DK v POLICE [2026] SASC 69

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE ADAIR) MCCRM- 22-016043 Appellant: DK Counsel: MR G LANG - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Respondent: COMMISSIONER OF POLICE Counsel: MR C PAGER - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 02/04/2026 File No/s: SCCRM-25-048549 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. DK v POLICE [2026] SASC 69 Judgment of the Honourable Justice McDonald 13 May 2026 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY - INTERIM ORDER PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - GENERALLY - CLASSIFICATION: FINAL OR INTERLOCUTORY This is an appeal of a decision of a Magistrate to issue a final intervention order pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant is the subject of the order and his niece is the protected person. The appellant was charged with the sexual abuse of his niece. The appellant has a significant intellectual disability. In the District Court, the Judge found that the objective elements of the offence had been proved but the appellant was subsequently found mentally incompetent to commit the offence. The appellant was released on licence subject to conditions. When first charged, police obtained an interim intervention order against the appellant and commenced proceedings in the Magistrates Court to obtain a final intervention order. The Magistrate made the order to confirm the final intervention order, finding that it was reasonable to suspect that the appellant would, without intervention, commit an act of abuse against the protected person. The appellant argued that the Magistrate was in error in finding that an intervention order would be ‘appropriate’ in the circumstances, due to the appellant’s inability to understand the terms of the order. It was submitted that forcing the appellant’s carers to ensure the order is complied with is oppressive and therefore inappropriate. -- 1 of 25 -- The respondent contended that the Act contemplated that it would be appropriate to make an intervention order in the circumstances that presented in this case. The respondent argued that the Magistrate correctly gave weight to the seriousness of the abuse, the psychological harm and ongoing vulnerability and anxiety of the victim when making the order. It was further submitted that the capacity of the appellant to understand the order was not a precondition to the making of such an order. Held, allowing the appeal: 1. It was open to the Magistrate to conclude that it was reasonable to suspect the appellant will commit an act of abuse without intervention. 2. The Magistrate was however in error in finding that an intervention order was appropriate in the circumstances. 3. The intervention order made on 18 November 2025 against the appellant be revoked. Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5(a), 5(a)(i), 6, 8, 10, 10(1)(d), 10(1)(d)(i), 17, 18(1), 18(5), 23 and 34.; Magistrates Court Act 1991 (SA) s 40 and 40(2); Uniform Civil Rules 2020 (SA) r 213.1(1)(a); Criminal Law Consolidation Act 1935 (SA) s 269A, 269NI, 269ND, 269O(1) and 269O(2); Criminal Law (High Risk Offenders) Act 2015 (SA), referred to. Teague v SL [2021] SASC 114, applied. Attorney-General (SA) v Karpany [2020] SASC 219, distinguished. Police v Kriticos [2016] SASC 28; De Jong v Police [2010] SASC 191; Groom v Police (No 3) [2013] SASC 93; Atkins v Protected Person [2022] SASC 31; PA v Abrotonite [2024] SASC 130; ID v Police [2022] SASC 89; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251, discussed. Cook v Galloway (2015) 124 SASR 444; White v Police [2018] SASC 124; Marley-Duncan v Police [2015] SASC 146; Thakur v Police (2016) 125 SASR 180; Shahin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126; Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408, considered. -- 2 of 25 -- DK v POLICE [2026] SASC 69 Magistrates Appeal: Criminal McDONALD J. 1 This is an appeal against the decision of a Magistrate to issue a final intervention order pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’) on 18 November 2025. DK is the subject of the order and his niece, against whom he had previously sexually offended, is the protected person. 2 This appeal is brought pursuant to s 40 of the Magistrates Court Act 1991 (SA). The grounds of appeal are: 1. The learned trial Magistrate erred in fact and law in finding that it is reasonable to suspect that the respondent will, without intervention, commit an act of abuse against the protected person and the issue of an intervention order is appropriate in the circumstances. 2. The learned trial Magistrate erred in issuing an order without being satisfied that the person against whom it was made was capable of understanding the order. Background 3 In 2022, DK was charged with the sexual abuse of his niece. On 12 December 2022, police obtained an interim intervention order pursuant to s 18(1) and s 18(5) of the Act protecting the victim and commenced proceedings in the Magistrates Court for a final intervention order. 4 The interim order remained in place while the criminal proceedings were determined in the District Court, and the intervention order proceedings were effectively held in abeyance during that period. District Court Trial 5 DK was charged with one count of sexual abuse of a child. As I have said that child was his niece. The abuse was alleged to have taken place when she was between the ages of 8 and 11 and he was between the ages of 27 and 31. 6 Prior to the commencement of the trial an issue was raised about the mental competency of DK and his fitness to stand trial. An expert report was obtained from Dr Owen Haeney to address these issues.1 It would seem that as a consequence of Dr Haeney’s report the issue of DK’s mental incompetency to commit the offence was conceded by the prosecution. In his report Dr Haeney also 1 FDN 58 of DCCRM-23-027383. -- 3 of 25 -- [2026] SASC 69 McDonald J 2 expressed the view that DK was unfit to stand trial. That finding was recorded by the trial Judge. 7 The objective elements however remained in dispute. Evidence was called. Ultimately the Judge found that the elements of the offence had been proved and recorded a finding that the objective elements had been established beyond reasonable doubt. That is, that DK engaged in two or more sexual acts against the victim including unlawful sexual intercourse and aggravated indecent assault.2 8 The Judge declared that DK was liable to supervision and fixed a limiting term of eight years.3 Her Honour ordered that DK be released on licence subject to conditions. These included supervision by a Community Corrections Officer, psychiatric reviews, assessments and care by the Clinical Director of the South Australian Forensic Mental Health Service and a prohibition against the consumption of any drugs and alcohol. It also mandated that DK “must not be in the company of anyone under 18 years unless they are with a person approved by the Supervising Officer”, being his Community Corrections Officer.4 9 In the course of the Judge’s sentencing remarks, she made some observations about DK’s intellectual function that are relevant to this appeal. Her Honour stated:5 I have received a further report from psychiatrist, Dr Haeney, dated 3 March 2025 wherein Dr Haeney notes that [DK] is a 33-year-old man with an intellectual disability who has been diagnosed with schizophrenia and epilepsy. His intellectual functioning is assessed to be in the bottom .1% of the population and recent assessment indicated [DK’s] emotional development was akin to a child of one-and-a-half to three years of age. Dr Haeney notes [DK’s] conditions are life long. In his opinion, inpatient treatment is not indicated and [DK’s] management should focus on community care. 10 In terms of DK’s future, the Judge noted:6 DK will remain reliant on external supports for the foreseeable future to assist his mother and stepfather in his care. Dr Haeney notes that the support [DK] receives should serve to encourage and model appropriate behaviour, including problematic physical and sexual behaviours which [DK] exhibits. [DK] should not have unsupervised access to children…particularly females. He should continue to engage with disability and mental health services and alcohol and illicit drugs should be avoided. 