Contents

Table of Contents

South Australia

Court of Appeal

Sondhi v King [2024] SASCA 7 (8 February 2024) – South Australian Court of Appeal

‘Appeal’ – ‘Physical and harm’ – ‘Sexual and reproductive abuse’ – ‘Rape’ – ‘Credibility’ – ‘Reliability’ – ‘Evidence’

Charge: Rape x 5.

Proceedings: Appeal against conviction.

Facts: Following a trial by judge alone, the male applicant was found guilty of five counts of rape perpetrated against the female complainant, his wife. Each count occurred between January and March 2021, shortly after the birth of their only child. [2]–[6] At trial, the applicant denied the charges, submitting that the initial complaint was fabricated. [7]

Grounds of appeal: The applicant appealed the conviction on five grounds with significant overlap. Overarchingly, the grounds concerned:

1.

Failure to give adequate reasons and/or adopt adequate reasoning to explain why the conflicting evidence raised by the applicant did not engender reasonable doubt;

2.

Erroneous consideration of the complainant’s credibility and reliability due to a failure to properly evaluate inconsistencies in her testimony and behaviour;

3.

Erroneous approach to the evaluation of the evidence of the initial complaint raised by the complainant and her brother (a witness);

4.

Erroneous application of the burden and standard of proof; and

5.

Failure to consider the complainant’s reliability, as distinct from considerations of credibility [4]

Decision and Reasoning: The Court (Doyle, Blue and Kimber JJ) granted the applicant permission to appeal but dismissed the appeal.

The Court held that the inconsistencies in the complainant’s evidence — concerning the time of day on which the complaint was made (eg, afternoon or evening) — was ‘hardly … significant’ to affect the credibility of the complainant. This finding extended to the inconsistencies between the evidence of the complainant and her brother, concerning the date on which the complaint was made. [40]–[46]

It was observed that the trial judge was ‘cognisant of the need to consider the whole of the evidence’ before finding any count proven beyond a reasonable doubt. [77] This included findings of the complainant’s credibility and reliability, the latter of which had limited relevance to the issues in the trial. [78]; [129]

Further, the Court held that the trial judge’s provision of directions to himself, concerning the principle of innocence and the prosecution’s burden, did not constitute preferential reasoning or a misapplication of the onus of proof. [109]–[111]

TM v King [2024] SASCA 5 (8 February 2024) – South Australian Court of Appeal

‘Appeal against conviction’ – ‘Rape’ – ‘Physical and sexual abuse’ – ‘Evidence’ – ‘Adequate Reasoning’

Charge: Rape x 6.

Proceedings: Appeal against conviction.

Facts: Following a trial by judge alone, the male applicant was found guilty of six counts of rape perpetrated against the female complainant, his partner. Each count occurred over thirteen years. [1]–[2] According to the complainant, the relationship started off ‘good’ in 2004. However, the applicant became aggressive and sexually violent. The complainant alleged that the accused had raped her on multiple occasions, including while pregnant. The applicant’s aggressive behaviour fluctuated throughout the marriage, and the birth of their first and second children. By 2019, the complainant told the applicant to leave the home. [9]

Grounds of appeal: The applicant appealed the conviction on four grounds:

1.

Erroneous approach to the evaluation of the evidence of the initial complaint;

2.

Erroneous assessment of the credibility and reliability of the complaint;

3.

Engagement in adequate reasoning; and

4.

Inadequate reasons.

5.

Failure to consider the complainant’s reliability, as distinct from considerations of credibility [4]

Decision and Reasoning: The Court (Doyle, Bleby and Kimber JJ) granted the applicant permission to appeal but dismissed the appeal.

With respect to ground one, the Court specified that section 34M of the Evidence Act — governing evidence relating to complaint in sexual cases — does ‘not condition the admissibility and use of evidence’ of initial complaints upon the existence of ‘independent support’. [40] Even if it did, the evidence of AT (a witness) provided independent support to the fact that the complainant made the initial complaint. [41]

The Court further clarified R v Landmeter (2015) 121 SASR 522 as not establishing the principle that ‘the absence of support for the making of a complaint means that evidence always has limited weight’. [49] This is a matter dependent on the evidence given in the trial, and it was open to the trial Judge to prefer the evidence of the complainant as to the terms of the initial complaint. [49]

With respect to ground three and four, the Court held that the approach of the trial judge was ‘open’ to him, and subsequently not inadequate. The reasons of the trial judge rationally supported the facts found the final verdicts. [87]; [129]; [136]

Groom v Attorney General [2023] SASCA 5 (1 August 2023) – South Australian Court of Appeal

‘Appeal’ – ‘Protection order’ – ‘Abuse of Process’ – ‘Vexatious Litigant’ – ‘Systems Abuse’

Proceedings: Appeal against order prohibiting institution of proceedings in relation to protection order.

Facts: In 2011, the male appellant was subject to a protection order, which he ‘sedulously’ sought to overturn in at least eight proceedings; all of which were instituted without reasonable grounds. In 2021, following a referral from the Court of Appeal in Groom v Police [2021] SASCA 1, the Attorney-General commenced proceedings seeking to declare the appellant a vexatious litigant. [1]-[2]

After hearing the application in 2023, Justice Blue of the Supreme Court (see Attorney General v Groom [2023] SASC 18) ordered the appellant to be prohibited, without prior leave of the Court, from instituting proceedings in relation to the protection order.

Grounds of appeal: The appellants advanced the appeal on several grounds concerning procedural failures and inadequate reasoning. [12]

Decision and Reasoning: The Court dismissed the appeal, finding no error in Blue J’s reasoning, nor merit in any of the appellant’s grounds of appeal.

Blue J gave clear and cogent reasons for all of his findings. Mr Groom was either unwilling, or more likely unable, to point to any error in Blue J’s findings other than asserting that he was “wrong”. [17]

South Australia Police v Hill [2022] SASCA 22 (22 March 2022) – South Australian Court of Appeal

‘Double jeopardy’ – ‘Impermissible double charging’ – ‘Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA)’

Charges: assault aggravated (formerly) in a relationship with the victim x 2, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence x2.

Proceedings: Police appeal against order of Magistrate allowing the withdrawal of pleas of guilt to and dismissal of two counts in ruling each pair of charges involved impermissible double charging.

Facts: The respondent was charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence, committed on 16 December 2019. The respondent was later charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her and/or used an offensive weapon, and contravening a term of an intervention order for her protection, committed on 29 March 2020. The respondent pleaded guilty to each of these four counts (together with other counts). The Magistrate ruled that each pair of counts involved impermissible double charging. The Magistrate granted permission to the respondent to withdraw his guilty pleas to two of the counts and dismissed them. The Magistrate imposed a single penalty in respect of the remaining counts.

Issue: Firstly, does subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) create a single offence or multiple offences? Secondly, does a conviction for an offence of contravening a condition of an intervention order, where the contravening conduct comprises a substantive offence, preclude a conviction for the substantive offence when the substantive offence is aggravated by another circumstance and vice versa?

Decision and Reasoning: Appeal allowed.

Held by the Court:

1.

(Per Lovell, Doyle and Livesey JJA and Blue AJA) Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) creates a single offence albeit with differential maximum penalties depending on the existence of circumstances of aggravation (at [143] per Lovell and Livesey JJA and Blue AJA (Doyle JA agreeing)).

(Per Kourakis CJ) It is not necessary to decide whether subsection 20(3) creates one or two offences depending on the existence of circumstances of aggravation (at [19] per Kourakis CJ).

2.

(Per Lovell, Doyle and Livesey JJA and Blue AJA) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence, does not preclude a conviction for the substantive offence or vice versa (at [172] per Lovell and Livesey JJA and Blue AJA; at [178] per Doyle JA).

(Per Kourakis CJ) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence aggravated by another circumstance, does not preclude a conviction for the substantive offence or vice versa (at [19] per Kourakis CJ).

3.

(Per Kourakis CJ, Lovell, Doyle and Livesey JJA and Blue AJA) The appeal should be allowed and, subject to hearing the parties, a conviction recorded on the two counts dismissed by the Magistrate with no alteration to the sentence imposed by the Magistrate under section 26 of the Sentencing Act 2017 (at [174] per Lovell and Livesey JJA and Blue AJA (Kourakis CJ and Doyle JA agreeing)).

Groom v Police [2020] SASCA 1 (22 January 2021) – South Australian Court of Appeal

‘Abuse of process’ – ‘Application for permission to appeal’ – ‘Protection order’ – ‘Systems abuse’

Proceedings: Application for permission to appeal the dismissal of an application for revocation of an intervention order.

Facts: This matter had an extensive history (set out at [7]). The intervention order was originally made on 19 October 2011, and confirmed by consent on 22 February 2012. The applicant’s appeal against confirmation of the interim intervention was upheld on 25 June 2013: Groom v Police (No 3). On 10 December 2013, the application to confirm the intervention order was again confirmed by consent in the Magistrates Court. The applicant’s appeal was dismissed by a single judge on 21 March 2014 and an application for permission to appeal to the Full Court refused on 19 November 2014: Groom v Police. In December 2014, the applicant was convicted of contravening a term of the intervention order and an appeal was dismissed in July 2015: Groom v Police. In 2016, the applicant filed an application to revoke the intervention order, which was dismissed by the Magistrate. Various appeals were dismissed by a single judge and the Full Court in 2017. Notwithstanding the Full Court’s judgment, the applicant again applied to a Magistrate to revoke the order made on 19 October 2011 and confirmed on 10 December 2013. The Magistrate dismissed the application on 26 May 2020 and this was affirmed on appeal by Lovell J.

Grounds of appeal: The Magistrate and Lovell J erred in failing to find that there was new and compelling evidence to demonstrate that the order was invalid and should be revoked.

Held: The Court not only dismissed the application for permission to appeal but also held at [10]-[11] that:

“In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.

We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.”

The Court referred the matter to the Attorney-General to consider whether there were proper grounds for an application to be made under s 39 of the Supreme Court Act 1935 (SA) to stay any further proceedings sought to be instituted by the applicant (at [12]-[13]).

Supreme Court - Full Court

Police v Peel [2021] SASCFC 7 (5 February 2021) – South Australia Supreme Court (Full Court)

‘Breach of suspended sentence bond’ – ‘Breach protection order’ – ‘Prosecution appeal against decision to allow appeal’ – ‘Protection order’

Charges: Several offences including contraventions of an intervention order and breach of suspended sentence bond.

Proceedings: Prosecution appeal against Supreme Court decision to allow respondent’s appeal against breach of suspended sentence bond: Peel v Police [2020] SASC 48 (7 April 2020).

Facts: The male respondent was convicted of several offences including contraventions of an intervention order protecting his female former partner. He was sentenced to 4 months and 15 days imprisonment, partially suspended on a good behaviour bond. The respondent breached the bond by further contravening the intervention order. The Magistrate declined to excuse the breach and revoked the suspension. A single judge allowed the respondent’s appeal.

Grounds of appeal: Whether “proper grounds” existed for excusing a failure to comply with a suspended sentence bond.

Held: The single judge below erred, but there was no utility granting permission to appeal or allowing the appeal in this case as the respondent had served the unexpired portion of the sentence.

Consideration of whether there are “proper grounds” involves “consideration of the nature of the breach and the circumstances in which it was committed, and of any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served” (at [38]). Any history of similar offending may be relevant “on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence”(at [44]).

The Magistrate was entitled to have regard to the respondent’s history of similar offending, which was a “relevant, and indeed quite significant consideration” in the context of the case, and the judge below erred in concluding otherwise (at [46]).

Warne v The Queen [2020] SASCFC 124 (21 December 2020) – South Australian Supreme Court (Full Court)

‘Appeal against re-sentence’ – ‘Appeal against sentence’ – ‘Coercive control’ – ‘Misuse of alcohol or drugs’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Self-defence’ – ‘Separation’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’

Charges: Basic assault x 1; Aggravated assault causing harm x 2; Possession of a Class A firearm without a licence x 1; Aggravated threatening life x 1; Aggravated assault x 3.

Proceedings: Appeal against re-sentence (re-sentence was imposed following a successful appeal against conviction).

Facts: The offences occurred in connection with a domestic relationship between the appellant man and his female former partner. The appellant was convicted of 8 charges following a trial by jury. He was sentenced to 4 years and 5 months imprisonment, with a non-parole period of 3 years. The appellant successfully appealed his conviction on one count of aggravated assault causing harm. The re-sentencing arising from the appeal against conviction was undertaken by a different judge, as the first sentencing judge had retired. The re-sentencing judge imposed a sentence of 4 years and 9 months imprisonment, with a non-parole period of 3 years and 4 months.

Grounds of appeal:

1.

It was an error to impose a head sentence and a non-parole period that was greater than that which had been imposed prior to the appellant’s successful appeal.

2.

The re-sentencing judge’s starting point was too great.

3.

The re-sentencing judge erred in finding that home detention was not appropriate in all the circumstances.

4.

The re-sentence was manifestly excessive.

Held: The appeal was allowed. Based on the submissions made to the re-sentencing judge and the content of the sentencing remarks made, Hughes J (with Peek and Stanley JJ agreeing) inferred that the re-sentencing judge overlooked the approach to be taken when imposing subsequent sentences for the same offending identified in R v Baltensperger [2004] SASC 392. In re-sentencing, the judge is “required to firstly have regard to the original sentence and only upon concluding that if there is good reason to depart from it, sentencing in a different manner. Where there is a departure, it would be appropriate to provide some explanation for it and in this case, there was none” (at [41]). This inference gained further support by the lack of significant disparity between the re-sentence and the original sentence (at [42]).

After considering the relevant circumstances, Hughes J held that the original sentence was not manifestly excessive (at [48]-[56]). Hughes J (Peek and Stanley JJ agreeing) noted a controlling course of conduct:

[51] The course of conduct in February 2017 was sustained and violent. The appellant caused injuries to the victim and also sought to control her with frightening and dangerous behaviour tending to place her in fear for her life and to submit. That was reinforced by the explicit threat made by the appellant to the victim whilst he directed a firearm at her at close range. There has been no expression of remorse or contrition by the appellant, or any indication of insight on his part with respect to his conduct.

However, the circumstances concerning the count of aggravated assault causing harm, which was successful on appeal, were to be properly viewed as separate from the other acts as charged, thereby not attracting principles of concurrency. This was therefore the basis for imposing a sentence lower than the original sentence namely, 4 years’ imprisonment with a non-parole period of 2 years and 8 months (at [57]-[59]).

Warne v The Queen [2020] SASCFC 12 (26 February 2020) – South Australia Supreme Court (Full Court)

‘Appeal against conviction’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Self-defence’ – ‘Separation’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’

Charges: Assault x 1; Aggravated assault x 3; Aggravated assault causing harm x 2; Possessing a firearm without a licence x 1; Aggravated threatening life x 1.

Proceedings: Appeal against conviction.

Facts: The complainant in respect of each of the charges of violent offending was the male appellant’s then female partner. The assault charges were aggravated by reason that they were alleged to have occurred in contravention of an Intervention Order.

Grounds of appeal:

1.

The trial judge erred in failing to direct the jury as to their obligations to decide the case only on the evidence, to not discuss the case with persons other than their fellow jurors, to not make their own enquiries, and to bring to the trial judge’s attention any departure from the above by any member of the jury.

2.

The trial judge erred in failing to direct the jury as to self-defence.

3.

The trial judge’s directions lacked balance to the extent that they resulted in a miscarriage of justice.

4.

The trial judge erred in failing to adequately direct the jury in relation to the potential implications for the complainant’s credit of the timing of the photographs purportedly showing the injuries alleged to have been sustained during the course of the conduct the subject of count 1.

Held: Permission to appeal in respect of grounds 1 and 2, and allowing the appeal on ground 2, but only to the extent of setting aside the conviction on count 2 (aggravated assault causing harm) and ordering a retrial on that count, and otherwise dismissing the appeal.

Ground 1: The trial judge ought to have given post-empanelment directions to the effect contended for by the appellant. Nevertheless, there was no miscarriage of justice. This was not a case where there had been media publicity and the appellant did not identify any information of significance that might have been available through internet searching. It was speculative to suggest that the jury’s deliberations were infected by extraneous information.

Ground 2: There was a sufficient evidential basis to require that the trial judge leave self-defence to the jury in respect of the charge the subject of count 2 as the alleged assault was immediately preceded by verbal and physical aggressive conduct by the complainant. The trial judge’s directions in this respect were inadequate, falling short of an accurate and clear articulation of the defence.

However, the court did not accept that the evidence as to the generally volatile nature of the parties’ relationship, and instances of aggressive behaviour by the complainant on other occasions (including her use of an axe in the context of the incident leading to count 2), provided a sufficient evidential foundation for self-defence in respect of the balance of the counts of violent offending with which the appellant was charged.

The appeal in respect of ground 2 was allowed, but only to the extent of setting aside the conviction on count 2.

Application for permission to appeal on grounds 3 and 4 was dismissed. The appellant did not demonstrate any lack of balance in the trial judge’s summing up.

Subsequent appeal against re-sentence was allowed: Warne v The Queen [2020] SASCFC 124 (21 December 2020).

SPC v The Queen [2020] SASCFC 43 (28 May 2020) – South Australia Supreme Court (Full Court)

‘Children’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse’

Charges: 8 counts, including aggravated causing harm with intent to cause harm, aggravated threatening life, rape

Case type: Appeal against conviction

Facts: The appellant an was convicted of 2 counts of aggravated causing harm with intent to cause harm, 3 counts of aggravated threatening life and 2 counts of rape. He was acquitted of a charge of aggravated cause harm. The victim was the appellant’s wife, who had migrated from China in 2009, and with whom the appellant had children. The victim testified that their relationship was marred by verbal, physical and sexual abuse, and recounted an incident of violence and rape which had preceded the charged counts (relationship evidence).

Grounds:

•

The judge failed to adequately direct the jury on the use of evidence of the victim’s distress when she reported the offending to a police officer.

•

The judge failed to properly direct the jury on the use of the evidence of the violent relationship on the element of consent on the rape charges.

•

The verdict on the last rape offence (Count 8) was unreasonable because the evidence could not exclude the possibility that the appellant failed to appreciate that the victim was not consenting.

Held: Kourakis CJ (Nicholson and Bampton JJ agreeing) dismissed the appeal.

As to ground 1, the appellant argued that the judge failed to give any directions as to the proper use of the evidence of the victim’s distress when she attended at the police station. It was submitted that the judge should have directed the jury that (1) because of the passage of time and the significance of the reconciliation contended for by the appellant, the distress was not relevant; and (2) if they were to use the distress as circumstantial evidence of consistency with respect to the alleged rape, they would need to be satisfied that distress was not an emotional reaction to the victim’s decision to leave the appellant ([36]). The Court, however, dismissed this ground for 4 reasons. First, it was not put by the prosecutor, nor left to the jury by the judge, that the victim’s distress was corroborative or supportive of her testimony ([44]). Second, the evidence was admissible due to the close temporal connection to the last rape offence, the degree of distress and the circumstances in which the victim abandoned the course in which she had enrolled to report the appellant’s violence against her. The distress was also proximate to the rape the victim alleged occurred the night before ([45]). Third, the alternative explanations for the victim’s distress proposed on appeal were unrealistic ([46]). Fourth, counsel for the appellant at trial consented to the judge’s proposal not to give any directions on the evidence of distress ([47]).

As to ground 2, the appellant’s complaint primarily related to the judge’s failure to give specific directions on how the relationship evidence was relevant to prove the mental element on 2 of the rape counts ([50]). The Court found that the the judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been established were sound ([56]). The judge did not err by omission in not directing the jury to ignore the relationship evidence on the question of the appellant’s appreciation of whether or not the victim was consenting to sexual intercourse on the rape charges. Neither counsel referred to the relationship evidence on that issue. It was common ground that, notwithstanding their violent relationship, consensual sexual intercourse was a feature of their relationship. The proper use of the relationship evidence on the subjective element of the rape charges was, therefore, not a live issue at trial.

The verdict on count 8 was not unreasonable. It was sufficiently supported by the victim’s evidence, and there was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of her testimony ([64]).

R v Roberts [2019] SASCFC 94 (1 August 2019) – South Australia Supreme Court (Full Court) [Summary prepared by Magistrates’ Associates of the Adelaide Magistrates Court]

‘Admissibility’ – ‘Assault’ – ‘Evidence’ – ‘Propensity’ – ‘Relevancy’

Charges: Causing harm with intent to cause harm

Appeal type: Appeal against conviction

Facts: The defendant was convicted by jury of causing harm with intent to cause harm to the complainant who he was in a sexual relationship with. The defendant, while intoxicated, grabbed her and dragged her out of the house, pushed her on to the footpath and kicked her body causing various injuries. The appellant’s brothers Stephen and Joe were present at the house. The complainant said that before living with the defendant, a former partner, Ray, had also been violent to her. The defence put to the complainant in cross-examination that it was Ray not the appellant who assaulted the complainant. Ray was deceased by the time of the trial. The complainant gave:

•

General evidence that the appellant was ‘rough to [her] nearly everyday [they] were together’ and ‘slapped’ her around; and

•

Specific evidence that on 14 February 2017 the appellant was angry at her and twisted and broken her arm for which the injury required surgery. The complainant lied to medical staff that she had fallen off a deck.

A police officer who attended the scene gave evidence of two tranches of the appellant’s brother, Stephen’s, statements and conduct:

•

The first tranche was that Stephen ‘loudly told police to leave the property and shut the front door’.

•

The second was that when told the appellant was arrested for assaulting the complainant, Stephen stated ‘If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way’.

Grounds of Appeal:

•

Ground 1: Did the Trial Judge err in admitting the specific evidence as to the appellant having broken the arm of the complainant on 14 February 2017, and in doing so cause a miscarriage of justice?

•

Ground 2: Did the Trial Judge err at law in admitting evidence of words spoken out of Court by a person not called as a witness (Stephen Roberts), and in doing so cause a miscarriage of justice?

Held:

•

Ground 1: Peek J and Hughes J allowing the appeal, Kourakis CJ dismissing the appeal.

•

Ground 2: Peek J allowing the appeal, Kourakis CJ and Hughes J concurring.

Reasons:

Ground 1 – Kourakis CJ (dismissing)

•

‘The admissibility of evidence of a violent relationship…between a perpetrator and a victim involved in a domestic relationship has long been held to be admissible on a charge of a violent criminal offence’ citing R v Olasiuki (1973) 6 SASR 255 at 263-264 and R v Hissey at [2] (1973) 6 SASR 280.

•

On the admission of the evidence relating to the breaking of the complainant’s wrist by the appellant, the jury ‘could not reason in the appellant’s favour that he was unlikely to be the complainant’s assailant because he was in a romantic relationship with her’ at [4].

•

‘The risk of misuse of discreditable conduct evidence is greatest when it is admitted as propensity evidence. It is more difficult to compartmentalise specific propensity reasoning from bad person reasoning’ at [9]

•

The probative value of the evidence ‘substantially outweighed any prejudicial effect’ as ‘it showed that the appellant’s romantic relationship with the appellant did not inhibit him from bashing and slapping her around and, importantly, causing her serious bodily harm three weeks earlier’ and as such was admissible under s 34P(2)(a) at [10].

•

The evidence of the broken arm assault ‘did not materially add to the prejudicial effect of the evidence that the appellant bashed and slapped around the complainant’ at [10].

•

‘Prejudice is not necessarily accumulated by the arithmetic addition of the occasions of discreditable conduct. The prejudice lies in the error of reasoning’ at [10].

Ground 1 – Peek J (allowing) (Hughes J concurring)

•

In relation to s 34P(2)(a) prosecution often contend in domestic violence matters that there is a ‘permitted use’ under s 34P(2) for the admission of evidence of prior conduct at [74].

•

The only ‘permitted use’ here is said to be that such evidence is relevant to the alleged assault on the basis that ‘the assault did not come out of the blue’ (the out of the blue argument) at [74].

•

The out of the blue argument is often linked to and strengthened by delays in reporting to police due to fears of repercussions and situations where the existence of a violent relationship is established or confirmed by independent evidence at [76].

•

‘If only evidence of the specific allegation is led…it is not unlikely that members of a jury may gain the impression that the assault charged involves an incongruous, unprovoked and unexplained occurrence’ at [75].

•

Tection 34P(2)(a) requires that separate assessments must be made as to both ‘any probative value’ and ‘any prejudicial effect’ of the evidence to determine whether the prosecution have ‘demonstrated that the former substantially outweighs the latter’ at [77].

•

In relation to the probative value: If the 14 February 2017 assault is set aside it may be contended that ‘there is an apparent difference in the evidence of the complainant as between the usual degree of violence (‘rough’ and ‘slapping around’) and ‘the high degree of violence alleged to be involved in the subject assault’ at [79].

•

The out of the blue argument in this matter is narrow. There was no delay in reporting and there is no independent evidence outside of the complainant’s to establish the existence of a violent relationship at [81].

•

In relation to the prejudicial effect: although prosecution eschewed any reliance on s 34P(2)(b), the question arises under s 34P(2)(a) and s 34P(3) ‘as to the extent of the risk that the jury might adopt a process of propensity reasoning due to the doubling of the number of allegations of a high level of violence in circumstances where the allegations appeared superficially similar’ at [82].

•

The prosecution did not call medical evidence in relation to the 14 February 2017 assault and in doing so denied the appellant ‘the ability to cross-examine as to whether such injuries where more consistent with her original history of falling from a deck than her later version of an assault’ at [82].

•

Under s 34P(3) the Judge is ‘specifically required’ to determine whether the permissible use can be kept ‘sufficiently separate and distinct from the impermissible use’ at [83].

•

‘It is quite evident from the transcript that the Judge did not undertake a sufficient analysis of the application of s 34P and did not refer to s 34P(3) at all’ at [83].

Ground 2 - Peek J (allowing) (Kourakis CJ and Hughes J concurring)

•

The prosecution ‘attempted to justify the admission of both tranches of Parkinson’s evidence by citing Walton v The Queen (1989) 166 CLR 283 and R v Hendrie (1985) 37 SASR 581 that stand for the proposition that ‘in some circumstances a person’s state of mind may be proved by contemporaneous acts or statements made by that person’ at [27].

•

Although the decisions in Walton and Hendrie are ‘unexceptionable’, ‘…the danger of proliferation of tendering evidence of statements or actions of persons not called as witnesses must be guarded against’ at [36].

•

Evidence of this nature should only be received ‘if it is of direct and immediate relevance to an issue which arises at trial’ (R v Blastland [1986] AC 41, 53 and R v Szach (1980) 23 SASR 504) at [47].

•

The trial judge admitted the evidence of Parkinson in this case to rebut the suggestion put to the complainant in cross-examination that she was assaulted by someone else other than the complainant at [52].

•

While it was open to the prosecution to call further evidence that it was not Ray that has assaulted the complainant, this evidence had to be admissible at [58].

•

In relation to the first tranche: Stephen’s ‘less than cordial welcome of police arriving at his home was entirely consistent with personal beliefs or feelings he holds about police which could be referable to any number of reasons or previous experiences’ and not necessarily connected to the crime at [60].

•

The second tranche of evidence the prosecution’s position is that Stephen’s statement was’ "Consistent" with knowledge that the appellant did consult the complainant’. However, there was in fact no evidence that Stephen knew who assaulted the complainant

•

The evidence as to Stephen Roberts’ statement and conduct was ‘nebulous and highly speculative’ as distinct from being directly relevant to trial at [60].

•

It ‘is simply not the type of clear and unequivocal "state of mind" evidence’ referred to in Hendrie and Walton. There was no evidence that Stephen knew who assaulted the complainant at [63].

•

The prosecution was ‘simply not permitted to tender evidence of an action or statement of a person who they were not prepared to call, on some sort of ‘prophylactic’ basis that the jury might consider that the words were consistent with a prosecution case theory’ at [64].

Appendix 1: 34P–Evidence of discreditable conduct

•

•

(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)–

◦

(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

◦

(b) is inadmissible for that purpose (impermissible use); and

◦

(c) subject to subsection (2), is inadmissible for any other purpose.

•

(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if–

◦

(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

◦

(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue–the evidence has strong probative value having regard to the particular issue or issues arising at trial.

•

(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

•

(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

•

(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).

R v Wilton [2019] SASCFC 65 (13 June 2019) – South Australia Supreme Court (Full Court)

‘Adequacy of directions to jury’ – ‘Confessions and admissions’ – ‘Miscarriage of justice’ – ‘Property offences’

Charges: 1x aggravated serious criminal trespass in a place of residence, 1x theft.

Appeal type: appeal against conviction of above charges.

Facts: The appellant and the complainant were in a relationship and two children were born of that relationship. The appellant and the complainant had separated and there were family court orders allowing the appellant fortnightly access to the children and restraining him from being within 50 metres of the complainant’s house. The appellant was found in the complainant’s house in possession of various items belonging to the complainant. Upon the police’s arrival, the appellant stated, “I fucked up” and begged the complainant not to press charges.

Issues: The appellant advanced two grounds of appeal; both grounds were considered together since they were intrinsically linked in both time and context ([42]). The appellant argued that the trial Judge failed to give adequate directions to the jury as to the use that could be made of the purported confessional statement “I fucked up” and the evidence of the appellant begging not to be charged ([3]).

Decision and reasoning: appeal dismissed.

To illustrate that the trial judge’s directions were not deficient, Parker J first made two material observations of the trial proceedings. The first was that the trial Judge reminded the jury of the defence’s submission that the appellant’s remarks were potentially equivocal and couldn’t be regarded as determinative ([47]). The second was that the trial Judge expressly stated that the use that could be made of the appellant’s behaviour was entirely within the jury’s discretion; it could be used for or against him, rejected in whole or in part, or attributed with different degrees of significance ([48]).

His Honour then referred to the observations of the High Court in RPS v The Queen to reflect the absence of any error in the trial Judge’s directions. In the extract, the High Court stated that the facts are to be determined by the jury and the trial Judge may comment on the facts but often the safest course for a trial Judge will be to make no comment on the facts beyond reminding the jury of the arguments of counsel ([49]). In addition, for the same purpose, his Honour referred to similar observations made in R v Golubovic where it was pointed out that in trials such as the one at hand, there may be little need for the judge to identify the issue or explain the cases of the parties ([50]).

Collectively, these observations are said to point towards a key principle relevant to the appeal, that is, when considering the adequacy of the Judge’s directions to the jury, it is important that the factual issues are few and not complex ([49]-[51]).

For these reasons, amongst others, his Honour deemed that it was unnecessary for the Judge to provide more elaborate directions in the terms suggested by the appellant (see [3]). The directions given by the Judge were viewed as sufficient to ensure the jury wasn’t confused about the issues that needed to be determined ([53]).

