RANA v POLICE [2008] SASC 280 (21 October 2008)
Last Updated: 21 October 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
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RANA v POLICE
[2008] SASC 280
Judgment of The Honourable Justice David
21 October 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS
Appeal against confirmation of restraining order made by magistrate in absence of appellant - whether appellant prejudiced by unsworn and outdated affidavit - whether appellant provided with sufficient particulars - whether particulars provided in affidavit show reasonable apprehension - whether confirmation of restraining order unreasonable or contrary to evidence.
Held: Appeal dismissed - appellant not prejudiced by unsworn and outdated affidavit - appellant provided with sufficient particulars - particulars provided in affidavit show reasonable apprehension - confirmation of restraining order not unsreasonable and was supported by evidence.
Summary Procedure Act 1921 (SA) s 99, s 99C, referred to.
Police v Gray (2001) 213 LSJS 540, applied.
Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611, considered.
RANA v POLICE
[2008] SASC 280
Magistrates Appeal
DAVID J.
Introduction
This is an appeal against the confirmation of a restraining order made by a magistrate, pursuant to ss 99 and 99C of the Summary Procedure Act 1921 (SA) (“the Act”). The order confirmed was as follows:
The defendant is restrained from entering or attending any place that [the alleged victim] may be residing from time to time.
The defendant is restrained from entering any place of employment at any time or any place where [the alleged victim] may be present.
The defendant is restrained from contacting, communicating or approaching directly or through another person with [the alleged victim].
That defendant is restrained from following or watching [the alleged victim].
That a member of the police force is authorised to enter any premises in which any firearm in your possession is suspected to be and to search for and take possession of any such firearm.
That you be disqualified from holding or obtaining a licence or permit to be in possession of a firearm.
The defendant is prohibited from possessing a firearm in the course of his/her employment.
That any firearm in your possession be confiscated and held by the Registrar of Firearms, to be returned to you if this Restraining Order/Domestic Violence Restraining Order is not confirmed.
That any licence or permit to be in possession of a firearm that you currently hold be suspended until the court determines whether to confirm this Restraining Order/Domestic Violence Restraining Order.
The appellant, who was unrepresented on the appeal, argues for various reasons, that the order should be set aside.
History Leading to the Making of the Order
According to the file and the affidavit of Gregory John Hill sworn on 30 July 2008, the police prosecutor who appeared before the magistrate on 2 July 2008, it appears the following events led to the confirmation of the order:
...
On 17 January 2008, an application for a Restraining Order, signed by the victim ... was filed at the Magistrate Court.
The application was heard on 17 January 2008 at 2.15 pm. The victim appeared unrepresented. Police prosecutor McGrath appeared for the prosecution. The prosecutor tendered an affidavit by the victim ... The Court issued a Restraining Order and Summons for the appellant to attend at Court for a hearing on 24 January 2008, to show cause why the order should not be confirmed.
On 24 January 2008, the appellant appeared unrepresented. Police prosecutor E Smith appeared for the prosecution. The appellant intimated that he would be disputing the order. The matter was listed for a status conference on 29 February 2008.
On 29 February 2008, the appellant appeared unrepresented. Police prosecutor Hoang appeared for the prosecution. The appellant was provided with a copy of the victim’s affidavit.
On 14 March 2008, the appellant appeared unrepresented. Police prosecutor Hoang appeared for the prosecution. The appellant had filed a bundle of documentation on this date, shortly prior to the hearing. The matter was listed for trial in the Elizabeth Magistrates Court on 2 July 2008 at 10 am.
The appellant did not appear at Court at 10 am on 2 July 2008. The appellant was called for at 10.15 am, 10.35 am and 10.41 am. There was no appearance at any of these times.
On the final occasion, at the direction of His Honour, enquiries were made of the Sheriff’s Officer and the Court Registry as to whether the appellant had made any contact, and both parties said that he had not. The prosecutor submitted that the restraining order should be confirmed, in the absence of the appellant.
His Honour observed that the victim had made special arrangements to be present at court, ordered that the restraining order be confirmed and certified witness fees.
On 20 January 2008 the appellant was personally served with a copy of the Restraining Order and Summons. The document listed the hearing date for 24 January 2008 at the Elizabeth Magistrates Court. Attached to the Restraining Order and Summons were two pages of instructions headed “Magistrates Court of South Australia - Information for Persons Served with a Restraining Order”, which set out the following information:
Why Was the Order Made?