11 The Judge also observed that Dr Haeney had expressed the view that with appropriate supervision DK could be safely managed in the community. 12 On the basis of DK’s inability to understand legal documents, the Judge did not require him to sign the licence. Instead, her Honour proceeded on the basis 2 R v DC [2024] SADC 141 at [120]. 3 FDN 65 of DCCRM-23-027383. 4 FDN 65 of DCCRM-23-027383 at Condition 14. 5 Sentencing Remarks of Judge Tracey in R v [DK] (District Court of South Australia, DCCRM-23- 027383, 17 April 2025) at 1-2 (‘Judge’s Sentencing Remarks’). 6 Judge’s Sentencing Remarks at 2. -- 4 of 25 -- [2026] SASC 69 McDonald J 3 that DK’s legal representatives and carers would ensure that the licence conditions were explained to and implemented for him. Although it was open to the prosecution to make an application that DK be the subject of licence conditions preventing him from approaching the victim, at that time no such application was made. Proceedings in the Magistrates Court 13 On 18 June 2025, the Magistrate presided over a pre-trial conference at which the prosecution sought confirmation of a full non-contact intervention order pursuant to s 23 of the Act.7 14 At that hearing Ms Adams, who appeared for DK, opposed the making of the order on the basis that due to DK’s significant intellectual disability and the finding of mental incompetence in the District Court proceedings, it would be unreasonable and of limited utility to impose an intervention order.8 Relying on psychiatric reports and the sentencing remarks from the District Court, Ms Adams submitted that DK was unable to understand the nature and consequences of an intervention order and proposed that the protection of the complainant could instead by achieved by a variation of his licence conditions.9 15 The Magistrate determined that it was not appropriate to attempt to resolve the matter at the pre-trial conference and listed the matter for argument on 12 August 2025. 16 On that date the prosecution applied for the continuation and confirmation of the order that had been made on 12 December 2022. In support of that application the prosecution submitted that the conditions of DK’s licence did not prohibit contact with the complainant and did not replicate the protections afforded by the intervention order. The prosecution also relied on the sentencing remarks of the District Court Judge, in which she described the ongoing psychological and emotional impact on the victim, including difficulty in sleeping, ongoing sadness, fear, and an inability to feel safe.10 17 Ms Adams’ maintained her opposition to the confirmation of the order relying on essentially the same arguments that came to be made in this Court. It was emphasised that DK had not reoffended since placed on the interim order, he was unable to understand the order, and other mechanisms were available to protect the public, in particular a variation to the licence conditions.11 18 It is a relevant consideration that, prior to this hearing, the police prosecutor had made contact with the Director of Public Prosecutions to determine whether consideration could/had been given to seeking a variation to DK’s licence 7 FDN 11 at [9b]. 8 FDN 11 at [9a]. 9 FDN 11 at [9a]. 10 FDN 11 at [11]. 11 FDN 11 at [12]. -- 5 of 25 -- [2026] SASC 69 McDonald J 4 conditions. The prosecutor advised the Magistrate that “the DPP ultimately declined to pursue a licence variation”.12 The legislation 19 The Magistrate handed down her decision on 28 October 2025 and on 18 November 2025 made the order to confirm the intervention order.13 20 Before coming to those reasons and the basis upon which her Honour made the order, it is convenient to first say something about the legislative regime under the Act for the determination of applications for intervention orders. 21 The objects of the Act are “to assist in preventing domestic and non-domestic abuses, and the exposure of children to the effects of domestic and non-domestic abuse”.14 It does so by providing for, amongst other things, the issuing of intervention orders.15 22 The grounds for issuing an intervention order are set out in s 6 of the Act, which relatively provides: 6—Grounds for issuing intervention order There are grounds for issuing an intervention order against a person (the defendant) if— (a) it is reasonable to suspect that the defendant will, without intervention, commit an act of abuse against a person; and (b) the issuing of the order is appropriate in the circumstances. (Emphasis added) 23 Section 8 of the Act sets out the definition of abuse or an act of abuse in the following terms: 8—Meaning of abuse—domestic and non-domestic (1) Abuse may take many forms including physical, sexual, emotional, psychological or economic abuse. (2) An act is an act of abuse against a person if it results in or is intended to result in— (a) physical injury; or (b) emotional or psychological harm; or (c) an unreasonable and non-consensual denial of financial, social or personal autonomy; or 12 FDN 11 at [13d]. 13 FDN 23 of MCCRM-22-016043. 14 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5(a). 15 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5(a)(i). -- 6 of 25 -- [2026] SASC 69 McDonald J 5 (d) damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person. (3) Emotional or psychological harm includes— (a) mental illness; and (b) nervous shock; and (c) distress, anxiety, or fear, that is more than trivial. (4) Emotional or psychological harm—examples Without limiting subsection (2)(b), an act of abuse against a person resulting in emotional or psychological harm may be comprised of any of the following: (a) sexually assaulting the person or engaging in behaviour designed to coerce the person to engage in sexual activity; (b) unlawfully depriving the person of his or her liberty; (c) driving a vehicle in a reckless or dangerous manner while the person is a passenger in the vehicle; (d) causing the death of, or injury to, an animal; (e) following the person; (f) loitering outside the place of residence of the person or some other place frequented by the person; (g) entering or interfering with property in the possession of the person; (h) giving or sending offensive material to the person, or leaving offensive material where it will be found by, given to or brought to the attention of the person; (i) publishing or transmitting 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, the person; (j) communicating with the person, or to others about the person, by way of mail, telephone (including associated technology), fax or the Internet or some other form of electronic communication in a manner that could reasonably be expected to cause emotional or psychological harm to the person; (k) keeping the person under surveillance; (l) directing racial or other derogatory taunts at the person; (m) threatening to withhold the person’s medication or prevent the person accessing necessary medical equipment or treatment; (n) threatening to institutionalise the person; (o) threatening to withdraw care on which the person is dependent; -- 7 of 25 -- [2026] SASC 69 McDonald J 6 (oa) forcing the person to marry another person; (ob) preventing the person from entering the person’s place of residence; (oc) taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of the person and threatening to distribute the image without the person’s consent; (od) coercing a person to terminate a pregnancy; (oe) coercing a person to not terminate a pregnancy; (p) otherwise threatening to cause the person physical injury, emotional or psychological harm or an unreasonable and non-consensual denial of financial, social