Police v Heritage [2019] SASCFC 60 (31 May 2019) – South Australia Supreme Court (Full Court)

‘Activation of suspended sentence’ – ‘Breach of conditions of good behaviour bond’ – ‘Sentence’

Charge: Aggravated assault.

Appeal type: Appeal against Magistrate’s sentence (excusal of breach of bond).

Facts: In 2016 the respondent assaulted his partner and was sentenced to imprisonment for 9 months, suspended upon entering into a good behaviour bond for 18 months. In 2017 the respondent breached his good behaviour bond by committing a further assault on his partner. The Magistrate excused the breach of bond, extended the bond by 6 months, and sentenced the respondent to imprisonment for 28 days for the fresh offending suspended upon the respondent entering into a further good behaviour bond for 18 months. The Police appealed against the excusal of the breach of bond ‘on the ground that, in excusing the breach, the Magistrate erroneously relied on the respondent’s personal circumstances as opposed to the nature and circumstances of the offending’ at [3].

Appeal dismissed by single Judge. Police sought permission to appeal to Full Court.

Issue: Did the Magistrate erroneously rely upon the respondent’s personal circumstances as opposed to the nature and circumstances of the offending when excusing the breach of bond?

Decision and reasoning: Granting permission to appeal and dismissing the appeal, the Full Court held:

‘The approach by the Magistrate to the finding of proper grounds to refrain from revoking the suspension was erroneous, as was the Magistrate’s conclusion that there were proper grounds to refrain from revoking the suspension’ at [41]. ‘The Judge erred in concluding that the Magistrate did not rely on the respondent’s personal circumstances in deciding to refrain from revoking the suspension’ at [47]. Notwithstanding the error, the appeal should be dismissed in the exercise of the court’s residual discretion, as the respondent has been living a law-abiding life in the community for an extended period of time since being sentenced, and the balance of the original period of suspension of the original sentence and the extended period of the suspension has now expired at [63].

Reasoning - proper grounds:

The police relied upon a series of decisions commencing with Norman v Lovegrove [1986] 40 SASR 266and R v Buckman [1988] 47 SASR 303 in which the Supreme Court held that when determining whether there are proper grounds within the meaning of s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA)—a largely identical provision is now contained in s 114(3) of the Sentencing Act 2017 (SA)—upon which a breach of bond should be excused, those proper grounds must relate to the ‘nature and circumstances of the breaching offence as opposed to the personal circumstances of the defendant’ at [13]. Blue J held in relation to the meaning of the expression proper grounds that ‘it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection 58(3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach’ at [22]. His Honour reasoned that the ‘distinction between circumstances of the offence and personal circumstances is well understood in practice although it is more difficult to define in a priori terms. The circumstances of the offence comprise those circumstances existing at the time of commission of the offence which bear on the culpability of the offender in committing the offence’ at [31].His Honour differentiated between a ‘circumstance of the offence’, for example, an offender suffering a mental impairment which contributed to the committing of the offence, and a ‘personal circumstance’, for example, where ‘it is desirable that a defendant receive treatment for a mental impairment which cannot effectively be provided in prison’ or where hardship is caused to the defendant’s dependant at [31].

His Honour, at [35], cited the Magistrates three reasons for refraining from revoking the suspension:

•

That the respondent needed professional assistance to address his mental health and anger management issues;

•

That the respondent was supporting his partner and 10 month old child who would suffer hardship if the respondent were to be imprisoned; and

•

That the revocation of the suspension of the sentence of imprisonment would be disproportionate and oppressive to the 2017 offending.

His Honour held that reasons 1 and 2 were personal circumstances. While the third reason related to the circumstances of the breach, his Honour held that ‘there was no basis on which it was open to the Magistrate to conclude that activation of the original sentence would be a disproportionate consequence of the 2017 offending’ at [40].

Reasoning – the reasons of the Judge:

The Judge referred ‘to decisions of single Judges of the Court that the Full Court authorities do not preclude a court taking into account personal circumstances’, however, stated that it was not necessary to decide this as the Magistrate did not take into account the respondent’s personal circumstances when deciding to restrain from revoking the suspension’ at [43]. Blue J held the Judge erred in his conclusion that the Magistrate did not rely on the respondent’s personal circumstances in refraining from revoking the suspension.

Reasoning – permission to appeal:

Permission to bring a second appeal by the Crown against sentence by a magistrate ‘will only be granted in rare and exceptional cases. This will ordinarily only be when it is necessary to establish or maintain correct sentencing principles or adequate sentencing standards or where the error is so disproportionate to the seriousness of the crime that it demands correction on appeal’ at [49]. Permission to appeal should be granted ‘having regard to the importance of the maintenance of the correct sentencing principles and the availability of the residual discretion’ at [61]. However, as allowing the appeal would have resulted in the defendant’s imprisonment after he had been living a law-abiding life in the community for a sustained period’ at [62], the Court should dismiss the appeal in the exercise of its residual discretion.

R v Dhir [2019] SASCFC 55 (22 May 2019) – South Australia Supreme Court (Full Court)

‘Misdirection or non-direction’ – ‘Permissible and impermissible use of evidence’ – ‘Sexual and reproductive abuse’

Charges: 1 x digital rape (count 2), 4 x aggravated assault causing harm (counts 1, 3, 4 and 5).

Appeal type: Appeal against conviction of above charges.

Facts: The appellant and complainant were married. The appellant allegedly committed the rape by putting his hand under the complainant’s jeans at a train station platform. The assault (count 3) was alleged to have been committed soon after the rape when the couple was walking home from the train station. The remaining offences were committed in the matrimonial home.

Issues: The appellant appealed against the convictions on seven grounds (see [4]), all of which generally concerned the directions given to the jury by the Judge.

Decision and reasoning: appeal was allowed on grounds 3, 4, 5 and 7 and dismissed on grounds 1, 2 and 6. All convictions ordered on the District Court information were quashed and the matter was remitted for a new trial.

For the purposes of convenience, Kourakis CJ first dealt with the fifth ground of appeal in which the appellant contended the Judge erred in directing the jury to ignore a defence submission concerning the plausibility of the digital rape charge (see [49]-[50]). His Honour accepted this ground of appeal, claiming the Judge withdrew a legitimate and factually compelling submission ([50]) with the likely effect of leading the jury to interpret the Judge’s direction as withdrawing the defence counsel’s broader implausibility submission (of which this particular submission formed an integral part of) from their consideration ([51]).

The first ground of appeal was divided into two complaints; his Honour rejected the first complaint, stating it was unnecessary to draw the distinction in order to comply with s 34R of the Evidence Act 1929 (SA) (see [53]). As to the second complaint, His Honour acknowledges that the Judge ought to have expressly directed the jury in relation to the impermissible use of the discreditable conduct evidence under s 34R(1) of the Evidence Act 1929 (SA). In failing to do this, the Judge was said to have failed to comply with the obligations laid out under s 34R(1). Nonetheless, such an omission did not occasion any miscarriage of justice and the second complaint was therefore rejected ([58]).

His Honour notes the merit of the second ground of appeal in stating that the Judge should have directed the jury as to the limited use that could be made of the alleged admissions ([59]). However, his Honour discerned no miscarriage of justice in this omission on the Judge’s part, particularly in light of the Judge’s cautionary observations ([45]-[46]) and the fact that the complainant’s evidence was proven unreliable in any event ([59]).

The third, fourth and seventh ground of appeal raised a particular issue that was considered through the relevant authorities (see [61]-[75]). Ultimately, his Honour allowed these grounds of appeal in recognising that the Judge placed undue weight to the evidence of distress.

R v Mark [2019] SASCFC 48 (9 May 2019) – South Australia Supreme Court (Full Court)

‘Appeal against sentence’ – ‘Grounds for interference’ – ‘Sentence manifestly excessive’

Charges: 1x aggravated assault, 1x breach of a suspended sentence bond.

Appeal type: appeal against sentence for the above offences.

Facts: the appellant punched his domestic partner in the face. In doing so, the appellant breached the intervention order in place at the time which prohibited the appellant from assaulting, threatening or intimidating his domestic partner. The appellant entered a guilty plea to the assault charge and the matter was transferred to the District Court for sentencing with the breached bond and other matters. An 11-month sentence was imposed for the aggravated assault while the suspended sentence was revoked and a six-month sentence (subject of the good behaviour bond) was ordered to be served cumulatively on the sentence for the aggravated assault.

Issues: the appellant’s grounds of appeal were two-fold. First, the sentence imposed for the aggravated assault was manifestly excessive ([6]). Second, the judge erred in sentencing the appellant on the basis that the offence was committed against a background of previous domestic violence ([6]).

Decision and reasoning: appeal was allowed, sentence imposed by trial Judge was set aside and the appellant was resentenced (see [36]).

His Honour first set out the authority and principles relevant to determining whether to interfere on appeal with a decision on sentence and whether a sentence is manifestly excessive ([17]-[21]).

His Honour rejected the appellant’s submission that the assault was on the lower end of the scale of seriousness. A single punch to the face was deemed serious by his Honour in light of the fatal consequences such an action may have had ([23]-[24]). It’s seriousness was also heightened by the fact it was committed with an intervention order in place at the time which aimed to protect the victim from the assault that occurred ([27]).

Whether the starting point of 18 months for a first offence of violence produced a sentence outside the permissible range for the offending and offender in question was determined in reference to multiple factors. First, the importance of specific and general deterrence in sentencing for offence of domestic violence lent some justification to the sentence imposed ([26]). Second however, the offender’s poor track record of responding to the leniency extended to him by the courts (see [10]) was considered in light of his personal and mitigating circumstances ([28]). Ultimately, notwithstanding the seriousness of the offending, and having regard to the fact that the assault was the appellant’s first offence of violence, his Honour concluded that a starting point of 18 months was too high and outside the permissible range of sentences for this offending and this offender ([31]).

The second ground of appeal was allowed since the factual basis of the judge’s sentence lacked a sufficient foundation on the evidence presented to the court and wasn’t actually conceded by the appellant ([32]).

R v Adamson [2018] SASCFC 114 (11 November 2018) – South Australia Supreme Court (Full Court)

‘Arson’ – ‘Damaging property’ – ‘Evidence’

Charges: Arson x 1.

Appeal type: Appeal against conviction.

Facts: The appellant was found guilty of arson following jury trial. It was alleged that he deliberately lit a fire inside a townhouse in which he and his partner lived until their separation three weeks prior to the fire. His alibi was that he was at a lacrosse club at the time that the fire was lit. The prosecution relied upon a number of items of circumstantial evidence which it argued cumulatively showed the appellant’s guilt beyond a reasonable doubt.

Issues: The appellant appealed his conviction on the basis that the guilty verdict was unreasonable and cannot be supported having regard to the evidence, and in particular in consideration of his alibi. He contended that no reasonable jury could have rejected his alibi as a reasonable possibility.

Decision and reasoning: In considering the grounds of appeal, the Court applied the principle set out M v The Queen [1994] HCA 63, namely, whether, on the totality of the evidence, it would be open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. On a thorough analysis of all the evidence, the Court dismissed the appeal on the basis that:

•

The evidence established that the fire in the townhouse had been deliberately lit. It also established that a few hours prior to the fire being lit, the appellant spoke of burning it down.

•

The strength of the evidence that supported the appellant’s alibi was a matter for the jury, to be considered in light of the other evidence presented in the trial.

•

There was a sufficient basis in the evidence for the jury to reject the appellant’s alibi as a reasonable possibility, and to find beyond reasonable doubt that he deliberately lit the fire.

R v Peet [2018] SASCFC 91 (5 September 2018) – South Australia Supreme Court (Full Court)

‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Murder.

Appeal type: Appeal against sentence.

Facts: The circumstances of the offending were that early in the morning, following an argument with the respondent’s partner, during which she slapped, kicked and hit him with a vacuum cleaner pole, the respondent struck her with a crow bar at least six times. The respondent dragged her body to the laundry where he placed a cable tie around her neck and tightened it. The combined effect of the blows and the compression of her neck caused her death. Not long after this occurred the children woke. The respondent made breakfast for them. He then went outside and smoked a cigarette before returning inside. There was a knock at the door. The respondent put the children in their rooms and told them to be quiet. He did not answer the door and the people knocking went away. At some point, and possibly whilst the people were still at the front door, the respondent went back to each child. The respondent restrained the six-year-old with cable ties and placed a sock in her mouth, fixing it in position with packing tape. He placed a cable tie around her neck and tightened it. Her death was caused by the combined effect of suffocation and asphyxiation. The respondent also restrained the five-year-old with cable ties and asphyxiated him. His tongue was bruised suggesting that prior to death he too may have had something placed in his mouth obstructing his airway.

The sentencing Judge sentenced the respondent to life imprisonment with a non-parole period of 30-years to commence on the day the respondent was taken into custody. The sentencing Judge accepted that the respondent was experiencing a degree of dissociation when he killed the children. On appeal, the DPP contended that the 30-year non-parole period was manifestly inadequate, and submitted that the inadequacy was so great, having regard to the gravity of the offending, that the Court should increase the non-parole period to ensure the maintenance of adequate standards of punishment for the offence of murder. The respondent conceded that the non-parole period was manifestly inadequate and that it should be set aside and a new non-parole period fixed.

Issues: Whether the sentence was manifestly inadequate.

Decision and reasoning: The Court took into account the respondent’s personal circumstances ([87]), loss felt by the family ([85]), and the value of human life. At [83]-[84], the Court noted that –

‘A just sentence in the present case must accord due recognition to the human dignity of three victims… It has been said that the value of human life is intrinsic. The murderer denies their victim life and all the potentialities that accompany living which are of inestimable worth. Speaking generally, that denial, that exaction, cost or loss, is magnified where the victim is a child. The younger and more innocent the child the more the murderer repulses us as a community and the more grave or heinous the act of murder because of the value we place on life.’

The punitive, protective and rehabilitative purposes of fixing a non-parole period were also relevant. The punitive purpose in particular reflected the gravity of the offending. The sentencing Judge found that the respondent intended to kill each victim. As King CJ said in R v Stewart (1984) 35 SASR 477, multiple murders fall into the worst category of offending. Therefore, condign punishment was afforded great weight. The Court also noted that the respondent should not be left without hope for spending some time in the community again in the future, as this promotes rehabilitation. The murder was not premeditated in the conventional sense. The murder also occurred in the context of a relationship characterized by domestic violence. The murder was described at [78] as being brutal and the final act cold and lacking in humanity. Citing Munda v Western Australia (2013) 249 CLR 600, ‘A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner’. Although the sentencing Judge found that the respondent suffered a degree of dissociation at the time of the incident, this neither prevented him from forming the intent to kill nor did it prevent him from understanding the nature and quality of his actions. It helped him to depersonalize his two children, but did not prevent him taking action which he considered necessary for the purposes of his own self-preservation ([80]).

The Court found that the determination of a non-parole period in this case could not be reduced to a formula and that the totality principle was applicable to the setting of a non-parole period in relation to a life sentence for murder. The Court allowed the appeal and held that the non-parole period fixed by the sentencing Judge was manifestly inadequate. A non-parole period of 36 years was substituted. Although the respondent was entitled to a discount of up to 10% on the basis of his guilty pleas, to allow the respondent any further reduction would result in a non-parole period unacceptably disproportionate to the gravity of the offending which would vindicate the dignity of the victims ([90]).

R v Hibeljic [2018] SASCFC 35 (11 May 2018) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (Full Court)

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Breach of bail’ – ‘Coercive control’ – ‘Contravention of a protection order’ – ‘Damage to property’ – ‘Emotional and psychological abuse’

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) – South Australia Supreme Court (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) – South Australia Supreme Court (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] SASCFC 90 (19 August 2016) – South Australia Supreme Court (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) – South Australia Supreme Court (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’ – ‘Coercive control’ – ‘Economic abuse’ – ‘Financial abuse’ – ‘Following, harassing and monitoring’ – ‘Fresh evidence’ – ‘Isolation’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Threats to children’

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]).

Parker J (Lovell and Nicholson JJ concurring) described the coercive control which the appellant subjected the victim to:

[19] When the victim was threatened or attacked by the appellant she would try to leave their flat, often running into nearby streets and parks and attempting to hide. The appellant would frequently chase her or track her down in order to continue his abuse.

[20] The appellant monitored the victim’s movements and rarely let her leave the house without him. He also controlled her finances, regularly forcing her to withdraw money from her account for his benefit, including so that he could buy drugs and alcohol.

[21] The appellant regularly threatened that if the victim reported any abuse to the police or left the relationship he would harm her and her children. She was too frightened to leave or to report the abuse to police, friends and family.

R v Gardiner [2015] SASCFC 107 (5 August 2015) – South Australia Supreme Court (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: L eave 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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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: C riminal 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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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

R v Gawel [2021] SASC 67 (1 June 2021) – South Australian Supreme Court

‘Application for review of bail’ – ‘Bail’ – ‘Covid-19 delays’ – ‘Home detention’ – ‘No prior domestic violence convictions’ – ‘Special circumstances’ – ‘Strangulation’

Charges: Aggravated assault x 2, Choke, suffocate or strangle a person in a domestic setting x 1.

Proceedings: Application for review of bail.

Issues: Whether special circumstances justified bail.

Facts: The male applicant and female victim were in a domestic relationship. The applicant was convicted of trespass offences and released on home detention bail. Within 48 hours of his release, the applicant was charged with three domestic violence offences, remanded in custody, and denied bail. The applicant applied for a review of the Magistrate’s decision, arguing that if he was denied bail his time spent in custody would likely exceed the sentence imposed if convicted of the alleged domestic violence offences [1]-[3].

Decision and Reasoning: Bail granted.

Justice Parker found that special circumstances existed to justify the applicant’s release on bail for two reasons:

1.

The applicant’s time spent in custody would likely exceed the sentence imposed if convicted.

2.

The applicant was no longer in a relationship with the victim and the proposed home detention bail address was 13 km from the victim’s home [1]-[2].

His Honour granted bail on strict home detention conditions, with electronic monitoring and a guarantee by the applicant’s friend with whom he would be residing [2]. His Honour adopted the reasoning of Livesey J in Homsi v The Queen [2020] SASC 242, who found that a ‘delay of… two years until… trial when combined with the fact that the complainant was no longer in a relationship with the applicant and that her whereabouts were not known to him was sufficient to amount to special circumstances’ [23]. His Honour accepted the applicant’s submission that ‘based on the most recent District Court listings’ the applicant faced two years in custody awaiting trial [10]. His Honour noted that this delay was due to Covid-19. Furthermore, His Honour found that the applicant’s ‘alleged conduct [was] less serious than… in Homsi’ and noted that he had no prior domestic violence convictions [25], [27].

Homsi v The Queen [2020] SASC 242 (8 December 2020) – South Australian Supreme Court

‘Bail’ – ‘History of domestic and family violence’ – ‘Impact of covid19’ – ‘Special circumstances’ – ‘Strangulation’ – ‘Threat to kill’ – ‘Unlawful imprisonment’ – ‘Victim credibility’ – ‘Weapons’

Charges: 9 charges including aggravated assault, unlawful imprisonment and detention and unlawful choking under s 20A(1) of the Criminal Law Consolidation Act 1935 (SA), most in circumstances of aggravation, that the applicant committed the offence knowing the complainant was a person with whom he was, or was formerly, in a relationship.

Facts: The applicant was in custody from April 2020. The charges relate to incidents of alleged violence towards the male applicant’s female partner in November and December 2019. The November incidents included allegations of threatening and forcing the complainant to take her to a car using a knife and shooting her with a gel pellet gun repeatedly over a 2 hour period.

The December allegations include refusing the complainant permission to leave her apartment while seriously assaulting her, including hitting the complainant in the head twice with the blunt side of a machete, slapping her in the face, threatening her whilst holding the machete, stating that the applicant was “going to gaol today for murder”, putting a blowtorch near the complainant’s face and, later, holding a pillow against her face, restricting the complainant’s breathing, causing her to fear that she might lose consciousness. On the same day, two superficial lacerations were caused to the complainant’s throat with the machete, together with a large defensive laceration to the complainant’s finger. She escaped and contacted police and a blowtorch and machete were recovered from the scene. Police abandoned a chase for safety reasons and the complainant was subsequently found to be resident in Victoria.

The applicant has a history of failure to comply with bail conditions. A prosecutor initially expressed concerns as to the complainant’s credibility and did not oppose bail in the Magistrates Court, seemingly because the complainant visited the applicant in Victoria and has a serious drug dependency. At the time of the instant application these concerns were expressed as matters for trial.

Proceedings: Application for review of denial of bail.

Issues: As a prescribed applicant within the meaning of s 10(2) of the Bail Act 1985 (SA), the applicant must show "special circumstances" within the meaning of s 10A(1) of the Act.

Held: Application allowed:

1.

Special circumstances exist for two reasons:

(a)

While the alleged offending is very serious, the applicant and the complainant are no longer in a relationship and the complainant's whereabouts are not known to the applicant. The prosecution accepts that there are issues regarding the credibility of the complainant.

(b)

The applicant has been in custody in connection with these matters since April 2020. The matter is unlikely to be tried until the first half of 2022, with the delays exacerbated by the recent lockdowns associated with the COVID-19 pandemic.

2.

Bail is granted on strict home detention conditions, supported by a guarantee.

R v Sumner [2020] SASC 231 (4 December 2020) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Application for review of bail’ – ‘Exceptional circumstances’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’

Charges: Aggravated assault against a child or spouse x 8; Choke, suffocate or strangle a person in a domestic setting x 3; Aggravated threaten to kill or endanger life x 1; Aggravated assault that causes harm x 1.

Proceedings: Application for review of bail.

Facts: The allegations related to the applicant man’s former domestic partner and their two year old daughter. The applicant was originally granted bail by a Magistrate in May 2020, which was then revoked on an application by the Director of Public Prosecutions to review the decision. An application for bail before the Chief Magistrate in September 2020 was refused. This review application related to a further refusal of an application for bail made in November 2020. The key factor that the respondent relied on was that the complainants had moved to Queensland.

Issues: Whether the complainants’ move to Queensland altered the position such that it could be said there were “special circumstances”, pursuant to s 10A of the Bail Act 1985 (SA).

Decision and reasoning: Bail was granted under strict home detention conditions.

The applicant was a prescribed person for the purposes of s 10A of the Bail Act 1985 (SA) which provides that bail is not to be granted unless the applicant demonstrates the existence of special circumstances justifying release on bail. The court was also required to have regard to the matters specified in s 10, including the gravity of the alleged offences (s 10(1)(a)) and the need that the victim may have, or perceive, for physical protection from the applicant (s 10(4)) (at [11]).

Not without hesitation, the Court was prepared to conclude that there was a fundamental change of circumstances with the complainants’ relocation to Queensland. This, in combination with other matters, particularly the support from the applicant’s father, the proposal of monitored, home detention bail in the applicant’s family home and the applicant’s lack of offending history outside of the relationship, was capable of amounting to special circumstances justifying the applicant’s release on bail (at [31]). Had the complainants not moved to Queensland for their protection the Court would have refused bail (at [32]).

Brook v Police [2020] SASC 131 (16 July 2020) – South Australia Supreme Court

‘Aggravating circumstances’ – ‘Appeal against conviction by magistrate’ – ‘Assault’ – ‘Child victim’ – ‘Stepchild in the family’

Charges: Aggravated assault x 1.

Proceedings: Appeal.

Facts: The appellant man and the complainant’s mother were domestic partners. The complainant (child) gave evidence that his mother told him it was not safe for him to be at home and told him to go to his father’s house. The complainant did not leave the house and later had a verbal exchange with the appellant. The appellant grabbed the complainant by the throat, he then pushed him, and the complainant fell. The appellant straddled the complainant and punched him multiple times. The appellant relied on the defences of removing a trespasser and self-defence.

Grounds for appeal: (1) The magistrate wrongly rejected the appellant’s barrister’s application to appear as amicus curiae; (2) The magistrate erred in refusing to disqualify himself for apprehended bias; (3) The magistrate erred in his approach to witness evidence.

Decision and reasoning: Appeal allowed on Ground 3. Conviction quashed and matter remitted to a different magistrate. (1) Administration of justice overwhelmingly favoured giving leave to counsel to appear as amicus curiae. However, the magistrate’s error in failing to allow counsel to appear did not cause a miscarriage of justice. (2) The course the magistrate took in relation to the trial, including allegedly referring to the complainant as the ‘victim’, did not establish any substantial ground for a reasonable apprehension of bias. (3) The magistrate based his rejection of the mother’s evidence on the acceptance of the child’s evidence. Appeal allowed based on errors in assessing witness evidence as well as a failure to consider the defence of removing a trespasser.

BRK v Police [2020] SASC 116 (26 June 2020) – South Australia Supreme Court

‘Appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Home detention’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Property damage’

Charges: Aggravated assault x 1; property damage x 1; resist police x 1; breach of intervention order x 2

Case type: Appeal against sentence

Issue: Whether special circumstances exist.

Facts: The appellant man was sentenced to 5 months and 2 weeks imprisonment suspended after 2 months upon the appellant entering into a good behaviour bond for 2 years. At sentencing the appellant conceded incarceration was appropriate but argued it should either be wholly suspended under s 96 Sentencing Act 2017 (the ‘Act’) or served on home detention pursuant to s 71 of the Act.

The appellant and his daughter argued and she rang her mother (the victim and his former domestic partner) to ask her to collect her. The appellant was argumentative, aggressive and assaulted the victim by pushing her towards the wall. The appellant also damaged the victim’s vehicle. A mental health assessment deemed the appellant suicidal (he had a history of depression and bi-polar disorder). He resisted police when arrested 5 days later and breached an intervention order by failing to attend the Safe Relationships Abuse Prevention Program, and sending a SMS message to the victim asking for a character reference.

Grounds: That the Magistrate erred:

1.

By imposing a sentence that was manifestly excessive in that an immediate custodial sentence was imposed and the sentence was not wholly suspended;

2.

In the alternative to ground 1, in declining to order that the custodial sentence be served on home detention under s 71;

3.

In erring in the approach taken to the ‘sentencing hierarchy’, in particular, the interpretation and application of ss 71 and 96.

4.

In the alternative to ground 3, in failing to provide adequate reasons for refusing to order that the appellant serve the custodial sentence on home detention.

Held:

1.

The Magistrate erred in failing to consider whether the sentence of imprisonment should be served on home detention. Section 71(1)(b) of the Sentencing Act 2017 (SA) does not prevent a sentencing court from considering home detention where partial suspension is in contemplation.

2.

The Magistrate erred in failing to provide adequate reasons for declining to order that the term of imprisonment be served on home detention.

3.

The parties will be heard on the factual basis on which the Court should exercise its discretion when considering whether to re-sentence the appellant.

It is a benefit of suspension under s 96 that a bond with a duration longer than the period of incarceration can be imposed with scope for supervision and directed counselling to facilitate ongoing rehabilitation [98]. Home detention cannot be ‘partially’ ordered under s 71, only ordered for the whole term of a sentence of imprisonment. If some period of imprisonment is considered necessary home detention must be rejected in favour of partial suspension [101]. In deciding whether to make a home detention order, the paramount consideration is community safety, whether that is the offender’s family in the case of domestic violence or the community generally [102]. Another important factor is whether a home detention order "would, or may, affect public confidence in the administration of justice", in which case it must not be made. The sentencing court must consider the impact home detention is likely to have on the victim, spouse, domestic partner or any other person residing with the offender ([103]). The sentencing court must also reflect on whether home detention exposes the community and domestic violence victims to safety risks. The fact that the Magistrate was prepared to partially suspend the sentence suggested the appellant is not currently thought to represent an immediate threat. It also appeared that the appellant had been on bail without incident pending the outcome of this appeal [104].

As his Honour had little information about the steps taken to assist with the appellant’s rehabilitation, the availability of courses or counselling for his difficulties in managing violence and intimate relationships, and his current work and family circumstances, he proposed to stand the matter over for further submissions or evidence on the factual basis on which the Court should exercise its discretion when considering whether to re-sentence the appellant [106].

Note: On 17 July 2020 the appellant withdrew this appeal with the result that the appeal was dismissed and the matter did not proceed to resentencing.

Coleman v Police [2020] SASC 66 (30 April 2020) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against conviction’ – ‘Miscarriage of justice’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Withdrawal and restoration of plea’ – ‘Withdrawal of legal representation’

Offences: Assault x 1

Proceedings: Appeal against conviction.

Issue: Whether the appellant’s lack of legal representation when he entered guilty pleas amounted to a miscarriage of justice.

Facts: The appellant, an Aboriginal man, assaulted his female ex-partner by punching her three or four times in the face and throwing a shoe at her. He had been represented by different solicitors from the Aboriginal Legal Rights Movement in the Magistrates Court on at least four occasions with respect to the charge, but the matter had not been progressed. The appellant’s solicitor withdrew from the file after the appellant indicated in open court that he wanted to plead guilty and "get it over and done with" [6]. The Magistrate informed the appellant that she was "likely, potentially to impose a period of imprisonment as a penalty" [6]. She sentenced him to five months’ imprisonment and imposed an intervention order prohibiting him from contacting the victim, except for telephone or text contact for the purpose of child access arrangements. The appellant appealed on the ground that he had not been represented and therefore the Magistrate should not have accepted his guilty plea, and that the Magistrate misled him about the consequences that would flow from the pleas and induced the appellant to plead at the hearing.

Judgment: The judge dismissed the appeal, holding that there had been no miscarriage of justice due to lack of legal representation. The appellant understood the charges to which he was pleading, the Magistrate explained the seriousness of the offences and that the appellant was likely to receive a sentence of imprisonment, and the appellant volunteered his wish to plead [14]. The appellant had also been legally represented over the several months prior to the hearing and had accepted an opportunity to receive legal advice [20]. His Honour emphasised that the appellant was entitled to proceed unrepresented and that "the withdrawal of legal representation before the appellant entered his pleas is not, in isolation, a ground which can justify appellate interference" [20].

His Honour also held that there was no miscarriage of justice in respect of the appellant being induced to plea, because the appellant entered his pleas voluntarily, "free of any pressure or threat" [19].

Butler v The Queen [2020] SASC 74 (16 April 2020) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Application for review of bail’ – ‘Physical violence and harm’ – ‘Relevance of covid-19 pandemic to bail application’ – ‘Weapon-protection order’

Offences: Aggravated assault x 2, contravention of intervention order

Proceedings: Application for review of bail

Issue: Whether special circumstances exist for the granting of bail.

Facts: The appellant man was charged with aggravated assault against his female former partner on two separate occasions and contravention of an intervention order. The appellant punched the back of the victim’s head, struck her with a water bottle, and punched and kicked her in the head on several occasions. A Magistrate refused bail but the appellant sought a review of this decision, contending that special circumstances existed for the granting of bail, pursuant to s 10A Bail Act 1985 (SA).