If someone claims that you have threatened or injured them, or that you have damaged their property or done other things to frighten them, and that they fear this will happen again, they can ask the court to prevent you from doing various things – such as not communicating with another person or going near their home or workplace.
An application for a restraining order was made in court. A sworn affidavit or other evidence about your behaviour/actions satisfied a Magistrate that it was appropriate to make the order.
If you would like a copy of the application, affidavit and any sworn evidence speak to the Sheriff’s Officer at the Court or go to the Registry office and copies will be given to you. If the evidence is not available you may request that a copy be forwarded to you at a later date.
Do I need to attend court?
The Order served on you also requests you to appear in court. The purpose of this court appearance is to give you an opportunity to indicate to the Magistrate whether you think the order should remain in place.
If you do not attend court the Magistrate will confirm the order in your absence. The order may be set for a specific period of time, eg 12 months, or for an indefinite period of time.
What can I do in court?
You can:
Agree to the order continuing (the order will then be confirmed)
Agree to the order continuing, but not that the allegations against you are true. You may have noted on the court file that you do not agree to allegations made in the application.
Contest the order and request the Magistrate adjourn the matter to a pre-trial conference
Request an adjournment for legal advice
Agree to some parts of the order, but not others. You or your solicitor may discuss the matter with police prosecutions. You may not need to go to trial if you are able to reach agreement on the terms of the final order.
...
What If I Disagree with the Order?
The purpose of the order is to protect the applicant. If it is necessary to restrict your activities to achieve this, then the Magistrate will do so. However, if you think the order will unreasonably restrict activities that are not necessary for the other person’s safety, you should let the Magistrate know. If you disagree with the order, you may consider seeking legal advice about your options.
If you tell the Magistrate that you wish to dispute the order, the matter will be set down for a pre-trial conference. The conference is your opportunity to talk to police prosecutions to explain why you disagree with the order continuing and attempt to resolve the matter. If a solution is not possible the matter will be set for trial and a Magistrate will decide whether the order is needed after hearing evidence from all witnesses. You must remember that the conditions of the order are still binding until the matter has been resolved in Court. (Emphasis in original)
The appellant gave numerous reasons as to why he did not attend the hearing on 2 July 2008. The file shows that on 26 March 2008 the appellant wrote to the Registrar of the Elizabeth Magistrates Court stating:
I honestly submit that I will not attend final hearing, as I have no chance of gaining impartial justice before [the magistrate]. Instead, after his any decision I will proceed to the Supreme Court to appeal the fatal decision as that he not having no jurisdiction to rule and I having no case to answer.
In an affidavit dated 7 July 2008 and filed on appeal, the appellant exhibits an email he addressed to the Registrar of the Elizabeth Magistrates Court, in which he stated:
I did not attend the hearing on 2/7/2008 as I feared for my life going to Elizabeth so far away, ... I have never done anything to [the alleged victim] and her family in Elizabeth.
...
I have diabetes and other disabilities and Elizabeth was so far and stressful for me.
Further in his affidavit, he states:
I have a hearing at 10 AM in a restraining order matter brought by SA Police on behalf of [the alleged victim] ... today (2/7/2008).
I cannot attend as I have argued that the Magistrate has denied me basic rights and he has overlooked my request to call witnesses and seek discovery from police.
Further, I have argued that he has no jurisdiction in the matter as the police has given me only unsworn statement of [the alleged victim’s] false allegations, when she made the first complaint in 2006.
Based on what was given to me then the threshold test for restraining order is not met according to law. Thus, the Magistrate has no jurisdiction as he cannot be so satisfied according to law and fact.
On appeal, the appellant gave various other reasons why he did not attend court on 2 July 2008. In the appellant’s rebuttal outline of argument he stated:
...
(iv) ... the appellant has been forced to attend Elizabeth so far, when all matters occurred between the appellant and [the victim] in city and the need for the police to take the appellant to Elizabeth a place he did not knows. Was that reasonable? What business the Elizabeth magistrate has on the life of the appellant as all matters allegedly occurred to [the victim] from stalking to harassment in Adelaide and how Elizabeth became to place of convenience to the police? The appellant has diabetes and felt intimidated to go to such far place and was bothersome for his disability.
(v) The appellant did challenged the Magistrates jurisdiction based on the first unsigned affidavit of [the victim] and so the alleged facts therein did not meet the threshold test for the Magistrate to invoke his jurisdiction to granting of the restraining order in temporary or permanent basis. Had the police given the latter 16 January 2008 affidavit then beyond reasonable doubt that threshold test per the law would had been met for the magistrate to be so satisfied. In this case, the appellant did not attend and the granting of the restraining order would be deemed proper. However, not based on an old unsigned affidavit based on the coaching of the police in fabrication of a Wednesbury unreasonable hearsay affidavit.
