent sentences are likely to be appropriate. As such, the Court held that the sentence should have included some element of concurrency because the offending was, in substance, a course of conduct separated by a short period of time. Partial concurrency of 6 months was appropriate. As such, the 18 month sentence for the second count was made concurrent for 6 months, so that the total effective sentence became 2 years and 6 months.
    3. This argument was rejected. It was within the discretion of the trial judge to not suspend the sentence notwithstanding the applicable mitigating factors. The offending was extremely serious, cowardly and brutal. Furthermore, it partly took place in the presence of a child, who became distressed on the second occasion.
  • R v Nedza [2013] SASCFC 142 (18 December 2013) – Supreme Court of South Australia – Full Court
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravating factor’ – ‘Attempting to dissuade a witness’ – ‘Breach of bail’ – ‘Breach of restraining order’ – ‘Concurrency’ – ‘Creating risk of harm’ – ‘Deterrence’ – ‘Double punishment’ – ‘Exposing a child’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Sentencing’ – ‘Sexual and reproductive abuse’ – ‘Totality

    Charge/s: Rape (two counts), creating a risk of harm, attempting to dissuade a witness, breach of bail, breach of restraining order.

    Appeal Type: Application for permission to appeal against sentence.

    Facts: The respondent attended the home of his former partner and then proceeded to threaten her with a knife, assault her multiple times, commit two acts of anal rape, threaten her daughter and parents and caused her to swallow petrol. He had possession of a cigarette lighter and threatened to set her alight. He also pressed the knife against their sleeping baby’s cheek. The respondent then, through his sister offered to pay the complainant money if she dropped the charges. All of the conduct was in breach of bail and a domestic violence restraining order. The respondent’s criminal history included multiple instances of prior violent offences committed against the complainant and her mother which demonstrate a pattern of domestic violence. The respondent pleaded guilty to all charges and was sentenced to a total term of imprisonment of 10 years with a non-parole period of 5 years and six months, imposed concurrently with a sentence of 6 months’ imprisonment for different offences.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: Permission to appeal was granted and the respondent was re-sentenced to 15 years’ imprisonment with a non-parole period of 10 years. The Crown submitted that the sentence failed to reflect the seriousness of the offending and the need for deterrence (personal and general). Gray J (with whom Stanley J agreed) agreed with this argument and noted the offending involved various aggravating factors including that it was committed in breach of bail and the restraining order, the presence of children, the use of a knife and the putting of a knife on the head of a sleeping baby. His Honour concluded that the sentencing judge did not give sufficient consideration to these mitigating factors.

    See in particular at [46] – ‘In seeking and obtaining a restraining order against the defendant, the complainant had sought the law’s protection against violence inflicted by her former partner, the defendant. Despite this and in breach of that restraining order, the complainant was again the victim of violent offending of a most serious nature. The restraining order ought to have demonstrated to the defendant in the clearest terms the seriousness with which domestic violence is regarded both by the courts and by wider society. The fact that the offending occurred in breach of that order is a serious matter of aggravation and a significant factor in my conclusion that the sentence imposed by the Judge was manifestly inadequate.’

    Nicholson J also upheld the appeal and made the same orders but made some additional comments regarding concurrency and double punishment in sentencing. His Honour noted that it was appropriate to deal with the breaches of bail and restraining orders (both summary offences) together with the more serious offences. However, it was important to avoid any double punishment in doing so, especially when the more serious offences were ‘aggravated by and assumed colour and context from’ (see at [102]) the summary breach offences. The trial judge ordered separate sentences and made them partially or wholly concurrent. However, ‘the success of this approach depends upon being able to notionally but accurately separate out that component of the sentence nominated for the two summary offences which represents the aggravating feature with respect to the principal offences. Only by being able to do this can a sentencing Judge accurately identify the extent to which, if at all, partial or full concurrency ought to be ordered. Adopting the approach of sentencing separately for the two summary offences where those offences also aggravated the principal offences enhances the risk of an overall under-punishment or over (double) punishment (see at [103])’ – (see further at [105]). His Honour concluded that in this case, the best approach was to impose a single sentence for all offences as opposed to ordering individual sentences with partial and whole concurrency periods. Concurrency and totality however still should not be overlooked when employing that approach.

  • R v M, AG [2013] SASCFC 39 (24 May 2013) – Supreme Court of South Australia (Full Court)
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Intervention order’ – ‘Physical violence and harm’ – ‘Post-separation violence’ – ‘Sentencing’ – ‘Sexual and reproductive abuse

    Charges: Aggravated serious criminal trespass in a place of residence x 1; Rape x 5; Theft x 1.

    Appeal type: Prosecution appeal against sentence.

    Facts: The defendant was the victim’s (M) former partner ([1]). The defendant had been arrested and granted bail on multiple occasions for offences committed against M ([6]-[10]). The present offences occurred when the defendant attended M’s home while on bail. He pushed her into the house, leaving their baby in the car. He took a sledgehammer that M left inside her house for her own protection. He threatened to rape her with it, and then proceeded to force her to perform fellatio on him, vaginally and anally raped her, and forced the hammer of the sledgehammer into her vagina ([12]).

    The defendant initially pleaded not guilty and provided an alibi notice, but after the prosecution presented him with evidence disproving the alibi notice, the defendant pleaded guilty ([15]). The defendant was sentenced to 7 years’ imprisonment with a non-parole period of 4 years. The judge declined to make an intervention order ([2]).

    Issues: Whether the sentence was manifestly inadequate and whether the judge erred in failing to make an intervention order.

    Decision and Reasoning: The appeal was allowed, and the sentence was almost doubled to 13 years’ imprisonment with a non-parole period of 9 years ([55]). The Court also imposed an intervention order with the sentence ([64]).

    Sulan J (Vanstone and Peek JJ agreeing) held that the sentencing judge appeared to have overlooked the brutality and seriousness of the offending and placed too much weight on the appellant's personal circumstances ([45]-[46]). His Honour said that ‘personal and general deterrence must take precedence over the personal circumstances of the defendant’ ([46]).

    The offences were serious because they occurred in the victim’s own home ([29]), the defendant had a criminal history that suggested a disregard for the law ([34]) and the terrifying nature of the weapon used ([41]). The pleas of guilty did not demonstrate genuine contrition, coming only after his alibi evidence had been disproved ([47]). The fact that the defendant and victim were previously in a relationship was not a mitigating factor ([42]).

  • R v Maiolo (No 2) [2013] SASCFC 36 (16 May 2013) – Supreme Court of South Australia (Full Court)
    Directions and warnings for/to jury’ – ‘Evidence of discreditable conduct’ – ‘Evidence of initial complaint’ – ‘Indecent assault’ – ‘Physical violence and harm’ – ‘Propensity evidence’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse’ – ‘Unlawful sexual intercourse

    Charge/s: Indecent assault (five counts), Unlawful sexual intercourse (four counts).

    Appeal Type: Appeal against conviction.

    Facts: Three of the complainants were sisters. The fourth complainant was the appellant’s daughter. The appellant’s partner was the elder sister of the three complainants but was not a complainant.

    Issue/s: Some of the issues concerned -

    1. Whether the evidence of one of the sisters established an initial complainant within the meaning of s 34M(6) of the Evidence Act 1929.
    2. Whether evidence of previous ‘uncharged acts’ constituted relationship evidence, and whether the trial judge correctly directed the jury in relation to the permissible use of such evidence.

    Decision and Reasoning: The appeal was upheld.

    1. At trial, there was evidence that one of the sisters had a conversation with police and a counsellor regarding allegations of sexual misbehaviour by the appellant. The content of these conversations were unclear and it was not clear whether the sister was referring to sexual offending against herself or other persons. The trial judge directed the jury to the effect that they could use this evidence to assess (and possibly bolster) her evidence as well as the evidence of the other complainants. This was an error of law – the complaint was not sufficiently clear. The complaint did not make clear who the subject of the offending was. It was also unclear which particular incident it referred to. The convictions were set aside.
    2. Evidence of prior ‘uncharged acts’ were admitted under s 34P of the Evidence Act 1929 as relationship evidence. See at [50]-[52] where Peek J, (with whom Kourakis CJ and Stanley J agreed) outlined the operation of s 34P in its common law context. Section 34R required the judge to (among other things) explain the purpose for which such evidence can and cannot be used. The trial judge, in her directions to the jury, referred to the evidence in question throwing light on the ‘nature of the relationship’ or providing ‘context’ (see at [110]). She did not elaborate further on the purpose of the evidence. Peek J found that these directions were deficient. See at [111] - ‘With respect, the use of vague words such as “context” or “relationship” without specific elaboration and guidance to the jury was rightly criticised by Doyle CJ in R v Nieterink [1999] SASC 560 where his Honour made the important point that while evidence of uncharged acts may be admissible under heads of relevance which tend to recur in various cases that come before the courts, it is crucial that the Judge, first, positively determines that the particular evidence of discreditable conduct does satisfy a head of relevance in the particular case and, second, gives very clear directions as to how such evidence may, and may not, be used.’ See also at [54]-[57], where his Honour commented on the construction of s 34P and specifically how to determine whether the probative value of the evidence substantially outweighs its potentially prejudicial effect on the accused.
  • R v Fleming [2011] SASCFC 41 (10 May 2011) – Supreme Court of South Australia (Full Court)
    Evidence’ – ‘Evidence of domestic violence inadvertently led’ – ‘Persistent sexual exploitation’ – ‘Propensity evidence’ – ‘Sexual and reproductive abuse

    Charge/s: Persistent sexual exploitation.

    Appeal type: Appeal against conviction.

    Facts: The appellant was convicted by a jury of persistent exploitation of a five-and-a-half-year-old girl. The prosecution alleged that the appellant had been in a relationship with the girl’s mother and that he committed at least more than one act of sexual exploitation. At trial, evidence was inadvertently admitted that the complainant was seeing a domestic violence counsellor. Further evidence about the appellant’s aggressive and sometimes violent behaviour was also put before the Court. Following a question from the jury during deliberations, the judge directed the jury to ignore all of the evidence relating to the domestic violence counsellor and the appellant’s aggressive behaviour because it was not relevant to whether the appellant had committed the offences.

    Issue/s: Whether the judge should have discharged the jury after the evidence of alleged domestic violence by the appellant was inadvertently led. Alternatively, whether the directions given by the trial judge when he refused to discharge the jury were inadequate.

    Decision and Reasoning: David J (Kourakis J and Sulan J concurring) dismissed the appeal. David J firstly noted at [23] that, ‘in cases involving allegations of sexual impropriety in domestic situations evidence of extraneous violence is often allowed for many reasons. Such evidence is often relevant to the question of the relationship between the parties or providing a reason or reasons as to why an alleged victim may not complain.’ This did not apply in this case, as the prosecution did not seek to introduce the evidence. Rather, it came out inadvertently. While David J was concerned that the judge’s direction could have given the jury an impression that there was some ‘sinister impermissible material’ (see at [31]) that had not been introduced, his directions regarding the irrelevance of the evidence were clear and he correctly warned against propensity reasoning. As such, while the situation was not ideal, it did not amount to a miscarriage of justice.

  • R v Runjanjic and Kontinnen (1991) 53 A Crim R 362; (1992) 56 SASR 114; [1991] SASC 2951 (28 June 1991) – Supreme Court of South Australia (Full Court)
    Battered woman syndrome’ – ‘Expert evidence - psychologist’ – ‘False imprisonment’ – ‘Grievous bodily harm

    Charge/s: False imprisonment, grievous bodily harm.