or domestic autonomy or to cause damage to property in the ownership or possession of the person or used or otherwise enjoyed by the person. … 24 Section 10 of the Act lists the principles that the Court is required to take into account in determining whether to issue an intervention order. It reads: 10—Principles for intervention against abuse (1) The following must be recognised and taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order: (a) abuse occurs in all areas of society, regardless of socio-economic status, health, age, culture, gender, sexuality, ability, ethnicity and religion; (b) abuse may involve overt or subtle exploitation of power imbalances and may consist of isolated incidents or patterns of behaviour; (c) it is of primary importance to prevent abuse and to prevent children from being exposed to the effects of abuse; (d) as far as is practicable, intervention should be designed— (i) to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse; and (ii) to minimise disruption to protected persons and any child living with a protected person and to maintain social connections and support for protected persons; and (iii) to ensure continuity and stability in the care of any child living with a protected person; and (iv) to allow education, training and employment of a protected person and any child living with a protected person, and arrangements for the care of such a child, to continue without interruption; and -- 8 of 25 -- [2026] SASC 69 McDonald J 7 (v) if the defendant is a child— (A) to ensure the child has appropriate accommodation, care and supervision; and (B) to ensure the child has access to appropriate educational and health services; and (C) to allow the education, training and employment of the child to continue without interruption. (2) The following must also be taken into account in determining whether it is appropriate to issue an intervention order and in determining the terms of an intervention order: (a) any relevant Family Law Act order or State child protection order of which the issuing authority has been informed; (b) how the intervention order would be likely to affect contact (in accordance with a relevant Family Law Act order or State child protection order or otherwise) between— (i) the protected person or the defendant; and (ii) any child of, or in the care of, either of those persons; (c) any relevant agreement or order for the division of property under the Family Law Act 1975 of the Commonwealth, or the Domestic Partners Property Act 1996 or a corresponding law of another jurisdiction, of which the issuing authority has been informed; (d) if considering whether to prohibit the defendant from taking possession of property or to require the defendant to return property to a protected person or to allow a protected person to recover or have access to or make use of property—the income, assets and liabilities of the defendant and the protected person (to the extent that the issuing authority has been informed of those matters); (e) any other legal proceedings between the defendant and protected person of which the issuing authority has been informed. (3) Before issuing an intervention order the issuing authority must consider whether, if the whereabouts of a person proposed to be protected by the order are not known to the defendant, the issuing of the order would be counterproductive. (4) An issuing authority may take into account any other factor the authority considers relevant in the circumstances. 25 Section 10 informs the approach to be taken by the Court in making the determination in a manner which reflects the now generally accepted breadth of need for such orders. -- 9 of 25 -- [2026] SASC 69 McDonald J 8 26 As Doyle J, as he then was, observed in discussing these principles in Police v Kriticos,16 intervention orders “are intended to ensure that in determining whether it is appropriate to make an intervention order the approach is informed by the modern understanding as to the range of conduct that can constitute abuse, and the breadth of circumstances in which it can occur”.17 27 It should be noted that s 10(1)(d) does not impose rigid or inflexible preconditions to the making of an intervention order. Rather, it informs the discretionary assessment required by s 6(b). The use of the phrase “as far as practicable” makes clear that the considerations identified in s 10(1)(d) are aspirational as opposed to mandatory. The Magistrate’s Reasons 28 The Magistrate commenced her consideration of the application by correctly identifying that:18 The object of the Act 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 order. (Footnote omitted) 29 The Magistrate observed:19 The clear intention of s 10, in its own terms and in conjunction with the objects of the Act and the definitions of abuse and harm in s 8, is to ensure that a broad view is taken of when intervention is appropriate. … 30 The Magistrate however acknowledged that an intervention order will not be made in every case in which there is a reasonable suspicion that an act of abuse will occur and that it is also necessary for the Court to be satisfied that “the issuing of the order is appropriate in the circumstances”.20 Her Honour noted that in assessing the “appropriateness” of making an order it was mandatory for the Court to take into account those matters under s 10(1)-(4) (with the qualification in relation to those matters in s 10(1)(d)). In addition, it is open to the Court to “take into account any factor considered relevant in the circumstances”.21 31 The Magistrate also considered the impact of s 17 of the Act on the resolution of the issues that she was required to determine. Section 17 requires the Court to explain the terms of the order. It provides: 16 [2016] SASC 28. 17 Police v Kriticos [2016] SASC 28 at [25]. 18 Magistrate’s Reasons at 3. 19 Magistrate’s Reasons at 3. 20 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6(b); Magistrate’s Reasons at 1. 21 Magistrate’s Reasons at 3. -- 10 of 25 -- [2026] SASC 69 McDonald J 9 17—Explanation for defendant and protected persons An issuing authority must endeavour to ensure that the defendant and protected persons understand— (a) the terms and effect of an intervention order and any associated order, including, in the case of an interim intervention order, that the order acts as a summons; and (b) if relevant, the effect of section 16; and (c) that a protected person cannot give permission for contravention of an order, (but failure to do so will not make an order invalid). 32 Her Honour found that the words “must endeavour” and “failure to do so will not make an order invalid”, were an indication that DK’s lack of capacity to understand an intervention order did not preclude the making of such an order.22 33 In her submissions, Ms Adams’ relied on s 10(1)(d)(i) on the basis that it would not be practicable to impose an intervention order on DK, as the purposes in s 10(1)(d)(i) could not be achieved given DK’s significant mental impairment. 34 The Magistrate observed however that in s 10(1)(d)(i) it was notable that the words “as far as practicable” precede the words “intervention should be designed – to encourage defendants who it is suspected will, without intervention, commit abuse to accept responsibility and take steps to avoid committing abuse”, suggested that s 10(1)(d) contains “goals” and not “requirements”.23 35 In her reasons the Magistrate first considered whether s 6(a) had been satisfied. That is whether “it is reasonable to suspect that the defendant will without intervention commit an act of abuse against a person”. 36 Whilst acknowledging that there had been no further acts of abuse against the victim since the charges were laid, her Honour considered that “this may relate to the fact that an interim intervention order has been in place during this period and the respondent’s carers aware of its terms”.24 37 The Magistrate found that in all of the circumstances it was reasonable to suspect that the respondent will, without intervention, commit an act of abuse against the victim.25 The Magistrate did not however explain the reasoning process by which she arrived at that view. Nor did her Honour provide any reasons for why she found it “appropriate” to make the order. 