Court of Appeal
MT v SE SASCA 8 (7 February 2025) – South Australian Court of Appeal
‘Malicious prosecution’ – ‘collateral abuse of process’ – ‘whether police or complainant initiated intervention order proceedings’ – ‘whether proceedings initiated for improper purpose’ – ‘systems abuse’
Proceedings: Appeal against summary judgment in favour of the respondent
Charge: Malicious prosecution x1, collateral abuse of process x1
Facts: The appellant brought claims for the torts of malicious prosecution and collateral abuse of process against the respondent. The respondent had made a report to the South Australian Police (SAPOL) on the basis of which intervention order proceedings were brought against the respondent. The appellant alleged that the proceedings had prevented him from obtaining employment as a teacher and claimed damages for loss of income as well as aggravated and exemplary damages. The appellant’s claims were dismissed by the primary judge pursuant to an application for summary judgment made by the appellant. The primary judge took the view that SAPOL, not the respondent, had been the party that initiated the intervention order proceedings and that automatically defeated any claim of malicious prosecution or collateral abuse of process against the respondent [4], [6].
Grounds of appeal: The appellant relied on two grounds of appeal [7]:
1.
The primary judge erred in fact and law by concluding that there was no reasonable basis for contending that the respondent initiated the intervention order proceedings.
2.
The primary judge erred in fact and law by concluding that there was no reasonable basis for contending that the respondent had initiated the intervention order proceedings for an improper purpose.
In addition, the respondent filed a notice of contention alleging that the decision of the primary judge could be upheld on alternative grounds [8]:
1.
The appellant could not prove that the intervention order proceedings terminated favourably to him, and this is fatal to the malicious prosecution claim.
2.
The appellant could not prove he suffered special damage with respect to the collateral abuse of process claim, and this is fatal to that claim.
Decision and Reasoning: The appeal was allowed in part: the summary judgment was set aside in respect of the claim of malicious prosecution, but it was affirmed regarding the collateral abuse of process claim [11].
Regarding the first ground of appeal, the Court of Appeal found that while the application for the intervention order was made by SAPOL, it was necessary consider the substance and not merely the legal form of the proceedings [70]. The mere fact that the police brought the application did not exclude the respondent from being the effective prosecutor. It was necessary to consider whether SAPOL were exercising an independent discretion or were, in effect, agents for the respondent [70].
There was nothing to indicate that the police undertook any independent investigation into the respondent’s allegations of domestic violence [71]. The respondent’s objective in making her statement to SAPOL was to obtain an intervention order [72]. There was no independent exercise of discretion by SAPOL, and therefore there was a reasonable basis for advancing a claim that the respondent was the instigator of the proceedings [72]. The primary judge erred in finding that there was no reasonable basis. This ground of appeal succeeded [77].
In respect of the domestic violence evidence, the Court held that the trial judge’s description of the “only relevance” of the domestic violence evidence did not adequately “identify and explain” the use for which that evidence was not to be used [68] and so did not comply with s 34R(1) [69].
Regarding the second ground of appeal, the Court began by observing that to establish the tort of collateral abuse of process, the plaintiff must establish that the proceedings were instituted for an improper purpose (as the predominant purpose) [79]. To establish this, there needs to be evidence of a demand or threat made in furtherance of the improper purpose [80]. The appellant relied on Facebook messages sent by the respondent to him as evidence of the demand or threat [82]. The Court found that the Facebook messages were not connected with the intervention order proceedings, and therefore there was no reasonable basis for claiming that those proceedings involved a demand, threat or over coercion [83]. This ground of appeal failed [110].
In response to the respondent’s notice of contention, the Court found that the primary judge had been correct to find there was a reasonable basis to argue that the intervention order proceedings had been terminated in favour of the appellant [110]. It also agreed with the primary judge’s finding that, in respect of the collateral abuse of process claim, there was a reasonable basis to argue that the appellant had suffered special damage [110].
Adamson (a pseudonym) v The King [2024] SASCA 91 (1 August 2024) – South Australian Court of Appeal
‘Discreditable conduct evidence’ – ‘permissible and impermissible uses’ – ‘adequacy of judicial directions’ – ‘delayed complaint’ – ‘domestic violence evidence’
Proceedings: Application for leave to appeal against conviction.
Charge: Maintaining an unlawful sexual relationship with a child (x1).