...
The material, which was the basis of the restraining and confirmation orders, was set out in an affidavit of the alleged victim, sworn on 16 January 2008 and tendered before the magistrate on 17 January 2008. The court file and the affidavit of Gregory John Hill, sworn on 30 July 2008, indicate the appellant was provided with a copy of this affidavit on 29 February 2008. The appellant now argues that on 29 February, he was provided with an unsworn copy of the alleged victim’s affidavit dated 25 October 2006, which is different from her affidavit sworn on 16 January 2008, upon which the magistrate relied to make the restraining and confirmation orders. He therefore argues that the orders were invalid. It is necessary for me to set out the contents of the two affidavits.
The two affidavits of the alleged victim were tendered by the appellant on appeal. Both are in the form of statements made to police at the Elizabeth Police Station in support of restraining orders against the appellant. The first was made to Constable Pepper at 1.45 pm on Wednesday, 25 October 2006. The second was made to Constable Hawgood at 2.00 pm on Wednesday, 16 January 2008. The appellant argues that he was provided with an unsworn copy of the first affidavit.
Both affidavits contain allegations that the appellant:
met the alleged victim in 1989 when both were students at the Kensington Adult Matriculation College;
followed her to the gym, became a member and showed up in the pool when she was there in 1989;[1]
sent the alleged victim letters with critical religious content in 1991[2] and 1992 when she resided in Melbourne;
presented at the alleged victim’s door on a number of occasions after she moved back to Adelaide in 1993;[3]
continued to harass the alleged victim in 1996 and 1997, despite her reporting his behaviour to police on:
− 20 April 1996 (Police Incident Report 96/K6906 – when he was formally interviewed and cautioned regarding two counts of stalking);
− 22 November 1996 (Police Incident Report 97/L32200 – regarding five counts of stalking); and
− 26 January 1997 after he was arrested and bailed (Apprehension Report 97/C63277 – regarding a charge of stalking – which was dismissed for want of prosecution on 30 May 1997);
would often approach the alleged victim in an offensive manner and harass her when she was studying at the State Library in Adelaide in 1997;[4]
approached the alleged victim’s friends at the Saint Xavier Catholic Cathedral in 1997[5] to obtain information about her;
sent the alleged victim letters between 1997 and 2001 when the alleged victim was a student at the Adelaide University;
sent emails in the name of the alleged victim to contacts in her email account when she was a student at the University of South Australia in 2001;
caused the alleged victim to install additional security, including security doors and alarms at her home in 2003;
sent the alleged victim offensive emails when she was a student at the University of Adelaide in 2005;
sent the alleged victim a copy of a confidential “deed of settlement” in relation to court proceedings he had instituted in 2006; and
sent the alleged victim a letter containing a copy of an internet clipping in which she featured, together with a photograph of the appellant and his original diary in October 2006.
The alleged victim’s second affidavit sworn on 16 January 2008 contains further allegations that, in the intervening period, the appellant:
hand-delivered a letter to the alleged victim’s mailbox in 2007;
sent another letter to the alleged victim in 2007 regarding her allegations of stalking, as well as other allegations against the appellant;
sent letters to the alleged victim’s mother in November and December 2007 regarding her daughter’s allegations against the appellant in 2006;
sent an email on 21 December 2007 threatening to rape the alleged victim; and
sent a letter to the alleged victim on 11 January 2008 regarding her attendance at the Elizabeth Police Station in October 2006 and allegations the alleged victim had made against him;
In the first affidavit, the alleged victim stated:
I would like a restraining order against Rana as I do not feel safe and have not felt safe for a number of years.
In the second affidavit she stated:
I do not feel safe on a daily basis and feel that Rana is capable of inflicting harm on me in the immediate future as I do not feel that he is mentally stable.
Exhibit P2, which was tendered by the appellant on the hearing of the appeal, and exhibits to the appellant’s affidavit affirmed on 7 July 2008, support the allegations contained in the alleged victim’s affidavits.
Exhibit P2 is a report dated 10 July 2008 from Dr D Miller, Consultant Physician, which indicates that the appellant “suffers from type-II diabetes mellitus and paranoid schizophrenia”, for which he is receiving treatment.