22 Magistrate’s Reasons at 4. 23 Magistrate’s Reasons at 4. 24 Magistrate’s Reasons at 4. 25 Magistrate’s Reasons at 4. -- 11 of 25 -- [2026] SASC 69 McDonald J 10 38 On the issue of the intellectual functioning of DK, the Magistrate said the following:26 Whilst I accept that there was conjecture at the District Court hearing as to whether the respondent was in a position to understand and sign the conditions of the licence, her Honour was satisfied that counsel would go through the conditions of the licence with the respondent’s carers to ensure compliance. I consider this to be pertinent to the issue of an intervention order. Whilst s 17 requires the court to endeavour to ensure the parties understand the terms and effect of an intervention order, the failure to do so, and the respondent’s inability to understand the terms and effect, does not make the order invalid. Moreover, the intellectual capacity of the respondent does not override the protection of the victim. He is still accountable to the laws of the state. 39 Although the Magistrate handed down her ruling on 28 October 2025, she did not make the order until 18 November 2025. On that occasion Ms Bignall- Daly appeared as counsel for DK, however DK was excused from attending. 40 The Magistrate advised the parties that, as she had indicated in her ruling, she intended to grant the application. Her Honour further advised that if counsel were strongly of the view that DK needed to be present in order for her to explain the order directly to him, she was prepared to adjourn the matter. Alternatively, her Honour proposed proceeding in the same manner as the District Court Judge, namely by receiving an undertaking or assurance from counsel that arrangements would be made for someone to sit down with DK, explain the order to him, and ensure, most importantly, that his carers were aware of the effect of the order.27 It would seem that implicit in that statement was a belief that it will be the carers who will be responsible for ensuring that DK does not breach the order. 41 This was no doubt, at least in part, based on a submission made by Ms Adams that the explanation for DK not reoffending was that his carers were aware of the risk and had put measures in place to address the risk and ensure that there was no further contact between DK and the victim. It was also contended that this was the explanation for the improvement in DK’s behaviour, rather than the interim intervention order. Is permission to appeal required? 42 This appeal is governed by s 40 of the Magistrates Court Act 1991 (SA) which provides: 26 Magistrate’s Reasons at 5. 27 FDN 5 at [6c]. -- 12 of 25 -- [2026] SASC 69 McDonald J 11 40—Right of appeal (1) A party to a civil action (except a minor civil action) may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action. (2) If the rules of the Supreme Court provide that an appeal from a judgment of a particular class can only be brought with the permission of that Court, the right of appeal is limited accordingly, but in any other case an appeal lies as of right. (3) The appeal lies to the Supreme Court constituted of a single Judge but the Judge may (if he or she thinks fit) refer the appeal for hearing and determination by the Court of Appeal. (4) If jurisdiction to try the civil action is created by statute and the terms of the statute are such as to indicate that Parliament did not intend that there should be an appeal from a decision made in the exercise of that jurisdiction, that intention prevails. (5) A right of appeal conferred by this section extends to a legal practitioner, witness or other person against whom an order under section 37 is made. 43 Under s 40(2) the relevant Supreme Court rule is r 213.1 of the Uniform Civil Rules 2020 (SA). Rule 213.1(1)(a) requires that leave to appeal be granted for any appeal against an interlocutory order. The views of this Court have been divided as to whether the confirmation of an intervention order is an interlocutory decision. It would seem that prior to the decision of Kourakis CJ in Teague v SL,28 the preponderance of views were that the making of such an order was interlocutory in nature. The genesis of this position appears to have been the decision of Gray J in De Jong v Police,29 in which his Honour was required to consider the imposition of a paedophile restraining order made pursuant to s 99AA of the Summary Procedure Act 1921 (SA). In doing so it was necessary for Gray J to consider whether an interim order was interlocutory in nature. His Honour concluded that it was and provided the following reasoning:30 On the one view, a paedophile restraining order made pursuant to section 99C constitutes a final order. That order will remain in full force and effect, curtailing the rights of the subject of the order, until it is either varied or revoked. Until that occurs, the order operates in the same way as a final order, binding the subject of the order in the manner specified by the order. However, ultimately a paedophile restraining order may be varied or revoked pursuant to section 99F of the Summary Procedure Act. The provision of a process by which the order may be varied or revoked, results in the conclusion that the order is not a final order. As Debelle J observed in Commonwealth Bank of Australia & Ors v Heinrich (No 2): “It is a misuse of language, if not also legal heresy, to characterise as final an order which is capable of being later varied or revoked”. This conclusion is appropriate notwithstanding the fact that a variation or revocation would generally only occur as a result of a change in circumstances. As the authorities make clear, it is the legal effect rather than the practical 28 [2021] SASC 114. 29 [2010] SASC 191. 30 De Jong v Police [2010] SASC 191 at [40]-[41]. -- 13 of 25 -- [2026] SASC 69 McDonald J 12 effect of the judgment or order that is to be considered. The purported confirmation of the paedophile restraining order by Magistrate Fahey on 3 September 2009 did not constitute a final determination of the parties’ rights. As a consequence, the defendant in the within proceeding requires permission to appeal. (Footnote omitted) 44 In Groom v Police (No 3)31 Sulan J found that these observations applied equally to an order confirming an intervention order and therefore concluded that “[a] confirmation order is interlocutory in nature”.32 On that basis his Honour found that permission to appeal was required.33 That decision was followed in a number of subsequent judgments from Magistrate Court appeals, including those of Nicholson J in Cook v Galloway34 and White v Police,35 Stanley J in Marley- Duncan v Police36 and Thakur v Police,37 and Parker J in Shahin v El-Shafei; El- Shafei v Shahin.38 45 In Atkins v Protected Person39 I accepted a submission by counsel for the respondent that there was no reason why I should depart from the line of authorities on this topic and provided the following reasoning for doing so:40 In his outline counsel for the respondent, Mr Allen QC, raised the preliminary question of whether the grant of an intervention order was interlocutory in nature. On this issue, he cited Nicholson J in White v Police: A preponderance of authority in this Court, at single Judge level, supports a conclusion that the Magistrate’s final intervention order is interlocutory. Whilst this line of authority, strictly, is not binding on me sitting as a single Judge of coordinate jurisdiction, ordinary principles of respect and comity mean that I should exercise significant caution before departing from it. (Footnote omitted) 46 In Teague v SL,41 the applicant applied for permission to bring an appeal against the confirmation of an intervention order on the basis that he understood that the order was interlocutory. Kourakis CJ took the opportunity to express his observations on this issue. His Honour said:42 … Final intervention orders are not interlocutory orders. They conclusively determine whether or not the circumstances existing at the particular time when the application is determined warrant the making of the protective order. Findings of fact as to the incidents 31 [2013] SASC 93. 