Facts: The applicant was charged with, and convicted of, maintaining an unlawful sexual relationship with a child.
Grounds of appeal: The applicant relied on two grounds of appeal, both of which challenged the trial judge’s directions in relation to evidence of discreditable conduct [46]:
1.
The trial judge failed to adequately identify and explain the impermissible use of the domestic violence evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA).
2.
The trial judge failed to adequately identify and explain the permissible use of sexual comments evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA).
Decision and Reasoning: The first ground of appeal relates to evidence about the applicant’s violence towards the complainant’s mother (domestic violence evidence). The second ground relates to evidence from the complainant about sexual comments made by the applicant to the complainant (sexual comments and evidence).
The prosecution had relied on the domestic violence evidence as an explanation for the late timing of the complaint (i.e., the complainant had waited until she and her mother were separated from the applicant before disclosing the offending against her) [32]. The prosecution had adduced the sexual comments evidence on the basis that it was relevant to the nature of the relationship between the complainant and the applicant [33].
Both the domestic violence evidence and the sexual comments evidence constituted evidence of discreditable conduct, the admissibility of which is governed by ss 34P, 34Q and 34R of the Evidence Act 1929 (SA). Discreditable conduct evidence is only admissible for a permissible use and may not be used for any inadmissible use, including to suggest that the defendant is more likely to have committed the offence in question [49]. Where discreditable conduct evidence is admitted, the trial judge must give directions as for the purpose for which the evidence may or may not be used [52].
In respect of the domestic violence evidence, the Court held that the trial judge’s description of the “only relevance” of the domestic violence evidence did not adequately “identify and explain” the use for which that evidence was not to be used [68] and so did not comply with s 34R(1) [69].
In coming to this conclusion, the Court noted that the accuracy and precision with which the judge describes the permissible use may inform what is necessary to adequately direct in relation to the impermissible use of the evidence, however, it will not ordinarily overcome a failure to give any direction at all in relation to an impermissible use of the evidence [62]. The point of outlining the impermissible uses alongside the permissible uses was explained to be so that the impermissible uses are identified and understood so they may be consciously excluded from the decision-making process [63]. The fact that the judge had given himself a direction as to the impermissible uses of the sexual comments evidence did not discharge the obligation in respect of the domestic violence evidence [64]. A finding that s 34R(1) has not been followed does not turn upon whether there has in fact been some impermissible use of the evidence [67]. Ground 1 of the appeal was made out [69].
In respect of the sexual comments evidence, the Court opined that from the terms of the directions the trial judge gave, the Court had no confidence that the trial judge properly understood the permissible and impermissible uses of the sexual comments evidence [77]. Therefore, the judge did not comply with s 34R(1), and ground 2 was made out [79]-[80].
Millwood v The King [2024] SASCA 84 (28 June 2024) – South Australian Court of Appeal
‘Alcohol-fuelled offending’ – ‘Baseball bat’ – ‘Grabbing neck’ – ‘No history of family violence’ – ‘Statistics on family violence’ – ‘Insight into offending’ – ‘Risk of reoffending’ – ‘Sentencing for greater offence than convicted of’
Proceedings: Application for permission to appeal against sentence.
Charge: Aggravated assault x2
Facts: At the time of the offending, the applicant and the complainant were in a domestic relationship. One night, the applicant had been drinking and there was an argument. The complainant went to bed. The applicant went into the bedroom, grabbed a baseball bat and swung it several times into the bedhead, causing three indentations to the bedhead. This comprised count 1.
On another occasion, the applicant and the complainant had been drinking heavily. Upon learning that the complainant had pawned his fishing reels, the applicant pushed the complainant around the kitchen before grabbing her neck with one hand. This caused bruising on the side of her neck. This comprised count 2.
Grounds of appeal: The applicant relied upon four grounds of appeal [25]:
1.
The sentencing judge sentenced on an erroneous factual basis, by finding that the conduct the subject of count 2 carried with it ‘a risk of impeding [the complainant’s] breathing and/or blood flow through her neck’ and that it followed that the conduct involved a risk of ‘serious physical harm’.
2.
The sentencing judge erred by sentencing the applicant on the basis he had committed a more serious offence than he had been convicted of.
3.
The sentencing judge erred by sentencing the applicant on the basis he had no remorse or insight into his offending, and was therefore at some risk of reoffending.
4.