    Appeal Type: Appeal against conviction.

    Facts: The two female appellants were in a relationship with a man named Hill. There was a consistent pattern of domineering and violent conduct by Hill towards both appellants. The appellants were part of a plan to help Hill forcibly confine the complainant and cause her injury. At trial, they sought to admit expert evidence of ‘battered woman syndrome’ to support a claim of duress. The trial judge ruled that the evidence was inadmissible on the ground that the test for duress was objective and expert evidence of the state of mind of the appellants was therefore irrelevant.

    Issue/s: Whether the expert evidence of battered woman syndrome ought to have been admissible to support a claim of duress.

    Decision and Reasoning: King CJ (with whom Bollen and Legoe JJ agreed) held that the evidence ought to have been admissible and a re-trial was ordered. In reaching this decision, King CJ first held that the trial judge’s reason did not provide a sound basis for excluding the evidence. It ignored the subjective aspect of the test for duress and it also misunderstood the main thrust of the proffered evidence. While the expert might have been in a position to comment on the state of mind of the appellants, the primary thrust of such evidence was to establish a pattern of responses commonly exhibited by battered women. At [23]:

    ‘The proffered evidence is concerned not so much with the particular responses of these appellants as with what would be expected of women generally, that is to say women of reasonable firmness, who should find themselves in a domestic situation such as that in which the appellants were. It is designed to assist the court in assessing whether women of reasonable firmness would succumb to the pressure to participate in the offences. It also serves to explain why even a woman of reasonable firmness would not escape the situation rather than participate in criminal activity. As such it is relevant’.

    Second, King CJ considered whether expert evidence of battered woman syndrome met the essential pre-requisite that it had been accepted by experts in the field of psychology or psychiatry as a scientifically accepted facet of psychology. Following significant consideration of scientific literature, at [24] and [26], King CJ held that the evidence was admissible:

    ‘It is not sufficient, in order to justify the admission of expert evidence of the battered woman syndrome, as was argued by counsel for the appellant, that the ordinary juror would have no experience of the situation of a battered woman. Jurors are constantly expected to judge of situations, and of the behaviour of people in situations, which are outside their experience. Much conduct which occupies the attention of the criminal courts occurs in the criminal underworld, or in sordid conditions and situations, of which jurors would generally have no experience. It is not considered to be beyond the capacity of juries, or of the Court if it is the trier of the facts, to judge of the reactions and behaviour of people in those situations. Expert evidence of how life in criminal or sordid conditions might affect a person's responses to situations, would not be admitted.

    ‘This is an area in which the courts must move with great caution. The admission of expert evidence of patterns of behaviour of normal human beings, even in abnormal situations or relations, is fraught with danger for the integrity of the trial process. The risk that, by degrees, trials, especially criminal trials, will become battle grounds for experts and that the capacity of juries and courts to discharge their fact-finding functions will be thereby impaired is to be taken seriously. I have considered anxiously whether the situation of the habitually battered woman is so special and so outside ordinary experience that the knowledge of experts should be made available to courts and juries called upon to judge behaviour in such situations. In the end, I have been impressed by what I have read of the insights which have been gained by special study of the subject, insights which I am sure would not be shared or shared fully by ordinary jurors. It seems to me that a just judgment of the actions of women in those situations requires that the court or jury have the benefit of the insights which have been gained’.

Supreme Court

  • Parish v Police [2018] SASC 18 (27 February 2018) – Supreme Court of South Australia
    Adequacy of reasons’ – ‘Magistrates court’ – ‘Physical violence and harm

    Charges: Assault causing harm x 1.

    Appeal type: Appeal against conviction.

    Facts: The complainant gave evidence that the appellant punched her from behind, pushed her to the floor, pushed her head into the floor and wall, and bit her on the cheek ([16]-[17]).

    Issues: Whether the conviction was unreasonable or insupportable having regard to the evidence.

    Decision and Reasoning: The appeal was allowed, and the matter was remitted for retrial before a different magistrate ([98]).

    Lovell J described the case as an ‘oath on oath’ case ([10]). At [51]-[54], Lovell J provides a useful exposition of what is necessary for a Magistrate to include in a judgement to amount to adequate reasons. Simply summarising the evidence is not sufficient. The reasons must engage with conflicts in evidence and how those conflicts can be resolved.

    Lovell J held that the Magistrate failed to provide adequate reasons in two areas. First, in accepting the evidence of a police officer and M’s treating doctor without explaining how the Magistrate reconciled the inconsistencies between their evidence and M’s evidence ([57]-[79]). Second, in dismissing the evidence of the appellant’s uncle without explaining why ([80]-[86]).

  • B, JL v Police [2017] SASC 9 (10 February 2017) – Supreme Court of South Australia
    Intermediate sanctions’ – ‘Physical violence and harm’ – ‘Pregnant people’ – ‘Protection orders’ – ‘Sentencing’ – ‘Women’ – ‘Young people

    Charges: Aggravated assault x 1.

    Appeal type: Appeal against sentence.

    Facts: The appellant and complainant were in a domestic relationship. They had a 7-month-old child and the complainant was pregnant with another child. The appellant was 17 years old at the time of the offences. An intervention order was in place requiring the appellant to not assault, harass, intimidate or threaten the complainant. The offence occurred when the appellant grabbed the complainant by the upper arms and squeezes them ([6]).

    The Magistrate recorded a conviction and imposed a 12-month good behaviour bond.

    Issues: Whether the magistrate erred in recording a conviction.

    Decision and Reasoning: The appeal was allowed. The conviction was set aside, and again imposed the 12-month good behaviour bond ([24]).

    The appellant submitted that the magistrate failed to have sufficient regard to the appellant’s youth and the purposes of the Young Offenders Act 1993 (SA), in particular the policy that there should be no unnecessary interruption of employment ([12]).

    Stanley J emphasised that the appellant had a history of domestic violence and highlighted the need for general deterrence at [19]:

    Offences of violence by men against women are all too prevalent. All too often they result in harm but the deterrence of those offences will not be adequately achieved unless all offences of violence, whether they cause harm or not, are properly addressed.

    Nonetheless, Stanley J held that the public interest in a conviction being recorded is diminished when the defendant is a youth ([18]). It was important that the appellant was now reconciled with the complainant and his ability to provide for her and their children would be diminished by recording a conviction ([22]).

  • R v Fox [2017] SASC 5 (3 February 2017) – Supreme Court of South Australia
    Intervention order’ – ‘Physical violence and harm’ – ‘Presumption against bail’ – ‘Protection orders’ – ‘Protective function’ – ‘Special circumstances

    Appeal Type: Appeal against refusal to grant bail.

    Facts: The applicant and the female complainant had been in a relationship for 10 years. On 14 September 2016, the applicant was charged with using a dangerous article, aggravated assault with a weapon against his own child or spouse, and committing an assault aggravated by the use of an offensive weapon. These offences occurred in the context of the breakdown of the applicant and complainant’s relationship and were committed against the complainant and her new partner. On 14 September 2016, an interim intervention order was made against the applicant. The applicant breached this order on two occasions.

    The applicant was charged with two counts of contravening a term of an intervention order pursuant to s 31 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) and one count of aggravated threat to cause harm. The applicant was a prescribed applicant pursuant to s 10A(2)(ba) of the Bail Act 1985 (SA) because he was charged with breaching an intervention order in circumstances involving violence. As such, there was a presumption against the grant of bail unless the applicant established the existence of special circumstances: s 10A(1). The magistrate refused to grant bail.

    Issue/s: The magistrate erred in failing to find there were special circumstances.

    Decision and Reasoning: The appeal was dismissed. Hinton J noted generally that Parliament’s approach to an act of defiance to a protective order allegedly perpetrated in circumstances involving violence ‘only tolerates release into the community on bail if special circumstances can be established’ (see [16]). This is part of the community’s recognition of the ‘prevalence of domestic violence’ and the need to insist on strict compliance with intervention orders to ensure they fulfil their protective purpose (see [17]).

    His Honour continued that, ‘special circumstances will only exist where the applicant can demonstrate that he or she does not pose the risk which Parliament had in contemplation in reversing the presumption and in relation to whom the denial of bail would result in consequences beyond the contemplation of Parliament’. The relevant risk here was ‘of further defiance of an order and violence threatened or perpetrated in doing so’ (see [19]).

    The ability to fashion bail conditions which reduce the risk of offending and offer protection to the victim will not ordinarily amount to special circumstances (see [40]).

    On the facts, Hinton J held that there were no special circumstances warranting the grant of bail. None of the sorts of special circumstances referred to in R v Buhlmann were present (see [20] of this case). The applicant had not pointed to any exceptional hardship that would result from his continued incarceration (see [42]).
  • Police v Martin [2016] SASC 194 (14 December 2016) – Supreme Court of South Australia
    Error of law’ – ‘Failure to provide inadequate reasons’ – ‘Intervention order’ – ‘Power to issue intervention orders’ – ‘Protection orders

    Appeal Type: Appeal against the imposition of a final intervention order.

    Facts: The male appellant was having an affair with a married woman, Ms P, who told him her marriage was over. The appellant was concerned that she was not telling the truth. On 8 October 2015, after an argument, the appellant went to Ms P’s home address at night. Being unable to see or raise her, he went to the backyard and called out to her. Ms P and her husband contacted the police. The appellant left without making any threat or committing any violence.

    The next day, police approached the appellant and searched his vehicle. They found a can of OC spray (oleoresin capsicum spray), a hammer and a small knife, but it was agreed that he did not take these onto Ms P’s premises. The appellant was charged with being on premises without lawful excuse and for the items in his car. A police interim intervention order was issued against him with respect to Ms P, her husband and their children. On 19 August 2016, the appellant pleaded guilty. Relevant to this appeal, on the same day, the magistrate imposed an intervention order pursuant to s 19A of the Criminal Law (Sentencing) Act 1988 (SA).

    Issue/s:

    1. The magistrate did not give any, or adequate, reasons for issuing the intervention order.
    2. The magistrate erred in the exercise of his discretion to issue the intervention order against the appellant pursuant to s 19A(1)Criminal Law (Sentencing) Act 1988.

    Decision and Reasoning: The appeal was allowed. Peek J held that s 19A of the Criminal Law (Sentencing) Act 1988 did not create a freestanding power to issue final intervention orders. At [24], His Honour stated that:

    ‘Section 19A does no more than enable a court hearing substantive charges – in this case it happened to be a Magistrate – to issue an intervention order as if a complaint had been made under the Intervention Orders (Prevention of Abuse) Act 2009; the critical question of whether an order is to be made pursuant to such a complaint (or “as if a complaint had been made”) will depend on the substantive provisions of the Intervention Orders Act.’

    Here, the sentencing magistrate made no reference to the requirements set out in the Intervention Orders Act. As such, it was impossible to assess whether the magistrate approached the matter incorrectly and failed to address the issues relevant to making a restraining order (see [33]-[34]). There was also an unacceptable risk that the magistrate took an incorrect approach to s 19A and failed to have sufficient regard to the requirements of the Intervention Orders Act (see [35]). Accordingly, the intervention order was quashed. The original police interim intervention order was declared to be continuing in force until it was withdrawn or a confirmation hearing convened.
  • Craill v Police [2016] SASC 168 (4 November 2016) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated assault’ – ‘Breaching bail’ – ‘Contravention of an intervention order’ – ‘Exposing children’ – ‘Listening to Victims’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Repeated contraventions of protection order’ – ‘Sentencing’ – ‘Suspended sentence

    Charge/s: Aggravated assault x 1; contravention of an intervention order x 9, breaching bail x 5.