32 Groom v Police (No 3) [2013] SASC 93 at [32]. 33 Groom v Police (No 3) [2013] SASC 93 at [33]. 34 (2015) 124 SASR 444 at [29]. 35 [2018] SASC 124 at [21]. 36 [2015] SASC 146 at [26]. 37 (2016) 125 SASR 180 at [3]. 38 (2018) 132 SASR 126 at [40]. 39 [2022] SASC 31. 40 Atkins v Protected Person [2022] SASC 31 at [22]. 41 [2021] SASC 114. 42 Teague v SL [2021] SASC 114 at [8]. -- 14 of 25 -- [2026] SASC 69 McDonald J 13 on which the application is made bind the applicant and the respondent by way of issue estoppel in any future applications for an intervention order or variation of one, and in any other collateral proceeding. The power to revoke an intervention order pursuant to s 26 of the IO Act does not render or imply that a final order made pursuant to s 23 of the Act is interlocutory. In particular, on an application to revoke, it is not open to a defendant to relitigate the findings on which the final order was founded or to a complainant to prosecute again incidents which were not found proved at the confirmation hearing. On an application to revoke a defendant must rely on subsequent circumstances which show that the order is no longer necessary. Mr Teague’s appeal is therefore brought as of right. 47 In PA v Abrotonite43 Kimber J also expressed the view that “[t]he decision not to confirm an intervention order is not an interlocutory order”,44 citing Teague although without providing reasons. 48 In ID v Police45 the issue again arose in the context of an appeal of a Magistrate’s decision to confirm an intervention order. Although counsel for the appellant took no definitive position on the issue, counsel for the respondent submitted that permission was required.46 In determining the issue, I gave consideration to the clear view expressed by Kourakis CJ in Teague. However, I came to the position that it was not necessary for me to come to a concluded view on the topic as it was an appropriate case in which to grant permission, if permission was in fact required.47 In doing so however, I made the observation that there was “considerable force in what fell from the Chief Justice”.48 49 The issue of the characterisation of this appeal has again arisen for consideration. The appellant did not make an application for permission to appeal, presumably on the basis that he was of the understanding that he had a right of appeal. 50 The respondent initially took a considered but pragmatic position. The following passage neatly summarises the respondent’s position:49 That orthodox characterisation proceeds on the footing that an order confirming an intervention order is interlocutory. While there is a division of authority on that question, the preponderance of authority adopts that view. In Teague v SL, however, Kourakis CJ expressed a contrary opinion, reasoning that a final intervention order conclusively determines whether the circumstances at the time justify the making of the protective order; that findings of fact may bind the parties by way of issue estoppel in subsequent proceedings; and that the statutory power to revoke an order under s 26 of the Act does not render an otherwise final order interlocutory. There is considerable force in what fell from the Chief Justice. On that analysis, an appeal would lie as of right. More recent authorities have noted this divergence without resolving it, and it is unnecessary for the purposes of the present appeal for this Court to determine the question. 43 [2024] SASC 130. 44 PA v Abrotonite [2024[ SASC 130 at [24]. 45 [2022] SASC 89. 46 ID v Police [2022] SASC 89 at [29]-[30]. 47 ID v Police [2022] SASC 89 at [33]. 48 ID v Police [2022] SASC 89 at [32]. 49 FDN 6 at [16]. -- 15 of 25 -- [2026] SASC 69 McDonald J 14 (Footnotes omitted) 51 The basis upon which the respondent submitted that the determination of the issue was unnecessary was because on their argument the outcome would be the same, namely that the appeal was without merit and should be dismissed.50 52 For reasons that I will come to I do not agree with that submission and find that there is merit to the appeal, such that if permission was required I would be inclined to grant the appellant an opportunity to make an application and grant permission to appeal. However, in my view, for the reasons provided by Kourakis CJ, an application for confirmation of an interim intervention order is not an interlocutory application. There is nothing temporary, procedural or interim about the confirmation of an intervention order. The making of the order concludes the proceedings and indefinitely effects the rights of the individual who is the subject of the order. 53 Subsequent to the hearing of the appeal, counsel for the respondent Mr Pager, provided a further written submission clarifying the position of the respondent on the issue of whether the confirmation of an intervention order is an interlocutory order. I set out that submission in full: A confirmation of a final intervention order under s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) is properly characterised as a final judgment when analysed in accordance with the principles in Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 103 SASR 408. As Hardel, makes clear at [24]; [34]-[36], the distinction between final and interlocutory orders turns not on whether the order disposes of the application in which it is made, but on its legal effect. A final order conclusively determines substantive rights and obligations between the parties and creates a “new charter” governing their legal relations for the future, whereas an interlocutory order is merely procedural or adjectival in character. A final intervention order has precisely the kind of legal effect described in Hardel. It conclusively determines, as at the time of decision, whether the statutory criteria in s 6 are satisfied and whether binding and enforceable restraints are to be imposed on the defendant. The order immediately alters the parties’ legal relationship by restricting liberty of movement, communication and association, and breach constitutes a criminal offence. The power to vary or revoke an order under s 26 does not detract from that finality, as any such application depends upon proof of subsequent change in circumstances and does not permit re-litigation of the findings made on confirmation. Consistently with Teague v SL, the confirmation of a final intervention order conclusively resolves the statutory controversy under the Act and is therefore properly characterised as a final judgment, from which an appeal lies as of right. 54 This submission has reinforced my view that DK does not require permission in order to appeal the Magistrate’s decision to confirm the intervention order. 