The order that the applicant spend 6 months of the sentence in prison was manifestly excessive.
Decision and reasoning: Permission to appeal was granted, and the appeal was allowed. The sentence was set aside and the applicant was resentenced.
The Court began by considering the need for denunciation, punishment, and deterrence in relation to family violence offending [30]-[33]. It observed that victims of this kind of offending are usually vulnerable, so offenders can expect to receive harsher sentences compared to offending in other contexts not involving vulnerable victims [33]. The Court found that in this case the sentencing discretion miscarried for three reasons. The sentencing judge had erred:
1.
in finding that the applicant had expressed no insight into his offending (alcohol had played a causal role in the offending, and at the time of the appeal, the applicant had remained abstinent from alcohol for over 2 years) [35];
2.
in finding that they were unable to conclude that there was “no risk” of the applicant reoffending against a future domestic partner (the applicant had not previously been involved in domestic violence, and had expressed insight into his offending) [36]; and
3.
in sentencing the applicant for an offence involving physical and emotional harm while the applicant had pleaded guilty to a lesser offence [37].
The applicant was resentenced to 10 months and 5 days’ imprisonment. The sentence was suspended on the condition the applicant enter into a good behaviour bond for 18 months [45].
R v Singh [2024] SASCA 81 (27 June 2024) – South Australian Court of Appeal
‘Murder’ – ‘Serious offending’ – ‘Premeditation’ – ‘Cruelty’ – ‘Crown appeal against sentence’ – ‘Manifestly inadequate’ – ‘Personal circumstances in mitigation for serious offending’ – ‘following, harassing, monitoring’- ‘Sentence so low as to undermine confidence in the administration of justice’
Proceedings: Crown application for permission to appeal against sentence.
Charge: Murder x1
Facts: At around 10pm on 5 March 2021, the respondent abducted the victim, his former partner, from her workplace. He drove several hours to Moralana Creek, about 400 kilometres north of Adelaide. Once there, the respondent dug a shallow grave. He placed the victim, blindfolded, in the grave with her hands and feet bound, and buried her alive. The victim died by asphyxiation. It is not known how long it took her to die.
Grounds of appeal: The Crown’s application relied on one ground in its application: that the sentence (life imprisonment with a non-parole period of 22 years and 10 months) was manifestly inadequate.
Decision and reasoning: Permission to appeal against sentence was granted, and the appeal was allowed.
The Court noted that the principles governing an application for permission to appeal against sentence were well-established that that there will only be a grant of permission in a ‘rare and exceptional case’, such as where a sentence is so manifestly inadequate that it amounts to an error of principle [30]. The Crown challenged the adequacy of the sentence on the basis that to allow the non-parole period to stand would undermine public confidence in the administration of justice and erode the sentencing standards for the offence of murder [32]. The sentence was life imprisonment; the non-parole period set by the sentencing judge started at 24 years and was reduced on account of the respondent’s guilty plea to 22 years and 10 months [29]. The mandatory non-parole period for murder is 20 years.
The Court discussed the approach in R v Hallcroft (2016) 126 SASR 415 to fixing a non-parole periods [41]-[49]. It also discussed the impact of the abolition of the ‘partial defence’ of provocation and s 48(1) of the Sentencing Act [50]-[67]. The upshot of this discussion was an observation that the mandatory minimum non-parole period for murder affects the sentencing discretion in fixing the non-parole period in two ways [64]. First, it imposes a floor, which the non-parole period must not go below unless there are exceptional circumstances. Second, the mandatory minimum non-parole period is a “yardstick” or “benchmark” representing the appropriate non-parole period for an offence within the least serious category of offending.
Turning to the offending in question, the Court noted there were several egregious features to the offending [69]. It involved a high level of pre-mediation with the respondent arranging an alibi and purchasing items used in the murder the previous day. The respondent therefore had numerous opportunities to reconsider his decision to offend. Moreover, the offending occurred against a background of repeated attempts to re-establish a relationship with the victim, which involved shaming her, continuing to communicate with her against her wishes, and stalking her. Finally, the way the offence was committed was particularly terrifying and degrading [70].
The Court considered that the respondent’s personal circumstances (youth, major depressive disorder, deprived background, lack of prior convictions, guilty plea, cooperation with police, and good employment history) did little to mitigate the seriousness of the offending, bearing in mind its calculated and pre-meditated nature [71]. The four-year uplift from the mandatory minimum non-parole period was held to be manifestly inadequate, and so low as to justify the grant of permission and the Court’s intervention [72].