Judgment: Kourakis CJ dismissed the appellant’s application for review of the bail decision, holding that no combination of the appellant’s circumstances was sufficient to constitute special circumstances indicating that he, as someone charged with assaulting a domestic partner in breach of an intervention order, should be admitted to bail [5]. His Honour did note the systematic and endemic disadvantage of Indigenous people [7] (particularly where they are imprisoned [8]) and the burden of being imprisoned during the COVID-19 pandemic with its attendant restrictions [9]. However, His Honour ultimately held that the presumption against bail applies to all bail (even home detention bail) [14] and the appellant failed to establish special circumstances. Furthermore, the appellant had breached bail orders and intervention orders in past and the charged offences were serious in themselves [4]. His Honour highlighted that "the underlying problem is not [the appellant’s] relationship with the victim … but the alleged resort to violence in dealing with interpersonal conflict" [15]. His Honour did provide that a fresh review of the question of bail would arise, however, if it appeared in the future that a trial was a long way off or that the appellant’s mental health was deteriorating [17].

Peel v Police [2020] SASC 48 (7 April 2020) – South Australian Supreme Court

‘Breach of suspended sentence’ – ‘Exceptional circumstances’ – ‘Protection order’

Offences: Contravening a term of an intervention order x2; aggravated assault x1; failing to comply with a bail agreement x1; and driving under disqualification or suspension x 1

Type of Appeal: Appeal against sentence following breach of suspended sentence of imprisonment

Ground: The Sentencing Magistrate erred in the exercise of his discretion pursuant to s 114(3) of the Sentencing Act 2017 in that:

•

the learned Magistrate did not give adequate or appropriate consideration to the terms of the section and the meaning of "proper grounds" therein; and

•

gave undue weight to considerations personal to the Appellant including his criminal history, as opposed to the circumstances of the breach itself, such that the sentencing process miscarried.

Facts: The appellant man was convicted of two counts of contravening a term of an intervention order, aggravated assault, failing to comply with a bail agreement and driving under disqualification or suspension on 2 September 2019. He was sentenced to four months and 15 days imprisonment to be suspended after one month upon entering into a 15 months good behaviour bond. With backdating the bond was entered into on 13 September 2019. Since 17 October 2016 the appellant had been the subject of an intervention order for three years. Condition 3 of the order read "the defendant must not be within 100 metres of the protected persons". The appellant breached this order by being found with the protected person (his female former partner) in the front yard of his family member on 23 October 2019. He was visiting family and while he was at their home the protected person attended. He did not know she would be there and nothing untoward happened between them. It was a chance encounter and by not leaving immediately, the appellant was found to have breached a good behaviour bond and convicted of contravening a term of the intervention order. The Magistrate sentencing him to three weeks imprisonment and at the same time revoked the suspended sentence bond and ordering that the appellant serve the remaining time in imprisonment [3]. An application was made before the sentencing Magistrate providing that the Magistrate "should find that there were proper grounds to say that the failure to comply with the conditions of the suspended sentence bond should be excused and that no further action should be taken in respect to that failure" [4].

Judgment: The appeal was allowed and the suspended sentence of three months and 15 days was revoked. David AJ stated that "[t]he question whether there are proper grounds for excusing the breach is to be confined to the nature of the breach itself without any consideration of matters personal to the offender. That principle has been clearly stated in Heritage" [15]. The sentencing Magistrate was found to have gone beyond this principle and was instead influenced by the previous offending [15]. In considering this, the sentencing Magistrate was found to have erred.

Healy v Police [2020] SASC 40 (19 March 2020) – South Australia Supreme Court

‘Appeal against sentence’ – ‘General deterrence outweighed personal circumstances’ – ‘Good behaviour bond’ – ‘Intervention order’ – ‘Physical violence and harm’ – ‘Property settlement’

Charges: Aggravated assault x 1

Case type: Appeal against sentence

Facts: The appellant man pleaded guilty to one count of aggravated assault upon his wife (complainant), with whom he was now separated. There was some variance about the facts. The prosecution alleged that the appellant and complainant were experiencing domestic difficulties. The complainant came into their bedroom, looking for her mobile phone. On the prosecution case, the appellant pushed her to the dresser and moved her face in the direction of her phone. Such conduct was clearly against her will and involved force ([4]-[5]).

The sentencing Magistrate regarded the offending as ‘out of character’ and unlikely to be repeated but was concerned about general deterrence for this type of behaviour, which involved violence towards female partners. He placed less reliance on personal deterrence and considered that the recording of a conviction could potentially affect the appellant’s future employment. Nevertheless, he recorded a conviction on the basis of general deterrence ([7]), and sentenced the appellant to a $200 good behaviour bond for a period of 18 months.

Issue: The appellant appealed on the basis that the sentencing Magistrate erred in recording a conviction and did not consider the appellant’s personal circumstances, including his low risk of re-offending, the impact of a conviction on his employment and the background of the offending ([8]-[9]).

Held: The appeal was dismissed. The appellant’s personal circumstances were noted at [6]. He had no criminal history, had already spent 9 hours in custody, and was employed as an electrician. The appellant and his wife no longer lived together and Family Court proceedings in relation to their property were finalised. Further, there had been no contact between the parties as a result of an intervention order.

The Court dismissed the appeal as no error could be demonstrated. The sentencing Magistrate considered all matters relevant to the appellant’s personal circumstances and was entitled to approach the matter by considering that general deterrence outweighed those matters. He was also entitled to be concerned about the prevalence and nature of domestic violence.

Miller v Police [2020] SASC 20 (13 February 2020) – South Australian Supreme Court

‘Application made out of time’ – ‘Costs’ – ‘Intervention order’ – ‘Recording’

Charges: 1 x contravening a term of an intervention order

Case type: Application for permission to appeal out of time against an order for costs made by a Magistrate.

Facts: The male applicant was charged with contravening a term of an intervention order, the protected person was called at trial by the prosecution to give evidence. The evidence included the victim’s recording of an offending phone call, a copy of which was tendered. After she gave evidence, the prosecution closed its case and she was released. The Magistrate found a case to answer and the matter was adjourned. During the adjourned period, the victim was charged with property damage to the applicant’s vehicle. Consequently, the applicant applied for the witness to be recalled to cross-examine her further because of this behaviour. The Magistrate allowed the prosecution case to be reopened and reversed his ruling that there was a case to answer in order that the victim might be cross-examined. The victim could not be found as she had been released from giving further evidence. The Court issued a witness summons for her return, however, she was not served the summons. It was clear that she believed the matter was finished at least to the extent that her participation was concerned ([2]-[4]).

The applicant sought his costs. The Magistrate ordered that no costs should be allowed with respect to all appearances and work done up to and inclusive of the date of trial, but costs were granted for a number of hearing attendances after that date, albeit at an amount lower than that sought by the applicant ([9]).

A police officer who attended the scene gave evidence of two tranches of the appellant’s brother, Stephen’s, statements and conduct:

•

The first tranche was that Stephen ‘loudly told police to leave the property and shut the front door’.

•

The second was that when told the appellant was arrested for assaulting the complainant, Stephen stated ‘If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way’.

Issue: The applicant sought permission to appeal the Magistrate’s orders as to costs. This application was made around 4 months out of time. The applicant submitted that he should be awarded appropriate costs up to the time the Magistrate found there was a case to answer, and that there should not have been a reduction to the costs awarded for work done after the trial date.

Held: The applicant submitted that he was successful in the matter as no conviction was recorded and no finding of guilt was made. As a result, he contended that costs should follow the event and that he should be awarded appropriate costs up to the time that the Magistrate found that there was a case to answer ([10]). The respondent submitted that the question of costs is discretionary, and noted s 189 of the Criminal Procedure Act 1921 (SA).

In his reasons, the Magistrate indicated that in allowing the case to be reopened for further cross-examination of the victim, the matter had not been completed. It is uncertain how that cross-examination would have impacted his decision to find a case to answer. The alleged offending behaviour was presented by the victim’s evidence and by way of recording. It might go to the question of credit or her attitude towards the applicant, but it is difficult to determine a scenario where that would disturb the relatively low threshold of finding a case to answer. Additionally, the Magistrate had to consider that a permanent stay of proceedings is not necessarily a completion of the matter. In light of these difficulties, David AJ held that the Magistrate did not fall into error in exercising his discretion as to costs ([10]-[13]), and consequently, dismissed the appeal.

Rana v Police [2020] SASC 21 (13 February 2020) – South Australian Supreme Court

‘Application for revocation of an intervention order’ – ‘Legal representation and self-represented litigants’ – ‘People with mental illness’ – ‘Protected person’ – ‘Revocation of an intervention order’ – ‘Women’

Case type: Application for permission to appeal against a Magistrate’s decision refusing an application for the revocation of an intervention order.

Facts: The appellant filed an application in the Magistrates Court for revocation of an intervention order that was issued against him in 2008. The appellant was absent at the application hearing. The intervention order involved allegations that ‘the appellant sent letters to the protected person (a female), presented at the protected person’s door on a number of occasions, caused the protected person to install additional security in her home and other matters’ ([3]). The protected person maintained that she regularly did not feel safe and believed that the appellant was capable of inflicting harm as he was not mentally stable ([4]). The Magistrate noted that the appellant had significant mental health problems in the past, and summarily dismissed the application pursuant to s 26(4) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) ([8]. Under s 26(4), the Court may dismiss an application for revocation of a final intervention order without receiving submissions or evidence from the protected person if 1) it is satisfied the application is frivolous or vexatious; or 2) if not satisfied there has been a substantial change in the relevant circumstances since the order was issued or last varied ([9]).

Issue: The appellant sought permission to appeal against the Magistrate’s decision to refuse his application for the revocation of the intervention order on 3 grounds:

•

‘The Magistrate applied the wrong onus, as the burden of proof applied was proof beyond reasonable doubt rather than proof on the balance of probabilities;

•

There was an apprehension of bias as the matter was decided in his absence; and

•

A psychological report the appellant sought to tender on appeal stated he would benefit from release of the order.’

Held: David AJ refused permission to appeal and found that the Magistrate was open to summarily dismiss the appellant’s application for the revocation of the intervention order ([16]). In respect of the first appeal ground, David AJ held that although the Magistrate did apply the incorrect onus, this could have only been in the appellant’s favour. By applying the higher onus of proof beyond reasonable doubt, it was apparent that the Magistrate was satisfied on the balance of probabilities either that the application was frivolous or vexatious or he was not satisfied that there was a substantial change in the circumstances ([11]). In respect of the second appeal ground, his Honour found that the basis of the appellant’s submissions in his affidavit did not go to the question of whether there had been a change in the relevant circumstances. Instead, the submissions indicated a preoccupation with past events ([12]). In respect of the third appeal ground, David AJ held that the psychologist’s conclusion that the appellant ‘is a different person now tha[n] in the past and would benefit from release of the order’ fell short of there being a change in the relevant circumstances since the order was last issued. Consequently, there was no merit in the appeal ([13]-[15]).

Attorney-General (SA) v Pennington [2019] SASC 180 (25 October 2019) – South Australian Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Appreciable risk’ – ‘Childhood abuse’ – ‘Conditions’ – ‘Cultural obligations’ – ‘Extended supervision order’ – ‘Extensive criminal history’ – ‘Forensic evidence’ – ‘Past domestic violence’ – ‘People affected by substance misuse’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Traditional lands’ – ‘Unacceptable risk and best interests’

Charges: 1 x aggravated recklessly causing serious harm

Case type: Application by the Attorney-General (SA) for an Extended Supervision Order (ESO) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act) in respect of the respondent for a 3-year term.

Facts: The male respondent was found guilty at trial of aggravated recklessly causing serious harm against his former domestic partner and was ultimately sentenced to 5 years’ imprisonment ([5]). The respondent had a significant history of serious criminal offending, especially violent offending against women ([6]). His history included offences of non-consensual sexual penetration, armed robbery, aggravated unlawful wounding, possession of a weapon with intent to cause injury and fear, and unlawful assault causing bodily harm in circumstances of aggravation and breaching protective bail conditions. It was against this background and while subject to a suspended sentence, that the respondent was sentenced to the offending in question. The circumstances of that offending were that the respondent, while in an intoxicated state, stabbed the victim in the back and fled the house without rendering her assistance. The victim may have died within hours had she not been airlifted to Adelaide ([10]).

The applicant filed an application for an ESO under the terms of the HRO Act. An Interim Supervision Order was made pursuant to s 9 pending the determination of the application for an ESO, which was enlivened upon the respondent’s release from custody in September 2018. Further, a psychiatric report pursuant to s 7(3) of the HRO Act was provided ([11]-[13]).

Issue: The applicant sought an ESO in respect of the respondent for a period of 3 years on the basis that he is a high risk offender who would present an appreciable risk to the community’s safety if not supervised under such an order. The main issue for the Court, however, was the nature of the terms and conditions of the ESO, especially those relating to whether or not the respondent is restrained from leaving South Australia without permission ([3]).

The respondent accepted that he was a high risk offender pursuant to s 5 of the HRO Act, and did not oppose the making of an ESO provided that the order included the following conditions ([14]):

•

The respondent may depart from South Australia with the intention of living in another State, and if he chooses to do so, he will not be subject to the order unless he returns to South Australia during the period of the order.

•

The order will take effect if the respondent returns to South Australia.

The applicant submitted that the terms of the ESO as proposed by the respondent were beyond the scope of the Court’s jurisdiction, would render it impossible to effectively supervise him when he is absent from South Australia, and would not protect the community’s safety in an effective manner ([29]).

Held: The respondent was born in the dry community of Tjuntjuntjara in Western Australia ([15]), which is described as ‘relatively stable and safe’ and as ‘one of the remotest communities in Australia’ ([21]). The respondent’s daughter, grandson and elderly, ill father also lived in that community. His father’s family originally came from the A?angu Pitjantjatjara Yankunytjatjara (APY) Lands in the remote north-west of South Australia. The respondent proposed that he would move between the Tjuntjuntjara community and Kurrawang, where he has other relatives. He also expressed an intention to live in Esperance ([15]-[16]).

The respondent submitted that given that Tjuntjuntjara is a dry community and he has family support and access to traditional healers, he could participate in men’s business and would therefore unlikely reoffend ([17]). In his opinion, an ESO in the terms proposed by the applicant would require him to stay in South Australia, rendering it difficult to visit the APY Lands ([18]). Further, it was submitted that if he was prevented from living on or near his traditional lands, both on the APY Lands and in Western Australia, this would negatively affect him and increase his likelihood to reoffend, as he would be deprived of the opportunity to play a meaningful role in his culture and lore ([19]). While it was undoubtedly in the respondent’s best interests that he be permitted to return to his homeland, Kelly J noted that the question was not ‘simple’, and required an analysis of the relevant provisions of the HRO Act ([26]-[28]).

Her Honour placed great reliance on the psychiatric report ([35]), which noted that the respondent was at high risk of further violent offending, due to his significant history of violent and sexual offending, his limited (and only very recent) insight into that behaviour, and his tendencies to minimise his behaviour and blame circumstances and victims for his past behaviour ([36]). It was also noted that the respondent was at a heightened risk of sexual offending due to his issues with childhood abuse and increased risk of violence ([37]). If the respondent returned to his traditional lands in South Australia, he would be at a greater risk of reoffending due to potential personal conflicts with other community members and the difficulties in accessing adequate supervision in remote communities. There would also be a real risk of the respondent resuming alcohol abuse without adequate supervision and therapy ([43]). Her Honour further considered therapies appropriate to the respondent’s personality type, and concluded that he would benefit from a combination of traditional western psychological therapy and support provided by traditional healers ([44]-[46]). The further the respondent travels from Adelaide, the more difficult it would be for him to access the necessary therapy ([47]).

The psychiatric report also raised the issue of the respondent’s desire to return to his traditional lands to fulfil his cultural obligations and identified some risk factors involved if he were to return ([48]). Importantly, the majority of the respondent’s offending occurred when he was living on his traditional lands and when he was under the influence of alcohol ([49]). Even though Tjuntjuntjara is a dry community, other communities in which the respondent had expressed a desire to visit are not ([50]). Under the terms of the order proposed by the respondent, there would be no practical way for the Court to satisfy itself that the community is protected should he choose to visit or reside in South Australia ([53]), as South Australian supervisory authorities have no practical way of determining if he was to re-enter the APY Lands ([52]).

Her Honour held that an ESO for a 12-month term would adequately protect the community and enable the respondent to continue with appropriate rehabilitation and therapy ([55]). Her Honour also found that the respondent was a high risk offender who posed an appreciable risk to the community’s safety if not supervised under the order, and that it would be outside the scope of the Court’s jurisdiction to make an ESO in the terms requested by the respondent, and would render his effective supervision impossible when he is absent from South Australia ([33]).

Harwood v Police [2019] SASC 129 (26 July 2019) – South Australian Supreme Court

‘Children’ – ‘Cross-examination’ – ‘Domestic relationship’ – ‘Fair trial’ – ‘Intervention order’ – ‘Legal representation and self-represented litigants’

Charges: 3 x contravening a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA)

Case type: Appeal against conviction

Facts: The appellant, who was self-represented at trial, was convicted of three counts of contravening a term of an intervention order, contrary to section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The protected person under the intervention order was the appellant’s ex-partner, the victim ([1]). The agreed facts were that on 3 separate nights, the appellant attended the home of the victim’s father where the victim and their daughter were residing. The appellant left letters addressed to the victim’s father and old family photographs. Although he admitted to attending the premises, he argued that he genuinely believed that the victim and their daughter were residing at a different address ([2], [9]).

Under s 13B of the Evidence Act 1929 (SA), the appellant was not allowed to cross-examine the victim at trial unless it was done so by counsel. The Magistrate failed to refer to the appellant’s rights under s 13B(b)(ii), which includes a reference to the Criminal Law (Legal Representation) Act 2001 (SA). Section 6(1a) of that Act provides that if a defendant who is not legally represented at trial applies to the Commission for legal assistance for the cross-examination of a s 13B witness in the trial, the Commission must, subject to qualifications, grant such assistance ([17]).

Although the Magistrate advised the appellant of his right to apply for legal aid ([14], [16]), he did not advise him that legal assistance must be granted to a defendant subject to certain qualifications (terms), and instead informed the appellant that he probably would not qualify for legal assistance ([18]). The trial was adjourned, and upon resumption, the appellant remained under the mistaken belief that he would not qualify for legal assistance and was not advised of s 6 of the Criminal Law (Legal Representation) Act 2001 (SA). The appellant was unable to test the victim’s evidence in any way. Consequently, the Magistrate accepted her evidence and convicted the appellant ([21]).

Issue: The appellant appealed on the ground that the trial court did not properly and fully advise him of his right to obtain a counsel’s assistance for the purpose of cross-examining the victim ([4]).

Held: Lovell J allowed the appeal and set aside the conviction. Her Honour remitted the matter for retrial before a different Magistrate and ordered the respondent to pay the appellant’s appeal costs ([29]). Importantly, her Honour noted a trial judge’s obligation to ensure that an accused self-represented person understands their rights and has all the necessary information in order to receive fair trial and make informed choices about his or her case ([22]-[23]). In the present instance, the appellant was required to be aware of and fully understand his rights provided for by s 13B and, by extension, s 6(1a) in order to receive a fair trial ([23]). The Magistrate was obliged to ensure that he fully understood that cross-examination of the victim could only occur if he employed counsel to do so on his behalf, and that if he applied to the Commission for legal assistance, they were bound by law to provide it, subject to any conditions they saw fit ([24]). The trial miscarried because the Magistrate failed to properly and fully advise the appellant of his right to obtain counsel’s assistance for the purpose of cross-examination ([25]).

Siropoulos v Police [2019] SASC 127 (19 July 2019) – South Australian Supreme Court

‘Appeal against sentence’ – ‘Conditions’ – ‘Domestic relationship’ – ‘General deterrence’ – ‘Good behaviour bond’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk of re-offending’ – ‘Step child in family’

Charges: 1 x assault causing harm

Case type: Appeal against sentence

Facts: The appellant was convicted of assault causing harm after having repeatedly punched the victim in the face, in the presence of her twin daughters from a previous relationship ([14]). The appellant and victim had been in a relationship for approximately 9 years. The relationship was marred by allegations of infidelity made by the appellant, and ‘he felt betrayed and became very angry’ upon discovering that the victim had regularly contacted another man ([13]). The victim’s injuries were extensive ([16]), and she told the Court in her Victim Impact Statement that ‘she was upset that the offending occurred unprovoked in her and her children’s home’ ([18]).

The appellant was sentenced to 14 months’ imprisonment, which was reduced to a prison term of 8 months and 2 weeks as a result of his early guilty plea. The sentence was partially suspended, allowing the appellant’s release after serving 4 months imprisonment upon him entering into a good behaviour bond for 2 years ([2]). The conditions of the bond are noted at [3], and included the requirements that he does not leave South Australia unless given permission by his Community Corrections Officer for specific purposes, and that he attend any programs and appointments as directed.

Issue: The appellant appealed against the sentence on the grounds that it was manifestly excessive and that it was manifestly unreasonable to not wholly suspend the prison sentence. He also appealed the condition of the partially suspended sentence bond requiring him not to leave South Australia without permission.

Held: Kourakis CJ noted the appellant’s personal circumstances at [19]-[27]. He was aged 47 at the time of the offending, worked in the fishing industry, suffered a lengthy period of depression after his father’s death, had numerous previous convictions of driving offences, and consumed an excessive amount of alcohol, particularly after his father’s death and to numb his emotions during hostile relationships. Although the appellant has not consumed alcohol in over 3 years, he reported weekly use of cannabis ([23]). His mother was dependant on him and he also had a brother who suffers from schizophrenia ([20]). The appellant experienced anxiety and low self-esteem, as well as health issues. His psychologist opined that he exhibited dysfunctional personality traits, and experienced self-doubt and feelings of inadequacy ([25]). According to a violence risk assessment, the appellant was identified as likely to pose a Moderate-High risk of re-offending ([26]).

Having regard to the relative importance of general deterrence, Kourakis CJ held that the length of the prison sentence was not manifestly excessive. The appellant had reoffended despite the leniency that had been previously shown to him, and the victim’s physical injuries were very serious. At [35], his Honour stated that ‘[p]ersonal and general deterrence must be given substantial relative weight in sentencing for assaults committed by men against women with whom they are, or have been, in a relationship, particularly when in a jealous rage’. The length of both the notional starting point and the actual prison term was well within the permissible range.

Kourakis CJ also found that the Magistrate’s decision to partially suspend the sentence fell within the proper exercise of the sentencing decision ([36]), and that the Magistrate considered all relevant matters ([38]). It was not unreasonable for the Magistrate to conclude that the appellant’s sentencing would be optimised by a combination of both punishment and deterrence effected by imprisonment for 4 months and rehabilitation over an 18-month period ([40]).

Kourakis CJ allowed the appeal only to the extent of removing the condition of the bond requiring the appellant to not leave South Australia unless given permission by his Community Corrections Officer, as such a condition was unreasonable. The appellant’s home was in Melbourne, where his dependent mother resided and his brother received treatment for his mental illness. His Honour found that ‘Australia is one nation and there is much movement between the south east corner of [South Australia] and Victoria’. His Honour also considered that there was ‘no real connection between the condition that he obtain treatment and counselling and the obligation to obtain permission.’ The appellant should be entitled to ‘come and go from his own home, to help his mother as and when he sees fit, and to fish in Victorian waters without first obtaining permission’ ([42]).

Lang v Police [2019] SASC 97 (7 June 2019) – South Australian Supreme Court

‘Community protection’ – ‘Condign punishment’ – ‘Damaging property’ – ‘Domestic relationship’ – ‘General deterrence’ – ‘Manifestly excessive--assault police’ – ‘Physical violence and harm’ – ‘Step child in family - past domestic and family violence’

Charges: 2 x aggravated assault, 1 x contravening a term of an intervention order, 1 x property damage

Case type: Appeal against sentence

Facts: The offending occurred in the context of a domestic relationship which was in the process of ending ([5]). At the relevant time, the appellant was subject to an intervention order ([11]). The appellant was living with his former domestic partner and her daughter (the protected person under that order). One count of aggravated assault involved the appellant punching his former domestic partner with a clenched first to her left shoulder in the presence of her daughter ([8]). The police were called to the house. The second count of aggravated assault involved the appellant punching the attending Sergeant numerous times, one of which was described as ‘an unusual two-handed punch delivered in a jabbing manner’. The property damage occurred when the Sergeant’s glasses were broken as a result of the altercation between the appellant and himself ([10]). The Magistrate found that the appellant’s behaviour amounted to a breach of the intervention order, as he intimidated the daughter by assaulting her mother and the Sergeant in her presence, abusing her and conducting himself in a violent and abusive manner ([11]).

At trial, the Magistrate noted the appellant’s personal circumstances at [13], referring to his age, his previous marriage, and his employment history. His character references indicated that he was a hardworking, honest person who made a positive contribution to his community ([14]). The appellant had a prior conviction for assault of a police officer for which he was ordered to perform 200 hours of community service within 10 months ([15]). The Magistrate did not refer to the circumstances that led to the making of the intervention order ([17]). In his view, specific and general deterrence were significant sentencing principles ([18]). His Honour also ‘correctly observed’ that the law is required to protect police officers when performing their duties, as well as domestic partners ([19]). Consequently, the Magistrate imposed convictions on all counts and sentenced the appellant to 6 months’ imprisonment ([20]).

Issue: The appellant appealed against his sentence on 2 grounds, namely, 1) that the Magistrate failed to have regard to the appellant’s lack of antecedents, age, community work, good character and the interests of justice in sentencing the appellant; and 2) that the sentence of 6 months’ imprisonment was manifestly excessive.

Held: Hinton J allowed the appeal in part. His Honour considered each ground separately, and placed reliance on relevant case law and statistics from the New South Wales Bureau of Crime Statistics and Research. His Honour noted that the first ground of appeal was essentially a contention that the appellant’s lack of antecedents, age, community work, and good character should have attracted a weight that resulted in a lesser sentence, or resulted in the sentence imposed being suspended in part or in whole ([21]). Referring to House v The King and R v Lutze, his Honour concluded that the submissions made in support of the first appeal ground should be treated as forming part of the submission in support of the second appeal ground ([24]).

As to the second appeal ground, his Honour found that the offending was ‘particularly serious’ and that the Magistrate correctly referred to the court’s duty to protect vulnerable people from domestic violence ([29]). His Honour cited R v Saunders for the proposition that intervention orders and bail conditions can prevent acts of domestic violence, and that the violation of such orders and conditions can have profound consequences for the victim’s sense of safety and security. Hinton J observed ‘the effectiveness of intervention orders as a means of protecting members of the community will be undermined if the courts do not respond appropriately to their breach’ ([33]).

Hinton J did not find the sentence of 6 months’ imprisonment to be manifestly excessive per se. The appellant did not provide any explanation for his conduct or express remorse or contrition, and mitigating circumstances were absent. Although he is an intelligent person, his prior involvement with the courts and police should have been a clear reminder that such violent, abusive conduct towards his family and police is not tolerated ([40]). The appellant’s prospects of rehabilitation were good, as he generally lived a ‘good and productive life’ and would likely continue to do so upon his release ([41]).

His Honour, however, found the requirement that ‘he serve the entirety of the 6 month sentence so as to punish, to deter specifically and generally and to provide the protection’ to be manifestly excessive. The Magistrate’s approach was not reasonably open, having regard to the appellant’s personal circumstances and, in particular, his age, antecedents, previous good character, work history and prospects of rehabilitation ([43]-[44]). The Magistrate appeared to focus on condign punishment to the exclusion of rehabilitation, and overlooked the appellant’s likely response to supervision in the community for an extended period, which would have provided greater protection for the community ([44]).

In summary, the appeal was allowed, but to the limited extent of directing, pursuant to s 96(4) of the Sentencing Act 2017 (SA), that the appellant serve 16 weeks of his 6-month sentence in prison and suspend the remainder of the sentence on condition that he 1) enter into a good behaviour bond for 18 months; 2) be subject to supervision by a Community Corrections Officer; and 3) attend any counselling, treatment and therapeutic programs that deal with anger management and/or domestic violence as directed and deemed appropriate by his Community Corrections Officer ([45]).

Wondimu v Police [2019] SASC 62 (18 April 2019) – South Australia Supreme Court

‘Bail’ – ‘Bail conditions’ – ‘Breach’ – ‘Following, harassing and monitoring’ – ‘Self-represented’

Charges: Stalking x 1; non-compliance with bail agreement x 3.

Case type: Appeal against conviction and sentence.

Facts: On 2 November 2016, the appellant was arrested and charged with stalking his father-in-law. He was released on bail subject to conditions, one of which prohibited him contacting his then wife of 13 years, who was also the mother of his five children and the daughter of his father-in-law. On 10 November 2016, the appellant telephoned his wife, but did not leave a message. The appellant also sent 2 text messages on a separate occasion. As a result, he was arrested and charged with 3 counts of breaching the terms of his bail. The Magistrate found the appellant guilty, and imposed convictions in relation to each count and released him upon his entering into a 6 months’ good behaviour bond in the sum of $500. The appellant appealed against the conviction and sentence. His appeal against conviction was over 40 weeks out of time.

Issue: This is an appeal against a conviction and sentence, where the appeal against conviction was made out of time. The appellant submitted that the relevant bail condition was unreasonable or unlawful for including the prohibition against contact with his wife when she was not the complainant. He also argued that he had not been competently represented by counsel at his trial.

Held: Upon the hearing of the appeal, the appellant was unrepresented. Hinton J noted that one of the purposes of conditions of a bail agreement is to prevent further offending ([33]). Hinton J was not satisfied that the impugned condition was legally unreasonable, as the evidence suggested a domestic disturbance between the appellant and his wife, a repeat of which the police intended to prevent by prohibiting contact. Further, Hinton J found that the validity of a bail agreement does not depend on the prosecution’s success at trial of any charge to which the bail agreement relates. The fact that a person is charged is sufficient to subject him or her to bail ([36]).

Hinton J also found that it was open to the Magistrate to be satisfied of the appellant’s guilt on Count 1 beyond reasonable doubt ([44]). His Honour noted that contact, in terms of communication, can be direct or indirect and that the evidence established that the call was made from the appellant’s phone. His Honour found that it is irrelevant whether a mental element attaches to the act, as the offence of breaching a bail agreement pursuant to section 17 of the Bail Act 1985 (SA) is one of strict liability. A bail agreement, in his view, not only seeks to ensure compliance but also requires the accused to take positive steps to ensure compliance. To hold that an offence is one that has a mental element attaching to the act would undermine the requirement that an accused granted bail take positive steps to avoid an inadvertent breach ([43]).