50 FDN 6 at [16]-[17]. -- 16 of 25 -- [2026] SASC 69 McDonald J 15 The appellant’s argument 55 The point raised on behalf of DK on this appeal is a simple one. It is that, in the circumstances of this case, the Magistrate was in error in finding the second limb of the test under s 6 of the Act satisfied, that is that it was “appropriate” to make the order.51 This submission was based primarily on DK’s inability to understand the terms of the order and to therefore consciously and rationally comply with the conditions given the level of his intellectual functioning.52 As a consequence, by default, the responsibility falls on DK’s carers to ensure that the order is complied with, as there is no realistic prospect that he will understand the terms of the order.53 It was submitted that in such circumstances the order is oppressive and therefore inappropriate.54 56 Whilst it was accepted by DK’s counsel that the intention of the relevant provisions of the Act is to ensure that a broad view is taken of when intervention might be appropriate, that does not mean that in every case, even when a reasonable suspicion of future abuse exists, that the order should be made.55 The very existence of s 6(b) presupposes there will be cases in which it will be inappropriate to make such an order even if the s 6(a) limb of the test is satisfied.56 The respondent’s argument 57 It was the respondent’s submission that it is apparent from the objects of the Act, together with the broad definition of abuse in s 8 and the considerations set out in s 10(1), that the Act contemplates a wide range of circumstances in which it may be appropriate to make an intervention order.57 58 Section 17 further reflects the protective character of the statutory scheme. Although the Court must endeavour to ensure that a defendant and a protected person understand the terms and effect of an intervention order, a failure to do so does not invalidate the order.58 This recognises that there will be cases in which a defendant’s personal circumstances, including cognitive or psychiatric impairment, limit their capacity to fully comprehend the order.59 59 The respondent submitted that the Magistrate correctly applied the test under s 6 of the Act, and no error can be identified. As to s 6(a) it was said that the Magistrate applied the correct statutory test, took into account relevant considerations, and reached a conclusion that was reasonably available.60 51 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6(b). 52 FDN 4 at [3]. 53 FDN 4 at [5]. 54 FDN 4 at [5]. 55 FDN 4 at [7]. 56 FDN 4 at [7]. 57 FDN 6 at [33]. 58 FDN 6 at [34]. 59 FDN 6 at [34]. 60 FDN 6 at [43]. -- 17 of 25 -- [2026] SASC 69 McDonald J 16 60 Similarly, the respondent submitted that s 6(b) of the Act was also correctly applied. The Magistrate recognised that the question of whether the making of an intervention order is “appropriate” is a distinct discretionary inquiry informed by the objects and principles of the Act.61 In making that assessment the Magistrate gave proper weight to those considerations central to the statutory scheme. These included the seriousness and persistence of the abuse, the psychological harm suffered by the victim, and her ongoing vulnerability, anxiety and sense of unsafety.62 61 The respondent contended that the Magistrate was also correct in rejecting the submission that a variation to the respondent’s licence would constitute a more appropriate protective mechanism. Counsel for the respondent elaborated:63 .. Her Honour recognised that the intervention order regime established by the Act operates as an independent statutory framework with its own criteria and protective purposes, and that the existence or availability of another statutory or administrative mechanism does not displace or qualify the Court’s obligation to exercise its jurisdiction where the requirements of section 6 are met. … (Footnote omitted) 62 The respondent also made the point that in this case there was a practical difficulty in suggesting that DK’s licence conditions could be varied, as the DPP had declined to make the application.64 It was submitted that in such circumstances it is beyond the control of the Magistrate and the Commissioner of Police to bring about any change to the conditions. 63 On the issue of DK’s intellectual function, it was the respondent’s position that the capacity of a defendant to understand the terms of an intervention order is not a precondition to the making of an order.65 In support of this argument counsel for the respondent relied on s 17 of the Act. As set out previously, s 17 requires the Court to endeavour to ensure both a defendant and a protected person understand the terms and effect of an intervention order. In particular, it expressly provides that a “failure to do so will not make an order invalid”. It was submitted that the language of the section is clear and deliberate. 64 In summary, the respondent suggested under s 17 of the Act:66 … The obligation is to endeavour to ensure understanding, not to guarantee it, and the statute expressly contemplates that understanding may be imperfect or absent without undermining the validity of the order. The Act thereby strikes a balance between procedural fairness and the paramount objective of protection. 61 FDN 6 at [44]. 62 FDN 6 at [46]. 63 FDN 6 at [47]. 64 T19. 65 FDN 6 at [48]. 66 FDN 6 at [52]. -- 18 of 25 -- [2026] SASC 69 McDonald J 17 65 The respondent also contended that it was appropriate for the Magistrate to place reliance on the approach taken by the District Court when setting the terms of DK’s licence. The Magistrate regarded that approach as “pertinent” to the intervention order application, and as demonstrating that legal obligations may be imposed and complied with through carers rather than personal comprehension.67 66 The difficulty with this submission is that the District Court Judge and the Magistrate were embarking on different exercises under different legislative regimes. The provisions under Part 8A, Division 1, s 269A of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) are relatively prescriptive. Although DK had not been found guilty of the offence against his niece, the objective elements had been proved, and he was found to not be criminally responsible due to mental incompetence. That is different to a verdict of not guilty. With the latter, the verdict results in no further involvement of the Court. With the former, the Court must declare a defendant to be liable to supervision under Part 8A, Division 4, Sub-division 2 of the CLCA. In doing so, the Court must fix a limiting term,68 which is the equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment or supervision) that would, in the Court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established. Once a Court has declared that a defendant is liable for supervision, three options are open. These are unconditional release,69 detention,70 or release on licence.71 67 Given the nature of the conduct that DK was found to have engaged in with his niece, it was not a realistic option that he would be released unconditionally. The circumstances in which a person may be released unconditionally under s 269O(1)(a) were discussed by Duggan J in Question of Law Reserved (No 1 of 1997).72 His Honour said:73 If neither a custodial sentence nor a period of supervision would have been directed as part of the penalty which would have been imposed if the accused had been convicted of the offence, then an unconditional release would be appropriate. 68 Unsurprisingly, a survey of cases in which a defendant has been found to be mentally incompetent and released unconditionally demonstrate that such an outcome is relatively rare and only occurs in circumstances in which the relevant offence has been of a minor nature. 69 The only options therefore available to the District Court Judge were detention, or a release on a licence. The latter was the course adopted. 67 FDN 6 at [51]. 68 Criminal Law Consolidation Act 1935 (SA) s 269O(2). 69 Criminal Law Consolidation Act 1935 (SA) s 269O(1)(a). 70 Criminal Law Consolidation Act 1935 (SA) s 269O(1)(b)(i). 71 Criminal Law Consolidation Act 1935 (SA) s 269O(1)(b)(ii). 72 (1997) 70 SASR 251. 