In resentencing the respondent, the Court imposed the mandatory life sentence. The Court then adopted a starting point for the non-parole period of 30 years, and reduced it on account of the respondent’s guilty plea to 28 years and six months [74].
Mlakar v The King [2024] SASCA 76 (18 June 2024) – South Australian Court of Appeal
‘Aggravated assault’ – ‘appeal against sentence’ – ‘general and personal deterrence’ – ‘manifestly excessive’ – ‘appropriate sentencing range’ – ‘rehabilitation as mitigation’ – ‘courts’ intolerance for domestic violence’
Proceedings: Application for leave to appeal against sentence.
Charge: Aggravated assault x1.
Facts: The complainant, the applicant’s partner, was lying down on a couch, when the applicant assaulted her for no apparent reason [5]. The applicant pulled the complainant off the couch, hit her with his elbows, slapped and punched her, and slammed her head into the ground. The complainant suffered bruising and pain all over her body, and some of her hair was torn out during the assault [6].
Grounds of appeal: The sole ground of appeal was that the sentence was manifestly excessive.
Decision and reasoning: Leave to appeal was granted; the appeal was dismissed [25].
The applicant submitted that the sentence of 83 percent of the maximum penalty for the offence was outside the appropriate sentencing range given the circumstances of the offence and the applicant’s personal circumstances [11]. Which circumstances in particular were relied upon in mitigation is unclear, but it is noted that the applicant had previously been addicted to methamphetamine prior to being on home detention, when he regularly tested negative for drugs [15]. The applicant also attended an abuse prevention program whilst on home detention [15].
In dismissing the appeal, the Court observed that general and personal deterrence will play a significant role in assessing an appropriate penalty for domestic violence offending [21]. The Court echoed Nicholson J in R v Nedza, who opined that courts must make it plain that they “will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless women or children” [21].
The Court opined that the sentence was high, but it matched the severity of the offending, being a vicious attack on a vulnerable victim [24].
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]).
Court of Appeal
MT v SE SASCA 8 (7 February 2025) – South Australian Court of Appeal
‘Malicious prosecution’ – ‘collateral abuse of process’ – ‘whether police or complainant initiated intervention order proceedings’ – ‘whether proceedings initiated for improper purpose’ – ‘systems abuse’
Proceedings: Appeal against summary judgment in favour of the respondent
Charge: Malicious prosecution x1, collateral abuse of process x1
Facts: The appellant brought claims for the torts of malicious prosecution and collateral abuse of process against the respondent. The respondent had made a report to the South Australian Police (SAPOL) on the basis of which intervention order proceedings were brought against the respondent. The appellant alleged that the proceedings had prevented him from obtaining employment as a teacher and claimed damages for loss of income as well as aggravated and exemplary damages. The appellant’s claims were dismissed by the primary judge pursuant to an application for summary judgment made by the appellant. The primary judge took the view that SAPOL, not the respondent, had been the party that initiated the intervention order proceedings and that automatically defeated any claim of malicious prosecution or collateral abuse of process against the respondent [4], [6].
Grounds of appeal: The appellant relied on two grounds of appeal [7]:
1.
The primary judge erred in fact and law by concluding that there was no reasonable basis for contending that the respondent initiated the intervention order proceedings.
2.
The primary judge erred in fact and law by concluding that there was no reasonable basis for contending that the respondent had initiated the intervention order proceedings for an improper purpose.
In addition, the respondent filed a notice of contention alleging that the decision of the primary judge could be upheld on alternative grounds [8]:
1.
The appellant could not prove that the intervention order proceedings terminated favourably to him, and this is fatal to the malicious prosecution claim.
2.
The appellant could not prove he suffered special damage with respect to the collateral abuse of process claim, and this is fatal to that claim.
Decision and Reasoning: The appeal was allowed in part: the summary judgment was set aside in respect of the claim of malicious prosecution, but it was affirmed regarding the collateral abuse of process claim [11].
Regarding the first ground of appeal, the Court of Appeal found that while the application for the intervention order was made by SAPOL, it was necessary consider the substance and not merely the legal form of the proceedings [70]. The mere fact that the police brought the application did not exclude the respondent from being the effective prosecutor. It was necessary to consider whether SAPOL were exercising an independent discretion or were, in effect, agents for the respondent [70].