    Appeal Type: Appeal against sentence.

    Facts: The appellant attended the home of the female victim (his former partner). An argument ensued. While holding their eight-week-old child, the appellant pushed the victim against the bedroom door by holding her throat (aggravated assault). The appellant was also charged with nine counts of failing to comply with a term of an intervention order and the five counts of breaching bail. The applicant was sentenced to five months and two weeks imprisonment. This also involved revoking a suspended sentence imposed for an offence of driving while disqualified. The breaching offences were five of the counts of contravening an intervention order and one of the counts of breaching bail.

    Issue/s: Some of the grounds of appeal included –

    1. The magistrate erred in the application of s 18A of the Criminal Law (Sentencing) Act 1988 (SA);
    2. The magistrate erred in failing to find that there were no proper grounds to refrain from revoking a suspended sentence.
    3. The magistrate erred in failing to have regard or sufficient regard to the complainant’s attitude toward penalty;
    4. The sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    First, the magistrate did not err in the application of s 18A. It was appropriate and convenient to go directly to the single sentence imposed for the course of conduct constituting the breach and contravention charges. The magistrate treated this offending separately from the offending on the charge of aggravated assault. Any descent into further detail would have created unnecessary elaboration – R v Major applied: see [18].

    Second, there was no error in the approach of the magistrate. One of the key submissions rejected by Stanley J was that proper grounds existed to refrain from revoking a suspended sentence because there was a marked disproportion between the seriousness of the offence constituting the breach and the sentence of imprisonment that would be activated. In rejecting this, Stanley J held that the breaching offences shared the same characteristic as the earlier offending; they involved the appellant failing to comply with a term or condition imposed on him. However, more importantly, there was not a marked disproportion between the seriousness of the breaching offences and the sentence of imprisonment activated. The contraventions of an intervention order were ‘serious offending’. As per Stanley J at [28]:

    ‘In R v McMutrie this Court said that a breach of a restraining order is a matter of particular gravity. The object of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) 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. The protective objects of the Act can only be achieved if courts are scrupulous in doing what they can to ensure that persons who are subject to such orders comply with them. The repeated breaches of those orders by the appellant demonstrate a persistent, blatant and contumelious disregard for the orders and the authorities that impose them. Crimes of domestic violence are often occasions for the exercise, or attempted exercise, of power over the victim by the offender. Breaches of intervention orders can be occasions for the offender to intimidate the victim with an implied threat that such orders will not protect them. The courts must act to contradict this impression’.

    Third, there was no error in the approach taken by the magistrate to the victim’s attitude towards penalty. Stanley J noted that ‘[w]hile the attitude of the victim to an offence is not an irrelevant factor in sentencing, that attitude cannot be determinative of what constitutes an appropriate sentence. Moreover, this principle must be applied with considerable caution in cases of domestic violence’ ([33]). His Honour continued at [36]:

    ‘The reason for such caution is obvious. In situations of domestic violence a victim’s motivation for advocating a particular penalty is often influenced by their ongoing relationship with the defendant and an unhealthy relationship of dependency between them. Their attitude is often influenced by apprehension about the consequences for them in the future given a continuing relationship with the defendant. This attitude frequently fails to reflect what is in their best interests and what the court might consider appropriate in all the circumstances. It would be contrary to sound sentencing practice to place victims of domestic violence in the position where they hold, or appear to hold, the keys to the offender’s release. To place victims in that position is to impose on them a burden they ought not be required to bear’.

    Finally, the sentence was not manifestly excessive. This was in circumstances where the aggravated offence was towards the lower end of the scale for that offence but it was still a serious offence, exacerbated by the presence of a small child; the aggravated assault was not mitigated by the expressed attitude of the victim; the repeated breaches of the intervention order constituted serious offending; the appellant did not have a favourable criminal history; and considerations of general and specific deterrence were particularly important here: see [52]-[53].
  • Thakur v Police (2016) SASR 180;[2016] SASC 75 (3 June 2016) – Supreme Court of South Australia
    Appeal’ – ‘Court not to allow appeal against order confirmed by consent unless consent was not freely given’ – ‘Interim intervention order’ – ‘Protection orders

    Appeal Type: Appeal to set aside an interim intervention order.

    Facts: On 13 January 2015, a magistrate issued an interim intervention order against the appellant protecting his wife. The appellant was reported for five breaches of this order. On 7 May, the appellant was interviewed by police in relation to those alleged breaches. The appellant provided the police with his phone and its passcode. On the same day, the 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 also offered not to proceed with the fresh charges in relation to the alleged breaches in those circumstances. The appellant’s solicitor said his client agreed to this. After being charged with subsequent breaches, the appellant sought to appeal the confirmation of the order.

    Issue/s: The appellant consented to the confirmation of the interim intervention order in error or by mistake because he believed there was no other satisfactory alternative available to him to recover his mobile telephone from police and thereby protect the confidentiality of commercially sensitive information.

    Decision and Reasoning: To find ‘special reasons’ under s 42(1a)(c) of the Magistrates Court Act 1991 (SA) to allow an appeal against an interlocutory order, only an ‘arguable’ case needs to be demonstrated. The appellant’s case was arguable (see [26]-[27]). Permission to appeal was granted.

    However, the appeal was dismissed. At [38], Stanley J held that:

    ‘a court will allow an appeal from the confirmation of an intervention order made pursuant to s 23(3) of the 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’.

    His Honour rejected 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’ (see [39]).

    Here, the appellant’s consent was freely given. Stanley J did not accept that the appellant had no satisfactory alternative but to consent to the confirmation of the intervention order. He could have been under no misapprehension as to what it was consenting to (see [40]-[41]).
  • Police v Hodder [2016] SASC 70 (24 May 2016) – Supreme Court of South Australia
    Costs order’ – ‘Investigations before applying for protection order’ – ‘Police domestic violence’ – ‘Police protection order’ – ‘Reasonableness of police actions

    Case type: appeal against costs order following a magistrate’s refusal to confirm an intervention order.

    Facts: The respondent (Mr Hodder), his former wife (Ms Hodder) and her new partner (Mr Minchin) were police officers. Mr Minchin made an application for an intervention order against Mr Hodder alleging that Mr Hodder acted in a threatening and harassing manner towards him. The police obtained an interim intervention order on his behalf. After a trial, the magistrate found that Ms Hodder and Mr Minchin were not reliable witnesses. The magistrate found no basis for confirming the order and dismissed the application ([19]).

    The magistrate ordered costs against the police for the whole of the proceedings, holding that they acted unreasonably in bringing and maintaining the proceedings ([20]).

    Issues: Whether the magistrate erred by:

    1. ordering costs when the police had not acted in bad faith or unreasonably;
    2. awarding costs for the entirety of the proceedings; and
    3. fixing costs above the scale.

    Decision and Reasoning: The appeal was partly allowed.

    On the first ground, Parker J held that the magistrate erred in finding that the police acted unreasonably. The prima facie position is that costs should not be awarded against a complainant in proceedings for a restraining order. The fact that the police could have investigated a matter further does not establish unreasonableness. Prosecutors should not prejudge the issue and should proceed where it is open to the court to accept the complainant as a credible witness ([37], [56]).

    The second ground depended on whether it was reasonable for the police to continue the proceeding after the second day, when Mr Minchin’s credibility had been damaged. The matter was remitted to the same magistrate to decide whether the police acted unreasonably in continuing with the application after the second day of the trial ([78]).

    On the third ground, Parker J held that it was within the magistrate’s discretion to award costs above the scale, having regard to the complexity of the evidence such as subpoenas and telephone recordings and the need to engage senior counsel ([88]).

  • Police v Kritcos [2016] SASC 28 (10 March 2016) – Supreme Court of South Australia
    Confirmation of intervention order’ – ‘Emotional abuse’ – ‘Evidence’ – ‘Following, harassing, monitoring’ – ‘Interim intervention order

    Appeal Type: Appeal against a Magistrate’s decision to revoke an interim intervention order.

    Facts: An interim intervention order was made against the respondent (the appellant’s former husband). A Magistrate dismissed an application to confirm the order and revoked the order. The alleged abuse consisted of three letters that the respondent sent to the appellant. One of the letters concerned renewal of their deceased pet dog’s council registration and the attached dog tag. She believed that the respondent was making a point of using her address when he knew she did not want it disclosed and that the letter was a ‘gratuitous and hurtful’ reminder of the dog’s death. During their marriage, they had intimidated the respondent’s former wife by driving past her house. She was worried she would suffer similar harassment. The respondent denied all knowledge of the other letters. The appellant gave evidence which alleged prior acts of abuse by the respondent, including threats to kill and physical abuse. The Magistrate largely rejected this evidence as not proven, taking into account the fact that the appellant admitted lying in an affidavit previously filed in the Family Court. The Magistrate also rejected the respondent’s explanation about sending the dog tag and found it was sent out of spite to upset the appellant.

    Notwithstanding, while this conduct was spiteful, the Magistrate was not satisfied it resulted in emotional and psychological harm within the meaning of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act). The Magistrate concluded that it was reasonable to suspect that the conduct would cause ‘upset, annoyance and anger’ but not harm. While the Magistrate found it was reasonable to suspect that the conduct would continue without intervention because the respondent’s evidence ‘did not provide any direct reassurance that the conduct will not continue’ (See at [19]), he found that it would not be appropriate in the circumstances to confirm the order. He gave the respondent an opportunity to show he would not persist with the conduct. If the conduct persisted, the appellant could make an application for a further interim order. The Magistrate also noted the appellant was a personal trainer, coaches kick boxing and holds a black belt in martial arts.

    Issue/s:

    1. Whether the Magistrate erred in concluding that the letters did not amount to an act of abuse under the Act.
    2. Whether the Magistrate erred in concluding that it was not appropriate to make an order in the circumstances.

    Decision and Reasoning: The appeal was dismissed.

    1. The appellant submitted that the Magistrate erred by not having regard to the definition of emotional and psychological harm in the Act which includes ‘distress, anxiety or fear that is more than trivial’. Doyle J held that while the Magistrate should have expressly referred to this definition, the Magistrate’s finding was that, ‘the correspondence was reasonably expected to cause “upset, annoyance and anger” in contradistinction to non-trivial “distress, anxiety or fear”’ (see at [36]). The appellant also submitted that the Magistrate erred in ‘approaching the issue of harm on the basis that he needed to be satisfied that the defendant’s conduct was “intended to, and caused” harm. Doyle J concluded that the Magistrate had to consider three issues – ‘First, whether the letters might reasonably be expected to cause harm (s 8(4)(j)) and then whether they were intended to, and did in fact, result in harm (s 8(2))’ (see at [39]). His Honour concluded that the effect of the Magistrate’s finding was that, ‘the letters were neither intended to, nor did in fact, result in harm’ and ‘(the Magistrate) appropriately addressed both the respondent’s state of mind in engaging in the relevant conduct and the (subjective) impact of this conduct on the protected person’ (see at [39]). In relation to the exclusion of other evidence relating to the history of the relationship, Doyle J held that the appellant was given several opportunities to detail the effect of the letters upon her.
    2. The appellant submitted that the Magistrate failed to have regard to the principles set out in s 10 of the Act which are relevant to determining whether it is appropriate to make an order. In particular, the section makes clear that abuse can consist of isolated incidents. Doyle J stated at [44] – ‘his Honour did not suggest that isolated instances could not constitute abuse. His reasoning was merely that on the facts of this case the letters (neither individually nor cumulatively) were not sufficient to constitute abuse.’ In relation to the Magistrate’s references to the appellant being a personal trainer and having martial arts qualifications, his Honour stated that this was a ‘somewhat obscure’ reference, but it was, ‘probably best understood as being a reference to matters which might have given the protected person some level of personal confidence and physical prowess. While I consider these matters to have been of only marginal relevance, I do not think they are entirely irrelevant or that it was erroneous to take them into account’ (see at [45]). The Magistrate’s conclusion to give the respondent an opportunity to not persist with the relevant conduct is not a factor referred to in s 10(1) of the Act, but was nevertheless not irrelevant. It is a relevant consideration that the respondent is someone who might respond to an opportunity to change their behaviour. See finally at [48] –

    ‘Here there was no proven act of past abuse. While the Magistrate accepted there was a reasonable suspicion abuse would occur in the future without intervention, it might be inferred that the Magistrate did not consider there to be a high likelihood of this occurring. Indeed, the Magistrate’s judgment appears (from his reference to the contingency that his judgment might prove to be misplaced) to have been that the suspicion will probably not come to fruition. It is also relevant that while there was a suspicion of abuse in the broad sense contemplated by the Act (i.e. extending to emotional and psychological harm), the Magistrate made a positive finding that it was not reasonable to suspect that the defendant would cause physical harm to the protected person.