His Honour refused to grant the appellant an extension of time in which to appeal against his convictions, as no explanation was provided for the delay and the appeal did not have sufficient prospects of success. His Honour held that the the appeal was, in effect, an effort to have the appellant’s case re-tried so that he could adopt a different approach ([45]). The appeal against sentence was also dismissed. The appellant was obliged to take steps to ensure compliance with the bail conditions, which he failed to do ([46]-[51]).

Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd [2019] SASC 39 (21 March 2019) – South Australia Supreme Court

‘Contract’ – ‘Costs’ – ‘Misleading conduct’ – ‘Specific performance’

Civil proceedings: claim by plaintiff for specific performance of motor vehicle purchase contracts; counterclaim by defendant for misleading conduct, jurisdictional challenge; and security for costs application by defendant.

Appeal type: appeal against Magistrate’s reasons, security for costs order, and failure to make jurisdictional challenge order.

Facts: The plaintiff purchased three high performance Holden motor vehicles in the name of the plaintiff’s company. Only two are relevant to this matter. The purchases were negotiated by Mr Mazzacano and two others. Mr Mazzacano, as a former Holden employee, was entitled to an employee discount scheme. The plaintiff’s claims that he ordered the vehicles and was invoiced for each by the defendant ($42,927 and $44,467). He paid both the balance and deposit. The defendant contends that the plaintiff company was not entitled to access the discounts as the purchase was not for the benefit of Mr Mazzacano. The defendant did not deliver the vehicles but returned the purchase monies to the plaintiff. The plaintiff sought specific performance of its contracts with the defendant on 19 July 2017 and filed an application for summary judgment. The defendant filed a defence stating that the plaintiff was not entitled to the EPSA discount. The defendant subsequently filed an amended defence and counterclaim, and included a counterclaim for misleading conduct and the defendant filed interrogatories seeking clarification on the nature of the business being operated by the plaintiff asking ‘what is the nature of the business that was being operated by the plaintiff during 2017’.

The defendants made a jurisdictional challenge and a security for costs application. The plaintiff appeals against orders granting security for costs and declining to order costs in relation to the defendant’s jurisdictional challenge.

Issues:

1.

The Magistrate’s Reasons are inadequate in that they fail to address various issues raised by the plaintiff.

2.

The Magistrate erred in his decision to order security for costs in giving no weight, or insufficient wait to various matters.

3.

The Magistrate erred in ordering security for costs in an excessive amount, in particular having regard to the true quantum of the dispute, the inclusion of past the failure to make to make reductions for the costs of the counterclaim and the interruption caused by the failed jurisdiction application.

4.

The magistrate erred in failing to make an order (in respect of the defendant’s jurisdictional challenge that the defendant pay the plaintiff’s costs of that application).

Decision and reasoning:

Dismissing the appeal, Doyle J held:

There was no error in relation to the Magistrate’s exercise of his discretion to order security for costs per House v King (1936) 55 CLR 499.

The plaintiff did not establish that there was the potential for substantial injustice were permission to be refused and the orders for security left to stand.

Reasoning – appeal ground 1:

That a Magistrate attaches insufficient weight to a particular consideration is not, in itself, an allegation of error in the sense required by House v The King at [49]. That ‘Appellate intervention in interlocutory decision making’ should be ‘truly exceptional at [50]. In relation to the alleged inadequacy of reasons in relation to both security for costs and the costs of the failed jurisdiction application, his Honour, held at [53] that ‘in the case of interlocutory disputes, little by way of reasoning may be required’…’as long as the key planks in the judge’s reasoning process leading to the relevant decision are apparent, that will generally suffice’. The Magistrate in their reasons, ‘identified the plaintiff’s status as a trustee company’, the ‘defendant’s delay in bringing the application’ and ‘stated his conclusions in relation to the availability of security for past costs’ at [55].In the event that a plaintiff is a trustee, a defendant ‘should not be subjected to the potential complexity…expense and uncertainty, associated with having to resort to derivative rights in order to recover any costs’ at [64]. The plaintiff did not identify whether it holds the properties in its own right or as trustee, and as such the Magistrate was right to attach significance to the consideration [75]. In relation to the Magistrate not giving any weight to the defendants’ delay in bringing the application for security. While ‘it is a well-established that applications for security should be brought promptly’ [at 78], whether it is in the interests of justice to make an order for security is also a factor [at 82].

Other matters that were of some relevance to the discretion to order security was the absence of indication by the plaintiff that it would not be able to provide security, further there was no challenge to the bona fides or arguable merit of the plaintiff’s claim including that he had paid the for the cars prior to the order for security for costs. At [104] it was open for the Magistrate to make a reduction to the quantum of security upon the existence of the counterclaim, however the amount ordered was not ‘erroneously high’.

Conclusion as to security for costs:

•

The plaintiff did not suggest that it was unable to provide security.

•

The plaintiff having to meet its costs obligations flowing form the litigation constitutes an injustice or prejudice in this case.

Reasoning – appeal ground 2:

At [65] ‘while it is significant, the context of an application for security, that a plaintiff is suing as trustee, it does not follow automatically that it will be appropriate that there be an order for security’.

Shahin v El-Shafei; El-Shafei v Shahin [2018] SASC 167 (6 November 2018) – South Australia Supreme Court

‘Disclosure’ – ‘Domestic, family or apprehended violence or for personal safety’ – ‘Orders and convictions’ – ‘Orders to restrain’

Proceeding: Private application for final intervention order.

Appeal type: Appeal against Magistrate’s revocation of interim intervention order.

Facts: Mr Shahin is the owner of two adjacent properties, numbers 17 and 18. His family occupies number 17, while his sister occupies number 18. Dr El-Shafei owns number 19, which is adjacent to number 18. There have been ongoing disputes between the parties regarding a number of matters. Dr El-Shafei alleges he was assaulted by Mr Shahin, claiming a resulting wrist injury. Dr El-Shafei is charged with an offence relating to damage caused to the boundary fence. Following the dismissal of a police application for an intervention order, Dr El-Shafei filed a private application which proceeded ex parte withDr Cannon (then Deputy Magistrate) granting an interim order pursuant to s 21 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The application for a final intervention order was heard a week later by Magistrate Sheppard. The interim order was revoked and the matter referred back to Dr Cannon for further hearing. Dr Cannon declined to award costs of the intervention order application in favour of Mr Shahin. Mr Shahin filed a notice of appeal again Dr Cannon’s dismissal of his application for costs. Dr El-Shafei subsequently filed a notice of appeal against Magistrate Sheppard’s revocation of the interim intervention order on 29 June 2018. A second and third amended notice of appeal were filed by Dr El-Shafei on the 12 July and 5 September 2018. The second notice amended an incorrect identification of the parties. The third notice filed the day before the appeal hearing, was not served on Mr Shahin’s representatives until the morning of the hearing.

Issues:

•

Whether an applicant for an intervention order is required to make full and fair disclosure on the same basis as any other person seeking an ex parte order.

•

Whether s 76A of the Criminal Procedure Act 1921 (SA) was available to set aside an interim intervention order or whether the operation of s 76A is precluded by s 26(5) Intervention Orders (Prevention of Abuse) Act 2009 (SA)(‘IO Act’).

•

Whether Magistrate Sheppard erred in revoking the interim order or denied Dr El-Shafei procedural fairness by declining to adjourn proceedings until Dr El-Shafei arranged legal representation.

•

Whether Dr Cannon misdirected himself as a matter of law and fact by referring to his own conduct rather than by inquiring whether Dr El-Shafei had acted in bad faith or unreasonably pursuant to s 189C of the Criminal Procedure Act 1921 (SA).

Decision and reasoning:

Permission to appeal

As a criminal proceeding (per R 4.07 of the Magistrates Court Act 1991 (SA), the jurisdiction conferred on by the IO Act is vested in the Criminal Division), any appeal relating to an intervention order is subject to s 42 of the Magistrates Court Act 1991 (SA) at [41]. S 42(1a) of the Magistrates Court Act 1991 (SA) does not preclude an appeal against interlocutory judgment in these circumstances. Per Sulan J in Groom v Police (No 3) [2013] SASC 93, the words “before commencement or completion of the trial” in s 42(1a)(c) have no operative effect unless there is a trial. Accordingly, ‘the Court has power to grant permission for an interlocutory appeal if … there are special reasons why that would be in the interests of the administration of justice’ at [45]. Granting permission, his Honour was satisfied special reasons existed due to the significant questions of law raised (ie the application of s 76A of the Criminal Procedure Act 1921 (SA) and validity of referring the matter for further hearing) at [48].

Dismissing Dr El-Shafei’s appeal, Parker J held

‘An applicant for an interim intervention order is not required to make full and fair disclosure in the same manner as an applicant for an ex parte order’ at [76]. ‘The relevant issue is not whether one party is more or less blameworthy than the other, but rather whether it is reasonable to suspect that an act of abuse may be committed’ (grounds for issuing an intervention order per s 6 IO Act) at [77]. S 23 IO Act provides the Defendant with an opportunity to respond before the Court concludes whether a final order is appropriate at [78]. ‘There is a real risk that the imposition of a full and fair disclosure obligation in such an environment is likely to frustrate or impede the object of providing prompt intervention to protect those at risk of abuse’ at [78]. Given the impracticality of subjecting the police to full and fair disclosure, private applications should be under no greater obligation at [81].

S 26 IO Act does not operate to preclude the Court from exercising its powers under s 76A where the operation of s 76A is considered necessary to remedy an injustice. The power conferred by s 76A was available to the Magistrate at [109], [112].

•

S 76A was not applied to frustrate the operation of a legislative scheme (the IO Act) but to rectify a situation considered unjust (Police v Clayton-Smith [2010] SASC 127 per Gray J).

•

The requirement to award persons with a relevant interest an opportunity to be heard before the revocation or variation of an order, as enacted by s 26(5)(a) IO Act, exists at common law and is therefore a relevant consideration in applying s 76A at [107], [109], [112].

•

Likewise, s 26(5)(b) does not extend the requirements of the common law as the same matters will be considered in making an order as in the varying or revoking that order at [110].

There was no process or outcome error in the decision of Magistrate Sheppard. Her Honour’s concern about the accuracy and timing of the information provided by Dr El-Shafei was a proper reason for revoking the interim order at [117]. As the ‘decisive issue was the reliability of the information put before the Court’ and as Dr El-Shafei was awarded ample opportunity to address those issues, he was not unfairly disadvantaged by a lack of legal representation at [129]. The orders of Magistrate Sheppard required a rehearing of the application for an interim order. A rehearing did not occur and the proceedings of 18 May 2018 before Dr Cannon therefore miscarried at [132]. If Dr El-Shafei pursues his application the matter should proceed to a hearing to determine whether a final order should be made (per s 23 IO Act) at [135].

Upholding Mr Shahin’s appeal against the dismissal of his costs application, Parker J held

There were not proper grounds to reject Dr El-Shafei’s application for costs as Dr Cannon ‘did not have sufficient information to decide whether or not Dr El-Shafei had acted in bad faith or unreasonably’ at [139]:

•

Given Justice Parker’s finding that an applicant for an ex parte intervention order is not required to provide full and fair disclosure, Dr El-Shafei’s failure to provide all relevant information did not warrant a cost order against him at [137]-[138]

•

While Dr El-Shafei may have caused the Court to be misled (a proper basis for setting aside the interim order), without a determination of the factual allegations made against him, Dr El-Shafei cannot be said to have acted in bad faith or unreasonably at [138]. That question should be determined if and when a final order is determined at [140].

Stone v Police [2018] SASC 147 (27 September 2018) – South Australia Supreme Court

‘Contravention of an intervention order’ – ‘Evidence’ – ‘Factors affecting risk’ – ‘Protection order’

Charges: Contravention of an intervention order x 2.

Appeal type: Appeal against conviction.

Facts: The appellant was convicted after trial of two counts of contravening a term of an intervention order. After finding the evidence of the protected persons to be truthful and accurate, the Magistrate recorded convictions and imposed a good behaviour bond for 12 months.

Issues: The appellant appealed the convictions on a number of grounds including that the Magistrate erred in admitting evidence of past discreditable conduct, applied the wrong onus of proof in relation to the charges, placed undue reliance on the credibility of the protected person, impermissibly relied on evidence of a charge that was dismissed in finding the appellant guilty of the two charges, wrongly regulated the cross-examination of the appellant, and that the evidence was insufficient to support the convictions beyond reasonable doubt.

Decision and reasoning: Kelly J dismissed the appeal on the following grounds:

•

The evidence of past discreditable conduct complained of was properly admitted.

•

The Magistrate applied the proper onus of proof in finding the charges proven.

•

The evidence was sufficient to satisfy the convictions.

•

The Magistrate made proper assessments of the witnesses at trial, as required, and was entitled to be satisfied beyond reasonable doubt as to the credibility of the protected person as a witness following his assessment of that person’s evidence.

•

The Magistrate did not rely on evidence relating to the dismissed charge in finding the appellant guilty of the two counts on which he was convicted.

•

The cross-examination of the appellant at trial did not go beyond the bounds of fair and proper cross-examination.

White v Police [2018] SASC 124 (5 September 2018) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Vulnerable people’

Appeal type: Appeal against decision of a magistrate to issue a final intervention order.

Facts: The police issued an interim intervention order against the appellant for the protection of Mr Larkins, his wife, his child and three other children in his care, all of whom lived in the same street as the appellant. The appellant and his wife (who had separated, but continued to live in the same house) had a poor relationship with Mr Larkins and his wife. Mr Larkins and his wife were Indigenous Australians. Mrs Larkins had been involved in Federal Court proceedings relating to unspecified issues with the appellant’s wife.

The Magistrate was required to determine whether or not the interim intervention order should be confirmed as a final intervention order or a final intervention order be made in substitution. The order was declared to address a domestic violence concern. The Magistrate made a final intervention order against the appellant in substitution for the interim order, finding that it was reasonable to suspect that the appellant would, without intervention, commit acts of abuse against the protected persons and that it was appropriate in the circumstances to issue a final order. The protected persons were unchanged but the terms of the final intervention order differed somewhat from those of the interim order.

Issues: Whether a final intervention order should be made; Whether the Magistrate erred with respect to evidentiary matters and in applying the statutory requirements for making a final intervention order.

Decision and reasoning: It was entirely open to the Magistrate to accept the evidence of Mr Larkins and his wife on critical issues in preference to that of the appellant and his wife. The transcript showed that the appellant appeared angry and malevolent towards Mr Larkins and his family, displaying significant animosity with racial overtones towards them. It was reasonable to find that the appellant would commit further acts of abuse in the absence of an intervention order. In all the circumstances, the Magistrate’s order was appropriate.

Dismissing the appeal, Nicholson J held that:

•

The order made by the Magistrate was interlocutory and special reasons must be established in order to obtain leave to appeal.

•

The features of a final intervention order, together with the fact that the appellant has no right to apply for a variation or revocation for at least 12 months, were sufficient to establish special reasons, at least where there is an arguable case on appeal.

•

Bearing in mind the usual advantages possessed by a trial judge when assessing oral evidence, it was open to the Magistrate to make the findings of fact he made on the evidence that was before him.

•

The Magistrate did not err with respect to the evidentiary matters complained of by the appellant.

•

The Magistrate did not err in applying the statutory requirements of s 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The findings made in satisfaction of these requirements were open on the evidence.

Hussey v Police [2018] SASC 122 (31 August 2018) – South Australia Supreme Court

‘Children’ – ‘Damaging property’ – ‘Evidence’ – ‘Exposing children to domestic and family violence’ – ‘People with children’ – ‘Physical violence and harm’

Charges: Breach of bail x 1; Property damage x 2; Assault causing harm x 1.

Appeal type: Appeal against conviction for assault.

Facts: The appellant and complainant had been in a relationship for about eight weeks. Each had one daughter. The complainant was woken by her daughter vomiting. The next day, the complainant and appellant argued. When the complainant told the appellant to leave her home, he became very angry and violent. The complainant alleges that the appellant kicked, punched and shoved her. She ran to her neighbour’s house with her daughter and asked them to call the police. She could hear him ripping the flyscreens off her house. The Magistrate described the appellant and complainant as witnesses who ‘gave their evidence clearly and with some passion, both of them without major discrepancies’. He found the appellant guilty of assault but not guilty of the property damage charges.

Issues: Whether the verdict was open on the evidence; Whether the Magistrate adequately explained why the appellant’s evidence was rejected; Whether the magistrate’s reasons were adequate.

Decision and reasoning: The appellant appealed the guilty verdict on the grounds that (1) the Magistrate’s reasons were insufficient to explain his finding that ‘Nothing was sufficient to justify a movement of the foot sufficiently hard to damage the side of her face. He could have extracted his foot without kicking her to the cheek’; (2) that the Magistrate did not explain why his evidence was rejected beyond reasonable doubt; and (3) that there was insufficient evidence for the Magistrate to have rejected beyond reasonable doubt his version of events, which should have led to the Magistrate entertaining a reasonable doubt as to his guilt in relation to the assault charge.

Bampton J held that, having read the evidence in its entirety and in accordance with the requirements referred to in M v the Queen [1994] HCA 63, the finding of guilt was not supported by the evidence. The state of the evidence was such that the prosecution failed to prove that the appellant intentionally applied force to the complainant causing ‘harm to the tongue and cheek’. Her Honour held that the Magistrate did not adequately explain his finding of guilt and did not explain how the elements of assault were satisfied. The Magistrate’s reasons were not underpinned by a reasoning process linking and justifying the findings made ([53]). There was reasonable doubt as to the appellant's guilt. It was not open to the Magistrate to be satisfied beyond reasonable doubt of the appellant's guilt. Accordingly, the appeal was allowed, the verdict of guilty was set aside and a verdict of not guilty was substituted.

R v Hayes [2018] SASC 114 (9 August 2018) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Bail’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Intentionally causing harm x 1; Contravening an intervention order x 1.

Proceeding type: Prosecution appeal against grant of bail.

Facts: The respondent, an Aboriginal man, was charged with intentionally causing harm and contravening an intervention order. The respondent assaulted his former partner (the complainant) during an access visit to their son. The circumstances of aggravation included that the complainant was his ex-partner and the respondent used a coffee mug, to inflict injuries to the head and face of the victim ([5]). The respondent also had a criminal history for offences of violence and dishonesty ([9]). The respondent was a prescribed applicant within the meaning of s 10A of the Bail Act 1985 (SA) such that bail may not be granted unless special circumstances are established. The DPP contended that bail should not be granted due to the risk of re-offending (given the respondent’s history of non-compliance with various court orders) and concerns for the complainant’s safety ([15]).

Issues: Whether bail should be granted.

Decision and Reasoning: Kelly J dismissed the appeal. Special circumstances justifying release on bail included that the complainant no longer resided in the Court’s jurisdiction ([17]), the likely trial date would not be for some time, and a recent report that Aboriginal and Torres Strait Islander people are highly over-represented in the remand population. According to the Australian Law Reform Commission Report No 133, Aboriginal and Torres Strait Islander people continue to be over-represented in the remand population by a factor of over 11. However, a finding of special circumstances does not mean that bail is automatically granted. At [12], her Honour stated –

‘Ordinarily, it may be expected that if special circumstances are established, then a grant of bail may follow but upon special circumstances being established, it will remain open to the bail authority to refuse bail if nonetheless, having regard in particular to the gravity of the offending, the likelihood that the prescribed applicant will re-offend, the likelihood that the prescribed applicant will interfere with a witness or evidence and the likelihood that he or she will abscond, the bail authority considers that bail should not be granted’.

Notwithstanding that the respondent was a prescribed applicant, her Honour held that there were special circumstances. It was therefore appropriate to grant the respondent bail on conditions of strict home detention ([18]).

Parish v Police [2018] SASC 18 (27 February 2018) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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 Fraser [2020] SADC 127 (2 September 2020) – South Australian District Court

‘Actus reus’ – ‘Mens rea’ – ‘Recklessness’ – ‘Strangulation’

Charges: Choking, suffocating or strangling a person in a domestic setting x 1.

Proceedings: Application for ruling whether mens rea is an element of the offence.

Decision and reasoning: Mens rea is an element of the offence.

There is no Supreme Court authority that has considered the elements of this offence, and, in particular, whether mens rea is an element of the offence. The judge in this case agreed with the reasoning of the QCA in R v HBZ (2020) with respect to actus reas:

[17] In my view, the actus reus of choking, suffocating or strangling is the stopping, or significantly hindering or restricting of the complainant’s breathing, whether by application of force or by other means.

…

[20] Even where the actus reus does not involve the application of pressure or force, for example, the luring of the victim into an airless chamber, the placing of a plastic bag over the victim’s face, or the administration of a poison that causes an anaphylactic reaction, the resultant stopping or significantly hindering or restricting of the victim’s breathing is not a separate element of the offence but is the very evidence required to prove that the conduct (the luring, placing of the bag, the administration of the poison) was the act of choking, suffocation or strangling.

[21] For these reasons I conclude that, if mens rea is an element of the offence, the intention accompanying the conduct must be an intention to stop or significantly hinder or restrict the victim’s breathing.

[22] There is no express or implied exclusion of mens rea in s 20A. The offence in s 20A was created to avoid ‘relying on existing offences such as causing harm or serious harm, endangering life or attempted murder’. All of those offences require proof of mens rea. In enacting s 20A as a substitute for those offences and in dispensing with any requirement to prove injury or harm and yet providing a maximum penalty of 7 years imprisonment, Parliament cannot have intended to dispense with the element of mens rea. However, the offence does not require proof of harm or injury and thus does not require proof of a specific intent with respect to the consequence of the prohibited conduct.

[23] The very act the accused intends to perform must be to stop, significantly hinder or restrict the complainant’s breathing. The intention to choke, suffocate or strangle will generally be inferred from the conduct itself but may also be established by additional evidence.

[24] Accordingly, I conclude that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s 20A of the CLCA. On a charge under that provision, the prosecution bears the onus of proving that the accused intended to choke, suffocate or strangle the complainant, that he, is intended to stop, significantly hinder or restrict the complainant’s breathing.

…

[30] Accordingly, I consider it unlikely that Parliament would have intended to exclude recklessness as an alternative basis for liability …

[31] As there is no statutory definition of recklessness for the purposes of s 20A, and given the characterisation by Parliament of this offence as an indicator of escalation to domestic homicide, it is appropriate to apply the common law test for recklessness set out by the High Court in Crabbe.

[32] I rule that the elements of the offence under s 20A are:

•

At the time of the alleged offence the accused was or had been, in a relationship with the complainant.

•

The accused intentionally engaged in conduct which choked, suffocated or strangled the complainant; that is conduct that stopped or significantly hindered or restricted the complainant’s respiration. In the alternative, the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would stop or significantly hinder or restrict the complainant’s respiration.

•

The complainant did not consent to being choked, suffocated or strangled.

•

The act of choking, suffocating or strangling the complainant was done without lawful justification.

R v Rogers [2020] SADC 72 (16 June 2020) – South Australian District Court

‘Coercive control’ – ‘Controlling behaviour’ – ‘Credibility of complainant’ – ‘Evidence’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Step-children’ – ‘Victims as (alleged) perpetrators’

Charges: Causing harm with intent to cause harm x 1; damaging property x 1; assault x 1; rape x 2; assault causing harm x 1.

Case type: Judge only trial.

Facts: The accused man was charged with 6 offences alleged to have been committed against the complainant woman between 2016 and 2018 when they were in a ‘romantic relationship’ and were living together for periods of time. The offences included causing harm with intent to cause harm, damaging property, assault, rape, and assault causing harm. The alleged offences were committed in a domestic setting, at different addresses where the complainant resided with her 3 children, apart from periods on weekends or school holidays when they stayed with their respective fathers. The prosecution alleged that the relationship was characterised by the accused’s violence and aggression, and that the complainant was trapped in a destructive cycle of physical violence, abuse, threats and controlling behaviour, which usually occurred in the presence of her young children. According to the prosecution, the charges are specific examples of a general pattern of behaviour demonstrated by the accused in the course of the relationship.

In relation to Count 1, the accused was alleged to have choked the complainant. He also punched and slapped her in the face (Count 3). Further, the complainant allegedly woke to the sensation of her vagina being penetrated (Count 4), and the accused further penetrated her with his fingers (Count 5). The accused also allegedly threw the complainant and stood on her ankle with his body weight, causing extreme pain (Count 6).

Held: Tracey J held that the prosecution failed to exclude the defence case as a reasonable possibility on any of the charges, and found the accused not guilty on each count ([281]-[282]). Much of the complainant’s evidence was inconsistent and unreliable. Her Honour was troubled by the delay the complainant made in reporting Count 1 to police and the delay in providing the letter relied on by the prosecution as the accused’s acknowledgment of the violent acts that had occurred the previous night ([234]). Whilst the letter could be interpreted as referring to the event where he strangled the complainant as she alleged, it could also be viewed as an apology for calling her a bad mother, threatening suicide, punching the wall and grabbing her arms as the defence alleged ([236]).

Much of the defence case was focused on blaming the complainant for issues in the relationship, consistent with the threatening and intimidating abuse she allegedly experienced. Her Honour rejected the defence argument that she was often the perpetrator of violence. The evidence in relation to the complainant’s previous relationships did not demonstrate a propensity for violence or false reporting to police. It was clear that on some occasions, she had not been the instigator and/or was the victim. Tracey J also formed the impression that the accused exhibited manipulative behaviour ([272]). Moreover, behaviours, such as the complainant’s contacting police, making statements on some occasions and not others, withdrawing complaints, denying incidents occurred, allowing the accused back into her life and seeking variation to intervention orders, are common features in serious domestic violence cases. Abusive and violent relationships give rise to behaviours that may appear too odd or counterintuitive to be believed ([273]).

Tracey J did not doubt that some aspects of the complainant’s evidence were true or that she loved the accused. However, she did have difficulty assessing the complainant’s evidence overall. Whilst she sometimes appeared to be focused and doing her best to describe the events, she also appeared distant, non-committal and prone to exaggeration. She was open about her methamphetamine use and the fact that she had used drugs in her home, albeit not in front of her children ([274]). At times, the complainant’s manner seemed perplexing and her Honour had difficulty accepting her version of events as credible. The differences between her evidence and what she told police were troubling. Such inconsistencies could not be excused, even allowing for the passage of time, the frequent and repetitive nature of alleged abuse blurring a memory of an event, or the chaotic lifestyle that often accompanies drug use ([275]). It appeared much of her angst stemmed from the accused’s relationship with another woman. The complainant’s credibility was undermined by her initial refusal to accept the accuracy of texts she had sent to this woman and her denial that the relationship with the accused did not affect her, despite text messages to the contrary ([276]). Further, her Honour noted that although domestic violence victims may not seek attention for the injuries they sustain and may take extraordinary steps to conceal evidence of abuse, the complainant’s graphic descriptions of her injuries and episodes of violence were not borne out by other evidence. There was no evidence from the complainant’s consultations with doctors of any bruising or injury consistent with the allegations. Her daughter’s distress, apparently in response to questions about drugs, raised the question of whether there had been some discussion between her and the complainant before giving evidence ([279]). Tracey J observed that the police officers who gave evidence appeared to be careful and impressive witnesses who would have assessed and recorded any sign of injury ([280]).

R v Hanks [2019] SADC 139 (16 September 2019) – South Australian District Court

‘Emotional and psychological abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Propensity reasoning’ – ‘Sexual and reproductive abuse’ – ‘Uncharged acts’

Charges: 4 x assault causing harm (Counts 1-4), 1 x rape (Count 5), 2 x aggravated assault causing harm (Counts 6-7), 1 x aggravated assault (Count 8), 1 x aggravated creating likelihood of harm (Count 9)

Case type: Criminal trial by judge alone

Facts: The accused was charged with 4 counts of assault causing harm, 1 count of rape, 2 counts of aggravated assault causing harm, 1 count of aggravated assault and 1 count of aggravated creating likelihood of harm. The complainant was his former de facto partner ([1]). The prosecution argued that the charged acts were committed during their de facto relationship ([3]). The defence case, however, was that the relationship was not a violent one and that the charged acts of violence and rape did not take place ([5]).

Held: The accused was found guilty of Counts 1-5 and 7-9. Judge Chapman did not find him guilty of Count 6, but guilty of the alternative offence of aggravated assault ([188]-[221]). The complainant gave evidence that the accused suffered from alcohol and drug abuse, and would get emotional about his past, resulting in rage ([19]-[20]). Judge Chapman emphasised that she avoided using the evidence in any prejudicial way against the accused, such as to reason that he was generally violent and therefore must have committed the charged acts ([187]). Her Honour noted that the fact the accused used drugs did not mean that he was a bad person or had the propensity to commit the charged offences. Rather, her Honour stated that the evidence of his alcohol and/or drug use may only partly explain his aggressive behaviour towards the complainant and his inability to control outbursts of rage ([21]). Evidence of various uncharged acts was further discussed at [23]-[52]. Judge Chapman was satisfied that all the uncharged acts occurred as described by the complainant and showed that the charged acts did not "come out of the blue" ([185]).

R v Schmidt [2017] SADC 98 (30 August 2017) – South Australian District Court

‘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]).

Last updated: July 2024

South Australia

Court of Appeal

Sondhi v King [2024] SASCA 7 (8 February 2024) – South Australian Court of Appeal

‘Appeal’ – ‘Physical and harm’ – ‘Sexual and reproductive abuse’ – ‘Rape’ – ‘Credibility’ – ‘Reliability’ – ‘Evidence’

Charge: Rape x 5.

Proceedings: Appeal against conviction.

Facts: Following a trial by judge alone, the male applicant was found guilty of five counts of rape perpetrated against the female complainant, his wife. Each count occurred between January and March 2021, shortly after the birth of their only child. [2]–[6] At trial, the applicant denied the charges, submitting that the initial complaint was fabricated. [7]

Grounds of appeal: The applicant appealed the conviction on five grounds with significant overlap. Overarchingly, the grounds concerned:

1.

Failure to give adequate reasons and/or adopt adequate reasoning to explain why the conflicting evidence raised by the applicant did not engender reasonable doubt;

2.

Erroneous consideration of the complainant’s credibility and reliability due to a failure to properly evaluate inconsistencies in her testimony and behaviour;

3.

Erroneous approach to the evaluation of the evidence of the initial complaint raised by the complainant and her brother (a witness);

4.

Erroneous application of the burden and standard of proof; and

5.

Failure to consider the complainant’s reliability, as distinct from considerations of credibility [4]

Decision and Reasoning: The Court (Doyle, Blue and Kimber JJ) granted the applicant permission to appeal but dismissed the appeal.