There was nothing to indicate that the police undertook any independent investigation into the respondent’s allegations of domestic violence [71]. The respondent’s objective in making her statement to SAPOL was to obtain an intervention order [72]. There was no independent exercise of discretion by SAPOL, and therefore there was a reasonable basis for advancing a claim that the respondent was the instigator of the proceedings [72]. The primary judge erred in finding that there was no reasonable basis. This ground of appeal succeeded [77].
In respect of the domestic violence evidence, the Court held that the trial judge’s description of the “only relevance” of the domestic violence evidence did not adequately “identify and explain” the use for which that evidence was not to be used [68] and so did not comply with s 34R(1) [69].
Regarding the second ground of appeal, the Court began by observing that to establish the tort of collateral abuse of process, the plaintiff must establish that the proceedings were instituted for an improper purpose (as the predominant purpose) [79]. To establish this, there needs to be evidence of a demand or threat made in furtherance of the improper purpose [80]. The appellant relied on Facebook messages sent by the respondent to him as evidence of the demand or threat [82]. The Court found that the Facebook messages were not connected with the intervention order proceedings, and therefore there was no reasonable basis for claiming that those proceedings involved a demand, threat or over coercion [83]. This ground of appeal failed [110].
In response to the respondent’s notice of contention, the Court found that the primary judge had been correct to find there was a reasonable basis to argue that the intervention order proceedings had been terminated in favour of the appellant [110]. It also agreed with the primary judge’s finding that, in respect of the collateral abuse of process claim, there was a reasonable basis to argue that the appellant had suffered special damage [110].
Adamson (a pseudonym) v The King [2024] SASCA 91 (1 August 2024) – South Australian Court of Appeal
‘Discreditable conduct evidence’ – ‘permissible and impermissible uses’ – ‘adequacy of judicial directions’ – ‘delayed complaint’ – ‘domestic violence evidence’
Proceedings: Application for leave to appeal against conviction.
Charge: Maintaining an unlawful sexual relationship with a child (x1).
Facts: The applicant was charged with, and convicted of, maintaining an unlawful sexual relationship with a child.
Grounds of appeal: The applicant relied on two grounds of appeal, both of which challenged the trial judge’s directions in relation to evidence of discreditable conduct [46]:
1.
The trial judge failed to adequately identify and explain the impermissible use of the domestic violence evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA).
2.
The trial judge failed to adequately identify and explain the permissible use of sexual comments evidence such that he did not comply with the obligation in s 34R(1) of the Evidence Act 1929 (SA).
Decision and Reasoning: The first ground of appeal relates to evidence about the applicant’s violence towards the complainant’s mother (domestic violence evidence). The second ground relates to evidence from the complainant about sexual comments made by the applicant to the complainant (sexual comments and evidence).
The prosecution had relied on the domestic violence evidence as an explanation for the late timing of the complaint (i.e., the complainant had waited until she and her mother were separated from the applicant before disclosing the offending against her) [32]. The prosecution had adduced the sexual comments evidence on the basis that it was relevant to the nature of the relationship between the complainant and the applicant [33].
Both the domestic violence evidence and the sexual comments evidence constituted evidence of discreditable conduct, the admissibility of which is governed by ss 34P, 34Q and 34R of the Evidence Act 1929 (SA). Discreditable conduct evidence is only admissible for a permissible use and may not be used for any inadmissible use, including to suggest that the defendant is more likely to have committed the offence in question [49]. Where discreditable conduct evidence is admitted, the trial judge must give directions as for the purpose for which the evidence may or may not be used [52].
In respect of the domestic violence evidence, the Court held that the trial judge’s description of the “only relevance” of the domestic violence evidence did not adequately “identify and explain” the use for which that evidence was not to be used [68] and so did not comply with s 34R(1) [69].
In coming to this conclusion, the Court noted that the accuracy and precision with which the judge describes the permissible use may inform what is necessary to adequately direct in relation to the impermissible use of the evidence, however, it will not ordinarily overcome a failure to give any direction at all in relation to an impermissible use of the evidence [62]. The point of outlining the impermissible uses alongside the permissible uses was explained to be so that the impermissible uses are identified and understood so they may be consciously excluded from the decision-making process [63]. The fact that the judge had given himself a direction as to the impermissible uses of the sexual comments evidence did not discharge the obligation in respect of the domestic violence evidence [64]. A finding that s 34R(1) has not been followed does not turn upon whether there has in fact been some impermissible use of the evidence [67]. Ground 1 of the appeal was made out [69].