  • R v LI [2016] SASC 4 (4 February 2016) – Supreme Court of South Australia
    Battered woman syndrome’ – ‘Evidence’ – ‘Expert testimony’ – ‘Murder’ – ‘Physical violence and harm

    Charge/s: Murder.

    Proceeding: Application to exclude expert evidence.

    Facts: The defendant was tried for murdering his mother. His counsel sought to adduce expert psychiatric evidence relating to his relationships with his family, his mother as well as his childhood. The Director of Public Prosecutions sought to have this evidence excluded.

    Issue/s: Whether the evidence fell outside the area of human knowledge or experience, such that a jury would be able to form a judgment about it without expert assistance.

    Decision and Reasoning: The application was allowed and the evidence was excluded. It was not in dispute that the defendant caused his mother’s death – the issue at trial related to self-defence. The evidence detailed his traumatic upbringing where he witnessed episodes of domestic violence. It explored the dynamics of the relationship between the accused and his mother. It did not detail any recognised psychiatric illness or disability that the accused suffered which would affect his capacity to give evidence or recollect events. Indeed, the psychiatrist was in fact impressed with the accused’s ability to describe subtleties of his history in a way that convinced the psychiatrist that his account was accurate and that the relationship was abusive. The psychiatrist’s view was that the case was ‘unusual’. Blue J noted at [12] that the only ‘expert’ element of the report was the psychiatrist’s view that the accused was fit to stand trial and that the mental impairment defence was not available. His Honour then distinguished the case of R v Runjanjic; R v Kontinnen (1992) 56 SASR 114; [1991] SASC 2951 (28 June 1991), where the Court held that expert evidence regarding the ‘learned helplessness’ associated with ‘battered woman syndrome’ were contrary to ordinary expectations of human behaviour such that juries could be misled without the assistance of expert evidence. The recent Queensland Court of Appeal decision of R v Jones [2015] QCA 161 (1 September 2015) was analogous. In that case, the proposed expert psychiatric evidence was found to be a matter of common knowledge. The same approach was adopted in this case. Many of the matters in the evidence simply detailed the history of the relationship and issues relating to Chinese family culture. These were not issues that needed explanation from a psychiatrist. See at [22] – ‘The accused can give the evidence as he sees fit about the verbal or physical violence that he suffered at the hands of his mother. If that evidence is accepted by the jury it will be self-evident that the relationship between Mr Li and his mother was both complex and intense.’

  • Koay v Police [2015] SASC 158 (7 October 2015) – Supreme Court of South Australia
    Aggravated assault’ – ‘alleged prior violence’ – ‘Evidence’ – ‘Physical violence and harm’ – ‘Relationship evidence

    Charge/s: Aggravated assault.

    Appeal Type: Appeal against conviction

    Facts: The appellant, a woman, and the complainant, a man, met in 2011 and married in 2012. The appellant was on a spousal visa. The complainant’s version of events involved the appellant coming into his bedroom at night when he was trying to sleep. He asked her to leave the room multiple times but she did not. He recorded some of the incident on his phone (and the recording was admitted in evidence). As they were grappling with a light switch, he claimed that the appellant punched and scratched him. He attempted to block the punches. He asked her to stop punching him. He suffered minor injuries. At trial, the appellant claimed that she acted in self-defence. She claimed that she was scared of him because he had previously been violent towards her, and that the reason for going into his bedroom was to discuss her visa.

    Issue/s: Whether the Magistrate erred by rejecting her claim of self-defence without the proper analysis required by s 15 of the Criminal Law Consolidation Act 1935.

    Decision and Reasoning: The appeal was dismissed. The appellant submitted that rather than restricting himself to the events on the night, the Magistrate should have considered the evidence of alleged prior violence by the complainant to place context around the incident. The Magistrate noted that the appellant’s claim that she was scared of the complainant lacked credibility, as she decided to enter his room in the middle of the night, notwithstanding his requests that she leave. The Magistrate found it difficult to accept her reason for going into the room (to discuss the visa) and also difficult to accept that the middle of the night was the most convenient time to do so. He described the appellant’s evidence of self-defence as vague. It did not explain how the conduct was reasonable for her own defence. Vanstone J accepted the Magistrate’s conclusions – the appellant made no attempt to directly address the elements required for self-defence in her evidence and she did not explain why, despite the complainant’s requests, she did not leave the room. Vanstone J also held that the Magistrate was correct not to rely on the evidence of alleged prior violence inflicted by the complainant because it was not ‘fleshed out in detail’ (see at [18]) and there was nothing in this evidence which was relevant to the incident on the night.

  • Police v Baker [2015] SASC 110 (30 July 2015) – Supreme Court of South Australia
    Appeal’ – ‘Appeal against acquittal’ – ‘Assault’ – ‘Consent’ – ‘Evidence’ – ‘People living in regional, rural and remote communities’ – ‘Physical violence and harm’ – ‘Victim

    Charge/s: Assault.

    Appeal type: Prosecution appeal against acquittal.

    Facts: The respondent allegedly slapped his female companion in the face. This was witnessed by a police officer, whose evidence formed the basis of the prosecution case. The companion did not give evidence and at the time of the incident was not distressed. She informed the police officer that it was ‘OK’. According to the officer, at the time of the incident, the companion did not want the respondent to be arrested. During the hearing, the Magistrate invited submissions as to whether the prosecution evidence was sufficient to ground consent or ‘otherwise of having received force from the defendant’ (see at [3]). The respondent was acquitted of the charge, with the Magistrate concluding that the prosecution’s evidence was so lacking in weight or reliability that no reasonable tribunal of fact could safely convict (an R v Prasad (1979) 23 SASR 161; (1979) 2 A Crim R 45) direction). The Magistrate found a reasonable doubt about the ‘lack of consent’ element in the offence of assault. He noted that the prosecution’s case was ‘hampered’ by the victim’s failure to give evidence (See at [13]).

    Issue/s: Whether the Magistrate erred in finding that the prosecution’s evidence lacked in weight or reliability and whether the Magistrate erred in finding a reasonable doubt as to the ‘lack of consent’ element.

    Decision and Reasoning: The Court firstly noted the hesitance of appellate courts to interfere with Magistrates’ decision to acquit. The appeal was dismissed for this reason but Nicholson J accepted the appellant’s submissions relating to the trial process.

    The Court accepted that there was a prima facie case to answer. The Magistrate gave no reasons regarding how he concluded that lack of consent could not be inferred beyond reasonable doubt. The appellant submitted that a reasonable tribunal of fact would not be able to ignore the inherent unlikelihood that a person would consent to being hit with the force as described by the police officer. Nicholson J accepted this submission, finding that the Prasad direction should not have been made and the case should have proceeded. The victim’s lack of complaint, lack of cooperation with the police and her request that the respondent not be charged were evidentiary matters which may assist in determining whether she had consented to the slap. In fact, they were consistent with a finding that the victim was prepared to submit to the conduct. Importantly, Nicholson J noted at [24] – ‘Submission and failure to complain are not the same as consent’ and at [27] – ‘Whilst each case will turn on its own facts, the mere fact that an alleged victim does not give evidence, will not necessarily mean that lack of consent cannot be proved beyond reasonable doubt.’ However, while there were errors in the Magistrate’s approach, there were no ‘clear and compelling circumstances’ ([27]) to interfere with the acquittal in this case.

  • Groom v Police [2015] SASC 101 (14 July 2015) – Supreme Court of South Australia
    Construction of terms’ – ‘Contravention of intervention order’ – ‘Electronic listening device’ – ‘Evidence’ – ‘Interpretation of intervention order’ – ‘Protected person’ – ‘Public interest

    Charge/s: Contravention of intervention order.

    Appeal Type: Appeal against conviction.

    Facts: An intervention order was in place between the appellant and his former partner. The breach arose from a conversation between the appellant and his former partner. The order prohibited discussions between the pair other than with respect to their child. In conversation, the appellant then brought up the appellant’s ongoing court proceedings relating to the intervention order itself. At trial, the Magistrate admitted into evidence an audio recording of this conversation secretly made by his former partner. His former partner claimed she was advised by police to record communications between her and the appellant. Conversations between her and the appellant were usually unwitnessed by anyone else, which made previous complaints that she had made to police a case of her word against his and thus difficult to prove in court.

    Issue/s:

    1. Whether the conversation was permitted by the intervention order.
    2. Whether the recording should have been excluded because it was unlawful pursuant to the Listening and Surveillance Devices Act 1972 (the Act). More specifically, whether the use of the device was in the public interest or for the protection of the former partner’s lawful interests under section 7 of the Act.

    Decision and Reasoning: The appeal was dismissed.

    1. The Court rejected an argument that the conversation was permitted by the intervention order. The topic of the conversation, (the intervention order itself) was not related to their child which was the only topic that the intervention order allowed them to discuss. See further at [47]-[58].

    2. Nicholson J held: the conversation was a private conversation within the meaning of the Act; the former partner intended to use the device to record the conversation and that there was no consent to the conversation being recorded. The Court then considered whether the use of the device was in the public interest or for the protection of the former partner’s lawful interests. While his Honour acknowledged that the breach was relatively minor, he noted that breaches of intervention orders are serious. In this case, the former partner had made many allegations of breaches but had encountered problems with proof. The Court accepted that the former partner held genuine concerns for her own safety. Nicholson J then made the following comments at [39]-[40] about how recording private conversations can be in a protected person’s ‘lawful interests’ – ‘… there is no way of knowing how seriously an intervention order might be breached until the fact of breach takes place. Breaches of intervention orders are capable of constituting serious crimes. Irrespective of whether or not a serious crime is in contemplation, a court should more readily accept that the recording of a “private conversation” has been carried out in pursuit of a person’s lawful interest in circumstances where that person has a genuine concern for their own safety. Domestic violence is a very serious problem in our community. It would appear that, at least, the recognition and reporting of domestic abuse, be it physical, psychological, or by threatening behaviour, is on the rise. An intervention order is a very important first step in protecting a person, usually a woman, who has been the subject of domestic abuse. Such an order gains much of its value in this respect according to the extent that it can be enforced. Respondents must be discouraged from infringing any such court order.’