73 Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251 at 266. -- 19 of 25 -- [2026] SASC 69 McDonald J 18 70 The Court has a broad discretion as to the conditions to be imposed under a licence, albeit that they should accord with the principles upon which the Court should act. These are that the paramount consideration of the Court “must be to protect the safety of the community (whether as individuals or in general)”,74 and that “the safety of the community outweighs the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum”.75 71 It therefore follows that once the Judge found DK liable for supervision, it was inevitable that it would be necessary for him to be the subject of licence conditions.76 There is no requirement under the CLCA that the conditions are explained or understood by a defendant, and the consequence of a breach is that the licence may be revoked and a defendant detained for the duration of the limiting term.77 72 Given the differences in regime under the CLCA, support cannot be garnered for the approach adopted by the Magistrate and the decision to confirm the intervention order, based on the manner in which the Judge dealt with the proceedings in the District Court. 73 The respondent also relied on the decision of Livesey J (as he then was) on an application for an extended supervision order78 in Attorney-General (SA) v Karpany.79 Although that decision involved a different statutory context, it was contended that the reasoning is directly applicable to DK’s circumstances. 74 Before I come to deal with the reasoning of Livesey J in Karpany it is necessary that I say something more about DK’s level of intellectual functioning because, for reasons that I will come to, the extent of DKs intellectual disability is a highly relevant determinative factor on this appeal. 75 I have been provided with a copy of the report of Dr Haeney that was before the Magistrate. In that report Dr Haeney provided details of a cognitive assessment undertaken by Susan Heinrich that had placed him below the bottom 0.1% of the population. Ms Heinrich explained that this placed DK in the extremely low range, with his scores low across all indices.80 Ms Heinrich shared Dr Haeney’s view that DK was unfit to stand trial on the basis that his cognitive deficits “are so significant that he would be unable to understand his legal rights and would be unable to provide rational instructions in relation to the exercise of these rights”.81 Additionally, he would not be able to understand and follow proceedings and there were no remedial steps that could mitigate the deficits. 74 Criminal Law Consolidation Act 1935 (SA) s 269NI(1). 75 Criminal Law Consolidation Act 1935 (SA) s 269NI(2). 76 Criminal Law Consolidation Act 1935 (SA) s 269O(1)(b)(ii). 77 Criminal Law Consolidation Act 1935 (SA) s 269VA(1). 78 Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(1). 79 [2020] SASC 219. 80 FDN 18 of MCCRM-22-016043 at [2.15]. 81 FDN 18 of MCCRM-22-016043 at [2.16]. -- 20 of 25 -- [2026] SASC 69 McDonald J 19 76 Dr Haeney described DK as having a longstanding intellectual disability, characterised by global developmental delay, dysmorphia features, small stature and childlike behaviour.82 DK has also been diagnosed with Attention Deficit Hyperactivity Disorder and although unconfirmed, may also suffer from schizophrenia.83 77 Dr Haeney explained that DK’s level of functioning was such that he could not be left alone except for very brief periods of time.84 78 Turning then to the decision of Karpany. 79 An application had been made by the Attorney-General that Mr Karpany be the subject of an extended supervision order (ESO) under the Criminal Law (High Risk Offenders) Act 2015 (SA). Mr Karpany resisted the making of the order. His primary contention was that he lacked the capacity to understand the nature and terms of an ESO, and that he would inevitably fail to comply with its conditions.85 80 Mr Karpany, like DK, suffered from an intellectual impairment which in his case was further complicated by longstanding substance abuse. At the time of making the application, he was serving a term of imprisonment for the offences of indecent assault, attempted theft and assault. 81 In relation to Mr Karpany’s capacity to understand the nature of an extended supervision order, the evidence was that, whilst Mr Karpany would have difficulty in understanding abstract issues, if he was told in simple terms ‘not to do something’, he would understand.86 It was explained by the relevant psychiatrist in that case that the issue was not so much that he did not understand, but rather that he chose not to follow the rules. The difficulty in managing Mr Karpany was exacerbated by his substance abuse. 82 As a starting point there was a fundamental difference in Mr Karpany’s circumstances, as compared to those of DK, in that Mr Karpany was not incapable of understanding the conditions of an ESO but rather his cognitive impairment was such that he was likely to behave defiantly and choose to not adhere to the conditions of an ESO. 83 The nature of the order that was being sought in relation to Mr Karpany was also of a different nature to the intervention order that is the subject of this appeal. An ESO has the primary purpose of protecting the public by the imposition of probation conditions and positive obligations. As was explained in Karpany:87 82 FDN 18 of MCCRM-22-016043 at [8.3]. 83 FDN 18 of MCCRM-22-016043 at [8.4]-[8.10]. 84 FDN 18 of MCCRM-22-016043 at [6.3]. 85 Attorney-General (SA) v Karpany [2020] SASC 219 at [6]. 86 Attorney-General (SA) v Karpany [2020] SASC 219 at [82]. 87 Attorney-General (SA) v Karpany [2020] SASC 219 at [92]-[93]. -- 21 of 25 -- [2026] SASC 69 McDonald J 20 … The paramount consideration of the Court in determining whether to make an extended supervision order must be the safety of the community. The respondent submits that the regime intends that supervision should reduce the risk of reoffending. That is only partly right. The regime is intended to protect the public against the risk of reoffending. Its object is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders: s 3. Protection can be afforded to the community from that appreciable risk by an order, whether or not that order also has some sort of rehabilitative effect upon its subject. Electronic monitoring can permit authorities to know where the high risk offender is, and permit them to intervene if the high risk offender is somewhere contrary to the order placing the public a risk. Curfews and residential conditions serve the same purpose. … … The argument that is put by the respondent has an illusory attraction if you accept its premise that the object of these orders is purely to reduce the offender’s offending. If you accept that it is purely to rehabilitate or to treat a condition that they have and that it is aimed at bringing them to a position where they are less likely to offend, but that is not the sole object of an order of this type. The paramount consideration is the safety of the community and the object of the Act is to provide means to protect the community from being exposed to the appreciable risk of harm that the offender poses. It is to protect the community. If that happens to involve the treatment of the offender, or the rehabilitation of the offender, then so be it but that’s not the primary purpose. The purpose is to protect the community and the community needs protection from Mr Karpany. … (Emphasis in original) 84 An ESO is therefore fundamentally different from an intervention order in that there are physical measures that can be put in place that act as a means of protecting the community. In such circumstances it was unsurprising that Livesey J found that orders under the Mental Health Act and the Guardianship and Administration Act did not provide the community with the same level of protection.88 Neither Act is specifically targeted to the risks posed to the community by high-risk offenders. Orders under these Acts could not ensure that Mr Karpany was electronically monitored to live at a specified residence or compelled to undertake programs or other activities that would increase his positive engagement with the community and minimise his risk of reoffending. 85 It is apparent from this analysis of Karpany that there were very different considerations at play for Livesey J in determining whether to order that Mr Karpany be the subject of an ESO, as compared to the decision that the Magistrate was required to make in this matter. 