In respect of the sexual comments evidence, the Court opined that from the terms of the directions the trial judge gave, the Court had no confidence that the trial judge properly understood the permissible and impermissible uses of the sexual comments evidence [77]. Therefore, the judge did not comply with s 34R(1), and ground 2 was made out [79]-[80].
Millwood v The King [2024] SASCA 84 (28 June 2024) – South Australian Court of Appeal
‘Alcohol-fuelled offending’ – ‘Baseball bat’ – ‘Grabbing neck’ – ‘No history of family violence’ – ‘Statistics on family violence’ – ‘Insight into offending’ – ‘Risk of reoffending’ – ‘Sentencing for greater offence than convicted of’
Proceedings: Application for permission to appeal against sentence.
Charge: Aggravated assault x2
Facts: At the time of the offending, the applicant and the complainant were in a domestic relationship. One night, the applicant had been drinking and there was an argument. The complainant went to bed. The applicant went into the bedroom, grabbed a baseball bat and swung it several times into the bedhead, causing three indentations to the bedhead. This comprised count 1.
On another occasion, the applicant and the complainant had been drinking heavily. Upon learning that the complainant had pawned his fishing reels, the applicant pushed the complainant around the kitchen before grabbing her neck with one hand. This caused bruising on the side of her neck. This comprised count 2.
Grounds of appeal: The applicant relied upon four grounds of appeal [25]:
1.
The sentencing judge sentenced on an erroneous factual basis, by finding that the conduct the subject of count 2 carried with it ‘a risk of impeding [the complainant’s] breathing and/or blood flow through her neck’ and that it followed that the conduct involved a risk of ‘serious physical harm’.
2.
The sentencing judge erred by sentencing the applicant on the basis he had committed a more serious offence than he had been convicted of.
3.
The sentencing judge erred by sentencing the applicant on the basis he had no remorse or insight into his offending, and was therefore at some risk of reoffending.
4.
The order that the applicant spend 6 months of the sentence in prison was manifestly excessive.
Decision and reasoning: Permission to appeal was granted, and the appeal was allowed. The sentence was set aside and the applicant was resentenced.
The Court began by considering the need for denunciation, punishment, and deterrence in relation to family violence offending [30]-[33]. It observed that victims of this kind of offending are usually vulnerable, so offenders can expect to receive harsher sentences compared to offending in other contexts not involving vulnerable victims [33]. The Court found that in this case the sentencing discretion miscarried for three reasons. The sentencing judge had erred:
1.
in finding that the applicant had expressed no insight into his offending (alcohol had played a causal role in the offending, and at the time of the appeal, the applicant had remained abstinent from alcohol for over 2 years) [35];
2.
in finding that they were unable to conclude that there was “no risk” of the applicant reoffending against a future domestic partner (the applicant had not previously been involved in domestic violence, and had expressed insight into his offending) [36]; and
3.
in sentencing the applicant for an offence involving physical and emotional harm while the applicant had pleaded guilty to a lesser offence [37].
The applicant was resentenced to 10 months and 5 days’ imprisonment. The sentence was suspended on the condition the applicant enter into a good behaviour bond for 18 months [45].
R v Singh [2024] SASCA 81 (27 June 2024) – South Australian Court of Appeal
‘Murder’ – ‘Serious offending’ – ‘Premeditation’ – ‘Cruelty’ – ‘Crown appeal against sentence’ – ‘Manifestly inadequate’ – ‘Personal circumstances in mitigation for serious offending’ – ‘following, harassing, monitoring’- ‘Sentence so low as to undermine confidence in the administration of justice’
Proceedings: Crown application for permission to appeal against sentence.
Charge: Murder x1
Facts: At around 10pm on 5 March 2021, the respondent abducted the victim, his former partner, from her workplace. He drove several hours to Moralana Creek, about 400 kilometres north of Adelaide. Once there, the respondent dug a shallow grave. He placed the victim, blindfolded, in the grave with her hands and feet bound, and buried her alive. The victim died by asphyxiation. It is not known how long it took her to die.