    The Court also accepted that the recording was in the public interest for two reasons. Firstly, that there is a public interest in, ‘allowing a protected person… the ongoing protection available through the recording and documenting of interactions that result in breaches’ (See at [44]). Secondly, that these recordings can assist the defence as well as the prosecution (see at [45]). It would also be possible for a defendant to make similar recordings to disprove a false allegation.

  • Murray v Police [2015] SASC 64 (22 April 2015) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Assault’ – ‘Assaulting police’ – ‘Being unlawfully on premises’ – ‘Contravention of intervention order’ – ‘Damaging property’ – ‘Exposing a child’ – ‘Hindering or resisting police’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Prospects of rehabilitation’ – ‘Unlawful damage’ – ‘Verbal abuse

    Charge/s: Being unlawfully on premises, unlawful damage, assault (two counts), contravention of intervention order (three counts), hindering or resisting police (three counts), assault police (one count)

    Appeal Type: Appeal against sentence.

    Facts: The defendant was in an intermittent relationship with the victim. There were various incidents of verbal and physical violence over several years. This led the victim to apply for an intervention order which prohibited the defendant from approaching, contacting or communicating with the victim or her daughter. However, he returned to live with the victim on various occasions without the intervention order being changed. On the day in question, the defendant and the victim were arguing. The victim attempted to shut him out but he forced the door open, which knocked the victim onto the ground. He attempted to enter the victim’s daughter’s room multiple times to prevent her from calling the police. The daughter was pushing against it from the inside. He damaged various objects and threw a television across the room. He pushed the victim into a door frame and attempted to light a spray can while pointing it at the victim. He then pushed and attempted to punch two police officers, who had to use capsicum spray to subdue him. A psychiatrist diagnosed the defendant as suffering from an adjustment disorder with depressive features when he committed the offences. A single penalty for all offences of 14 months, 23 days’ imprisonment with a non-parole period of 8 months was imposed. The defendant’s history included one like offence of violence committed against the same victim. He had had previous long term relationships which did not involve violence. The Magistrate concluded that the defendant had no insight into the offences he committed, and that his prospects of rehabilitation were minimal.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. Blue J found that while the Magistrate was rightly appalled at the nature of the violence, insufficient weight was given to the defendant’s prospects of rehabilitation given the fact he had previous relationships that did not involve violence. The Magistrate also erred in not taking into account the lack of prior convictions for violence before his relationship with the victim and the psychiatric illness that he was suffering. He also had the support of a former long-term partner. As such, taking into account his pleas of guilty, he was resentenced to 11 months and 19 days’ imprisonment. This was suspended after the defendant served 5 months and five days upon entering into a good behaviour bond for 18 months.

  • Cook v Galloway [2015] SASC 36 (6 March 2015) – Supreme Court of South Australia
    Costs’ – ‘Family law’ – ‘Interim intervention order’ – ‘Physical violence and harm’ – ‘Sexual and reproductive abuse’ – ‘Systems abuse

    Appeal Type: Appeal against dismissal of an application for the confirmation of an interim intervention order.

    Facts: The appellant and the respondent were in a de facto relationship and had separated. While proceedings in the Family Court were on foot, the appellant applied for an interim intervention order that was granted, but not confirmed. The factual basis for the intervention order was a series of incidents following the end of the relationship, where the appellant alleged his former de facto partner had, among other things, sexually assaulted him and punched him (See at [8]-[18]).

    Issue/s:

    1. Whether the intervention order should have been confirmed.
    2. Whether the Magistrate erred finding that the proceedings were brought unreasonably which led to an adverse costs order against the appellant.

    Decision and Reasoning: The appeal was upheld in respect of costs but otherwise dismissed.

    1. Nicholson J found that the role of a Court in confirming an intervention order involves considering whether it is reasonable to suspect that the defendant, without intervention, will commit an act of abuse, and secondly, that the order is appropriate in the circumstances. His Honour acknowledged that the Magistrate neglected to make several findings of fact, and as such did not wholly follow the approach of Kourakis CJ in Police v Giles [2013] SASC 11 (15 January 2013). However, the Court held that the Magistrate was correct to conclude that there was no reasonable suspicion that abuse would occur in the future. The respondent lived away from the appellant and they rarely saw each other. Furthermore, the relationship was over and there was no longer any aggressive behaviour.
    2. The Court held that the appellant’s concerns were genuine, and called for determination by a Magistrate. Nicholson J noted that just because the application failed, this did not mean that the proceedings were brought unreasonably. The Court cited previous authority and noted the public policy concerns of making adverse costs orders against applicants in intervention order applications, as they may deter people from bringing worthy applications.
  • Stone v Police [2015] SASC 28 (3 March 2015) – Supreme Court of South Australia
    Contravention of intervention order’ – ‘Evidence’ – ‘Evidence of discreditable conduct

    Charge/s: Contravention of intervention order (two counts).

    Appeal Type: Appeal against conviction.

    Facts: The protected persons in the order were the appellant’s neighbours, with whom the appellant had been in conflict for an extended period. There was a considerable amount of evidence admitted at trial regarding the history of the appellant’s behaviour towards the complainants.

    Issue/s: Whether the Magistrate erred by admitting evidence of the appellant’s prior discreditable conduct.

    Decision and Reasoning: The appeal was upheld. The Court found that the Magistrate did not give an adequate explanation of the purpose of the evidence of the appellant’s prior behaviour towards the complainants. Furthermore, the Magistrate made no reference to s 34P of the Evidence Act 1929 which sets out rules regarding this type of evidence. The Court found that the evidence was ‘highly prejudicial’ to the appellant because it was similar to the offences which were the subject matter of the trial, and indicates that the accused has a propensity to commit offences of a similar nature. If it was to be used in that way, the Magistrate had to be satisfied that its probative value outweighed its prejudicial effect on the accused. Furthermore, no notice was given by the prosecution of their intention to adduce such evidence, and no direction was made by the Magistrate as to its use.

  • Fenton v Police [2014] SASC 167 (7 November 2014) – Supreme Court of South Australia
    Aggravated assault’ – ‘Alcohol’ – ‘Evidence of distress’ – ‘Expert testimony’ – ‘Physical violence and harm’ – ‘Uncooperative witness

    Charge/s: Aggravated assault – (Circumstance of aggravation: that the defendant committed the offence knowing the victim was his domestic partner.)

    Appeal Type: Appeal against conviction.

    Facts: The defendant assaulted the victim by pushing her onto the floor with his knees in her back, twisting her arms and forcing her face into the floor. At trial, the defendant claimed he was acting in self-defence. Both the defendant and the victim were severely intoxicated.

    Issue/s:

    1. Whether the Magistrate erred by not taking into account inconsistencies in the victim’s evidence.
    2. Whether the Magistrate should have left certain matters for expert evidence.
    3. Whether the Magistrate erred by relying on evidence of the victim’s distress as observed by police.

    Decision and Reasoning: Blue J dismissed all grounds of appeal.

    1. In relation to the inconsistencies in the victim’s account, his Honour at [22] stated that the Magistrate in fact did consider this in relation to the victim’s credibility as a witness, but it did not have a substantial impact on the case. The second ground of appeal, which was that the victim gave new information in cross-examination that she had not previously given in her witness statements was dismissed for similar reasons (See [26]). The third ground of appeal was that the Magistrate failed to have regard to the victim’s ‘guarded and defensive’ answers during cross-examination. This was rejected – the Magistrate had the benefit of seeing the victim give evidence. It was open to him to make a favourable assessment of her credibility.
    2. Blue J acknowledged that had the Magistrate gone further in making conclusions regarding the consistency of bruises to the victim’s back with the victim’s account and the potential effect of alcohol on self-control, this may have transgressed into the realms of expert evidence. However, the Magistrate only made limited use of his own common sense and experience when making conclusions with respect to the bruises on the victim’s back and the potential impact of alcohol. It is common knowledge that - alcohol can reduce inhibitions which can lead to a loss of self-control and if a person is disposed to be aggressive, alcohol can lead a person to act aggressively. The Magistrate was entitled to make limited use of these observations without needing expert evidence.
    3. On the defendant’s version of events, the victim’s distress was caused by embarrassment about, among other things, her own conduct of striking and slapping the defendant. Blue J held that it was not self-evident that a person in the victim’s position would have exhibited distress as a result of embarrassment as submitted by the defendant. The Magistrate was not obliged to expressly reject this possibility. He used the evidence of distress legitimately.
  • Police v Siaosi [2014] SASC 131 (5 September 2014) – Supreme Court of South Australia
    Certainty of terms’ – ‘Conditions of orders’ – ‘Contravention of intervention order’ – ‘Impact of breach on offender’ – ‘Interim intervention order’ – ‘Validity of terms in intervention order

    Charge/s: Contravention of intervention order.

    Appeal Type: Appeal against conviction.

    Facts: An intervention order was made in favour of the appellant’s former wife. The fifth term of the order prohibited the appellant from entering or remaining ‘in the vicinity’ of the property at which his former wife lived. The appellant formed a friendship with another woman who, by coincidence, lived quite close to his former wife’s home. After visiting this property, the appellant realised that there was a direct line of sight between the backyard of his friend’s property and his former wife’s property. There was no direct route of access between the houses, and they were not addresses on the same street. The distance between the two houses was measured to be 26 metres. He was convicted of breaching the fifth term of the order.

    Issue/s: Whether the fifth term which prohibited the appellant from being ‘in the vicinity of’ specified premises was void for uncertainty and whether it was a valid exercise of power under s 12(1) of the Intervention Orders (Prevention of Abuse) Act 2009 (the Act).

    Decision and Reasoning: The appeal was upheld. The term was void for uncertainty and not a valid exercise of power under the Act. Peek J held that mandatory terms in intervention orders must be ‘clearly and specifically authorised by the words of s 12(1)’ (See at [18]). The terms of intervention orders can leave the affected person in no doubt as to the meaning and extent of the order. His Honour noted that the term ‘vicinity’ is inherently imprecise, which is in contrast to s 12(1) of the Act which requires that orders be specific and certain. Police do not have powers to insert ‘broad and vague terms’ (See at [28]) which gives them a right to use their individual opinions to determine in a particular case whether a contravention of the term has occurred.

  • Callow v Police [2014] SASC 8 (24 January 2014) - Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated assault’ – ‘Contravention of bail agreement’ – ‘Contravention of intervention order’ – ‘Criminal history’ – ‘Damaging property’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘Offender character references’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Aggravated assault (2 counts) – Circumstance of aggravation: that the applicant committed the offence knowing the victim was his wife, aggravated assault causing harm, driving while disqualified, contravention of bail agreement (5 counts), contravention of intervention order (5 counts), property damage.

    Appeal Type: Application for extension of time to appeal against sentence.

    Facts: See at [4] for a detailed factual summary of each offence. The assault offences involved the appellant kicking his wife while she was in bed and on a separate occasion punching her when she was on the couch recoiling from the applicant. The contravention of the intervention order counts all involved the applicant leaving voicemail messages for his wife. The applicant was sentenced to a single term of 1 month imprisonment for all offences. The remaining eight months were suspended with a good behaviour bond.

    Issue/s: Whether the whole sentence should have been suspended.

    Decision and Reasoning: The application was dismissed. The applicant submitted that the Magistrate should have suspended the whole sentence based on the mitigating factors which led the Magistrate to suspend most of it. The Magistrate placed large weight on the mitigating factors, including that the applicant runs a successful business which he uses to help pay child support, as well as favourable character references. In fact, the Court described the sentence as ‘merciful’ given that the offending was repetitive, protracted and serious, and included ‘contumacious disregard’ of court orders (See at [10]). The Court also upheld previous authority that deterrence is an important factor in sentencing where there is a history of domestic violence, particularly breaches of intervention orders.