86 Finally, it was contended by the respondent that acceptance of the appellant’s argument would create an untenable and unintended category of defendants against whom intervention orders could never be made, regardless of the seriousness of the underlying abuse or the ongoing risk to the protected person.89 It was submitted that such an outcome would be inconsistent with the text, structure and objectives of the Act. 88 Attorney-General (SA) v Karpany [2020] SASC 219 at [94]. 89 FDN 6 at [55]. -- 22 of 25 -- [2026] SASC 69 McDonald J 21 87 Counsel for the respondent summarised their argument in the following terms:90 The learned Magistrate identified the correct legal principles, applied the relevant statutory provisions, and undertook a careful and practical assessment of the Applicant’s circumstances. Her Honour’s reasoning reflects a proper exercise of the protective discretion conferred by the Act. The second ground of appeal seeks impermissibly to substitute a different evaluative judgment for that properly reached at first instance. Consideration 88 There is no dispute about DK’s level of intellectual function. It is accepted that DK has been assessed as falling into the bottom 0.1 per cent of the population with the emotional development of a child aged between one and a half to three years of age. It is an extreme case, and one in which it can readily be accepted (and in fact is not challenged by the respondent) that the chance of any meaningful understanding of the intervention order, let alone unassisted adherence to it, are negligible. 89 To my mind, DK falls outside of the category of defendants identified in the respondent’s submissions, as defendants whose “personal circumstances, including cognitive and psychiatric impairment, limit their capacity to fully comprehend the order”.91 There is no doubt that many of those who find themselves the subject of an application for an intervention order have limited capacity, to varying extents, to fully appreciate the detail, impact and consequences of the order. That of itself cannot be a basis for declining to make the order. This is a case however, that falls outside of that spectrum, and into a category in which there is no likelihood that DK will have any real understanding of the order, even at a most basic and fundamental level. 90 In these circumstances the only way in which an intervention order may have any effect in controlling the behaviour of DK is by causing his carers to take steps to ensure that he does not come into contact with his victim or otherwise breach the conditions of the order. I am told that the quality of the care that DK is currently receiving is such that to date this has been effective, but what if that was to change? DK would be the subject of an order, the conditions of which he does not understand and has no prospect of understanding. This scenario highlights the difficulty in making an order which requires others, who are not bound by the order, to facilitate and ensure its compliance. Whilst I appreciate the sentiment of the Magistrate in making the statement that DK “is still accountable to the laws of the state”,92 it is problematic when the person in question does not understand the nature of the constraints that have been placed upon them. 91 As I have mentioned, one of the arguments made by the respondent was that by finding that it was not appropriate for the Magistrate to confirm the intervention 90 FDN 6 at [56]. 91 FDN 6 at [34], emphasis added. 92 Magistrate’s Reasons at 5. -- 23 of 25 -- [2026] SASC 69 McDonald J 22 order, there is the potential to create a class of individuals who will effectively have an immunity from being the subject of such an order. It was submitted this outcome would cut across the protective purpose of the Act and would result in a commensurate group of vulnerable people who would be deprived of the safeguard of an intervention order. 92 I do not accept that to be the case. Each application for an intervention order must be determined based on the factual matrix of the information put forward in support of it. As I have said there will be many cases in which the subject of the application will be of low intellect or may have some form of impairment which will make it difficult for them to comply with the order. On the information before me, this is not such a case. DK’s circumstances are more extreme. 93 This is not a case in which there is conjecture or speculation about the intellectual function and cognitive ability of a defendant. DK was found to be mentally incompetent in relation to the offence with which he was charged and, in the opinion of two experts who conducted comprehensive investigations, he was also unfit to stand trial. 94 An additional important consideration in determining whether it was appropriate for the Magistrate to make the order was that DK is already necessarily the subject of licence conditions. It is only by abiding by these conditions that DK is permitted to live in the community. In the event that he breaches those conditions his liberty will be revoked and he will be taken into custody. 95 There are two relevant consequences arising from this. The first is that DK is already required to abide by one set of restrictive conditions. To impose a further second set of different conditions in the form of an intervention order, is unduly onerous, given his intellectual function. 96 The second consequence is that it is open to make an application to amend the licence conditions, such that they better reflect the conditions that have been imposed under an intervention order. The licence already affords the victim with a degree of protection given that one of the conditions is: “The defendant must not be in the company of anyone under 18 years unless they are with a person approved by the Supervising Officer”.93 97 It is no answer to a suggestion of amending the terms of DK’s licence, to fall back on the failure or unwillingness of the DPP to make the application. Whilst ordinarily as a matter of practice it would be the DPP who would make an application of this nature, that need not necessarily be so. The licence was ordered under Part 8A, Division 3A of the CLCA. Section 269ND provides: 93 FDN 65 of DCCRM-23-027383 at Condition 14. -- 24 of 25 -- [2026] SASC 69 McDonald J 23 269ND—Variation or revocation of condition of Division 3A order At any time during the period that a defendant is subject to a Division 3A order, the court may, on the application of the Crown, the defendant, the Parole Board, the Public Advocate or another person with a proper interest in the matter (including a person who has been specified in the licence as a responsible person), vary or revoke the order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance. 98 The category of those entitled to make an application to vary the licence conditions is therefore very broad and is not dependent upon the position taken by the DPP. 99 A further issue that was raised is that the licence conditions will only remain in place for the life of the licence, which is a finite period of time, as compared to an intervention order, which is ongoing. 100 Eight years is however a relatively long time. At the end of that term DK’s victim will be well into adulthood. In the event that is thought to be necessary for her to have the protection of an intervention order, a determination can be made based on all of the circumstances at that time as to whether it is appropriate to make an order. Conclusion 101 As to ground 1, I find that it was open to the Magistrate to conclude that it was “reasonable to suspect that the respondent will, without intervention, commit an act of abuse against the protected person”94 however the Magistrate was in error in finding that an intervention order was appropriate in the circumstances. 102 It is therefore not necessary that I determine ground 2, which raises much broader issues. 103 I order that the intervention order made on 18 November 2025 be revoked. 94 Magistrate’s Reasons at 4. -- 25 of 25 --