Grounds of appeal: The Crown’s application relied on one ground in its application: that the sentence (life imprisonment with a non-parole period of 22 years and 10 months) was manifestly inadequate.
Decision and reasoning: Permission to appeal against sentence was granted, and the appeal was allowed.
The Court noted that the principles governing an application for permission to appeal against sentence were well-established that that there will only be a grant of permission in a ‘rare and exceptional case’, such as where a sentence is so manifestly inadequate that it amounts to an error of principle [30]. The Crown challenged the adequacy of the sentence on the basis that to allow the non-parole period to stand would undermine public confidence in the administration of justice and erode the sentencing standards for the offence of murder [32]. The sentence was life imprisonment; the non-parole period set by the sentencing judge started at 24 years and was reduced on account of the respondent’s guilty plea to 22 years and 10 months [29]. The mandatory non-parole period for murder is 20 years.
The Court discussed the approach in R v Hallcroft (2016) 126 SASR 415 to fixing a non-parole periods [41]-[49]. It also discussed the impact of the abolition of the ‘partial defence’ of provocation and s 48(1) of the Sentencing Act [50]-[67]. The upshot of this discussion was an observation that the mandatory minimum non-parole period for murder affects the sentencing discretion in fixing the non-parole period in two ways [64]. First, it imposes a floor, which the non-parole period must not go below unless there are exceptional circumstances. Second, the mandatory minimum non-parole period is a “yardstick” or “benchmark” representing the appropriate non-parole period for an offence within the least serious category of offending.
Turning to the offending in question, the Court noted there were several egregious features to the offending [69]. It involved a high level of pre-mediation with the respondent arranging an alibi and purchasing items used in the murder the previous day. The respondent therefore had numerous opportunities to reconsider his decision to offend. Moreover, the offending occurred against a background of repeated attempts to re-establish a relationship with the victim, which involved shaming her, continuing to communicate with her against her wishes, and stalking her. Finally, the way the offence was committed was particularly terrifying and degrading [70].
The Court considered that the respondent’s personal circumstances (youth, major depressive disorder, deprived background, lack of prior convictions, guilty plea, cooperation with police, and good employment history) did little to mitigate the seriousness of the offending, bearing in mind its calculated and pre-meditated nature [71]. The four-year uplift from the mandatory minimum non-parole period was held to be manifestly inadequate, and so low as to justify the grant of permission and the Court’s intervention [72].
In resentencing the respondent, the Court imposed the mandatory life sentence. The Court then adopted a starting point for the non-parole period of 30 years, and reduced it on account of the respondent’s guilty plea to 28 years and six months [74].
Mlakar v The King [2024] SASCA 76 (18 June 2024) – South Australian Court of Appeal
‘Aggravated assault’ – ‘appeal against sentence’ – ‘general and personal deterrence’ – ‘manifestly excessive’ – ‘appropriate sentencing range’ – ‘rehabilitation as mitigation’ – ‘courts’ intolerance for domestic violence’
Proceedings: Application for leave to appeal against sentence.
Charge: Aggravated assault x1.
Facts: The complainant, the applicant’s partner, was lying down on a couch, when the applicant assaulted her for no apparent reason [5]. The applicant pulled the complainant off the couch, hit her with his elbows, slapped and punched her, and slammed her head into the ground. The complainant suffered bruising and pain all over her body, and some of her hair was torn out during the assault [6].
Grounds of appeal: The sole ground of appeal was that the sentence was manifestly excessive.
Decision and reasoning: Leave to appeal was granted; the appeal was dismissed [25].
The applicant submitted that the sentence of 83 percent of the maximum penalty for the offence was outside the appropriate sentencing range given the circumstances of the offence and the applicant’s personal circumstances [11]. Which circumstances in particular were relied upon in mitigation is unclear, but it is noted that the applicant had previously been addicted to methamphetamine prior to being on home detention, when he regularly tested negative for drugs [15]. The applicant also attended an abuse prevention program whilst on home detention [15].
In dismissing the appeal, the Court observed that general and personal deterrence will play a significant role in assessing an appropriate penalty for domestic violence offending [21]. The Court echoed Nicholson J in R v Nedza, who opined that courts must make it plain that they “will not tolerate domestic violence, particularly where, as is typical, it is meted out to physically weaker or defenceless women or children” [21].
The Court opined that the sentence was high, but it matched the severity of the offending, being a vicious attack on a vulnerable victim [24].
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]).