  • F, S v Police [2013] SASC 164 (1 November 2013) – Supreme Court of South Australia
    Emotional and psychological abuse’ – ‘Interim intervention order’ – ‘Physical violence and harm’ – ‘Standard of proof

    Appeal Type: Appeal against confirmation of intervention order.

    Facts: The Magistrate confirmed an intervention order made in favour of the appellant’s ex-wife. Some of the alleged incidents of domestic violence included the appellant holding a screwdriver to his ex-wife’s throat, swearing and throwing clothes and shoes around in arguments. The Magistrate made findings of fact in relation to each alleged incident. On that basis he found a reasonable suspicion that the appellant would, without intervention, commit an act of abuse against his ex-wife and that such an act would cause distress, anxiety or fear which was not trivial.

    Issue/s: Whether the Magistrate made proper findings of fact. Whether the Magistrate should have applied the higher standard of proof of ‘beyond reasonable doubt’, rather than the ‘balance of probabilities’.

    Decision and Reasoning: The appeal was dismissed. The Magistrate set out the evidence very carefully, and in fact found that most of the alleged incidents were not sufficiently proven. The Court also found that the balance of probabilities is the correct standard, because the consequences of the imposition of an intervention order are ‘not so grave as to warrant such a heavier onus’ (at [18]). Finally, the Magistrate did not err by finding that the proven facts could amount to distress, anxiety or fear which is not trivial, because these considerations are somewhat subjective so the trier of fact has a distinct advantage.

  • Mullins v Police [2013] SASC 148 (20 September 2013) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated assault’ – ‘Aggravating factor’ – ‘Breach of bail’ – ‘Contravention of intervention order’ – ‘Damaging property’ – ‘Double jeopardy and other charges’ – ‘Double jeopardy in sentencing’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Resisting police’ – ‘Sentencing’ – ‘Victim

    Charge/s: Aggravated assault (three counts), Contravention of intervention order (three counts), breach of bail (two counts), resisting police, damaging property.

    Appeal Type: Appeal against sentence.

    Facts: The appellant pleaded guilty to all 10 offences which were on four Magistrates’ Court files. All of the offences were committed either against or in the presence of the appellant’s partner (the mother of his child) in the context of arguments. The contravention of the intervention order arose from conduct that would have made his partner feel threatened, as opposed to a positive intention to make her feel threatened or any physical contact. A single sentence was imposed for each file and the four sentences were made cumulative. None of the sentences were suspended.

    Issue/s: Some of the issues concerned –

    1. Whether the Magistrate erred in ordering a sentence of imprisonment for the resist police charge.
    2. Whether the sentence imposed on the appellant contravened the rule against double punishment.
    3. How the appellant should be re-sentenced.

    Decision and Reasoning: The appeal was upheld.

    1. One sentence of three months’ imprisonment was imposed for the resist police and the first aggravated assault charge. The Magistrate made no reference to the facts of the resist police charge, which was in fact not particularly serious and only involved ‘childish and idiotic’ behaviour (see at [15]) and nothing more. Even though the aggravated assault charge required a sentence of imprisonment, this did not mean that the resist police charge also required a sentence of imprisonment. A similar conclusion was reached in relation to the second Magistrates’ Court file, where the appellant was sentenced to one term of one month imprisonment for the breach of bail and contravention of intervention order offence. He should not have been punished for the breach of bail offence because he believed he was not in breach of bail, which was acknowledged by the Magistrate.
    2. The facts that formed the basis of the contravention offence in the fourth file were the same facts that formed the basis of the aggravated assault charge. The facts that formed the basis of the second contravention offence relied on the same facts as the property damage charge. Therefore, Peek J found that there was both ‘double charging’ and ‘double punishment’. Convictions were recorded for four offences when they only should have been recorded for two and a penalty imposed for four offences when it only should have been imposed for two. It may have been possible to charge alternative offences, but once pleas of guilty were taken the other count should have been dismissed. Peek J did acknowledge the problem that where a breach is particularly serious, the maximum penalty for a contravention offence is two years, while the maximum penalty for offences such as aggravated assault is higher. In that case, his Honour stated that the best option would be to lay the more serious charge with the contravention offence laid as an alternative charge, to be withdrawn upon a guilty plea to the more serious charge. Furthermore, the fact that the offender knew that the assault was also a contravention of an intervention order would be an aggravating factor in sentencing the more serious charge.

      3. In resentencing, his Honour took into account the appellant’s youth, minimal criminal history and good rehabilitation prospects. He also took into account the victim impact statement, in which the complainant stated she wished to maintain a relationship with the appellant and stated that she is ‘not a victim’. His Honour described this as a ‘mature and balanced view of the relationship’. However, relevant also was the need to protect domestic partners, the repeated nature of the offending and the need to ensure intervention orders are obeyed. The appellant was re-sentenced to 50 weeks’ imprisonment, fully suspended.

  • Groom v Police (No 3) [2013] SASC 93 (25 June 2013) – Supreme Court of South Australia
    Adjournment’ – ‘Consent to confirmation of intervention order’ – ‘Interlocutory orders

    Appeal Type: Appeal against the order of a Magistrate.

    Facts: With the appellant’s consent, a Magistrate confirmed an interim intervention order which had been put in place against him in favour of his domestic partner pursuant to s 23(3) of the Intervention Orders (Prevention of Abuse) Act 2009. At the time of the hearing, the appellant was in custody and appeared unrepresented in the Magistrates’ Court. On the day of the hearing, he did not have documentation relating to his case including an affidavit sworn by the applicant, and his responses to this affidavit. This was because he had attempted to have the documents brought to him in prison by a friend but permission was refused. The prosecution had not provided him with the affidavit. The Magistrate granted an adjournment until the afternoon, but refused to grant a longer adjournment.

    Issue/s: Whether the appellant’s consent to the intervention order was freely given and whether he could withdraw his consent and have the order set aside.

    Decision and Reasoning: The appeal was upheld. Before deciding the main issue, the Court confirmed as a matter of procedure that the Magistrate’s confirmation order was interlocutory in nature as it was capable of variation or revocation. As such, permission to appeal was required (See at [29]- [32]). The Court then found (at [40]) that had the longer adjournment been granted, no prejudice to the protected person would have occurred because the interim intervention order would have remained in place. Sulan J drew an analogy between consent under s 23(3) and admissions made in civil proceedings. As such, the corresponding principles that govern whether such admissions can be withdrawn became relevant. The Court found that the appellant’s consent was given in circumstances, ‘in which he considered that he had no satisfactory alternative but to agree’, because of all the circumstances outlined above, the fact that he was partially unrepresented, as well as the fact that he was not aware that he could have applied for a further adjournment. As such, his consent was not freely given.

  • T, R v L, KC [2013] SASC 51 (15 April 2013) – Supreme Court of South Australia
    Family law proceedings’ – ‘Intersection of legal systems’ – ‘Jurisdiction of family court of australia’ – ‘Jurisdiction of state courts’ – ‘Protection order’ – ‘Self-represented litigants

    Appeal type: Appeal against Magistrate’s decision to dismiss application for intervention order.

    Facts: The appellant and respondent were separated and had two children. Orders were made in the Federal Magistrates Court in relation to custody, access and protection of their children ([4]). The orders provided that the children live with the appellant, that the respondent have limited access to the children, and preventing the respondent from bringing the children into contact with certain people ([5]-[6]).

    The appellant sought an intervention order in the Magistrates Court restraining the respondent from contacting the children ([11]).

    Issues: Whether the Magistrate erred in holding that the Family Court was the proper forum for the appellant to pursue the relief he seeks.

    Decision and Reasoning: The appeal was dismissed. The Family Court had jurisdiction over the proceedings and could amend the parenting orders if it considered appropriate ([18]-[19]). An intervention order made by the Magistrates Court would be invalid to the extent of inconsistency with the Family Law Act ([16]).

  • Police v Giles [2013] SASC 11 (15 January 2013) – Supreme Court of South Australia
    Emotional and psychological abuse’ – ‘Evidence of prior abuse’ – ‘Following, harassing, monitoring’ – ‘Interim intervention order’ – ‘Physical violence and harm’ – ‘Reasonable suspicion

    Appeal Type: Police appeal against a Magistrate’s refusal to confirm an interim intervention order.

    Facts: The Magistrate refused to confirm an interim intervention order which had previously been made ex parte against the respondent in favour of his former de facto partner. At trial, there were disputed facts regarding various prior incidents of physical and verbal abuse. The Magistrate made no findings of fact about these incidents.

    Issue/s:

    1. Whether the Magistrate’s failure to make findings of fact about these incidents amounted to an error of law.
    2. Whether the Magistrate erred in finding that there was no reasonable suspicion that the respondent ‘would if unrestrained commit an act of abuse which was to result in more than trivial emotional harm’ (See at [4]). This appeal therefore concerned the meaning of ‘trivial’ distress, anxiety or fear and the degree of suspicion which is required.

    Decision and Reasoning: The appeal was upheld.

    1. The Magistrate’s failure to make factual findings amounted to an error of law because: they were important to determining the nature of the relationship; they affected the degree of anxiety that the respondent’s former de facto partner may have felt about potential further acts of abuse and they were probative of further allegations made by his former de facto partner. Kourakis CJ noted at [29] that while proof of past acts of abuse is not a precondition to the making of an intervention order, the Act ‘appears to contemplate that the court will make findings of fact about past events and provides that it is to make those findings on the balance of probabilities’. As such, a reasonable suspicion (under s 6) that an act of abuse will be committed must be based on findings of fact made on the balance of probabilities.
    2. The Court found the Magistrate erred in finding that there was no reasonable suspicion in the circumstances. There is no requirement that the facts found by the Magistrate themselves constitute an act of abuse, that they be recent or that they occur before or after a relationship breakdown. An order could be made based on a statement of intention to commit an act of abuse, no matter who that statement was made to. While the timing of the acts is relevant, Kourakis CJ stated that depending on the circumstances, an event many years earlier could constitute a reasonable suspicion (See at [30]-[31]). A reasonable suspicion will include a suspicion that the ‘defendant will act in a certain way’ and a suspicion that those acts would have the prescribed effect on the protected person of something more than a trivial kind (See at [32]). In this case, the respondent’s former de facto partner had anxiety that the respondent may kill her. This was not trivial and the Magistrate had erred in finding it was.

      Kourakis CJ then made several factual findings including that the appellant used a knife and verbally abused his former de facto partner and therefore found that the prescribed reasonable suspicion under the Act existed. His Honour then found that it would be appropriate in the circumstances to make the order.
  • RYSZ v Police [2011] SASC 167 (7 October 2011) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Alcohol’ – ‘Breach of restraining order’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Threatening to cause harm’ – ‘Verbal abuse

    Charge/s: Breach of domestic violence restraining order, threatening to cause harm.

    Appeal Type: Appeal against sentence.

    Facts: In 1999, a domestic violence restraining order was made against the appellant in favour of his wife. In 2010, he called his wife, verbally abused her and threatened her partner. This conduct amounted to a breach of the order which prohibited him from contacting her in any way. His criminal history was relevant and included offences of violence against his wife and daughter, as well as many prior breaches of the restraining order. He had an alcohol problem. At the time of the offending, he had ceased taking anti-depressant medication and had increased his alcohol consumption. He was sentenced to four months’ imprisonment.

    Issue/s: Some of the issues concerned –

    1. Whether the Magistrate erred in imposing a sentence of imprisonment.
    2. Whether the Magistrate erred in not partially suspending the sentence.