Exhibit “B” to the appellant’s affidavit affirmed on 7 July 2008, a letter dated 26 November 2007 from the South Australia Police to the Administrative Appeals Tribunal refers to documents subpoenaed in relation to a tribunal proceeding in which the appellant was a party. Among the documents subpoenaed were the police reports in relation to the appellant and the alleged victim. Reports were dated 20 April 1996 (Police Incident Report 96/K6906), 22 November 1996 (Police Incident Report 97/L32200) and 26 January 1997 (Apprehension Report 97/C63277). A caution was issued in relation to the first report. A charge of stalking was laid in relation to the second and third reports. The South Australia Police claimed public interest immunity to documents which already existed relating to the restraining order sought by the alleged victim, now the subject of this appeal.
Exhibit “D” to the appellant’s affidavit affirmed on 7 July 2008 is an affidavit affirmed on 18 February 2008, in which the appellant states:
I have been given the first complaint of [the victim] to police, whose name appears to be Senior Constable Melissa Pepper on 25/10/2007 in Elizabeth. I read this now marked as exhibit “A” on 15/2/2008 after the Commissioner of Police did not wanted [sic] my challenge of his claim for “public interest immunity” to continue.
In the affidavit affirmed on 18 February 2008, the appellant denied and, in fact, reversed the allegations made against him. Part of exhibit “C” to the affidavit is an email dated 21 December 2007, said to have been sent by the appellant to the University of South Australia. The appellant says this email is false. This appears to be the same email which is referred to by the alleged victim in her second affidavit. This indicates that the appellant had already obtained the alleged victim’s first affidavit, and might have known at least some of the contents of her second affidavit by 18 February 2008, the date the affidavit was affirmed.
Relevant Legislation
I set out the particular provisions of the Act that are relevant to this appeal. Section 99 of the Act provides the following:
99—Restraining orders
(1) On a complaint under this Division, the Court may make a restraining order against the defendant if—
(a) there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and
(b) the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) For the purposes of this section, a defendant behaves in an intimidating or offensive manner if on two or more separate occasions—
(a) the defendant follows a person; or
(b) the defendant loiters outside the place of residence of a person or some other place frequented by the person; or
(c) the defendant enters or interferes with property occupied by, or in the possession of, a person; or
(d) the defendant—
(i) gives or sends offensive material to a person or leaves offensive material where it will be found by, given to, or brought to the attention of a person; or
(ii) publishes or transmits offensive material by means of the internet or some other form of electronic communication in such a way that the offensive material will be found by, or brought to the attention of, a person; or
(da) the defendant communicates with a person, or to others about a person, by way of mail, telephone (including associated technology), facsimile transmission or the internet or some other form of electronic communication; or
(e) the defendant keeps a person under surveillance; or
(f) the defendant takes any other action in relation to a person or a person's property,
so as to reasonably arouse in the person apprehension or fear of personal injury or damage to property or any significant apprehension or fear.
Section 99C of the Act provides:
99C—Issue of restraining order in absence of defendant
(1) A restraining order may be made in the absence of the defendant if the defendant was required by summons or conditions of bail to appear at the hearing of the complaint and failed to appear in obedience to the summons.
(2) A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the Court must summon the defendant to appear before the Court to show cause why the order should not be confirmed.
(3) The Court may make an order under subsection (2) on the basis of evidence received in the form of an affidavit but, in that case—
(a) the deponent must, if the defendant so requires, appear personally at the proceedings for confirmation of the order to give oral evidence of the matters referred to in the affidavit; and
(b) if the deponent does not appear personally to give evidence in pursuance of such a requirement, the Court may not rely on the evidence contained in the affidavit for the purpose of confirming the order.
Grounds of Appeal
From the papers filed by the appellant, both at first instance and on appeal, it appears that the appellant challenges the orders on the following grounds:
the alleged victim’s first affidavit which was provided to him was unsworn and dated 25 October 2006, a date well before the date of the Complaint on 17 January 2008;
the Complaint was invalid in that it lacked reasonable particulars of the conduct said to satisfy the threshold test;
the alleged victim’s affidavit which was provided to him does not satisfy the threshold test in s 99 of the Act; and
the decision of the magistrate was manifestly unreasonable and against the weight of the evidence before the court.
I will address each of these grounds of appeal in turn.
Affidavit
The appellant says he received an unsworn copy of the alleged victim’s first affidavit dated 25 October 2006, rather than her second affidavit sworn on 16 January 2008. In large part, the substance of the first affidavit is the same as the substance of the second affidavit. The appellant does not argue that he was unaware of the allegations against him, or that the two affidavits differ in any material respect. He merely argues that the copy which was provided to him on 29 February 2008 was out of date and unsworn. Receiving the first affidavit could not have prejudiced the appellant.