The Court held that the inconsistencies in the complainant’s evidence — concerning the time of day on which the complaint was made (eg, afternoon or evening) — was ‘hardly … significant’ to affect the credibility of the complainant. This finding extended to the inconsistencies between the evidence of the complainant and her brother, concerning the date on which the complaint was made. [40]–[46]

It was observed that the trial judge was ‘cognisant of the need to consider the whole of the evidence’ before finding any count proven beyond a reasonable doubt. [77] This included findings of the complainant’s credibility and reliability, the latter of which had limited relevance to the issues in the trial. [78]; [129]

Further, the Court held that the trial judge’s provision of directions to himself, concerning the principle of innocence and the prosecution’s burden, did not constitute preferential reasoning or a misapplication of the onus of proof. [109]–[111]

TM v King [2024] SASCA 5 (8 February 2024) – South Australian Court of Appeal

‘Appeal against conviction’ – ‘Rape’ – ‘Physical and sexual abuse’ – ‘Evidence’ – ‘Adequate Reasoning’

Charge: Rape x 6.

Proceedings: Appeal against conviction.

Facts: Following a trial by judge alone, the male applicant was found guilty of six counts of rape perpetrated against the female complainant, his partner. Each count occurred over thirteen years. [1]–[2] According to the complainant, the relationship started off ‘good’ in 2004. However, the applicant became aggressive and sexually violent. The complainant alleged that the accused had raped her on multiple occasions, including while pregnant. The applicant’s aggressive behaviour fluctuated throughout the marriage, and the birth of their first and second children. By 2019, the complainant told the applicant to leave the home. [9]

Grounds of appeal: The applicant appealed the conviction on four grounds:

1.

Erroneous approach to the evaluation of the evidence of the initial complaint;

2.

Erroneous assessment of the credibility and reliability of the complaint;

3.

Engagement in adequate reasoning; and

4.

Inadequate reasons.

5.

Failure to consider the complainant’s reliability, as distinct from considerations of credibility [4]

Decision and Reasoning: The Court (Doyle, Bleby and Kimber JJ) granted the applicant permission to appeal but dismissed the appeal.

With respect to ground one, the Court specified that section 34M of the Evidence Act — governing evidence relating to complaint in sexual cases — does ‘not condition the admissibility and use of evidence’ of initial complaints upon the existence of ‘independent support’. [40] Even if it did, the evidence of AT (a witness) provided independent support to the fact that the complainant made the initial complaint. [41]

The Court further clarified R v Landmeter (2015) 121 SASR 522 as not establishing the principle that ‘the absence of support for the making of a complaint means that evidence always has limited weight’. [49] This is a matter dependent on the evidence given in the trial, and it was open to the trial Judge to prefer the evidence of the complainant as to the terms of the initial complaint. [49]

With respect to ground three and four, the Court held that the approach of the trial judge was ‘open’ to him, and subsequently not inadequate. The reasons of the trial judge rationally supported the facts found the final verdicts. [87]; [129]; [136]

Groom v Attorney General [2023] SASCA 5 (1 August 2023) – South Australian Court of Appeal

‘Appeal’ – ‘Protection order’ – ‘Abuse of Process’ – ‘Vexatious Litigant’ – ‘Systems Abuse’

Proceedings: Appeal against order prohibiting institution of proceedings in relation to protection order.

Facts: In 2011, the male appellant was subject to a protection order, which he ‘sedulously’ sought to overturn in at least eight proceedings; all of which were instituted without reasonable grounds. In 2021, following a referral from the Court of Appeal in Groom v Police [2021] SASCA 1, the Attorney-General commenced proceedings seeking to declare the appellant a vexatious litigant. [1]-[2]

After hearing the application in 2023, Justice Blue of the Supreme Court (see Attorney General v Groom [2023] SASC 18) ordered the appellant to be prohibited, without prior leave of the Court, from instituting proceedings in relation to the protection order.

Grounds of appeal: The appellants advanced the appeal on several grounds concerning procedural failures and inadequate reasoning. [12]

Decision and Reasoning: The Court dismissed the appeal, finding no error in Blue J’s reasoning, nor merit in any of the appellant’s grounds of appeal.

Blue J gave clear and cogent reasons for all of his findings. Mr Groom was either unwilling, or more likely unable, to point to any error in Blue J’s findings other than asserting that he was “wrong”. [17]

South Australia Police v Hill [2022] SASCA 22 (22 March 2022) – South Australian Court of Appeal

‘Double jeopardy’ – ‘Impermissible double charging’ – ‘Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA)’

Charges: assault aggravated (formerly) in a relationship with the victim x 2, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence x2.

Proceedings: Police appeal against order of Magistrate allowing the withdrawal of pleas of guilt to and dismissal of two counts in ruling each pair of charges involved impermissible double charging.

Facts: The respondent was charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence, committed on 16 December 2019. The respondent was later charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her and/or used an offensive weapon, and contravening a term of an intervention order for her protection, committed on 29 March 2020. The respondent pleaded guilty to each of these four counts (together with other counts). The Magistrate ruled that each pair of counts involved impermissible double charging. The Magistrate granted permission to the respondent to withdraw his guilty pleas to two of the counts and dismissed them. The Magistrate imposed a single penalty in respect of the remaining counts.

Issue: Firstly, does subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) create a single offence or multiple offences? Secondly, does a conviction for an offence of contravening a condition of an intervention order, where the contravening conduct comprises a substantive offence, preclude a conviction for the substantive offence when the substantive offence is aggravated by another circumstance and vice versa?

Decision and Reasoning: Appeal allowed.

Held by the Court:

1.

(Per Lovell, Doyle and Livesey JJA and Blue AJA) Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) creates a single offence albeit with differential maximum penalties depending on the existence of circumstances of aggravation (at [143] per Lovell and Livesey JJA and Blue AJA (Doyle JA agreeing)).

(Per Kourakis CJ) It is not necessary to decide whether subsection 20(3) creates one or two offences depending on the existence of circumstances of aggravation (at [19] per Kourakis CJ).

2.

(Per Lovell, Doyle and Livesey JJA and Blue AJA) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence, does not preclude a conviction for the substantive offence or vice versa (at [172] per Lovell and Livesey JJA and Blue AJA; at [178] per Doyle JA).

(Per Kourakis CJ) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence aggravated by another circumstance, does not preclude a conviction for the substantive offence or vice versa (at [19] per Kourakis CJ).

3.

(Per Kourakis CJ, Lovell, Doyle and Livesey JJA and Blue AJA) The appeal should be allowed and, subject to hearing the parties, a conviction recorded on the two counts dismissed by the Magistrate with no alteration to the sentence imposed by the Magistrate under section 26 of the Sentencing Act 2017 (at [174] per Lovell and Livesey JJA and Blue AJA (Kourakis CJ and Doyle JA agreeing)).

Groom v Police [2020] SASCA 1 (22 January 2021) – South Australian Court of Appeal

‘Abuse of process’ – ‘Application for permission to appeal’ – ‘Protection order’ – ‘Systems abuse’

Proceedings: Application for permission to appeal the dismissal of an application for revocation of an intervention order.

Facts: This matter had an extensive history (set out at [7]). The intervention order was originally made on 19 October 2011, and confirmed by consent on 22 February 2012. The applicant’s appeal against confirmation of the interim intervention was upheld on 25 June 2013: Groom v Police (No 3). On 10 December 2013, the application to confirm the intervention order was again confirmed by consent in the Magistrates Court. The applicant’s appeal was dismissed by a single judge on 21 March 2014 and an application for permission to appeal to the Full Court refused on 19 November 2014: Groom v Police. In December 2014, the applicant was convicted of contravening a term of the intervention order and an appeal was dismissed in July 2015: Groom v Police. In 2016, the applicant filed an application to revoke the intervention order, which was dismissed by the Magistrate. Various appeals were dismissed by a single judge and the Full Court in 2017. Notwithstanding the Full Court’s judgment, the applicant again applied to a Magistrate to revoke the order made on 19 October 2011 and confirmed on 10 December 2013. The Magistrate dismissed the application on 26 May 2020 and this was affirmed on appeal by Lovell J.

Grounds of appeal: The Magistrate and Lovell J erred in failing to find that there was new and compelling evidence to demonstrate that the order was invalid and should be revoked.

Held: The Court not only dismissed the application for permission to appeal but also held at [10]-[11] that:

“In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.

We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.”

The Court referred the matter to the Attorney-General to consider whether there were proper grounds for an application to be made under s 39 of the Supreme Court Act 1935 (SA) to stay any further proceedings sought to be instituted by the applicant (at [12]-[13]).

Supreme Court - Full Court

Police v Peel [2021] SASCFC 7 (5 February 2021) – South Australia Supreme Court (Full Court)

‘Breach of suspended sentence bond’ – ‘Breach protection order’ – ‘Prosecution appeal against decision to allow appeal’ – ‘Protection order’

Charges: Several offences including contraventions of an intervention order and breach of suspended sentence bond.

Proceedings: Prosecution appeal against Supreme Court decision to allow respondent’s appeal against breach of suspended sentence bond: Peel v Police [2020] SASC 48 (7 April 2020).

Facts: The male respondent was convicted of several offences including contraventions of an intervention order protecting his female former partner. He was sentenced to 4 months and 15 days imprisonment, partially suspended on a good behaviour bond. The respondent breached the bond by further contravening the intervention order. The Magistrate declined to excuse the breach and revoked the suspension. A single judge allowed the respondent’s appeal.

Grounds of appeal: Whether “proper grounds” existed for excusing a failure to comply with a suspended sentence bond.

Held: The single judge below erred, but there was no utility granting permission to appeal or allowing the appeal in this case as the respondent had served the unexpired portion of the sentence.

Consideration of whether there are “proper grounds” involves “consideration of the nature of the breach and the circumstances in which it was committed, and of any disproportionality between the nature and extent of the breach and the severity of the consequence of revoking the suspension and requiring the original sentence to be served” (at [38]). Any history of similar offending may be relevant “on the basis that it informs a full understanding of both the seriousness of the breach offending, and of the circumstances in which, and reasons for which, the original suspended sentence was imposed and hence the proportionality or otherwise of revoking the suspension of that sentence”(at [44]).

The Magistrate was entitled to have regard to the respondent’s history of similar offending, which was a “relevant, and indeed quite significant consideration” in the context of the case, and the judge below erred in concluding otherwise (at [46]).

Warne v The Queen [2020] SASCFC 124 (21 December 2020) – South Australian Supreme Court (Full Court)

‘Appeal against re-sentence’ – ‘Appeal against sentence’ – ‘Coercive control’ – ‘Misuse of alcohol or drugs’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Self-defence’ – ‘Separation’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’

Charges: Basic assault x 1; Aggravated assault causing harm x 2; Possession of a Class A firearm without a licence x 1; Aggravated threatening life x 1; Aggravated assault x 3.

Proceedings: Appeal against re-sentence (re-sentence was imposed following a successful appeal against conviction).

Facts: The offences occurred in connection with a domestic relationship between the appellant man and his female former partner. The appellant was convicted of 8 charges following a trial by jury. He was sentenced to 4 years and 5 months imprisonment, with a non-parole period of 3 years. The appellant successfully appealed his conviction on one count of aggravated assault causing harm. The re-sentencing arising from the appeal against conviction was undertaken by a different judge, as the first sentencing judge had retired. The re-sentencing judge imposed a sentence of 4 years and 9 months imprisonment, with a non-parole period of 3 years and 4 months.

Grounds of appeal:

1.

It was an error to impose a head sentence and a non-parole period that was greater than that which had been imposed prior to the appellant’s successful appeal.

2.

The re-sentencing judge’s starting point was too great.

3.

The re-sentencing judge erred in finding that home detention was not appropriate in all the circumstances.

4.

The re-sentence was manifestly excessive.

Held: The appeal was allowed. Based on the submissions made to the re-sentencing judge and the content of the sentencing remarks made, Hughes J (with Peek and Stanley JJ agreeing) inferred that the re-sentencing judge overlooked the approach to be taken when imposing subsequent sentences for the same offending identified in R v Baltensperger [2004] SASC 392. In re-sentencing, the judge is “required to firstly have regard to the original sentence and only upon concluding that if there is good reason to depart from it, sentencing in a different manner. Where there is a departure, it would be appropriate to provide some explanation for it and in this case, there was none” (at [41]). This inference gained further support by the lack of significant disparity between the re-sentence and the original sentence (at [42]).

After considering the relevant circumstances, Hughes J held that the original sentence was not manifestly excessive (at [48]-[56]). Hughes J (Peek and Stanley JJ agreeing) noted a controlling course of conduct:

[51] The course of conduct in February 2017 was sustained and violent. The appellant caused injuries to the victim and also sought to control her with frightening and dangerous behaviour tending to place her in fear for her life and to submit. That was reinforced by the explicit threat made by the appellant to the victim whilst he directed a firearm at her at close range. There has been no expression of remorse or contrition by the appellant, or any indication of insight on his part with respect to his conduct.

However, the circumstances concerning the count of aggravated assault causing harm, which was successful on appeal, were to be properly viewed as separate from the other acts as charged, thereby not attracting principles of concurrency. This was therefore the basis for imposing a sentence lower than the original sentence namely, 4 years’ imprisonment with a non-parole period of 2 years and 8 months (at [57]-[59]).

Warne v The Queen [2020] SASCFC 12 (26 February 2020) – South Australia Supreme Court (Full Court)

‘Appeal against conviction’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Self-defence’ – ‘Separation’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’

Charges: Assault x 1; Aggravated assault x 3; Aggravated assault causing harm x 2; Possessing a firearm without a licence x 1; Aggravated threatening life x 1.

Proceedings: Appeal against conviction.

Facts: The complainant in respect of each of the charges of violent offending was the male appellant’s then female partner. The assault charges were aggravated by reason that they were alleged to have occurred in contravention of an Intervention Order.

Grounds of appeal:

1.

The trial judge erred in failing to direct the jury as to their obligations to decide the case only on the evidence, to not discuss the case with persons other than their fellow jurors, to not make their own enquiries, and to bring to the trial judge’s attention any departure from the above by any member of the jury.

2.

The trial judge erred in failing to direct the jury as to self-defence.

3.

The trial judge’s directions lacked balance to the extent that they resulted in a miscarriage of justice.

4.

The trial judge erred in failing to adequately direct the jury in relation to the potential implications for the complainant’s credit of the timing of the photographs purportedly showing the injuries alleged to have been sustained during the course of the conduct the subject of count 1.

Held: Permission to appeal in respect of grounds 1 and 2, and allowing the appeal on ground 2, but only to the extent of setting aside the conviction on count 2 (aggravated assault causing harm) and ordering a retrial on that count, and otherwise dismissing the appeal.

Ground 1: The trial judge ought to have given post-empanelment directions to the effect contended for by the appellant. Nevertheless, there was no miscarriage of justice. This was not a case where there had been media publicity and the appellant did not identify any information of significance that might have been available through internet searching. It was speculative to suggest that the jury’s deliberations were infected by extraneous information.

Ground 2: There was a sufficient evidential basis to require that the trial judge leave self-defence to the jury in respect of the charge the subject of count 2 as the alleged assault was immediately preceded by verbal and physical aggressive conduct by the complainant. The trial judge’s directions in this respect were inadequate, falling short of an accurate and clear articulation of the defence.

However, the court did not accept that the evidence as to the generally volatile nature of the parties’ relationship, and instances of aggressive behaviour by the complainant on other occasions (including her use of an axe in the context of the incident leading to count 2), provided a sufficient evidential foundation for self-defence in respect of the balance of the counts of violent offending with which the appellant was charged.

The appeal in respect of ground 2 was allowed, but only to the extent of setting aside the conviction on count 2.

Application for permission to appeal on grounds 3 and 4 was dismissed. The appellant did not demonstrate any lack of balance in the trial judge’s summing up.

Subsequent appeal against re-sentence was allowed: Warne v The Queen [2020] SASCFC 124 (21 December 2020).

SPC v The Queen [2020] SASCFC 43 (28 May 2020) – South Australia Supreme Court (Full Court)

‘Children’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Relationship evidence’ – ‘Sexual and reproductive abuse’

Charges: 8 counts, including aggravated causing harm with intent to cause harm, aggravated threatening life, rape

Case type: Appeal against conviction

Facts: The appellant an was convicted of 2 counts of aggravated causing harm with intent to cause harm, 3 counts of aggravated threatening life and 2 counts of rape. He was acquitted of a charge of aggravated cause harm. The victim was the appellant’s wife, who had migrated from China in 2009, and with whom the appellant had children. The victim testified that their relationship was marred by verbal, physical and sexual abuse, and recounted an incident of violence and rape which had preceded the charged counts (relationship evidence).

Grounds:

•

The judge failed to adequately direct the jury on the use of evidence of the victim’s distress when she reported the offending to a police officer.

•

The judge failed to properly direct the jury on the use of the evidence of the violent relationship on the element of consent on the rape charges.

•

The verdict on the last rape offence (Count 8) was unreasonable because the evidence could not exclude the possibility that the appellant failed to appreciate that the victim was not consenting.

Held: Kourakis CJ (Nicholson and Bampton JJ agreeing) dismissed the appeal.

As to ground 1, the appellant argued that the judge failed to give any directions as to the proper use of the evidence of the victim’s distress when she attended at the police station. It was submitted that the judge should have directed the jury that (1) because of the passage of time and the significance of the reconciliation contended for by the appellant, the distress was not relevant; and (2) if they were to use the distress as circumstantial evidence of consistency with respect to the alleged rape, they would need to be satisfied that distress was not an emotional reaction to the victim’s decision to leave the appellant ([36]). The Court, however, dismissed this ground for 4 reasons. First, it was not put by the prosecutor, nor left to the jury by the judge, that the victim’s distress was corroborative or supportive of her testimony ([44]). Second, the evidence was admissible due to the close temporal connection to the last rape offence, the degree of distress and the circumstances in which the victim abandoned the course in which she had enrolled to report the appellant’s violence against her. The distress was also proximate to the rape the victim alleged occurred the night before ([45]). Third, the alternative explanations for the victim’s distress proposed on appeal were unrealistic ([46]). Fourth, counsel for the appellant at trial consented to the judge’s proposal not to give any directions on the evidence of distress ([47]).

As to ground 2, the appellant’s complaint primarily related to the judge’s failure to give specific directions on how the relationship evidence was relevant to prove the mental element on 2 of the rape counts ([50]). The Court found that the the judge’s directions on the use of the relationship evidence in considering whether the objective elements of the offence had been established were sound ([56]). The judge did not err by omission in not directing the jury to ignore the relationship evidence on the question of the appellant’s appreciation of whether or not the victim was consenting to sexual intercourse on the rape charges. Neither counsel referred to the relationship evidence on that issue. It was common ground that, notwithstanding their violent relationship, consensual sexual intercourse was a feature of their relationship. The proper use of the relationship evidence on the subjective element of the rape charges was, therefore, not a live issue at trial.

The verdict on count 8 was not unreasonable. It was sufficiently supported by the victim’s evidence, and there was no evidentiary matter capable of raising a doubt as to the appellant’s guilt which could not be dissipated by the jury’s evaluation of her testimony ([64]).

R v Roberts [2019] SASCFC 94 (1 August 2019) – South Australia Supreme Court (Full Court) [Summary prepared by Magistrates’ Associates of the Adelaide Magistrates Court]

‘Admissibility’ – ‘Assault’ – ‘Evidence’ – ‘Propensity’ – ‘Relevancy’

Charges: Causing harm with intent to cause harm

Appeal type: Appeal against conviction

Facts: The defendant was convicted by jury of causing harm with intent to cause harm to the complainant who he was in a sexual relationship with. The defendant, while intoxicated, grabbed her and dragged her out of the house, pushed her on to the footpath and kicked her body causing various injuries. The appellant’s brothers Stephen and Joe were present at the house. The complainant said that before living with the defendant, a former partner, Ray, had also been violent to her. The defence put to the complainant in cross-examination that it was Ray not the appellant who assaulted the complainant. Ray was deceased by the time of the trial. The complainant gave:

•

General evidence that the appellant was ‘rough to [her] nearly everyday [they] were together’ and ‘slapped’ her around; and

•

Specific evidence that on 14 February 2017 the appellant was angry at her and twisted and broken her arm for which the injury required surgery. The complainant lied to medical staff that she had fallen off a deck.

A police officer who attended the scene gave evidence of two tranches of the appellant’s brother, Stephen’s, statements and conduct:

•

The first tranche was that Stephen ‘loudly told police to leave the property and shut the front door’.

•

The second was that when told the appellant was arrested for assaulting the complainant, Stephen stated ‘If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way’.

Grounds of Appeal:

•

Ground 1: Did the Trial Judge err in admitting the specific evidence as to the appellant having broken the arm of the complainant on 14 February 2017, and in doing so cause a miscarriage of justice?

•

Ground 2: Did the Trial Judge err at law in admitting evidence of words spoken out of Court by a person not called as a witness (Stephen Roberts), and in doing so cause a miscarriage of justice?

Held:

•

Ground 1: Peek J and Hughes J allowing the appeal, Kourakis CJ dismissing the appeal.

•

Ground 2: Peek J allowing the appeal, Kourakis CJ and Hughes J concurring.

Reasons:

Ground 1 – Kourakis CJ (dismissing)

•

‘The admissibility of evidence of a violent relationship…between a perpetrator and a victim involved in a domestic relationship has long been held to be admissible on a charge of a violent criminal offence’ citing R v Olasiuki (1973) 6 SASR 255 at 263-264 and R v Hissey at [2] (1973) 6 SASR 280.

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On the admission of the evidence relating to the breaking of the complainant’s wrist by the appellant, the jury ‘could not reason in the appellant’s favour that he was unlikely to be the complainant’s assailant because he was in a romantic relationship with her’ at [4].

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‘The risk of misuse of discreditable conduct evidence is greatest when it is admitted as propensity evidence. It is more difficult to compartmentalise specific propensity reasoning from bad person reasoning’ at [9]

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The probative value of the evidence ‘substantially outweighed any prejudicial effect’ as ‘it showed that the appellant’s romantic relationship with the appellant did not inhibit him from bashing and slapping her around and, importantly, causing her serious bodily harm three weeks earlier’ and as such was admissible under s 34P(2)(a) at [10].

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The evidence of the broken arm assault ‘did not materially add to the prejudicial effect of the evidence that the appellant bashed and slapped around the complainant’ at [10].

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‘Prejudice is not necessarily accumulated by the arithmetic addition of the occasions of discreditable conduct. The prejudice lies in the error of reasoning’ at [10].

Ground 1 – Peek J (allowing) (Hughes J concurring)

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In relation to s 34P(2)(a) prosecution often contend in domestic violence matters that there is a ‘permitted use’ under s 34P(2) for the admission of evidence of prior conduct at [74].

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The only ‘permitted use’ here is said to be that such evidence is relevant to the alleged assault on the basis that ‘the assault did not come out of the blue’ (the out of the blue argument) at [74].

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The out of the blue argument is often linked to and strengthened by delays in reporting to police due to fears of repercussions and situations where the existence of a violent relationship is established or confirmed by independent evidence at [76].

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‘If only evidence of the specific allegation is led…it is not unlikely that members of a jury may gain the impression that the assault charged involves an incongruous, unprovoked and unexplained occurrence’ at [75].

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Tection 34P(2)(a) requires that separate assessments must be made as to both ‘any probative value’ and ‘any prejudicial effect’ of the evidence to determine whether the prosecution have ‘demonstrated that the former substantially outweighs the latter’ at [77].

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In relation to the probative value: If the 14 February 2017 assault is set aside it may be contended that ‘there is an apparent difference in the evidence of the complainant as between the usual degree of violence (‘rough’ and ‘slapping around’) and ‘the high degree of violence alleged to be involved in the subject assault’ at [79].

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The out of the blue argument in this matter is narrow. There was no delay in reporting and there is no independent evidence outside of the complainant’s to establish the existence of a violent relationship at [81].

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In relation to the prejudicial effect: although prosecution eschewed any reliance on s 34P(2)(b), the question arises under s 34P(2)(a) and s 34P(3) ‘as to the extent of the risk that the jury might adopt a process of propensity reasoning due to the doubling of the number of allegations of a high level of violence in circumstances where the allegations appeared superficially similar’ at [82].

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The prosecution did not call medical evidence in relation to the 14 February 2017 assault and in doing so denied the appellant ‘the ability to cross-examine as to whether such injuries where more consistent with her original history of falling from a deck than her later version of an assault’ at [82].

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Under s 34P(3) the Judge is ‘specifically required’ to determine whether the permissible use can be kept ‘sufficiently separate and distinct from the impermissible use’ at [83].

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‘It is quite evident from the transcript that the Judge did not undertake a sufficient analysis of the application of s 34P and did not refer to s 34P(3) at all’ at [83].

Ground 2 - Peek J (allowing) (Kourakis CJ and Hughes J concurring)

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The prosecution ‘attempted to justify the admission of both tranches of Parkinson’s evidence by citing Walton v The Queen (1989) 166 CLR 283 and R v Hendrie (1985) 37 SASR 581 that stand for the proposition that ‘in some circumstances a person’s state of mind may be proved by contemporaneous acts or statements made by that person’ at [27].

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Although the decisions in Walton and Hendrie are ‘unexceptionable’, ‘…the danger of proliferation of tendering evidence of statements or actions of persons not called as witnesses must be guarded against’ at [36].

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Evidence of this nature should only be received ‘if it is of direct and immediate relevance to an issue which arises at trial’ (R v Blastland [1986] AC 41, 53 and R v Szach (1980) 23 SASR 504) at [47].

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The trial judge admitted the evidence of Parkinson in this case to rebut the suggestion put to the complainant in cross-examination that she was assaulted by someone else other than the complainant at [52].

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While it was open to the prosecution to call further evidence that it was not Ray that has assaulted the complainant, this evidence had to be admissible at [58].

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In relation to the first tranche: Stephen’s ‘less than cordial welcome of police arriving at his home was entirely consistent with personal beliefs or feelings he holds about police which could be referable to any number of reasons or previous experiences’ and not necessarily connected to the crime at [60].

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The second tranche of evidence the prosecution’s position is that Stephen’s statement was’ "Consistent" with knowledge that the appellant did consult the complainant’. However, there was in fact no evidence that Stephen knew who assaulted the complainant

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The evidence as to Stephen Roberts’ statement and conduct was ‘nebulous and highly speculative’ as distinct from being directly relevant to trial at [60].

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It ‘is simply not the type of clear and unequivocal "state of mind" evidence’ referred to in Hendrie and Walton. There was no evidence that Stephen knew who assaulted the complainant at [63].

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The prosecution was ‘simply not permitted to tender evidence of an action or statement of a person who they were not prepared to call, on some sort of ‘prophylactic’ basis that the jury might consider that the words were consistent with a prosecution case theory’ at [64].

Appendix 1: 34P–Evidence of discreditable conduct

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(1) In the trial of a charge of an offence, evidence tending to suggest that a defendant has engaged in discreditable conduct, whether or not constituting an offence, other than conduct constituting the offence (discreditable conduct evidence)–

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(a) cannot be used to suggest that the defendant is more likely to have committed the offence because he or she has engaged in discreditable conduct; and

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(b) is inadmissible for that purpose (impermissible use); and

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(c) subject to subsection (2), is inadmissible for any other purpose.

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(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if–

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(a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and

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(b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue–the evidence has strong probative value having regard to the particular issue or issues arising at trial.

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(3) In the determination of the question in subsection (2)(a), the judge must have regard to whether the permissible use is, and can be kept, sufficiently separate and distinct from the impermissible use so as to remove any appreciable risk of the evidence being used for that purpose.

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(4) Subject to subsection (5), a party seeking to adduce evidence that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue under this section must give reasonable notice in writing to each other party in the proceedings in accordance with the rules of court.

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(5) The court may, if it thinks fit, dispense with the requirement in subsection (4).

R v Wilton [2019] SASCFC 65 (13 June 2019) – South Australia Supreme Court (Full Court)

‘Adequacy of directions to jury’ – ‘Confessions and admissions’ – ‘Miscarriage of justice’ – ‘Property offences’

Charges: 1x aggravated serious criminal trespass in a place of residence, 1x theft.

Appeal type: appeal against conviction of above charges.

Facts: The appellant and the complainant were in a relationship and two children were born of that relationship. The appellant and the complainant had separated and there were family court orders allowing the appellant fortnightly access to the children and restraining him from being within 50 metres of the complainant’s house. The appellant was found in the complainant’s house in possession of various items belonging to the complainant. Upon the police’s arrival, the appellant stated, “I fucked up” and begged the complainant not to press charges.

Issues: The appellant advanced two grounds of appeal; both grounds were considered together since they were intrinsically linked in both time and context ([42]). The appellant argued that the trial Judge failed to give adequate directions to the jury as to the use that could be made of the purported confessional statement “I fucked up” and the evidence of the appellant begging not to be charged ([3]).

Decision and reasoning: appeal dismissed.

To illustrate that the trial judge’s directions were not deficient, Parker J first made two material observations of the trial proceedings. The first was that the trial Judge reminded the jury of the defence’s submission that the appellant’s remarks were potentially equivocal and couldn’t be regarded as determinative ([47]). The second was that the trial Judge expressly stated that the use that could be made of the appellant’s behaviour was entirely within the jury’s discretion; it could be used for or against him, rejected in whole or in part, or attributed with different degrees of significance ([48]).

His Honour then referred to the observations of the High Court in RPS v The Queen to reflect the absence of any error in the trial Judge’s directions. In the extract, the High Court stated that the facts are to be determined by the jury and the trial Judge may comment on the facts but often the safest course for a trial Judge will be to make no comment on the facts beyond reminding the jury of the arguments of counsel ([49]). In addition, for the same purpose, his Honour referred to similar observations made in R v Golubovic where it was pointed out that in trials such as the one at hand, there may be little need for the judge to identify the issue or explain the cases of the parties ([50]).

Collectively, these observations are said to point towards a key principle relevant to the appeal, that is, when considering the adequacy of the Judge’s directions to the jury, it is important that the factual issues are few and not complex ([49]-[51]).

For these reasons, amongst others, his Honour deemed that it was unnecessary for the Judge to provide more elaborate directions in the terms suggested by the appellant (see [3]). The directions given by the Judge were viewed as sufficient to ensure the jury wasn’t confused about the issues that needed to be determined ([53]).

Police v Heritage [2019] SASCFC 60 (31 May 2019) – South Australia Supreme Court (Full Court)

‘Activation of suspended sentence’ – ‘Breach of conditions of good behaviour bond’ – ‘Sentence’

Charge: Aggravated assault.

Appeal type: Appeal against Magistrate’s sentence (excusal of breach of bond).

