Charges: assault aggravated (formerly) in a relationship with the victim x 2, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence x2.
Proceedings: Police appeal against order of Magistrate allowing the withdrawal of pleas of guilt to and dismissal of two counts in ruling each pair of charges involved impermissible double charging.
Facts: The respondent was charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her, and contravening a term of an intervention order for her protection in a manner involving physical violence or the threat of physical violence, committed on 16 December 2019. The respondent was later charged by Police with assault of the complainant aggravated because he was (formerly) in a relationship with her and/or used an offensive weapon, and contravening a term of an intervention order for her protection, committed on 29 March 2020. The respondent pleaded guilty to each of these four counts (together with other counts). The Magistrate ruled that each pair of counts involved impermissible double charging. The Magistrate granted permission to the respondent to withdraw his guilty pleas to two of the counts and dismissed them. The Magistrate imposed a single penalty in respect of the remaining counts.
Issue: Firstly, does subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) create a single offence or multiple offences? Secondly, does a conviction for an offence of contravening a condition of an intervention order, where the contravening conduct comprises a substantive offence, preclude a conviction for the substantive offence when the substantive offence is aggravated by another circumstance and vice versa?
Decision and Reasoning: Appeal allowed.
Held by the Court:
(Per Lovell, Doyle and Livesey JJA and Blue AJA) Subsection 20(3) of the Criminal Law Consolidation Act 1935 (SA) creates a single offence albeit with differential maximum penalties depending on the existence of circumstances of aggravation (at [143] per Lovell and Livesey JJA and Blue AJA (Doyle JA agreeing)).
(Per Kourakis CJ) It is not necessary to decide whether subsection 20(3) creates one or two offences depending on the existence of circumstances of aggravation (at [19] per Kourakis CJ).(Per Lovell, Doyle and Livesey JJA and Blue AJA) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence, does not preclude a conviction for the substantive offence or vice versa (at [172] per Lovell and Livesey JJA and Blue AJA; at [178] per Doyle JA).
(Per Kourakis CJ) A conviction for contravening an intervention order condition, where the contravening conduct comprises a substantive offence aggravated by another circumstance, does not preclude a conviction for the substantive offence or vice versa (at [19] per Kourakis CJ).
Proceedings: Application for permission to appeal the dismissal of an application for revocation of an intervention order.
Facts: This matter had an extensive history (set out at [7]). The intervention order was originally made on 19 October 2011, and confirmed by consent on 22 February 2012. The applicant’s appeal against confirmation of the interim intervention was upheld on 25 June 2013: Groom v Police (No 3). On 10 December 2013, the application to confirm the intervention order was again confirmed by consent in the Magistrates Court. The applicant’s appeal was dismissed by a single judge on 21 March 2014 and an application for permission to appeal to the Full Court refused on 19 November 2014: Groom v Police. In December 2014, the applicant was convicted of contravening a term of the intervention order and an appeal was dismissed in July 2015: Groom v Police. In 2016, the applicant filed an application to revoke the intervention order, which was dismissed by the Magistrate. Various appeals were dismissed by a single judge and the Full Court in 2017. Notwithstanding the Full Court’s judgment, the applicant again applied to a Magistrate to revoke the order made on 19 October 2011 and confirmed on 10 December 2013. The Magistrate dismissed the application on 26 May 2020 and this was affirmed on appeal by Lovell J.
Grounds of appeal: The Magistrate and Lovell J erred in failing to find that there was new and compelling evidence to demonstrate that the order was invalid and should be revoked.
Held: The Court not only dismissed the application for permission to appeal but also held at [10]-[11] that:
“In our view, the latest material filed in support of the application for permission to appeal demonstrates that the applicant continues to attempt to relitigate matters previously ventilated and considered in the Magistrates Court, by the various Judges of this Court and by the Full Court.
We consider the current application for permission to appeal, in the circumstances, to be an abuse of process.”
The Court referred the matter to the Attorney-General to consider whether there were proper grounds for an application to be made under s 39 of the Supreme Court Act 1935 (SA) to stay any further proceedings sought to be instituted by the applicant (at [12]-[13]).