I dismiss this ground of appeal.
Particulars
The unsworn copy of the alleged victim’s first affidavit, dated 25 October 2006, provided the appellant with sufficient particulars of the allegations against him. The Complaint was not invalid on account of it lacking further particulars.
In Police v Gray, Doyle CJ had the opportunity to consider the particulars that must be provided to a defendant when the jurisdiction and power conferred on the Magistrates Court by ss 99 and 99C of the Act is invoked. Doyle CJ said:[6]
As neither the Act nor the Magistrates Court Rules (apart from prescribing a form) make any provision for the manner in which the complaint is to be expressed, it is appropriate to return to fundamental principles of justice. They are principles intended to ensure a fair and efficient hearing. Those principles are to be treated as applicable unless clearly excluded by statute. In my opinion those principles require only that, to be valid, a complaint must identify for the Court, and ultimately for the defendant, the relief that is claimed, and the jurisdiction and power of the Court that is invoked for the grant of that relief. In the present case the complaint invokes the jurisdiction conferred by s 99(1), and seeks a restraining order of the kind envisaged by s 99(1) and provided for by s 99(3), which enables the Court to “impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner”. There is no provision in the Act that requires any greater detail for the complaint to be valid. Nor is there any reason to read the provisions of the Act as contemplating anything more ...
In the present case, the allegations in the alleged victim’s second affidavit, sworn on 16 January 2008, did not depart from the allegations in her first affidavit, dated 25 October 2006. She also attended court to give evidence on 2 July 2008. Again, receiving the alleged victim’s first affidavit, which informally particularised the allegations, could not have prejudiced the appellant.
I dismiss this ground of appeal.
Threshold test
Sections 99 and 99C of the Act confer jurisdiction upon a magistrate to make or confirm a restraining order in circumstances such as those in the present case. The appellant had been issued with a summons to appear for the confirmation hearing. The alleged victim’s first affidavit, dated 25 October 2006, and second affidavit, sworn on 16 January 2008, were also before the magistrate (the first through an affidavit filed by the appellant, and the second through the Complaint). The appellant’s affidavits and submissions were also before the magistrate. The appellant chose not to appear before the magistrate to argue against confirmation of the order on any grounds, or to cross-examine the alleged victim.
As to the particulars necessary to satisfy the threshold test, Doyle CJ in Police v Gray stated:
one would expect those particulars to identify past behaviour by a defendant which was intimidating or offensive, or past occasions when the defendant had caused or threatened to cause personal injury or damage, together with circumstances supporting the suggestion that such conduct might occur again in the future. Section 99(2) might be said to suggest that an order should be made if it is proved that a defendant has behaved in the manner described in that provision on two or more separate occasions. But the issue for the Court under s 99(1) is whether there is a reasonable apprehension that such behaviour will occur in the future. Proof of some or all of the matters identified in s 99(2) is no more than a step along the way. Proof of past behaviour described in s 99(2) is not essential to obtain a restraining order, although such proof will usually be the basis of an application. Nor is proof of such past behaviour sufficient to obtain a restraining order. The order will be made only if there is also a reasonable apprehension of such behaviour in the future.
There was sufficient evidence before the magistrate for him to be satisfied that the requisite “reasonable apprehension” existed on the part of the alleged victim, upon which he could confirm the restraining order in the appellant’s absence.
I dismiss this ground of appeal.
Unreasonableness
Decisions are ordinarily considered manifestly unreasonable only if no reasonable decision-maker, acting within jurisdiction and according to law, would have made the decision.[7] On the material before him, there was nothing unreasonable about the magistrate’s decision to confirm the restraining order.
The decision of the magistrate to confirm the restraining order was supported by the evidence. The alleged victim’s affidavits supported the orders and she was present to be cross-examined. Much of the appellant’s affidavit material before the magistrate was irrelevant. The appellant chose not to appear to either challenge the alleged victim’s evidence or to produce evidence showing cause as to why the order should not have been confirmed.
I dismiss this ground of appeal.
Conclusion
For the above reasons, I dismiss the appeal.
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[1] Year particularised in affidavit sworn on 16 January 2008 but not in affidavit sworn on 25 October 2006.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Police v Gray (2001) 213 LSJS 540, 545.
[7] See Minister for Immigration and Ethnic Affairs v Eshetu (1999) 197 CLR 611.
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