Facts: In 2016 the respondent assaulted his partner and was sentenced to imprisonment for 9 months, suspended upon entering into a good behaviour bond for 18 months. In 2017 the respondent breached his good behaviour bond by committing a further assault on his partner. The Magistrate excused the breach of bond, extended the bond by 6 months, and sentenced the respondent to imprisonment for 28 days for the fresh offending suspended upon the respondent entering into a further good behaviour bond for 18 months. The Police appealed against the excusal of the breach of bond ‘on the ground that, in excusing the breach, the Magistrate erroneously relied on the respondent’s personal circumstances as opposed to the nature and circumstances of the offending’ at [3].

Appeal dismissed by single Judge. Police sought permission to appeal to Full Court.

Issue: Did the Magistrate erroneously rely upon the respondent’s personal circumstances as opposed to the nature and circumstances of the offending when excusing the breach of bond?

Decision and reasoning: Granting permission to appeal and dismissing the appeal, the Full Court held:

‘The approach by the Magistrate to the finding of proper grounds to refrain from revoking the suspension was erroneous, as was the Magistrate’s conclusion that there were proper grounds to refrain from revoking the suspension’ at [41]. ‘The Judge erred in concluding that the Magistrate did not rely on the respondent’s personal circumstances in deciding to refrain from revoking the suspension’ at [47]. Notwithstanding the error, the appeal should be dismissed in the exercise of the court’s residual discretion, as the respondent has been living a law-abiding life in the community for an extended period of time since being sentenced, and the balance of the original period of suspension of the original sentence and the extended period of the suspension has now expired at [63].

Reasoning - proper grounds:

The police relied upon a series of decisions commencing with Norman v Lovegrove [1986] 40 SASR 266and R v Buckman [1988] 47 SASR 303 in which the Supreme Court held that when determining whether there are proper grounds within the meaning of s 58(3) of the Criminal Law (Sentencing) Act 1988 (SA)—a largely identical provision is now contained in s 114(3) of the Sentencing Act 2017 (SA)—upon which a breach of bond should be excused, those proper grounds must relate to the ‘nature and circumstances of the breaching offence as opposed to the personal circumstances of the defendant’ at [13]. Blue J held in relation to the meaning of the expression proper grounds that ‘it has authoritatively been decided by this Court and it follows from the text, context and evident purpose of subsection 58(3) that those grounds are confined to the nature and circumstances of the breach; they do not extend to personal circumstances of the offender or to circumstances occurring after the breach’ at [22]. His Honour reasoned that the ‘distinction between circumstances of the offence and personal circumstances is well understood in practice although it is more difficult to define in a priori terms. The circumstances of the offence comprise those circumstances existing at the time of commission of the offence which bear on the culpability of the offender in committing the offence’ at [31].His Honour differentiated between a ‘circumstance of the offence’, for example, an offender suffering a mental impairment which contributed to the committing of the offence, and a ‘personal circumstance’, for example, where ‘it is desirable that a defendant receive treatment for a mental impairment which cannot effectively be provided in prison’ or where hardship is caused to the defendant’s dependant at [31].

His Honour, at [35], cited the Magistrates three reasons for refraining from revoking the suspension:

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That the respondent needed professional assistance to address his mental health and anger management issues;

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That the respondent was supporting his partner and 10 month old child who would suffer hardship if the respondent were to be imprisoned; and

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That the revocation of the suspension of the sentence of imprisonment would be disproportionate and oppressive to the 2017 offending.

His Honour held that reasons 1 and 2 were personal circumstances. While the third reason related to the circumstances of the breach, his Honour held that ‘there was no basis on which it was open to the Magistrate to conclude that activation of the original sentence would be a disproportionate consequence of the 2017 offending’ at [40].

Reasoning – the reasons of the Judge:

The Judge referred ‘to decisions of single Judges of the Court that the Full Court authorities do not preclude a court taking into account personal circumstances’, however, stated that it was not necessary to decide this as the Magistrate did not take into account the respondent’s personal circumstances when deciding to restrain from revoking the suspension’ at [43]. Blue J held the Judge erred in his conclusion that the Magistrate did not rely on the respondent’s personal circumstances in refraining from revoking the suspension.

Reasoning – permission to appeal:

Permission to bring a second appeal by the Crown against sentence by a magistrate ‘will only be granted in rare and exceptional cases. This will ordinarily only be when it is necessary to establish or maintain correct sentencing principles or adequate sentencing standards or where the error is so disproportionate to the seriousness of the crime that it demands correction on appeal’ at [49]. Permission to appeal should be granted ‘having regard to the importance of the maintenance of the correct sentencing principles and the availability of the residual discretion’ at [61]. However, as allowing the appeal would have resulted in the defendant’s imprisonment after he had been living a law-abiding life in the community for a sustained period’ at [62], the Court should dismiss the appeal in the exercise of its residual discretion.

R v Dhir [2019] SASCFC 55 (22 May 2019) – South Australia Supreme Court (Full Court)

‘Misdirection or non-direction’ – ‘Permissible and impermissible use of evidence’ – ‘Sexual and reproductive abuse’

Charges: 1 x digital rape (count 2), 4 x aggravated assault causing harm (counts 1, 3, 4 and 5).

Appeal type: Appeal against conviction of above charges.

Facts: The appellant and complainant were married. The appellant allegedly committed the rape by putting his hand under the complainant’s jeans at a train station platform. The assault (count 3) was alleged to have been committed soon after the rape when the couple was walking home from the train station. The remaining offences were committed in the matrimonial home.

Issues: The appellant appealed against the convictions on seven grounds (see [4]), all of which generally concerned the directions given to the jury by the Judge.

Decision and reasoning: appeal was allowed on grounds 3, 4, 5 and 7 and dismissed on grounds 1, 2 and 6. All convictions ordered on the District Court information were quashed and the matter was remitted for a new trial.

For the purposes of convenience, Kourakis CJ first dealt with the fifth ground of appeal in which the appellant contended the Judge erred in directing the jury to ignore a defence submission concerning the plausibility of the digital rape charge (see [49]-[50]). His Honour accepted this ground of appeal, claiming the Judge withdrew a legitimate and factually compelling submission ([50]) with the likely effect of leading the jury to interpret the Judge’s direction as withdrawing the defence counsel’s broader implausibility submission (of which this particular submission formed an integral part of) from their consideration ([51]).

The first ground of appeal was divided into two complaints; his Honour rejected the first complaint, stating it was unnecessary to draw the distinction in order to comply with s 34R of the Evidence Act 1929 (SA) (see [53]). As to the second complaint, His Honour acknowledges that the Judge ought to have expressly directed the jury in relation to the impermissible use of the discreditable conduct evidence under s 34R(1) of the Evidence Act 1929 (SA). In failing to do this, the Judge was said to have failed to comply with the obligations laid out under s 34R(1). Nonetheless, such an omission did not occasion any miscarriage of justice and the second complaint was therefore rejected ([58]).

His Honour notes the merit of the second ground of appeal in stating that the Judge should have directed the jury as to the limited use that could be made of the alleged admissions ([59]). However, his Honour discerned no miscarriage of justice in this omission on the Judge’s part, particularly in light of the Judge’s cautionary observations ([45]-[46]) and the fact that the complainant’s evidence was proven unreliable in any event ([59]).

The third, fourth and seventh ground of appeal raised a particular issue that was considered through the relevant authorities (see [61]-[75]). Ultimately, his Honour allowed these grounds of appeal in recognising that the Judge placed undue weight to the evidence of distress.

R v Mark [2019] SASCFC 48 (9 May 2019) – South Australia Supreme Court (Full Court)

‘Appeal against sentence’ – ‘Grounds for interference’ – ‘Sentence manifestly excessive’

Charges: 1x aggravated assault, 1x breach of a suspended sentence bond.

Appeal type: appeal against sentence for the above offences.

Facts: the appellant punched his domestic partner in the face. In doing so, the appellant breached the intervention order in place at the time which prohibited the appellant from assaulting, threatening or intimidating his domestic partner. The appellant entered a guilty plea to the assault charge and the matter was transferred to the District Court for sentencing with the breached bond and other matters. An 11-month sentence was imposed for the aggravated assault while the suspended sentence was revoked and a six-month sentence (subject of the good behaviour bond) was ordered to be served cumulatively on the sentence for the aggravated assault.

Issues: the appellant’s grounds of appeal were two-fold. First, the sentence imposed for the aggravated assault was manifestly excessive ([6]). Second, the judge erred in sentencing the appellant on the basis that the offence was committed against a background of previous domestic violence ([6]).

Decision and reasoning: appeal was allowed, sentence imposed by trial Judge was set aside and the appellant was resentenced (see [36]).

His Honour first set out the authority and principles relevant to determining whether to interfere on appeal with a decision on sentence and whether a sentence is manifestly excessive ([17]-[21]).

His Honour rejected the appellant’s submission that the assault was on the lower end of the scale of seriousness. A single punch to the face was deemed serious by his Honour in light of the fatal consequences such an action may have had ([23]-[24]). It’s seriousness was also heightened by the fact it was committed with an intervention order in place at the time which aimed to protect the victim from the assault that occurred ([27]).

Whether the starting point of 18 months for a first offence of violence produced a sentence outside the permissible range for the offending and offender in question was determined in reference to multiple factors. First, the importance of specific and general deterrence in sentencing for offence of domestic violence lent some justification to the sentence imposed ([26]). Second however, the offender’s poor track record of responding to the leniency extended to him by the courts (see [10]) was considered in light of his personal and mitigating circumstances ([28]). Ultimately, notwithstanding the seriousness of the offending, and having regard to the fact that the assault was the appellant’s first offence of violence, his Honour concluded that a starting point of 18 months was too high and outside the permissible range of sentences for this offending and this offender ([31]).

The second ground of appeal was allowed since the factual basis of the judge’s sentence lacked a sufficient foundation on the evidence presented to the court and wasn’t actually conceded by the appellant ([32]).

R v Adamson [2018] SASCFC 114 (11 November 2018) – South Australia Supreme Court (Full Court)

‘Arson’ – ‘Damaging property’ – ‘Evidence’

Charges: Arson x 1.

Appeal type: Appeal against conviction.

Facts: The appellant was found guilty of arson following jury trial. It was alleged that he deliberately lit a fire inside a townhouse in which he and his partner lived until their separation three weeks prior to the fire. His alibi was that he was at a lacrosse club at the time that the fire was lit. The prosecution relied upon a number of items of circumstantial evidence which it argued cumulatively showed the appellant’s guilt beyond a reasonable doubt.

Issues: The appellant appealed his conviction on the basis that the guilty verdict was unreasonable and cannot be supported having regard to the evidence, and in particular in consideration of his alibi. He contended that no reasonable jury could have rejected his alibi as a reasonable possibility.

Decision and reasoning: In considering the grounds of appeal, the Court applied the principle set out M v The Queen [1994] HCA 63, namely, whether, on the totality of the evidence, it would be open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. On a thorough analysis of all the evidence, the Court dismissed the appeal on the basis that:

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The evidence established that the fire in the townhouse had been deliberately lit. It also established that a few hours prior to the fire being lit, the appellant spoke of burning it down.

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The strength of the evidence that supported the appellant’s alibi was a matter for the jury, to be considered in light of the other evidence presented in the trial.

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There was a sufficient basis in the evidence for the jury to reject the appellant’s alibi as a reasonable possibility, and to find beyond reasonable doubt that he deliberately lit the fire.

R v Peet [2018] SASCFC 91 (5 September 2018) – South Australia Supreme Court (Full Court)

‘Children’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Murder.

Appeal type: Appeal against sentence.

Facts: The circumstances of the offending were that early in the morning, following an argument with the respondent’s partner, during which she slapped, kicked and hit him with a vacuum cleaner pole, the respondent struck her with a crow bar at least six times. The respondent dragged her body to the laundry where he placed a cable tie around her neck and tightened it. The combined effect of the blows and the compression of her neck caused her death. Not long after this occurred the children woke. The respondent made breakfast for them. He then went outside and smoked a cigarette before returning inside. There was a knock at the door. The respondent put the children in their rooms and told them to be quiet. He did not answer the door and the people knocking went away. At some point, and possibly whilst the people were still at the front door, the respondent went back to each child. The respondent restrained the six-year-old with cable ties and placed a sock in her mouth, fixing it in position with packing tape. He placed a cable tie around her neck and tightened it. Her death was caused by the combined effect of suffocation and asphyxiation. The respondent also restrained the five-year-old with cable ties and asphyxiated him. His tongue was bruised suggesting that prior to death he too may have had something placed in his mouth obstructing his airway.

The sentencing Judge sentenced the respondent to life imprisonment with a non-parole period of 30-years to commence on the day the respondent was taken into custody. The sentencing Judge accepted that the respondent was experiencing a degree of dissociation when he killed the children. On appeal, the DPP contended that the 30-year non-parole period was manifestly inadequate, and submitted that the inadequacy was so great, having regard to the gravity of the offending, that the Court should increase the non-parole period to ensure the maintenance of adequate standards of punishment for the offence of murder. The respondent conceded that the non-parole period was manifestly inadequate and that it should be set aside and a new non-parole period fixed.

Issues: Whether the sentence was manifestly inadequate.

Decision and reasoning: The Court took into account the respondent’s personal circumstances ([87]), loss felt by the family ([85]), and the value of human life. At [83]-[84], the Court noted that –

‘A just sentence in the present case must accord due recognition to the human dignity of three victims… It has been said that the value of human life is intrinsic. The murderer denies their victim life and all the potentialities that accompany living which are of inestimable worth. Speaking generally, that denial, that exaction, cost or loss, is magnified where the victim is a child. The younger and more innocent the child the more the murderer repulses us as a community and the more grave or heinous the act of murder because of the value we place on life.’

The punitive, protective and rehabilitative purposes of fixing a non-parole period were also relevant. The punitive purpose in particular reflected the gravity of the offending. The sentencing Judge found that the respondent intended to kill each victim. As King CJ said in R v Stewart (1984) 35 SASR 477, multiple murders fall into the worst category of offending. Therefore, condign punishment was afforded great weight. The Court also noted that the respondent should not be left without hope for spending some time in the community again in the future, as this promotes rehabilitation. The murder was not premeditated in the conventional sense. The murder also occurred in the context of a relationship characterized by domestic violence. The murder was described at [78] as being brutal and the final act cold and lacking in humanity. Citing Munda v Western Australia (2013) 249 CLR 600, ‘A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner’. Although the sentencing Judge found that the respondent suffered a degree of dissociation at the time of the incident, this neither prevented him from forming the intent to kill nor did it prevent him from understanding the nature and quality of his actions. It helped him to depersonalize his two children, but did not prevent him taking action which he considered necessary for the purposes of his own self-preservation ([80]).

The Court found that the determination of a non-parole period in this case could not be reduced to a formula and that the totality principle was applicable to the setting of a non-parole period in relation to a life sentence for murder. The Court allowed the appeal and held that the non-parole period fixed by the sentencing Judge was manifestly inadequate. A non-parole period of 36 years was substituted. Although the respondent was entitled to a discount of up to 10% on the basis of his guilty pleas, to allow the respondent any further reduction would result in a non-parole period unacceptably disproportionate to the gravity of the offending which would vindicate the dignity of the victims ([90]).

R v Hibeljic [2018] SASCFC 35 (11 May 2018) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (Full Court)

*Note this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘Breach of bail’ – ‘Coercive control’ – ‘Contravention of a protection order’ – ‘Damage to property’ – ‘Emotional and psychological abuse’

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) – South Australia Supreme Court (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) – South Australia Supreme Court (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] SASCFC 90 (19 August 2016) – South Australia Supreme Court (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) – South Australia Supreme Court (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’ – ‘Coercive control’ – ‘Economic abuse’ – ‘Financial abuse’ – ‘Following, harassing and monitoring’ – ‘Fresh evidence’ – ‘Isolation’ – ‘Manifestly excessive’ – ‘Physical violence and harm’ – ‘Rehabilitation’ – ‘Threats to children’

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]).

Parker J (Lovell and Nicholson JJ concurring) described the coercive control which the appellant subjected the victim to:

[19] When the victim was threatened or attacked by the appellant she would try to leave their flat, often running into nearby streets and parks and attempting to hide. The appellant would frequently chase her or track her down in order to continue his abuse.

[20] The appellant monitored the victim’s movements and rarely let her leave the house without him. He also controlled her finances, regularly forcing her to withdraw money from her account for his benefit, including so that he could buy drugs and alcohol.

[21] The appellant regularly threatened that if the victim reported any abuse to the police or left the relationship he would harm her and her children. She was too frightened to leave or to report the abuse to police, friends and family.

R v Gardiner [2015] SASCFC 107 (5 August 2015) – South Australia Supreme Court (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: L eave 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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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: C riminal 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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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) – South Australia Supreme Court (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

R v Gawel [2021] SASC 67 (1 June 2021) – South Australian Supreme Court

‘Application for review of bail’ – ‘Bail’ – ‘Covid-19 delays’ – ‘Home detention’ – ‘No prior domestic violence convictions’ – ‘Special circumstances’ – ‘Strangulation’

Charges: Aggravated assault x 2, Choke, suffocate or strangle a person in a domestic setting x 1.

Proceedings: Application for review of bail.

Issues: Whether special circumstances justified bail.

Facts: The male applicant and female victim were in a domestic relationship. The applicant was convicted of trespass offences and released on home detention bail. Within 48 hours of his release, the applicant was charged with three domestic violence offences, remanded in custody, and denied bail. The applicant applied for a review of the Magistrate’s decision, arguing that if he was denied bail his time spent in custody would likely exceed the sentence imposed if convicted of the alleged domestic violence offences [1]-[3].

Decision and Reasoning: Bail granted.

Justice Parker found that special circumstances existed to justify the applicant’s release on bail for two reasons:

1.

The applicant’s time spent in custody would likely exceed the sentence imposed if convicted.

2.

The applicant was no longer in a relationship with the victim and the proposed home detention bail address was 13 km from the victim’s home [1]-[2].

His Honour granted bail on strict home detention conditions, with electronic monitoring and a guarantee by the applicant’s friend with whom he would be residing [2]. His Honour adopted the reasoning of Livesey J in Homsi v The Queen [2020] SASC 242, who found that a ‘delay of… two years until… trial when combined with the fact that the complainant was no longer in a relationship with the applicant and that her whereabouts were not known to him was sufficient to amount to special circumstances’ [23]. His Honour accepted the applicant’s submission that ‘based on the most recent District Court listings’ the applicant faced two years in custody awaiting trial [10]. His Honour noted that this delay was due to Covid-19. Furthermore, His Honour found that the applicant’s ‘alleged conduct [was] less serious than… in Homsi’ and noted that he had no prior domestic violence convictions [25], [27].

Homsi v The Queen [2020] SASC 242 (8 December 2020) – South Australian Supreme Court

‘Bail’ – ‘History of domestic and family violence’ – ‘Impact of covid19’ – ‘Special circumstances’ – ‘Strangulation’ – ‘Threat to kill’ – ‘Unlawful imprisonment’ – ‘Victim credibility’ – ‘Weapons’

Charges: 9 charges including aggravated assault, unlawful imprisonment and detention and unlawful choking under s 20A(1) of the Criminal Law Consolidation Act 1935 (SA), most in circumstances of aggravation, that the applicant committed the offence knowing the complainant was a person with whom he was, or was formerly, in a relationship.

Facts: The applicant was in custody from April 2020. The charges relate to incidents of alleged violence towards the male applicant’s female partner in November and December 2019. The November incidents included allegations of threatening and forcing the complainant to take her to a car using a knife and shooting her with a gel pellet gun repeatedly over a 2 hour period.

The December allegations include refusing the complainant permission to leave her apartment while seriously assaulting her, including hitting the complainant in the head twice with the blunt side of a machete, slapping her in the face, threatening her whilst holding the machete, stating that the applicant was “going to gaol today for murder”, putting a blowtorch near the complainant’s face and, later, holding a pillow against her face, restricting the complainant’s breathing, causing her to fear that she might lose consciousness. On the same day, two superficial lacerations were caused to the complainant’s throat with the machete, together with a large defensive laceration to the complainant’s finger. She escaped and contacted police and a blowtorch and machete were recovered from the scene. Police abandoned a chase for safety reasons and the complainant was subsequently found to be resident in Victoria.

The applicant has a history of failure to comply with bail conditions. A prosecutor initially expressed concerns as to the complainant’s credibility and did not oppose bail in the Magistrates Court, seemingly because the complainant visited the applicant in Victoria and has a serious drug dependency. At the time of the instant application these concerns were expressed as matters for trial.

Proceedings: Application for review of denial of bail.

Issues: As a prescribed applicant within the meaning of s 10(2) of the Bail Act 1985 (SA), the applicant must show "special circumstances" within the meaning of s 10A(1) of the Act.

Held: Application allowed:

1.

Special circumstances exist for two reasons:

(a)

While the alleged offending is very serious, the applicant and the complainant are no longer in a relationship and the complainant's whereabouts are not known to the applicant. The prosecution accepts that there are issues regarding the credibility of the complainant.

(b)

The applicant has been in custody in connection with these matters since April 2020. The matter is unlikely to be tried until the first half of 2022, with the delays exacerbated by the recent lockdowns associated with the COVID-19 pandemic.

2.

Bail is granted on strict home detention conditions, supported by a guarantee.

R v Sumner [2020] SASC 231 (4 December 2020) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Application for review of bail’ – ‘Exceptional circumstances’ – ‘Exposing children to domestic and family violence’ – ‘Physical violence and harm’ – ‘Strangulation’ – ‘Threats to kill’ – ‘Weapons’

Charges: Aggravated assault against a child or spouse x 8; Choke, suffocate or strangle a person in a domestic setting x 3; Aggravated threaten to kill or endanger life x 1; Aggravated assault that causes harm x 1.

Proceedings: Application for review of bail.

Facts: The allegations related to the applicant man’s former domestic partner and their two year old daughter. The applicant was originally granted bail by a Magistrate in May 2020, which was then revoked on an application by the Director of Public Prosecutions to review the decision. An application for bail before the Chief Magistrate in September 2020 was refused. This review application related to a further refusal of an application for bail made in November 2020. The key factor that the respondent relied on was that the complainants had moved to Queensland.

Issues: Whether the complainants’ move to Queensland altered the position such that it could be said there were “special circumstances”, pursuant to s 10A of the Bail Act 1985 (SA).

Decision and reasoning: Bail was granted under strict home detention conditions.

The applicant was a prescribed person for the purposes of s 10A of the Bail Act 1985 (SA) which provides that bail is not to be granted unless the applicant demonstrates the existence of special circumstances justifying release on bail. The court was also required to have regard to the matters specified in s 10, including the gravity of the alleged offences (s 10(1)(a)) and the need that the victim may have, or perceive, for physical protection from the applicant (s 10(4)) (at [11]).

Not without hesitation, the Court was prepared to conclude that there was a fundamental change of circumstances with the complainants’ relocation to Queensland. This, in combination with other matters, particularly the support from the applicant’s father, the proposal of monitored, home detention bail in the applicant’s family home and the applicant’s lack of offending history outside of the relationship, was capable of amounting to special circumstances justifying the applicant’s release on bail (at [31]). Had the complainants not moved to Queensland for their protection the Court would have refused bail (at [32]).

Brook v Police [2020] SASC 131 (16 July 2020) – South Australia Supreme Court

‘Aggravating circumstances’ – ‘Appeal against conviction by magistrate’ – ‘Assault’ – ‘Child victim’ – ‘Stepchild in the family’

Charges: Aggravated assault x 1.

Proceedings: Appeal.

Facts: The appellant man and the complainant’s mother were domestic partners. The complainant (child) gave evidence that his mother told him it was not safe for him to be at home and told him to go to his father’s house. The complainant did not leave the house and later had a verbal exchange with the appellant. The appellant grabbed the complainant by the throat, he then pushed him, and the complainant fell. The appellant straddled the complainant and punched him multiple times. The appellant relied on the defences of removing a trespasser and self-defence.

Grounds for appeal: (1) The magistrate wrongly rejected the appellant’s barrister’s application to appear as amicus curiae; (2) The magistrate erred in refusing to disqualify himself for apprehended bias; (3) The magistrate erred in his approach to witness evidence.

Decision and reasoning: Appeal allowed on Ground 3. Conviction quashed and matter remitted to a different magistrate. (1) Administration of justice overwhelmingly favoured giving leave to counsel to appear as amicus curiae. However, the magistrate’s error in failing to allow counsel to appear did not cause a miscarriage of justice. (2) The course the magistrate took in relation to the trial, including allegedly referring to the complainant as the ‘victim’, did not establish any substantial ground for a reasonable apprehension of bias. (3) The magistrate based his rejection of the mother’s evidence on the acceptance of the child’s evidence. Appeal allowed based on errors in assessing witness evidence as well as a failure to consider the defence of removing a trespasser.

BRK v Police [2020] SASC 116 (26 June 2020) – South Australia Supreme Court

‘Appeal against sentence’ – ‘Breach of protection order’ – ‘Children’ – ‘Home detention’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Property damage’

Charges: Aggravated assault x 1; property damage x 1; resist police x 1; breach of intervention order x 2

Case type: Appeal against sentence

Issue: Whether special circumstances exist.

Facts: The appellant man was sentenced to 5 months and 2 weeks imprisonment suspended after 2 months upon the appellant entering into a good behaviour bond for 2 years. At sentencing the appellant conceded incarceration was appropriate but argued it should either be wholly suspended under s 96 Sentencing Act 2017 (the ‘Act’) or served on home detention pursuant to s 71 of the Act.

The appellant and his daughter argued and she rang her mother (the victim and his former domestic partner) to ask her to collect her. The appellant was argumentative, aggressive and assaulted the victim by pushing her towards the wall. The appellant also damaged the victim’s vehicle. A mental health assessment deemed the appellant suicidal (he had a history of depression and bi-polar disorder). He resisted police when arrested 5 days later and breached an intervention order by failing to attend the Safe Relationships Abuse Prevention Program, and sending a SMS message to the victim asking for a character reference.

Grounds: That the Magistrate erred:

1.

By imposing a sentence that was manifestly excessive in that an immediate custodial sentence was imposed and the sentence was not wholly suspended;

2.

In the alternative to ground 1, in declining to order that the custodial sentence be served on home detention under s 71;

3.

In erring in the approach taken to the ‘sentencing hierarchy’, in particular, the interpretation and application of ss 71 and 96.

4.

In the alternative to ground 3, in failing to provide adequate reasons for refusing to order that the appellant serve the custodial sentence on home detention.

Held:

1.

The Magistrate erred in failing to consider whether the sentence of imprisonment should be served on home detention. Section 71(1)(b) of the Sentencing Act 2017 (SA) does not prevent a sentencing court from considering home detention where partial suspension is in contemplation.

2.

The Magistrate erred in failing to provide adequate reasons for declining to order that the term of imprisonment be served on home detention.

3.

The parties will be heard on the factual basis on which the Court should exercise its discretion when considering whether to re-sentence the appellant.

It is a benefit of suspension under s 96 that a bond with a duration longer than the period of incarceration can be imposed with scope for supervision and directed counselling to facilitate ongoing rehabilitation [98]. Home detention cannot be ‘partially’ ordered under s 71, only ordered for the whole term of a sentence of imprisonment. If some period of imprisonment is considered necessary home detention must be rejected in favour of partial suspension [101]. In deciding whether to make a home detention order, the paramount consideration is community safety, whether that is the offender’s family in the case of domestic violence or the community generally [102]. Another important factor is whether a home detention order "would, or may, affect public confidence in the administration of justice", in which case it must not be made. The sentencing court must consider the impact home detention is likely to have on the victim, spouse, domestic partner or any other person residing with the offender ([103]). The sentencing court must also reflect on whether home detention exposes the community and domestic violence victims to safety risks. The fact that the Magistrate was prepared to partially suspend the sentence suggested the appellant is not currently thought to represent an immediate threat. It also appeared that the appellant had been on bail without incident pending the outcome of this appeal [104].

As his Honour had little information about the steps taken to assist with the appellant’s rehabilitation, the availability of courses or counselling for his difficulties in managing violence and intimate relationships, and his current work and family circumstances, he proposed to stand the matter over for further submissions or evidence on the factual basis on which the Court should exercise its discretion when considering whether to re-sentence the appellant [106].

Note: On 17 July 2020 the appellant withdrew this appeal with the result that the appeal was dismissed and the matter did not proceed to resentencing.

Coleman v Police [2020] SASC 66 (30 April 2020) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Appeal against conviction’ – ‘Miscarriage of justice’ – ‘Physical violence and harm’ – ‘Plea of guilty’ – ‘Withdrawal and restoration of plea’ – ‘Withdrawal of legal representation’

Offences: Assault x 1

Proceedings: Appeal against conviction.

Issue: Whether the appellant’s lack of legal representation when he entered guilty pleas amounted to a miscarriage of justice.

Facts: The appellant, an Aboriginal man, assaulted his female ex-partner by punching her three or four times in the face and throwing a shoe at her. He had been represented by different solicitors from the Aboriginal Legal Rights Movement in the Magistrates Court on at least four occasions with respect to the charge, but the matter had not been progressed. The appellant’s solicitor withdrew from the file after the appellant indicated in open court that he wanted to plead guilty and "get it over and done with" [6]. The Magistrate informed the appellant that she was "likely, potentially to impose a period of imprisonment as a penalty" [6]. She sentenced him to five months’ imprisonment and imposed an intervention order prohibiting him from contacting the victim, except for telephone or text contact for the purpose of child access arrangements. The appellant appealed on the ground that he had not been represented and therefore the Magistrate should not have accepted his guilty plea, and that the Magistrate misled him about the consequences that would flow from the pleas and induced the appellant to plead at the hearing.

Judgment: The judge dismissed the appeal, holding that there had been no miscarriage of justice due to lack of legal representation. The appellant understood the charges to which he was pleading, the Magistrate explained the seriousness of the offences and that the appellant was likely to receive a sentence of imprisonment, and the appellant volunteered his wish to plead [14]. The appellant had also been legally represented over the several months prior to the hearing and had accepted an opportunity to receive legal advice [20]. His Honour emphasised that the appellant was entitled to proceed unrepresented and that "the withdrawal of legal representation before the appellant entered his pleas is not, in isolation, a ground which can justify appellate interference" [20].

His Honour also held that there was no miscarriage of justice in respect of the appellant being induced to plea, because the appellant entered his pleas voluntarily, "free of any pressure or threat" [19].

Butler v The Queen [2020] SASC 74 (16 April 2020) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Application for review of bail’ – ‘Physical violence and harm’ – ‘Relevance of covid-19 pandemic to bail application’ – ‘Weapon-protection order’

Offences: Aggravated assault x 2, contravention of intervention order

Proceedings: Application for review of bail

Issue: Whether special circumstances exist for the granting of bail.