    Decision and Reasoning: The appeal was allowed in respect of the partial suspension.

    1. The appellant submitted, inter alia that as over 7 years had elapsed since the last breach of the order, the current offence should be seen as an isolated lapse and that the latest breach was relatively minor. This submission was rejected. Given the applicant’s history of seven previous convictions for breach of the order, leniency was not warranted. White J then discussed the nature of breaches of restraining orders and noted that their purpose is to protect vulnerable family members. His Honour at [31] then drew an analogy between breaches of domestic violence restraining orders and driving while disqualified, in that, ‘both involve some defiance of a court order; both negate the protection of the community which they were intended to achieve; and considerations of general and personal deterrence are important in each case.’ Generally, the most appropriate penalty for driving while disqualified is imprisonment. His Honour (again at [31]) then drew some distinctions between the nature of the two offences. His Honour then concluded, notwithstanding the differences between the two types of offences, ‘I consider that, having regard to the important role of domestic violence restraining orders and of the necessity of courts promoting respect for their own orders, a sentence of imprisonment may be appropriate in those cases, like the present, in which the order has been repeatedly breached and the offender has not taken advantage of the lenience previously extended to him. In cases of contumacious breaches of order, considerations of both general and personal deterrence are especially important’ (see at [32]).
    2. The Court agreed with the appellant’s submission that the sentence should have been partially suspended. The appellant had complied with the order for a long period since 2003 and the latest offence did appear to be isolated. Furthermore, it was at the lower end of the scale of seriousness for offences of that type. The offence was also explained by the fact that the appellant was coming off anti-depressants’ and was intoxicated (see further at [41]-[45]).
  • Police v Dolan [2010] SASC 341 (9 December 2010) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Breach of bail’ – ‘Common assault’ – ‘Guilty plea’ – ‘Physical violence and harm’ – ‘Pregnant women’ – ‘Programs for perpetrators’ – ‘Sentencing’ – ‘Trespass

    Charge/s: Common assault, trespass, breach of bail.

    Appeal type: Appeal against sentence.

    Facts: The defendant had been in a relationship with the victim for nine months. The victim was 8 weeks’ pregnant at the time of the offending. The defendant was the father and aware of the pregnancy. While the defendant and the victim were having a conversation, the defendant became aggressive, at which point the defendant punched her in the left side of the head which caused her to fall to the ground. He then kicked her in the head while she lay on the ground, which caused her to pass out. While she suffered no permanent injury, she experienced extreme pain. After being arrested and placed on bail, the defendant breached this bail by trespassing because he wanted to see if his partner was with another man. He again breached bail by having a conversation with his partner. He pleaded guilty and was placed on an 18 month supervised good behaviour bond, which included conditions that he obey the directions of a Correctional Services Officer, particularly in relation to attending programs for mental health, anger management and domestic violence. The Magistrate stated that a term of imprisonment would have been appropriate but for the guilty plea.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was upheld. Gray J held that the Magistrate erred by not paying sufficient regard to the fact that this was an act of domestic violence against a young pregnant woman, which was not justified by the fact that the defendant was angry. While the defendant was not charged with an aggravated assault based on a domestic relationship, this remained a relevant factor. The mere fact that the defendant pleaded guilty should not have resulted in a term of imprisonment not being imposed. Indeed, other factors, such as the fact that it was an offence of domestic violence required consideration. His Honour’s starting point for common assault was 6 months’ imprisonment, which was reduced to 4 months’ because of the guilty plea and remorse. His Honour then had regard to the lack of criminal history and evident remorse and suspended the sentence, upon the defendant entering into a three-year good behaviour bond to be supervised for 18 months. Conditions that he attend anger management, drug and alcohol abuse and domestic violence programs were included. The convictions for the other offences were confirmed but no further penalty was imposed.

  • Vonstanke v Police [2010] SASC 15 (4 February 2010) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated assault’ – ‘Breach of bail’ – ‘Contravention of restraining order’ – ‘Evidence of prior abuse’ – ‘Following, harassing, monitoring’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Aggravated assault (aggravating factor – that the offence was committed against the appellant’s domestic partner), contravention of restraining order (two counts), breach of bail.

    Appeal Type: Appeal against sentence.

    Facts: The appellant’s domestic partner believed the appellant was having an affair. She obtained documents from his computer. In attempting to get the documents back, the appellant pushed her backwards into a chair after grabbing her. The appellant prevented her from getting help by cutting the power to her telephone. She was fearful of the appellant. This conduct constituted the breach of the restraining order as well as the assault. After being arrested and released on bail with conditions that he not contact the victim, the appellant contacted the victim daily through the internet as well as by appearing at locations the victim drove to and sending her flowers. This conduct was in breach of bail and the restraining order. The offences were committed in the context of a background of domestic violence. The total effective sentence imposed was nine months’ imprisonment.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. While the victim suffered no physical injury, she was isolated, in considerable fear and subjected to physical force while the applicant prevented her from obtaining assistance. The fact that this incident was not unique was also relevant - the physical assaults she had suffered from the appellant in the past were an important consideration. See in particular the following comments by Duggan J at [16] – ‘Personal and general deterrence play an important role in offences involving domestic violence. This is particularly so in the case of a repeat offender. Furthermore, Parliament has acknowledged the importance of deterrence in such cases by declaring that an offence of violence against a domestic partner is an aggravated offence attracting an increase in the maximum penalty over and above that applicable in the case of an offence of common assault. The fact that the assault constituted a breach of a restraining order made by the Court is a further factor to take into account in considering the single sentence imposed in respect of the assault and breach of restraining order.’

  • Johnstone v Police [2008] SASC 357 (17 December 2008) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated assault’ – ‘Domestic discipline’ – ‘Offences against children’ – ‘Physical violence and harm’ – ‘Programs for perpetrators’ – ‘Sentencing

    Charge/s: Aggravated Assault (aggravating factor – that the offence was committed knowing the victim of the offence was their child)

    Appeal Type: Appeal against sentence.

    Facts: The appellant plead guilty and was convicted for the aggravated assault of his son. The appellant inflicted a substantial blow on the child, which left bruising and finger marks on his leg. However, he did not require any hospital treatment. It occurred in the context of the appellant attempting to discipline his son. The appellant’s criminal history included a prior conviction for an assault in a domestic setting. He was sentenced to six months’ imprisonment, fully suspended upon entering into a good behaviour bond for two years with conditions that he be under the supervision of a Community Corrections Officer and that he undertake counselling for drug issues, anger management and domestic violence issues.

    Issue/s: One issue concerned whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld and the sentence was reduced to three months’ imprisonment, fully suspended with the same bond conditions as fixed by the Magistrate. While acknowledging the appellant’s criminal history, Nyland J found that this was an isolated incident in the context of the appellant attempting to discipline his son, and was not intended to cause any injury. As such, while the sentence was excessive, the Court agreed with the Magistrate that a sentence of imprisonment was appropriate – ‘the court must make it clear, not only to the appellant but to others who might be like-minded, that violence of any kind to a child will not be tolerated’ (see at [28]).

  • R v Wilkinson [2008] SASC 172 (4 July 2008) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravated serious harm with intent’ – ‘Aggravating factor’ – ‘Bail’ – ‘Deterrence’ – ‘Following, harassing, monitoring’ – ‘History of abuse’ – ‘Physical violence and harm’ – ‘Sentencing

    Charge/s: Aggravated serious harm with intent, aggravated assault causing harm, aggravated harm with intent. (Aggravating factors – that the appellant knew the victim was his de facto spouse).

    Appeal type: Appeal against sentence.

    Facts: The appellant was on bail for an unrelated charge at the time of the offending. The first incident arose when the complainant went to collect the appellant (her de facto partner) due to the appellant’s curfew as a condition of his bail. The appellant reacted angrily to this, which led to the assault. She was admitted to hospital for four days. The complainant’s injuries were extremely serious with lasting effects including permanent facial and dental damage, ongoing amnesia, psychological issues and disfigurement. The appellant was arrested and eventually released on bail with conditions that he not approach or communicate with the complainant in any way. In breach of this bail, the appellant seriously assaulted the complainant again by punching her in the face, choking her, pulling her by the hair and throwing her into a mirror. The complainant again sustained serious injuries and required hospital treatment. There was a long history of domestic violence in the relationship, and one of the past incidents involved an assault by the appellant. The complainant called police but was unable to explain what occurred. When police returned the call, the appellant held a gun to the complainant’s head. She told the police all was OK and hung up. At the time of the offending, the appellant was 27 and the complainant was 17. They had been in a relationship for some years and the police had been contacted about domestic violence three times in the 12 months prior. The appellant had relevant criminal history apart from the history of domestic violence. He pleaded guilty and was sentenced to 7 years and 8 months’ imprisonment.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. Gray J (with whom Sulan J and White J agreed) discussed the causes of domestic violence and the preferred response of the courts. See at [27]- [28] -

    ‘The causes of domestic violence are multiple. It has been recognised that relevant contributing factors include immaturity, mental illness, abnormal personality disorders, inhibition through drug abuse, poor anger management and lack of counselling and support. Courts have identified all of the above as common causative factors in modern times. Although imposing longer and longer terms of imprisonment does remove perpetrators from the community, domestic violence continues and its incidence increases. The imposing of sentences of imprisonment is a blunt instrument that does not adequately address the underlying causes of domestic violence in any real way.

    The courts have long recognised that personal and general deterrence have a heightened significance when sentencing for the crimes of domestic violence. As King CJ observed in R v Banens (Unreported, Supreme Court of South Australia, King CJ, Legoe and Von Doussa JJ, 18 November 1987) at 7-8:

    “The sentence which is imposed by the court for a crime of domestic violence is aimed, in large part, at deterring other people who may be involved in like situations. I think that, in a serious case of domestic violence, it is necessary for this Court to make clear, by actual intervention, to the public that the sentences imposed for this type of crime are calculated to provide effective deterrence to those who might be tempted to commit similar crimes. Not only must the penalties imposed operate, as far as such penalties can, as an effective deterrent, but it must be made clear to the public that the courts are imposing sentences having that effect. It is a question not only of actual deterrence but assurance to the public that deterrent penalties are being imposed.”’

    His Honour went onto comment on the vulnerability of victims at [29] – ‘Domestic violence is predominantly directed by men toward women. The community expects the law to protect women, to protect the weak from the strong, and to protect the vulnerable from the oppressor. These are factors that have led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. Parliament has recognised that crimes involving violence and assault may be aggravated by a domestic situation.’

    This was particularly relevant on these facts as the victim/complainant was only 17. She had made multiple complaints to police but had received little protection, other than the no contact and no alcohol conditions of the appellant’s bail. The Court did not make use of the wide powers under s 11 of the Bail Act 1985. While the bail agreement indicated there was to be supervision by a Community Corrections Officer, there is no evidence that this occurred. Also, the appellant was not required to undertake counselling to address his violence, alcohol abuse and anger issues. As such, in this case, the no contact condition provided little protection and the complainant was left vulnerable and in danger. The Court concluded that the sentencing judge was correct to take a serious view of the appellant’s conduct. Over the preceding 12 months, the appellant had ‘bullied, victimised and brutalised his younger partner’ (See at [41]) and had continued this conduct notwithstanding the fact that the complainant sought protection from police and the bail conditions. Personal deterrence was important as the appellant had not been deterred by earlier warnings. General deterrence was also particularly important. See finally at [42] where Gray J referred to the fact that Parliament has made an assault in a de facto relationship an aggravating factor, which draws attention to the seriousness of this conduct. The Courts should pay due attention to this factor in sentencing.

