Contents

Table of Contents

South Australia

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.’

Last updated: July 2024

South Australia

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.’

Last updated: July 2024