Facts: The appellant man was charged with aggravated assault against his female former partner on two separate occasions and contravention of an intervention order. The appellant punched the back of the victim’s head, struck her with a water bottle, and punched and kicked her in the head on several occasions. A Magistrate refused bail but the appellant sought a review of this decision, contending that special circumstances existed for the granting of bail, pursuant to s 10A Bail Act 1985 (SA).

Judgment: Kourakis CJ dismissed the appellant’s application for review of the bail decision, holding that no combination of the appellant’s circumstances was sufficient to constitute special circumstances indicating that he, as someone charged with assaulting a domestic partner in breach of an intervention order, should be admitted to bail [5]. His Honour did note the systematic and endemic disadvantage of Indigenous people [7] (particularly where they are imprisoned [8]) and the burden of being imprisoned during the COVID-19 pandemic with its attendant restrictions [9]. However, His Honour ultimately held that the presumption against bail applies to all bail (even home detention bail) [14] and the appellant failed to establish special circumstances. Furthermore, the appellant had breached bail orders and intervention orders in past and the charged offences were serious in themselves [4]. His Honour highlighted that "the underlying problem is not [the appellant’s] relationship with the victim … but the alleged resort to violence in dealing with interpersonal conflict" [15]. His Honour did provide that a fresh review of the question of bail would arise, however, if it appeared in the future that a trial was a long way off or that the appellant’s mental health was deteriorating [17].

Peel v Police [2020] SASC 48 (7 April 2020) – South Australian Supreme Court

‘Breach of suspended sentence’ – ‘Exceptional circumstances’ – ‘Protection order’

Offences: Contravening a term of an intervention order x2; aggravated assault x1; failing to comply with a bail agreement x1; and driving under disqualification or suspension x 1

Type of Appeal: Appeal against sentence following breach of suspended sentence of imprisonment

Ground: The Sentencing Magistrate erred in the exercise of his discretion pursuant to s 114(3) of the Sentencing Act 2017 in that:

•

the learned Magistrate did not give adequate or appropriate consideration to the terms of the section and the meaning of "proper grounds" therein; and

•

gave undue weight to considerations personal to the Appellant including his criminal history, as opposed to the circumstances of the breach itself, such that the sentencing process miscarried.

Facts: The appellant man was convicted of two counts of contravening a term of an intervention order, aggravated assault, failing to comply with a bail agreement and driving under disqualification or suspension on 2 September 2019. He was sentenced to four months and 15 days imprisonment to be suspended after one month upon entering into a 15 months good behaviour bond. With backdating the bond was entered into on 13 September 2019. Since 17 October 2016 the appellant had been the subject of an intervention order for three years. Condition 3 of the order read "the defendant must not be within 100 metres of the protected persons". The appellant breached this order by being found with the protected person (his female former partner) in the front yard of his family member on 23 October 2019. He was visiting family and while he was at their home the protected person attended. He did not know she would be there and nothing untoward happened between them. It was a chance encounter and by not leaving immediately, the appellant was found to have breached a good behaviour bond and convicted of contravening a term of the intervention order. The Magistrate sentencing him to three weeks imprisonment and at the same time revoked the suspended sentence bond and ordering that the appellant serve the remaining time in imprisonment [3]. An application was made before the sentencing Magistrate providing that the Magistrate "should find that there were proper grounds to say that the failure to comply with the conditions of the suspended sentence bond should be excused and that no further action should be taken in respect to that failure" [4].

Judgment: The appeal was allowed and the suspended sentence of three months and 15 days was revoked. David AJ stated that "[t]he question whether there are proper grounds for excusing the breach is to be confined to the nature of the breach itself without any consideration of matters personal to the offender. That principle has been clearly stated in Heritage" [15]. The sentencing Magistrate was found to have gone beyond this principle and was instead influenced by the previous offending [15]. In considering this, the sentencing Magistrate was found to have erred.

Healy v Police [2020] SASC 40 (19 March 2020) – South Australia Supreme Court

‘Appeal against sentence’ – ‘General deterrence outweighed personal circumstances’ – ‘Good behaviour bond’ – ‘Intervention order’ – ‘Physical violence and harm’ – ‘Property settlement’

Charges: Aggravated assault x 1

Case type: Appeal against sentence

Facts: The appellant man pleaded guilty to one count of aggravated assault upon his wife (complainant), with whom he was now separated. There was some variance about the facts. The prosecution alleged that the appellant and complainant were experiencing domestic difficulties. The complainant came into their bedroom, looking for her mobile phone. On the prosecution case, the appellant pushed her to the dresser and moved her face in the direction of her phone. Such conduct was clearly against her will and involved force ([4]-[5]).

The sentencing Magistrate regarded the offending as ‘out of character’ and unlikely to be repeated but was concerned about general deterrence for this type of behaviour, which involved violence towards female partners. He placed less reliance on personal deterrence and considered that the recording of a conviction could potentially affect the appellant’s future employment. Nevertheless, he recorded a conviction on the basis of general deterrence ([7]), and sentenced the appellant to a $200 good behaviour bond for a period of 18 months.

Issue: The appellant appealed on the basis that the sentencing Magistrate erred in recording a conviction and did not consider the appellant’s personal circumstances, including his low risk of re-offending, the impact of a conviction on his employment and the background of the offending ([8]-[9]).

Held: The appeal was dismissed. The appellant’s personal circumstances were noted at [6]. He had no criminal history, had already spent 9 hours in custody, and was employed as an electrician. The appellant and his wife no longer lived together and Family Court proceedings in relation to their property were finalised. Further, there had been no contact between the parties as a result of an intervention order.

The Court dismissed the appeal as no error could be demonstrated. The sentencing Magistrate considered all matters relevant to the appellant’s personal circumstances and was entitled to approach the matter by considering that general deterrence outweighed those matters. He was also entitled to be concerned about the prevalence and nature of domestic violence.

Miller v Police [2020] SASC 20 (13 February 2020) – South Australian Supreme Court

‘Application made out of time’ – ‘Costs’ – ‘Intervention order’ – ‘Recording’

Charges: 1 x contravening a term of an intervention order

Case type: Application for permission to appeal out of time against an order for costs made by a Magistrate.

Facts: The male applicant was charged with contravening a term of an intervention order, the protected person was called at trial by the prosecution to give evidence. The evidence included the victim’s recording of an offending phone call, a copy of which was tendered. After she gave evidence, the prosecution closed its case and she was released. The Magistrate found a case to answer and the matter was adjourned. During the adjourned period, the victim was charged with property damage to the applicant’s vehicle. Consequently, the applicant applied for the witness to be recalled to cross-examine her further because of this behaviour. The Magistrate allowed the prosecution case to be reopened and reversed his ruling that there was a case to answer in order that the victim might be cross-examined. The victim could not be found as she had been released from giving further evidence. The Court issued a witness summons for her return, however, she was not served the summons. It was clear that she believed the matter was finished at least to the extent that her participation was concerned ([2]-[4]).

The applicant sought his costs. The Magistrate ordered that no costs should be allowed with respect to all appearances and work done up to and inclusive of the date of trial, but costs were granted for a number of hearing attendances after that date, albeit at an amount lower than that sought by the applicant ([9]).

A police officer who attended the scene gave evidence of two tranches of the appellant’s brother, Stephen’s, statements and conduct:

•

The first tranche was that Stephen ‘loudly told police to leave the property and shut the front door’.

•

The second was that when told the appellant was arrested for assaulting the complainant, Stephen stated ‘If she’s saying those things she needs to be dealt with. She needs to learn the Aboriginal way’.

Issue: The applicant sought permission to appeal the Magistrate’s orders as to costs. This application was made around 4 months out of time. The applicant submitted that he should be awarded appropriate costs up to the time the Magistrate found there was a case to answer, and that there should not have been a reduction to the costs awarded for work done after the trial date.

Held: The applicant submitted that he was successful in the matter as no conviction was recorded and no finding of guilt was made. As a result, he contended that costs should follow the event and that he should be awarded appropriate costs up to the time that the Magistrate found that there was a case to answer ([10]). The respondent submitted that the question of costs is discretionary, and noted s 189 of the Criminal Procedure Act 1921 (SA).

In his reasons, the Magistrate indicated that in allowing the case to be reopened for further cross-examination of the victim, the matter had not been completed. It is uncertain how that cross-examination would have impacted his decision to find a case to answer. The alleged offending behaviour was presented by the victim’s evidence and by way of recording. It might go to the question of credit or her attitude towards the applicant, but it is difficult to determine a scenario where that would disturb the relatively low threshold of finding a case to answer. Additionally, the Magistrate had to consider that a permanent stay of proceedings is not necessarily a completion of the matter. In light of these difficulties, David AJ held that the Magistrate did not fall into error in exercising his discretion as to costs ([10]-[13]), and consequently, dismissed the appeal.

Rana v Police [2020] SASC 21 (13 February 2020) – South Australian Supreme Court

‘Application for revocation of an intervention order’ – ‘Legal representation and self-represented litigants’ – ‘People with mental illness’ – ‘Protected person’ – ‘Revocation of an intervention order’ – ‘Women’

Case type: Application for permission to appeal against a Magistrate’s decision refusing an application for the revocation of an intervention order.

Facts: The appellant filed an application in the Magistrates Court for revocation of an intervention order that was issued against him in 2008. The appellant was absent at the application hearing. The intervention order involved allegations that ‘the appellant sent letters to the protected person (a female), presented at the protected person’s door on a number of occasions, caused the protected person to install additional security in her home and other matters’ ([3]). The protected person maintained that she regularly did not feel safe and believed that the appellant was capable of inflicting harm as he was not mentally stable ([4]). The Magistrate noted that the appellant had significant mental health problems in the past, and summarily dismissed the application pursuant to s 26(4) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) ([8]. Under s 26(4), the Court may dismiss an application for revocation of a final intervention order without receiving submissions or evidence from the protected person if 1) it is satisfied the application is frivolous or vexatious; or 2) if not satisfied there has been a substantial change in the relevant circumstances since the order was issued or last varied ([9]).

Issue: The appellant sought permission to appeal against the Magistrate’s decision to refuse his application for the revocation of the intervention order on 3 grounds:

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‘The Magistrate applied the wrong onus, as the burden of proof applied was proof beyond reasonable doubt rather than proof on the balance of probabilities;

•

There was an apprehension of bias as the matter was decided in his absence; and

•

A psychological report the appellant sought to tender on appeal stated he would benefit from release of the order.’

Held: David AJ refused permission to appeal and found that the Magistrate was open to summarily dismiss the appellant’s application for the revocation of the intervention order ([16]). In respect of the first appeal ground, David AJ held that although the Magistrate did apply the incorrect onus, this could have only been in the appellant’s favour. By applying the higher onus of proof beyond reasonable doubt, it was apparent that the Magistrate was satisfied on the balance of probabilities either that the application was frivolous or vexatious or he was not satisfied that there was a substantial change in the circumstances ([11]). In respect of the second appeal ground, his Honour found that the basis of the appellant’s submissions in his affidavit did not go to the question of whether there had been a change in the relevant circumstances. Instead, the submissions indicated a preoccupation with past events ([12]). In respect of the third appeal ground, David AJ held that the psychologist’s conclusion that the appellant ‘is a different person now tha[n] in the past and would benefit from release of the order’ fell short of there being a change in the relevant circumstances since the order was last issued. Consequently, there was no merit in the appeal ([13]-[15]).

Attorney-General (SA) v Pennington [2019] SASC 180 (25 October 2019) – South Australian Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Appreciable risk’ – ‘Childhood abuse’ – ‘Conditions’ – ‘Cultural obligations’ – ‘Extended supervision order’ – ‘Extensive criminal history’ – ‘Forensic evidence’ – ‘Past domestic violence’ – ‘People affected by substance misuse’ – ‘Perpetrator interventions’ – ‘Physical violence and harm’ – ‘Traditional lands’ – ‘Unacceptable risk and best interests’

Charges: 1 x aggravated recklessly causing serious harm

Case type: Application by the Attorney-General (SA) for an Extended Supervision Order (ESO) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act) in respect of the respondent for a 3-year term.

Facts: The male respondent was found guilty at trial of aggravated recklessly causing serious harm against his former domestic partner and was ultimately sentenced to 5 years’ imprisonment ([5]). The respondent had a significant history of serious criminal offending, especially violent offending against women ([6]). His history included offences of non-consensual sexual penetration, armed robbery, aggravated unlawful wounding, possession of a weapon with intent to cause injury and fear, and unlawful assault causing bodily harm in circumstances of aggravation and breaching protective bail conditions. It was against this background and while subject to a suspended sentence, that the respondent was sentenced to the offending in question. The circumstances of that offending were that the respondent, while in an intoxicated state, stabbed the victim in the back and fled the house without rendering her assistance. The victim may have died within hours had she not been airlifted to Adelaide ([10]).

The applicant filed an application for an ESO under the terms of the HRO Act. An Interim Supervision Order was made pursuant to s 9 pending the determination of the application for an ESO, which was enlivened upon the respondent’s release from custody in September 2018. Further, a psychiatric report pursuant to s 7(3) of the HRO Act was provided ([11]-[13]).

Issue: The applicant sought an ESO in respect of the respondent for a period of 3 years on the basis that he is a high risk offender who would present an appreciable risk to the community’s safety if not supervised under such an order. The main issue for the Court, however, was the nature of the terms and conditions of the ESO, especially those relating to whether or not the respondent is restrained from leaving South Australia without permission ([3]).

The respondent accepted that he was a high risk offender pursuant to s 5 of the HRO Act, and did not oppose the making of an ESO provided that the order included the following conditions ([14]):

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The respondent may depart from South Australia with the intention of living in another State, and if he chooses to do so, he will not be subject to the order unless he returns to South Australia during the period of the order.

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The order will take effect if the respondent returns to South Australia.

The applicant submitted that the terms of the ESO as proposed by the respondent were beyond the scope of the Court’s jurisdiction, would render it impossible to effectively supervise him when he is absent from South Australia, and would not protect the community’s safety in an effective manner ([29]).

Held: The respondent was born in the dry community of Tjuntjuntjara in Western Australia ([15]), which is described as ‘relatively stable and safe’ and as ‘one of the remotest communities in Australia’ ([21]). The respondent’s daughter, grandson and elderly, ill father also lived in that community. His father’s family originally came from the A?angu Pitjantjatjara Yankunytjatjara (APY) Lands in the remote north-west of South Australia. The respondent proposed that he would move between the Tjuntjuntjara community and Kurrawang, where he has other relatives. He also expressed an intention to live in Esperance ([15]-[16]).

The respondent submitted that given that Tjuntjuntjara is a dry community and he has family support and access to traditional healers, he could participate in men’s business and would therefore unlikely reoffend ([17]). In his opinion, an ESO in the terms proposed by the applicant would require him to stay in South Australia, rendering it difficult to visit the APY Lands ([18]). Further, it was submitted that if he was prevented from living on or near his traditional lands, both on the APY Lands and in Western Australia, this would negatively affect him and increase his likelihood to reoffend, as he would be deprived of the opportunity to play a meaningful role in his culture and lore ([19]). While it was undoubtedly in the respondent’s best interests that he be permitted to return to his homeland, Kelly J noted that the question was not ‘simple’, and required an analysis of the relevant provisions of the HRO Act ([26]-[28]).

Her Honour placed great reliance on the psychiatric report ([35]), which noted that the respondent was at high risk of further violent offending, due to his significant history of violent and sexual offending, his limited (and only very recent) insight into that behaviour, and his tendencies to minimise his behaviour and blame circumstances and victims for his past behaviour ([36]). It was also noted that the respondent was at a heightened risk of sexual offending due to his issues with childhood abuse and increased risk of violence ([37]). If the respondent returned to his traditional lands in South Australia, he would be at a greater risk of reoffending due to potential personal conflicts with other community members and the difficulties in accessing adequate supervision in remote communities. There would also be a real risk of the respondent resuming alcohol abuse without adequate supervision and therapy ([43]). Her Honour further considered therapies appropriate to the respondent’s personality type, and concluded that he would benefit from a combination of traditional western psychological therapy and support provided by traditional healers ([44]-[46]). The further the respondent travels from Adelaide, the more difficult it would be for him to access the necessary therapy ([47]).

The psychiatric report also raised the issue of the respondent’s desire to return to his traditional lands to fulfil his cultural obligations and identified some risk factors involved if he were to return ([48]). Importantly, the majority of the respondent’s offending occurred when he was living on his traditional lands and when he was under the influence of alcohol ([49]). Even though Tjuntjuntjara is a dry community, other communities in which the respondent had expressed a desire to visit are not ([50]). Under the terms of the order proposed by the respondent, there would be no practical way for the Court to satisfy itself that the community is protected should he choose to visit or reside in South Australia ([53]), as South Australian supervisory authorities have no practical way of determining if he was to re-enter the APY Lands ([52]).

Her Honour held that an ESO for a 12-month term would adequately protect the community and enable the respondent to continue with appropriate rehabilitation and therapy ([55]). Her Honour also found that the respondent was a high risk offender who posed an appreciable risk to the community’s safety if not supervised under the order, and that it would be outside the scope of the Court’s jurisdiction to make an ESO in the terms requested by the respondent, and would render his effective supervision impossible when he is absent from South Australia ([33]).

Harwood v Police [2019] SASC 129 (26 July 2019) – South Australian Supreme Court

‘Children’ – ‘Cross-examination’ – ‘Domestic relationship’ – ‘Fair trial’ – ‘Intervention order’ – ‘Legal representation and self-represented litigants’

Charges: 3 x contravening a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA)

Case type: Appeal against conviction

Facts: The appellant, who was self-represented at trial, was convicted of three counts of contravening a term of an intervention order, contrary to section 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The protected person under the intervention order was the appellant’s ex-partner, the victim ([1]). The agreed facts were that on 3 separate nights, the appellant attended the home of the victim’s father where the victim and their daughter were residing. The appellant left letters addressed to the victim’s father and old family photographs. Although he admitted to attending the premises, he argued that he genuinely believed that the victim and their daughter were residing at a different address ([2], [9]).

Under s 13B of the Evidence Act 1929 (SA), the appellant was not allowed to cross-examine the victim at trial unless it was done so by counsel. The Magistrate failed to refer to the appellant’s rights under s 13B(b)(ii), which includes a reference to the Criminal Law (Legal Representation) Act 2001 (SA). Section 6(1a) of that Act provides that if a defendant who is not legally represented at trial applies to the Commission for legal assistance for the cross-examination of a s 13B witness in the trial, the Commission must, subject to qualifications, grant such assistance ([17]).

Although the Magistrate advised the appellant of his right to apply for legal aid ([14], [16]), he did not advise him that legal assistance must be granted to a defendant subject to certain qualifications (terms), and instead informed the appellant that he probably would not qualify for legal assistance ([18]). The trial was adjourned, and upon resumption, the appellant remained under the mistaken belief that he would not qualify for legal assistance and was not advised of s 6 of the Criminal Law (Legal Representation) Act 2001 (SA). The appellant was unable to test the victim’s evidence in any way. Consequently, the Magistrate accepted her evidence and convicted the appellant ([21]).

Issue: The appellant appealed on the ground that the trial court did not properly and fully advise him of his right to obtain a counsel’s assistance for the purpose of cross-examining the victim ([4]).

Held: Lovell J allowed the appeal and set aside the conviction. Her Honour remitted the matter for retrial before a different Magistrate and ordered the respondent to pay the appellant’s appeal costs ([29]). Importantly, her Honour noted a trial judge’s obligation to ensure that an accused self-represented person understands their rights and has all the necessary information in order to receive fair trial and make informed choices about his or her case ([22]-[23]). In the present instance, the appellant was required to be aware of and fully understand his rights provided for by s 13B and, by extension, s 6(1a) in order to receive a fair trial ([23]). The Magistrate was obliged to ensure that he fully understood that cross-examination of the victim could only occur if he employed counsel to do so on his behalf, and that if he applied to the Commission for legal assistance, they were bound by law to provide it, subject to any conditions they saw fit ([24]). The trial miscarried because the Magistrate failed to properly and fully advise the appellant of his right to obtain counsel’s assistance for the purpose of cross-examination ([25]).

Siropoulos v Police [2019] SASC 127 (19 July 2019) – South Australian Supreme Court

‘Appeal against sentence’ – ‘Conditions’ – ‘Domestic relationship’ – ‘General deterrence’ – ‘Good behaviour bond’ – ‘Manifestly excessive’ – ‘People affected by substance misuse’ – ‘People with mental illness’ – ‘Physical violence and harm’ – ‘Risk of re-offending’ – ‘Step child in family’

Charges: 1 x assault causing harm

Case type: Appeal against sentence

Facts: The appellant was convicted of assault causing harm after having repeatedly punched the victim in the face, in the presence of her twin daughters from a previous relationship ([14]). The appellant and victim had been in a relationship for approximately 9 years. The relationship was marred by allegations of infidelity made by the appellant, and ‘he felt betrayed and became very angry’ upon discovering that the victim had regularly contacted another man ([13]). The victim’s injuries were extensive ([16]), and she told the Court in her Victim Impact Statement that ‘she was upset that the offending occurred unprovoked in her and her children’s home’ ([18]).

The appellant was sentenced to 14 months’ imprisonment, which was reduced to a prison term of 8 months and 2 weeks as a result of his early guilty plea. The sentence was partially suspended, allowing the appellant’s release after serving 4 months imprisonment upon him entering into a good behaviour bond for 2 years ([2]). The conditions of the bond are noted at [3], and included the requirements that he does not leave South Australia unless given permission by his Community Corrections Officer for specific purposes, and that he attend any programs and appointments as directed.

Issue: The appellant appealed against the sentence on the grounds that it was manifestly excessive and that it was manifestly unreasonable to not wholly suspend the prison sentence. He also appealed the condition of the partially suspended sentence bond requiring him not to leave South Australia without permission.

Held: Kourakis CJ noted the appellant’s personal circumstances at [19]-[27]. He was aged 47 at the time of the offending, worked in the fishing industry, suffered a lengthy period of depression after his father’s death, had numerous previous convictions of driving offences, and consumed an excessive amount of alcohol, particularly after his father’s death and to numb his emotions during hostile relationships. Although the appellant has not consumed alcohol in over 3 years, he reported weekly use of cannabis ([23]). His mother was dependant on him and he also had a brother who suffers from schizophrenia ([20]). The appellant experienced anxiety and low self-esteem, as well as health issues. His psychologist opined that he exhibited dysfunctional personality traits, and experienced self-doubt and feelings of inadequacy ([25]). According to a violence risk assessment, the appellant was identified as likely to pose a Moderate-High risk of re-offending ([26]).

Having regard to the relative importance of general deterrence, Kourakis CJ held that the length of the prison sentence was not manifestly excessive. The appellant had reoffended despite the leniency that had been previously shown to him, and the victim’s physical injuries were very serious. At [35], his Honour stated that ‘[p]ersonal and general deterrence must be given substantial relative weight in sentencing for assaults committed by men against women with whom they are, or have been, in a relationship, particularly when in a jealous rage’. The length of both the notional starting point and the actual prison term was well within the permissible range.

Kourakis CJ also found that the Magistrate’s decision to partially suspend the sentence fell within the proper exercise of the sentencing decision ([36]), and that the Magistrate considered all relevant matters ([38]). It was not unreasonable for the Magistrate to conclude that the appellant’s sentencing would be optimised by a combination of both punishment and deterrence effected by imprisonment for 4 months and rehabilitation over an 18-month period ([40]).

Kourakis CJ allowed the appeal only to the extent of removing the condition of the bond requiring the appellant to not leave South Australia unless given permission by his Community Corrections Officer, as such a condition was unreasonable. The appellant’s home was in Melbourne, where his dependent mother resided and his brother received treatment for his mental illness. His Honour found that ‘Australia is one nation and there is much movement between the south east corner of [South Australia] and Victoria’. His Honour also considered that there was ‘no real connection between the condition that he obtain treatment and counselling and the obligation to obtain permission.’ The appellant should be entitled to ‘come and go from his own home, to help his mother as and when he sees fit, and to fish in Victorian waters without first obtaining permission’ ([42]).

Lang v Police [2019] SASC 97 (7 June 2019) – South Australian Supreme Court

‘Community protection’ – ‘Condign punishment’ – ‘Damaging property’ – ‘Domestic relationship’ – ‘General deterrence’ – ‘Manifestly excessive--assault police’ – ‘Physical violence and harm’ – ‘Step child in family - past domestic and family violence’

Charges: 2 x aggravated assault, 1 x contravening a term of an intervention order, 1 x property damage

Case type: Appeal against sentence

Facts: The offending occurred in the context of a domestic relationship which was in the process of ending ([5]). At the relevant time, the appellant was subject to an intervention order ([11]). The appellant was living with his former domestic partner and her daughter (the protected person under that order). One count of aggravated assault involved the appellant punching his former domestic partner with a clenched first to her left shoulder in the presence of her daughter ([8]). The police were called to the house. The second count of aggravated assault involved the appellant punching the attending Sergeant numerous times, one of which was described as ‘an unusual two-handed punch delivered in a jabbing manner’. The property damage occurred when the Sergeant’s glasses were broken as a result of the altercation between the appellant and himself ([10]). The Magistrate found that the appellant’s behaviour amounted to a breach of the intervention order, as he intimidated the daughter by assaulting her mother and the Sergeant in her presence, abusing her and conducting himself in a violent and abusive manner ([11]).

At trial, the Magistrate noted the appellant’s personal circumstances at [13], referring to his age, his previous marriage, and his employment history. His character references indicated that he was a hardworking, honest person who made a positive contribution to his community ([14]). The appellant had a prior conviction for assault of a police officer for which he was ordered to perform 200 hours of community service within 10 months ([15]). The Magistrate did not refer to the circumstances that led to the making of the intervention order ([17]). In his view, specific and general deterrence were significant sentencing principles ([18]). His Honour also ‘correctly observed’ that the law is required to protect police officers when performing their duties, as well as domestic partners ([19]). Consequently, the Magistrate imposed convictions on all counts and sentenced the appellant to 6 months’ imprisonment ([20]).

Issue: The appellant appealed against his sentence on 2 grounds, namely, 1) that the Magistrate failed to have regard to the appellant’s lack of antecedents, age, community work, good character and the interests of justice in sentencing the appellant; and 2) that the sentence of 6 months’ imprisonment was manifestly excessive.

Held: Hinton J allowed the appeal in part. His Honour considered each ground separately, and placed reliance on relevant case law and statistics from the New South Wales Bureau of Crime Statistics and Research. His Honour noted that the first ground of appeal was essentially a contention that the appellant’s lack of antecedents, age, community work, and good character should have attracted a weight that resulted in a lesser sentence, or resulted in the sentence imposed being suspended in part or in whole ([21]). Referring to House v The King and R v Lutze, his Honour concluded that the submissions made in support of the first appeal ground should be treated as forming part of the submission in support of the second appeal ground ([24]).

As to the second appeal ground, his Honour found that the offending was ‘particularly serious’ and that the Magistrate correctly referred to the court’s duty to protect vulnerable people from domestic violence ([29]). His Honour cited R v Saunders for the proposition that intervention orders and bail conditions can prevent acts of domestic violence, and that the violation of such orders and conditions can have profound consequences for the victim’s sense of safety and security. Hinton J observed ‘the effectiveness of intervention orders as a means of protecting members of the community will be undermined if the courts do not respond appropriately to their breach’ ([33]).

Hinton J did not find the sentence of 6 months’ imprisonment to be manifestly excessive per se. The appellant did not provide any explanation for his conduct or express remorse or contrition, and mitigating circumstances were absent. Although he is an intelligent person, his prior involvement with the courts and police should have been a clear reminder that such violent, abusive conduct towards his family and police is not tolerated ([40]). The appellant’s prospects of rehabilitation were good, as he generally lived a ‘good and productive life’ and would likely continue to do so upon his release ([41]).

His Honour, however, found the requirement that ‘he serve the entirety of the 6 month sentence so as to punish, to deter specifically and generally and to provide the protection’ to be manifestly excessive. The Magistrate’s approach was not reasonably open, having regard to the appellant’s personal circumstances and, in particular, his age, antecedents, previous good character, work history and prospects of rehabilitation ([43]-[44]). The Magistrate appeared to focus on condign punishment to the exclusion of rehabilitation, and overlooked the appellant’s likely response to supervision in the community for an extended period, which would have provided greater protection for the community ([44]).

In summary, the appeal was allowed, but to the limited extent of directing, pursuant to s 96(4) of the Sentencing Act 2017 (SA), that the appellant serve 16 weeks of his 6-month sentence in prison and suspend the remainder of the sentence on condition that he 1) enter into a good behaviour bond for 18 months; 2) be subject to supervision by a Community Corrections Officer; and 3) attend any counselling, treatment and therapeutic programs that deal with anger management and/or domestic violence as directed and deemed appropriate by his Community Corrections Officer ([45]).

Wondimu v Police [2019] SASC 62 (18 April 2019) – South Australia Supreme Court

‘Bail’ – ‘Bail conditions’ – ‘Breach’ – ‘Following, harassing and monitoring’ – ‘Self-represented’

Charges: Stalking x 1; non-compliance with bail agreement x 3.

Case type: Appeal against conviction and sentence.

Facts: On 2 November 2016, the appellant was arrested and charged with stalking his father-in-law. He was released on bail subject to conditions, one of which prohibited him contacting his then wife of 13 years, who was also the mother of his five children and the daughter of his father-in-law. On 10 November 2016, the appellant telephoned his wife, but did not leave a message. The appellant also sent 2 text messages on a separate occasion. As a result, he was arrested and charged with 3 counts of breaching the terms of his bail. The Magistrate found the appellant guilty, and imposed convictions in relation to each count and released him upon his entering into a 6 months’ good behaviour bond in the sum of $500. The appellant appealed against the conviction and sentence. His appeal against conviction was over 40 weeks out of time.

Issue: This is an appeal against a conviction and sentence, where the appeal against conviction was made out of time. The appellant submitted that the relevant bail condition was unreasonable or unlawful for including the prohibition against contact with his wife when she was not the complainant. He also argued that he had not been competently represented by counsel at his trial.

Held: Upon the hearing of the appeal, the appellant was unrepresented. Hinton J noted that one of the purposes of conditions of a bail agreement is to prevent further offending ([33]). Hinton J was not satisfied that the impugned condition was legally unreasonable, as the evidence suggested a domestic disturbance between the appellant and his wife, a repeat of which the police intended to prevent by prohibiting contact. Further, Hinton J found that the validity of a bail agreement does not depend on the prosecution’s success at trial of any charge to which the bail agreement relates. The fact that a person is charged is sufficient to subject him or her to bail ([36]).