  • R v Carr [2008] SASC 125 (13 May 2008) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Antecedents’ – ‘Character’ – ‘Common assault’ – ‘Deterrence’ – ‘Emotional and psychological abuse’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Sentencing’ – ‘Threatening life

    Charge/s: Common assault (two counts), threatening life.

    Appeal Type: Appeal against sentence.

    Facts: The victim was the appellant’s wife. There was a long history of physical and psychological abuse in the relationship. The assaults involved the appellant slapping and spitting on his wife. The threatening life offence involved the appellant holding a knife to his wife’s throat. He was sentenced to two years and five months’ imprisonment, with a non-parole period of twelve months.

    Issue/s: Whether the sentence was manifestly excessive. In particular, whether the sentence should have been suspended.

    Decision and Reasoning: The appeal was upheld and the appellant was re-sentenced to two years’ imprisonment with a non-parole period of 9 months. The appellant submitted that the sentencing judge erred in not sufficiently taking into account the time he spent in custody and in home detention and his prospects of rehabilitation. The respondent submitted that there was no error in the sentencing judge’s approach, and that the charges had to be considered against the background of domestic violence that occurred over the period of a 17 year marriage. The respondent argued that this made general deterrence of paramount importance. Anderson J (Doyle CJ and Bleby J agreeing), agreed at [31] that general deterrence is a very important consideration in sentencing where there has been a history of domestic violence in the relationship. This was applied at [38], where Anderson J held that the history of domestic violence in the relationship and the importance of general deterrence could not justify suspending the sentence. However, the sentencing judge erred in assessing the appellant’s prospects of rehabilitation as moderate. This was contradictory to the information that was before him, which included a lack of prior convictions and the fact the appellant no longer had a problem with alcohol abuse. The sentencing judge also erred by not specifying the extent to which he took the period of home detention into account.

  • R v Lennon [2003] SASC 337 (2 October 2003) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aboriginal and Torres Strait Islander people’ – ‘Mitigating factors’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Unlawful and malicious wounding with intent to cause grievous bodily harm

    Charge/s: Unlawful and malicious wounding with intent to cause grievous bodily harm.

    Appeal type: Application for leave to appeal against sentence.

    Facts: The respondent, an Aboriginal man, was intoxicated and engaged in an argument with his de facto wife. He lost his temper and struck her on the head with the blade of a shovel which caused very serious injuries. He then threatened to break her legs, struck her on the knees with the shovel handle and struck her on the arm, which was already broken and in plaster. He had a relevant criminal history including offences of violence. He was sentenced to 18 months’ imprisonment with a non-parole period of 10 months.

    Issue/s: Whether the sentence was manifestly inadequate.

    Decision and Reasoning: The appeal was upheld. Mitigating factors included the fact that the offence was committed on the spur of the moment while he was intoxicated and he was immediately remorseful (see at [9]). However, Doyle CJ (with whom Prior J and Vanstone J agreed) described the attack as ‘brutal’ and ‘cowardly’ (see at [10]). Doyle CJ then made the following comments at [12] –

    ‘The court has said consistently that it must do what it can to protect women from violence by men. This applies just as much to violence within a domestic relationship as it does to violence in other situations. In cases like this the community expects, and protection of women requires, that the court should impose a sentence that is likely to deter the individual offender and to deter other potential offenders. The fact that the violence occurs on the spur of the moment is a relevant factor, but this is often true in the case of domestic violence. The impulsive nature of such offences is often offset by the fact that, as here, there is a pattern of violence within the particular relationship, or on the part of the particular offender. Mr Lennon's record makes it clear that he has not yet learned that violence towards women cannot be accepted.’

    As such, while there was no error in the primary judge’s reasoning, the sentence was too low. It was not justified by the mitigating factors in the context of the objective seriousness of the crime and the respondent’s criminal history. The respondent’s Aboriginality was acknowledged but no significance of that factor was identified. The Court held that the head sentence should have been twice what was imposed. There was a need for the Court to re-sentence because the original punishment was, ‘so inadequate as to shake confidence in the administration of justice’ (see at [18]). The appellant was then re-sentenced to four years’ imprisonment with a non-parole period of 20 months. While Doyle CJ was of the view that a longer non-parole period was warranted, this was not appropriate because the original non-parole date fixed by the trial judge was to expire within two weeks of the decision being handed down. To increase the non-parole period so close to this date would have been particularly harsh on the respondent.

  • R v Parisi [2003] SASC 249 (14 August 2003) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravating factor’ – ‘Assault occasioning bodily actual harm’ – ‘Contravention of restraining order’ – ‘Damaging property’ – ‘Deterrence’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Sentencing’ – ‘Threatening life

    Charge/s: Damaging property (two counts), contravention of restraining order (two counts), threatening life, assault occasioning actual bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: The appellant pleaded guilty in the District Court to all of the above charges. The victim was the appellant’s estranged wife. Prior to the offences, there was domestic and family violence that led to the restraining order being obtained. The property damage offences involved the appellant damaging his wife’s car. The threatening life and assault offences involved the appellant attending a house at which his wife was staying and producing a knife. He was allowed to enter the house after he handed over the knife and stated that he would not harm his wife. He then entered the house, grabbed his wife in a headlock and punched her in the face multiple times while threatening to kill her. She suffered a broken nose and black eye. The appellant’s criminal history included various drug and assault offences. A psychiatrist concluded that the appellant had developed a depressive disorder associated with the deterioration of his relationship, which had caused him to act aggressively and violently towards his wife and children over some years. His condition had not stabilised. He was sentenced to three years and two months’ imprisonment with a non-parole period of 18 months.

    Issue/s: Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was upheld. The appellant submitted that the primary judge did not adequately consider the appellant’s rehabilitation and had given undue weight to his criminal history and the comments of the psychiatrist. He submitted that the sentence should have been suspended. However, the appeal was not upheld for these reasons. Rather, the original sentence was set aside due to an error with calculating the maximum penalties for the property damage offences. In re-sentencing, Nyland J (with whom Gray J and Debelle J agreed) concluded that while the two property damage offences might not appear particularly serious, they should be treated as part of an escalating course of conduct which culminated in the assault, which caused serious injury and would have been a terrifying experience. Her Honour also noted that the fact the conduct was committed in breach of a domestic violence order was an aggravating factor. General deterrence was significant to ‘bring home to others who might be like-minded that the courts will not tolerate this type of behaviour’ (See at [21]).’ He was re-sentenced to two years and nine months’ imprisonment with a non-parole period of nine months. The reduced length of the sentence gave credit for the appellant’s guilty plea and time already served in custody and on home detention bail. The non-parole period was reduced to take account of the positive reports from the psychiatrist about the appellant’s rehabilitation, such that he was no longer a threat to his wife and personal deterrence was no longer necessary.

  • R v McMutrie [2002] SASC 253 (8 August 2002) – Supreme Court of South Australia
    *Note this case was decided under now superseded legislation however the case contains relevant statements of principle.
    Aggravating factor’ – ‘Attempted murder’ – ‘Breach of restraining order’ – ‘Deterrence’ – ‘Double jeopardy and other charges’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Possession of a knife with intent to kill or to cause grievous bodily harm’ – ‘Sentencing’ – ‘Unlawful wounding

    Charge/s: Attempted murder, wounding with intent to kill or do grievous bodily harm, unlawful wounding, breach of restraining order.

    Appeal Type: Appeal against conviction and sentence.

    Facts: The appellant’s relationship with his former de facto partner had recently ended. The appellant approached her at a club because he wanted her to come outside to witness him attempt to cut his own throat. As he attempted to force her to leave, a struggle ensued and she was wounded by his knife. They had been in a relationship for 20 years. The appellant had a history of domestic violence, mental health issues and various other illnesses. His criminal history involved alcohol and drug related offending and prior breaches of restraining orders. He was acquitted of attempted murder and wounding with intent but convicted of unlawful wounding and possessing a knife with intent. The trial judge indicated that the possession of the knife and unlawful wounding offences arose out of the same events. He pleaded guilty to breaching the restraining order. He was sentenced for all three offences to three years’ imprisonment with a non-parole period of 18 months.

    Issue/s:

    1. Whether the appellant was convicted twice for the same offending conduct, as the same facts were relied upon for the possess knife with intent charge and the unlawful wounding charge, such that the rule against double jeopardy was infringed.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal against conviction was upheld and the appeal against sentence was dismissed.

    1. The Crown conceded that there was a risk of a miscarriage of justice and acknowledged that the jury may have relied on the same factual circumstances for both convictions. As such, the appellant would have been entitled to the defence of ‘autrefois acquit’. The conviction for the possess knife offence was therefore set aside.
    2. In upholding the original sentence, Gray J (with whom Perry J and Williams J agreed) noted the lasting impacts of the history of domestic violence on the victim and their children. The Court held that an immediate custodial sentence was needed. See in particular these remarks at [15]-[18] –

    ‘Domestic violence is not just physical abuse but includes a range of violent and abusive behaviours perpetrated by one person against another. A high percentage of victims are women and children. Domestic violence has existed for centuries. However over the last 30 years its prevalence has been increasingly recognised. This has caused considerable community and governmental concern. More recently legislation has evolved in an effort to protect the vulnerable…The law seeks to protect the innocent and vulnerable. The legislative scheme is directed towards providing protection. This protection is primarily provided through the mechanism of restraining orders (Now known as intervention orders). Restraining orders are the principal legal response to domestic violence. They are can be (sic) obtained expeditiously from a magistrate's court. The standard of proof is on the balance of probabilities. Orders can be tailored to the particular conduct of the abuser and breaches are a criminal offence. In this case the victim had obtained a restraining order. She had done all she could to protect herself. The breach of that order is a matter of particular gravity. The use of the knife to engender fear and wound was an aggravating feature to the appellant's crime. The gravity of his conduct called for the imposition of an immediate custodial sentence’

    See furtherat [23] – ‘A restraining order had been obtained to prevent the very conduct the subject of the wounding conviction. The need for personal deterrence is a significant factor in this case. The appellant needs to understand that court orders must be obeyed and that non compliance in circumstances of domestic violence will be viewed very seriously. General deterrence is also an important consideration in sentencing.’

District Court

  • R v Schmidt [2017] SADC 98 (30 August 2017) – District Court of South Australia
    Admissibility’ – ‘Evidence not accepted’ – ‘Jealousy’ – ‘Judge-only trial’ – ‘Strangulation’ – ‘Tendency evidence’ – ‘Uncharged acts of violence

    Charges: Aggravated serious criminal trespass in a place of residence x 1; Indecent assault x 1; Assault x 1; Theft x 1.

    Case type: Trial by a single judge.

    Facts: The complainant alleged that the accused entered her house, strangled her, grabbed her in the vagina, punched her in the face and stole her mobile phone ([23]-[[26]). The accused denied all the allegations ([6]).

    Issues: Whether the accused should be convicted.

    Decision and Reasoning: Judge Rice convicted the accused on counts 1, 2 and 4 ([56]). In relation to Count 3 (assault), Rice J found that it was not proved beyond reasonable doubt that the accused punched the complainant ([54]).

    Evidence of uncharged acts of violence occurring earlier in the relationship was also admitted. The prosecution said that it showed that ‘the accused had a tendency to act in a violent and controlling manner’ towards the complainant ([12]). However, Judge Rice ignored the evidence on the basis that some of the complainant’s evidence was inconsistent, and was not supported by independent evidence ([20]).