Hinton J also found that it was open to the Magistrate to be satisfied of the appellant’s guilt on Count 1 beyond reasonable doubt ([44]). His Honour noted that contact, in terms of communication, can be direct or indirect and that the evidence established that the call was made from the appellant’s phone. His Honour found that it is irrelevant whether a mental element attaches to the act, as the offence of breaching a bail agreement pursuant to section 17 of the Bail Act 1985 (SA) is one of strict liability. A bail agreement, in his view, not only seeks to ensure compliance but also requires the accused to take positive steps to ensure compliance. To hold that an offence is one that has a mental element attaching to the act would undermine the requirement that an accused granted bail take positive steps to avoid an inadvertent breach ([43]).

His Honour refused to grant the appellant an extension of time in which to appeal against his convictions, as no explanation was provided for the delay and the appeal did not have sufficient prospects of success. His Honour held that the the appeal was, in effect, an effort to have the appellant’s case re-tried so that he could adopt a different approach ([45]). The appeal against sentence was also dismissed. The appellant was obliged to take steps to ensure compliance with the bail conditions, which he failed to do ([46]-[51]).

Mathew (SA) Nominees Pty Ltd v Belconnen Automotive Pty Ltd [2019] SASC 39 (21 March 2019) – South Australia Supreme Court

‘Contract’ – ‘Costs’ – ‘Misleading conduct’ – ‘Specific performance’

Civil proceedings: claim by plaintiff for specific performance of motor vehicle purchase contracts; counterclaim by defendant for misleading conduct, jurisdictional challenge; and security for costs application by defendant.

Appeal type: appeal against Magistrate’s reasons, security for costs order, and failure to make jurisdictional challenge order.

Facts: The plaintiff purchased three high performance Holden motor vehicles in the name of the plaintiff’s company. Only two are relevant to this matter. The purchases were negotiated by Mr Mazzacano and two others. Mr Mazzacano, as a former Holden employee, was entitled to an employee discount scheme. The plaintiff’s claims that he ordered the vehicles and was invoiced for each by the defendant ($42,927 and $44,467). He paid both the balance and deposit. The defendant contends that the plaintiff company was not entitled to access the discounts as the purchase was not for the benefit of Mr Mazzacano. The defendant did not deliver the vehicles but returned the purchase monies to the plaintiff. The plaintiff sought specific performance of its contracts with the defendant on 19 July 2017 and filed an application for summary judgment. The defendant filed a defence stating that the plaintiff was not entitled to the EPSA discount. The defendant subsequently filed an amended defence and counterclaim, and included a counterclaim for misleading conduct and the defendant filed interrogatories seeking clarification on the nature of the business being operated by the plaintiff asking ‘what is the nature of the business that was being operated by the plaintiff during 2017’.

The defendants made a jurisdictional challenge and a security for costs application. The plaintiff appeals against orders granting security for costs and declining to order costs in relation to the defendant’s jurisdictional challenge.

Issues:

1.

The Magistrate’s Reasons are inadequate in that they fail to address various issues raised by the plaintiff.

2.

The Magistrate erred in his decision to order security for costs in giving no weight, or insufficient wait to various matters.

3.

The Magistrate erred in ordering security for costs in an excessive amount, in particular having regard to the true quantum of the dispute, the inclusion of past the failure to make to make reductions for the costs of the counterclaim and the interruption caused by the failed jurisdiction application.

4.

The magistrate erred in failing to make an order (in respect of the defendant’s jurisdictional challenge that the defendant pay the plaintiff’s costs of that application).

Decision and reasoning:

Dismissing the appeal, Doyle J held:

There was no error in relation to the Magistrate’s exercise of his discretion to order security for costs per House v King (1936) 55 CLR 499.

The plaintiff did not establish that there was the potential for substantial injustice were permission to be refused and the orders for security left to stand.

Reasoning – appeal ground 1:

That a Magistrate attaches insufficient weight to a particular consideration is not, in itself, an allegation of error in the sense required by House v The King at [49]. That ‘Appellate intervention in interlocutory decision making’ should be ‘truly exceptional at [50]. In relation to the alleged inadequacy of reasons in relation to both security for costs and the costs of the failed jurisdiction application, his Honour, held at [53] that ‘in the case of interlocutory disputes, little by way of reasoning may be required’…’as long as the key planks in the judge’s reasoning process leading to the relevant decision are apparent, that will generally suffice’. The Magistrate in their reasons, ‘identified the plaintiff’s status as a trustee company’, the ‘defendant’s delay in bringing the application’ and ‘stated his conclusions in relation to the availability of security for past costs’ at [55].In the event that a plaintiff is a trustee, a defendant ‘should not be subjected to the potential complexity…expense and uncertainty, associated with having to resort to derivative rights in order to recover any costs’ at [64]. The plaintiff did not identify whether it holds the properties in its own right or as trustee, and as such the Magistrate was right to attach significance to the consideration [75]. In relation to the Magistrate not giving any weight to the defendants’ delay in bringing the application for security. While ‘it is a well-established that applications for security should be brought promptly’ [at 78], whether it is in the interests of justice to make an order for security is also a factor [at 82].

Other matters that were of some relevance to the discretion to order security was the absence of indication by the plaintiff that it would not be able to provide security, further there was no challenge to the bona fides or arguable merit of the plaintiff’s claim including that he had paid the for the cars prior to the order for security for costs. At [104] it was open for the Magistrate to make a reduction to the quantum of security upon the existence of the counterclaim, however the amount ordered was not ‘erroneously high’.

Conclusion as to security for costs:

•

The plaintiff did not suggest that it was unable to provide security.

•

The plaintiff having to meet its costs obligations flowing form the litigation constitutes an injustice or prejudice in this case.

Reasoning – appeal ground 2:

At [65] ‘while it is significant, the context of an application for security, that a plaintiff is suing as trustee, it does not follow automatically that it will be appropriate that there be an order for security’.

Shahin v El-Shafei; El-Shafei v Shahin [2018] SASC 167 (6 November 2018) – South Australia Supreme Court

‘Disclosure’ – ‘Domestic, family or apprehended violence or for personal safety’ – ‘Orders and convictions’ – ‘Orders to restrain’

Proceeding: Private application for final intervention order.

Appeal type: Appeal against Magistrate’s revocation of interim intervention order.

Facts: Mr Shahin is the owner of two adjacent properties, numbers 17 and 18. His family occupies number 17, while his sister occupies number 18. Dr El-Shafei owns number 19, which is adjacent to number 18. There have been ongoing disputes between the parties regarding a number of matters. Dr El-Shafei alleges he was assaulted by Mr Shahin, claiming a resulting wrist injury. Dr El-Shafei is charged with an offence relating to damage caused to the boundary fence. Following the dismissal of a police application for an intervention order, Dr El-Shafei filed a private application which proceeded ex parte withDr Cannon (then Deputy Magistrate) granting an interim order pursuant to s 21 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The application for a final intervention order was heard a week later by Magistrate Sheppard. The interim order was revoked and the matter referred back to Dr Cannon for further hearing. Dr Cannon declined to award costs of the intervention order application in favour of Mr Shahin. Mr Shahin filed a notice of appeal again Dr Cannon’s dismissal of his application for costs. Dr El-Shafei subsequently filed a notice of appeal against Magistrate Sheppard’s revocation of the interim intervention order on 29 June 2018. A second and third amended notice of appeal were filed by Dr El-Shafei on the 12 July and 5 September 2018. The second notice amended an incorrect identification of the parties. The third notice filed the day before the appeal hearing, was not served on Mr Shahin’s representatives until the morning of the hearing.

Issues:

•

Whether an applicant for an intervention order is required to make full and fair disclosure on the same basis as any other person seeking an ex parte order.

•

Whether s 76A of the Criminal Procedure Act 1921 (SA) was available to set aside an interim intervention order or whether the operation of s 76A is precluded by s 26(5) Intervention Orders (Prevention of Abuse) Act 2009 (SA)(‘IO Act’).

•

Whether Magistrate Sheppard erred in revoking the interim order or denied Dr El-Shafei procedural fairness by declining to adjourn proceedings until Dr El-Shafei arranged legal representation.

•

Whether Dr Cannon misdirected himself as a matter of law and fact by referring to his own conduct rather than by inquiring whether Dr El-Shafei had acted in bad faith or unreasonably pursuant to s 189C of the Criminal Procedure Act 1921 (SA).

Decision and reasoning:

Permission to appeal

As a criminal proceeding (per R 4.07 of the Magistrates Court Act 1991 (SA), the jurisdiction conferred on by the IO Act is vested in the Criminal Division), any appeal relating to an intervention order is subject to s 42 of the Magistrates Court Act 1991 (SA) at [41]. S 42(1a) of the Magistrates Court Act 1991 (SA) does not preclude an appeal against interlocutory judgment in these circumstances. Per Sulan J in Groom v Police (No 3) [2013] SASC 93, the words “before commencement or completion of the trial” in s 42(1a)(c) have no operative effect unless there is a trial. Accordingly, ‘the Court has power to grant permission for an interlocutory appeal if … there are special reasons why that would be in the interests of the administration of justice’ at [45]. Granting permission, his Honour was satisfied special reasons existed due to the significant questions of law raised (ie the application of s 76A of the Criminal Procedure Act 1921 (SA) and validity of referring the matter for further hearing) at [48].

Dismissing Dr El-Shafei’s appeal, Parker J held

‘An applicant for an interim intervention order is not required to make full and fair disclosure in the same manner as an applicant for an ex parte order’ at [76]. ‘The relevant issue is not whether one party is more or less blameworthy than the other, but rather whether it is reasonable to suspect that an act of abuse may be committed’ (grounds for issuing an intervention order per s 6 IO Act) at [77]. S 23 IO Act provides the Defendant with an opportunity to respond before the Court concludes whether a final order is appropriate at [78]. ‘There is a real risk that the imposition of a full and fair disclosure obligation in such an environment is likely to frustrate or impede the object of providing prompt intervention to protect those at risk of abuse’ at [78]. Given the impracticality of subjecting the police to full and fair disclosure, private applications should be under no greater obligation at [81].

S 26 IO Act does not operate to preclude the Court from exercising its powers under s 76A where the operation of s 76A is considered necessary to remedy an injustice. The power conferred by s 76A was available to the Magistrate at [109], [112].

•

S 76A was not applied to frustrate the operation of a legislative scheme (the IO Act) but to rectify a situation considered unjust (Police v Clayton-Smith [2010] SASC 127 per Gray J).

•

The requirement to award persons with a relevant interest an opportunity to be heard before the revocation or variation of an order, as enacted by s 26(5)(a) IO Act, exists at common law and is therefore a relevant consideration in applying s 76A at [107], [109], [112].

•

Likewise, s 26(5)(b) does not extend the requirements of the common law as the same matters will be considered in making an order as in the varying or revoking that order at [110].

There was no process or outcome error in the decision of Magistrate Sheppard. Her Honour’s concern about the accuracy and timing of the information provided by Dr El-Shafei was a proper reason for revoking the interim order at [117]. As the ‘decisive issue was the reliability of the information put before the Court’ and as Dr El-Shafei was awarded ample opportunity to address those issues, he was not unfairly disadvantaged by a lack of legal representation at [129]. The orders of Magistrate Sheppard required a rehearing of the application for an interim order. A rehearing did not occur and the proceedings of 18 May 2018 before Dr Cannon therefore miscarried at [132]. If Dr El-Shafei pursues his application the matter should proceed to a hearing to determine whether a final order should be made (per s 23 IO Act) at [135].

Upholding Mr Shahin’s appeal against the dismissal of his costs application, Parker J held

There were not proper grounds to reject Dr El-Shafei’s application for costs as Dr Cannon ‘did not have sufficient information to decide whether or not Dr El-Shafei had acted in bad faith or unreasonably’ at [139]:

•

Given Justice Parker’s finding that an applicant for an ex parte intervention order is not required to provide full and fair disclosure, Dr El-Shafei’s failure to provide all relevant information did not warrant a cost order against him at [137]-[138]

•

While Dr El-Shafei may have caused the Court to be misled (a proper basis for setting aside the interim order), without a determination of the factual allegations made against him, Dr El-Shafei cannot be said to have acted in bad faith or unreasonably at [138]. That question should be determined if and when a final order is determined at [140].

Stone v Police [2018] SASC 147 (27 September 2018) – South Australia Supreme Court

‘Contravention of an intervention order’ – ‘Evidence’ – ‘Factors affecting risk’ – ‘Protection order’

Charges: Contravention of an intervention order x 2.

Appeal type: Appeal against conviction.

Facts: The appellant was convicted after trial of two counts of contravening a term of an intervention order. After finding the evidence of the protected persons to be truthful and accurate, the Magistrate recorded convictions and imposed a good behaviour bond for 12 months.

Issues: The appellant appealed the convictions on a number of grounds including that the Magistrate erred in admitting evidence of past discreditable conduct, applied the wrong onus of proof in relation to the charges, placed undue reliance on the credibility of the protected person, impermissibly relied on evidence of a charge that was dismissed in finding the appellant guilty of the two charges, wrongly regulated the cross-examination of the appellant, and that the evidence was insufficient to support the convictions beyond reasonable doubt.

Decision and reasoning: Kelly J dismissed the appeal on the following grounds:

•

The evidence of past discreditable conduct complained of was properly admitted.

•

The Magistrate applied the proper onus of proof in finding the charges proven.

•

The evidence was sufficient to satisfy the convictions.

•

The Magistrate made proper assessments of the witnesses at trial, as required, and was entitled to be satisfied beyond reasonable doubt as to the credibility of the protected person as a witness following his assessment of that person’s evidence.

•

The Magistrate did not rely on evidence relating to the dismissed charge in finding the appellant guilty of the two counts on which he was convicted.

•

The cross-examination of the appellant at trial did not go beyond the bounds of fair and proper cross-examination.

White v Police [2018] SASC 124 (5 September 2018) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Physical violence and harm’ – ‘Protection orders’ – ‘Vulnerable people’

Appeal type: Appeal against decision of a magistrate to issue a final intervention order.

Facts: The police issued an interim intervention order against the appellant for the protection of Mr Larkins, his wife, his child and three other children in his care, all of whom lived in the same street as the appellant. The appellant and his wife (who had separated, but continued to live in the same house) had a poor relationship with Mr Larkins and his wife. Mr Larkins and his wife were Indigenous Australians. Mrs Larkins had been involved in Federal Court proceedings relating to unspecified issues with the appellant’s wife.

The Magistrate was required to determine whether or not the interim intervention order should be confirmed as a final intervention order or a final intervention order be made in substitution. The order was declared to address a domestic violence concern. The Magistrate made a final intervention order against the appellant in substitution for the interim order, finding that it was reasonable to suspect that the appellant would, without intervention, commit acts of abuse against the protected persons and that it was appropriate in the circumstances to issue a final order. The protected persons were unchanged but the terms of the final intervention order differed somewhat from those of the interim order.

Issues: Whether a final intervention order should be made; Whether the Magistrate erred with respect to evidentiary matters and in applying the statutory requirements for making a final intervention order.

Decision and reasoning: It was entirely open to the Magistrate to accept the evidence of Mr Larkins and his wife on critical issues in preference to that of the appellant and his wife. The transcript showed that the appellant appeared angry and malevolent towards Mr Larkins and his family, displaying significant animosity with racial overtones towards them. It was reasonable to find that the appellant would commit further acts of abuse in the absence of an intervention order. In all the circumstances, the Magistrate’s order was appropriate.

Dismissing the appeal, Nicholson J held that:

•

The order made by the Magistrate was interlocutory and special reasons must be established in order to obtain leave to appeal.

•

The features of a final intervention order, together with the fact that the appellant has no right to apply for a variation or revocation for at least 12 months, were sufficient to establish special reasons, at least where there is an arguable case on appeal.

•

Bearing in mind the usual advantages possessed by a trial judge when assessing oral evidence, it was open to the Magistrate to make the findings of fact he made on the evidence that was before him.

•

The Magistrate did not err with respect to the evidentiary matters complained of by the appellant.

•

The Magistrate did not err in applying the statutory requirements of s 6 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The findings made in satisfaction of these requirements were open on the evidence.

Hussey v Police [2018] SASC 122 (31 August 2018) – South Australia Supreme Court

‘Children’ – ‘Damaging property’ – ‘Evidence’ – ‘Exposing children to domestic and family violence’ – ‘People with children’ – ‘Physical violence and harm’

Charges: Breach of bail x 1; Property damage x 2; Assault causing harm x 1.

Appeal type: Appeal against conviction for assault.

Facts: The appellant and complainant had been in a relationship for about eight weeks. Each had one daughter. The complainant was woken by her daughter vomiting. The next day, the complainant and appellant argued. When the complainant told the appellant to leave her home, he became very angry and violent. The complainant alleges that the appellant kicked, punched and shoved her. She ran to her neighbour’s house with her daughter and asked them to call the police. She could hear him ripping the flyscreens off her house. The Magistrate described the appellant and complainant as witnesses who ‘gave their evidence clearly and with some passion, both of them without major discrepancies’. He found the appellant guilty of assault but not guilty of the property damage charges.

Issues: Whether the verdict was open on the evidence; Whether the Magistrate adequately explained why the appellant’s evidence was rejected; Whether the magistrate’s reasons were adequate.

Decision and reasoning: The appellant appealed the guilty verdict on the grounds that (1) the Magistrate’s reasons were insufficient to explain his finding that ‘Nothing was sufficient to justify a movement of the foot sufficiently hard to damage the side of her face. He could have extracted his foot without kicking her to the cheek’; (2) that the Magistrate did not explain why his evidence was rejected beyond reasonable doubt; and (3) that there was insufficient evidence for the Magistrate to have rejected beyond reasonable doubt his version of events, which should have led to the Magistrate entertaining a reasonable doubt as to his guilt in relation to the assault charge.

Bampton J held that, having read the evidence in its entirety and in accordance with the requirements referred to in M v the Queen [1994] HCA 63, the finding of guilt was not supported by the evidence. The state of the evidence was such that the prosecution failed to prove that the appellant intentionally applied force to the complainant causing ‘harm to the tongue and cheek’. Her Honour held that the Magistrate did not adequately explain his finding of guilt and did not explain how the elements of assault were satisfied. The Magistrate’s reasons were not underpinned by a reasoning process linking and justifying the findings made ([53]). There was reasonable doubt as to the appellant's guilt. It was not open to the Magistrate to be satisfied beyond reasonable doubt of the appellant's guilt. Accordingly, the appeal was allowed, the verdict of guilty was set aside and a verdict of not guilty was substituted.

R v Hayes [2018] SASC 114 (9 August 2018) – South Australia Supreme Court

‘Aboriginal and Torres Strait Islander people’ – ‘Bail’ – ‘Family law’ – ‘Physical violence and harm’ – ‘Sentencing’

Charges: Intentionally causing harm x 1; Contravening an intervention order x 1.

Proceeding type: Prosecution appeal against grant of bail.

Facts: The respondent, an Aboriginal man, was charged with intentionally causing harm and contravening an intervention order. The respondent assaulted his former partner (the complainant) during an access visit to their son. The circumstances of aggravation included that the complainant was his ex-partner and the respondent used a coffee mug, to inflict injuries to the head and face of the victim ([5]). The respondent also had a criminal history for offences of violence and dishonesty ([9]). The respondent was a prescribed applicant within the meaning of s 10A of the Bail Act 1985 (SA) such that bail may not be granted unless special circumstances are established. The DPP contended that bail should not be granted due to the risk of re-offending (given the respondent’s history of non-compliance with various court orders) and concerns for the complainant’s safety ([15]).

Issues: Whether bail should be granted.

Decision and Reasoning: Kelly J dismissed the appeal. Special circumstances justifying release on bail included that the complainant no longer resided in the Court’s jurisdiction ([17]), the likely trial date would not be for some time, and a recent report that Aboriginal and Torres Strait Islander people are highly over-represented in the remand population. According to the Australian Law Reform Commission Report No 133, Aboriginal and Torres Strait Islander people continue to be over-represented in the remand population by a factor of over 11. However, a finding of special circumstances does not mean that bail is automatically granted. At [12], her Honour stated –

‘Ordinarily, it may be expected that if special circumstances are established, then a grant of bail may follow but upon special circumstances being established, it will remain open to the bail authority to refuse bail if nonetheless, having regard in particular to the gravity of the offending, the likelihood that the prescribed applicant will re-offend, the likelihood that the prescribed applicant will interfere with a witness or evidence and the likelihood that he or she will abscond, the bail authority considers that bail should not be granted’.

Notwithstanding that the respondent was a prescribed applicant, her Honour held that there were special circumstances. It was therefore appropriate to grant the respondent bail on conditions of strict home detention ([18]).

Parish v Police [2018] SASC 18 (27 February 2018) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*Note: this case was decided under now superseded legislation however the case contains relevant statements of principle.

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

‘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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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) – South Australia Supreme Court

*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 Fraser [2020] SADC 127 (2 September 2020) – South Australian District Court

‘Actus reus’ – ‘Mens rea’ – ‘Recklessness’ – ‘Strangulation’

Charges: Choking, suffocating or strangling a person in a domestic setting x 1.

Proceedings: Application for ruling whether mens rea is an element of the offence.

Decision and reasoning: Mens rea is an element of the offence.

There is no Supreme Court authority that has considered the elements of this offence, and, in particular, whether mens rea is an element of the offence. The judge in this case agreed with the reasoning of the QCA in R v HBZ (2020) with respect to actus reas:

[17] In my view, the actus reus of choking, suffocating or strangling is the stopping, or significantly hindering or restricting of the complainant’s breathing, whether by application of force or by other means.

…

[20] Even where the actus reus does not involve the application of pressure or force, for example, the luring of the victim into an airless chamber, the placing of a plastic bag over the victim’s face, or the administration of a poison that causes an anaphylactic reaction, the resultant stopping or significantly hindering or restricting of the victim’s breathing is not a separate element of the offence but is the very evidence required to prove that the conduct (the luring, placing of the bag, the administration of the poison) was the act of choking, suffocation or strangling.

[21] For these reasons I conclude that, if mens rea is an element of the offence, the intention accompanying the conduct must be an intention to stop or significantly hinder or restrict the victim’s breathing.

[22] There is no express or implied exclusion of mens rea in s 20A. The offence in s 20A was created to avoid ‘relying on existing offences such as causing harm or serious harm, endangering life or attempted murder’. All of those offences require proof of mens rea. In enacting s 20A as a substitute for those offences and in dispensing with any requirement to prove injury or harm and yet providing a maximum penalty of 7 years imprisonment, Parliament cannot have intended to dispense with the element of mens rea. However, the offence does not require proof of harm or injury and thus does not require proof of a specific intent with respect to the consequence of the prohibited conduct.

[23] The very act the accused intends to perform must be to stop, significantly hinder or restrict the complainant’s breathing. The intention to choke, suffocate or strangle will generally be inferred from the conduct itself but may also be established by additional evidence.

[24] Accordingly, I conclude that the presumption that mens rea is required before a person can be held guilty of a grave criminal offence is not displaced in relation to s 20A of the CLCA. On a charge under that provision, the prosecution bears the onus of proving that the accused intended to choke, suffocate or strangle the complainant, that he, is intended to stop, significantly hinder or restrict the complainant’s breathing.

…

[30] Accordingly, I consider it unlikely that Parliament would have intended to exclude recklessness as an alternative basis for liability …

[31] As there is no statutory definition of recklessness for the purposes of s 20A, and given the characterisation by Parliament of this offence as an indicator of escalation to domestic homicide, it is appropriate to apply the common law test for recklessness set out by the High Court in Crabbe.

[32] I rule that the elements of the offence under s 20A are:

•

At the time of the alleged offence the accused was or had been, in a relationship with the complainant.

•

The accused intentionally engaged in conduct which choked, suffocated or strangled the complainant; that is conduct that stopped or significantly hindered or restricted the complainant’s respiration. In the alternative, the accused engaged in the conduct which choked, suffocated or strangled the complainant foreseeing that it was probable that this conduct would stop or significantly hinder or restrict the complainant’s respiration.

•

The complainant did not consent to being choked, suffocated or strangled.

•

The act of choking, suffocating or strangling the complainant was done without lawful justification.

R v Rogers [2020] SADC 72 (16 June 2020) – South Australian District Court

‘Coercive control’ – ‘Controlling behaviour’ – ‘Credibility of complainant’ – ‘Evidence’ – ‘Non-fatal strangulation’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Step-children’ – ‘Victims as (alleged) perpetrators’

Charges: Causing harm with intent to cause harm x 1; damaging property x 1; assault x 1; rape x 2; assault causing harm x 1.

Case type: Judge only trial.

Facts: The accused man was charged with 6 offences alleged to have been committed against the complainant woman between 2016 and 2018 when they were in a ‘romantic relationship’ and were living together for periods of time. The offences included causing harm with intent to cause harm, damaging property, assault, rape, and assault causing harm. The alleged offences were committed in a domestic setting, at different addresses where the complainant resided with her 3 children, apart from periods on weekends or school holidays when they stayed with their respective fathers. The prosecution alleged that the relationship was characterised by the accused’s violence and aggression, and that the complainant was trapped in a destructive cycle of physical violence, abuse, threats and controlling behaviour, which usually occurred in the presence of her young children. According to the prosecution, the charges are specific examples of a general pattern of behaviour demonstrated by the accused in the course of the relationship.

In relation to Count 1, the accused was alleged to have choked the complainant. He also punched and slapped her in the face (Count 3). Further, the complainant allegedly woke to the sensation of her vagina being penetrated (Count 4), and the accused further penetrated her with his fingers (Count 5). The accused also allegedly threw the complainant and stood on her ankle with his body weight, causing extreme pain (Count 6).

Held: Tracey J held that the prosecution failed to exclude the defence case as a reasonable possibility on any of the charges, and found the accused not guilty on each count ([281]-[282]). Much of the complainant’s evidence was inconsistent and unreliable. Her Honour was troubled by the delay the complainant made in reporting Count 1 to police and the delay in providing the letter relied on by the prosecution as the accused’s acknowledgment of the violent acts that had occurred the previous night ([234]). Whilst the letter could be interpreted as referring to the event where he strangled the complainant as she alleged, it could also be viewed as an apology for calling her a bad mother, threatening suicide, punching the wall and grabbing her arms as the defence alleged ([236]).

Much of the defence case was focused on blaming the complainant for issues in the relationship, consistent with the threatening and intimidating abuse she allegedly experienced. Her Honour rejected the defence argument that she was often the perpetrator of violence. The evidence in relation to the complainant’s previous relationships did not demonstrate a propensity for violence or false reporting to police. It was clear that on some occasions, she had not been the instigator and/or was the victim. Tracey J also formed the impression that the accused exhibited manipulative behaviour ([272]). Moreover, behaviours, such as the complainant’s contacting police, making statements on some occasions and not others, withdrawing complaints, denying incidents occurred, allowing the accused back into her life and seeking variation to intervention orders, are common features in serious domestic violence cases. Abusive and violent relationships give rise to behaviours that may appear too odd or counterintuitive to be believed ([273]).

Tracey J did not doubt that some aspects of the complainant’s evidence were true or that she loved the accused. However, she did have difficulty assessing the complainant’s evidence overall. Whilst she sometimes appeared to be focused and doing her best to describe the events, she also appeared distant, non-committal and prone to exaggeration. She was open about her methamphetamine use and the fact that she had used drugs in her home, albeit not in front of her children ([274]). At times, the complainant’s manner seemed perplexing and her Honour had difficulty accepting her version of events as credible. The differences between her evidence and what she told police were troubling. Such inconsistencies could not be excused, even allowing for the passage of time, the frequent and repetitive nature of alleged abuse blurring a memory of an event, or the chaotic lifestyle that often accompanies drug use ([275]). It appeared much of her angst stemmed from the accused’s relationship with another woman. The complainant’s credibility was undermined by her initial refusal to accept the accuracy of texts she had sent to this woman and her denial that the relationship with the accused did not affect her, despite text messages to the contrary ([276]). Further, her Honour noted that although domestic violence victims may not seek attention for the injuries they sustain and may take extraordinary steps to conceal evidence of abuse, the complainant’s graphic descriptions of her injuries and episodes of violence were not borne out by other evidence. There was no evidence from the complainant’s consultations with doctors of any bruising or injury consistent with the allegations. Her daughter’s distress, apparently in response to questions about drugs, raised the question of whether there had been some discussion between her and the complainant before giving evidence ([279]). Tracey J observed that the police officers who gave evidence appeared to be careful and impressive witnesses who would have assessed and recorded any sign of injury ([280]).

R v Hanks [2019] SADC 139 (16 September 2019) – South Australian District Court

‘Emotional and psychological abuse’ – ‘People affected by substance misuse’ – ‘Physical violence and harm’ – ‘Propensity reasoning’ – ‘Sexual and reproductive abuse’ – ‘Uncharged acts’

Charges: 4 x assault causing harm (Counts 1-4), 1 x rape (Count 5), 2 x aggravated assault causing harm (Counts 6-7), 1 x aggravated assault (Count 8), 1 x aggravated creating likelihood of harm (Count 9)

Case type: Criminal trial by judge alone

Facts: The accused was charged with 4 counts of assault causing harm, 1 count of rape, 2 counts of aggravated assault causing harm, 1 count of aggravated assault and 1 count of aggravated creating likelihood of harm. The complainant was his former de facto partner ([1]). The prosecution argued that the charged acts were committed during their de facto relationship ([3]). The defence case, however, was that the relationship was not a violent one and that the charged acts of violence and rape did not take place ([5]).

Held: The accused was found guilty of Counts 1-5 and 7-9. Judge Chapman did not find him guilty of Count 6, but guilty of the alternative offence of aggravated assault ([188]-[221]). The complainant gave evidence that the accused suffered from alcohol and drug abuse, and would get emotional about his past, resulting in rage ([19]-[20]). Judge Chapman emphasised that she avoided using the evidence in any prejudicial way against the accused, such as to reason that he was generally violent and therefore must have committed the charged acts ([187]). Her Honour noted that the fact the accused used drugs did not mean that he was a bad person or had the propensity to commit the charged offences. Rather, her Honour stated that the evidence of his alcohol and/or drug use may only partly explain his aggressive behaviour towards the complainant and his inability to control outbursts of rage ([21]). Evidence of various uncharged acts was further discussed at [23]-[52]. Judge Chapman was satisfied that all the uncharged acts occurred as described by the complainant and showed that the charged acts did not "come out of the blue" ([185]).

R v Schmidt [2017] SADC 98 (30 August 2017) – South Australian District Court

‘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]).

Last updated: July 2024