BC v MC [2024] SASC 81

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE STRATTON- SMITH) MCCRM-24-002360 Appellant: BC Counsel: MR A CULSHAW - Solicitor: PRECISION LEGAL Respondent: MC Counsel: MR A REDFORD - Solicitor: KP LAWYERS Hearing Date/s: 03/04/2024 File No/s: SCCRM-24-008783 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. BC v MC [2024] SASC 81 Judgment of the Honourable Justice McDonald 19 June 2024 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 This is an appeal from the decision of a Magistrate to issue an interim intervention order under s 21(6) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’). The appellant and respondent are former domestic partners. Following the breakdown of their relationship in January 2024, the respondent applied for an interim intervention order against the appellant. An ex parte preliminary hearing was held on 23 January 2024, at which the presiding Magistrate received an affidavit sworn by the respondent and granted the interim intervention order against the appellant. This order names the respondent and the parties’ two children as protected persons. The appellant appeals the Magistrate’s decision on the basis that the learned Magistrate erred in issuing the interim intervention order after receiving affidavit evidence in circumstances where the application was not made by “a police officer or a person introduced by a police officer”. The appellant contends that the correct construction of s 21(6), having regard to its statutory context, does not permit the making of an interim order on affidavit evidence alone should the applicant fall outside of this category. The respondent opposes the grant of leave to appeal as well as the appeal proper, contending that there are other options for the variation or revocation of the order short of an appeal. Held, granting an extension of time in which to appeal, granting leave to appeal and allowing the appeal: -- 1 of 13 -- 1. The learned Magistrate erred in issuing an interim intervention order on the basis of affidavit evidence in circumstances where the application was not made by a police officer, or a person introduced by a police officer. 2. It is appropriate to remit the application to a different Magistrate for a preliminary hearing. Criminal Procedure Act 1921 (SA) s 76(A)(1)(B); Domestic Violence Act 1994 (SA); Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 18, s 20(1)(a), s 20(1)(b), s 21(2), s 21(2)(a), s 21(3), s 21(4), s 21(4a), s 21(6); Magistrates Court Act 1991 (SA) s 40(2); Summary Procedure Act 1921 (SA); Uniform Civil Rules 2020 (SA) r 213.1, r 214.1; Uniform Special Statutory Rules 2022 (SA) r 84.1(1), r 84.2(2), referred to. Thakur v Police [2016] SASC 75; Van Reesema v Police [2009] SASC 8, considered. -- 2 of 13 -- BC v MC [2024] SASC 81 Magistrates Appeal: Criminal McDONALD J. 1 This is an application for permission to appeal against the decision of a Magistrate to issue an interim intervention order pursuant to s 21 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (‘the Act’) on 23 January 2024. The appellant is the subject of that order, and the respondent and their two children are named as the protected persons. 2 It is the appellant’s contention that the learned Magistrate erred by issuing an interim intervention order on the basis of the evidence received in the form of an affidavit, in circumstances in which the applicant was not a police officer or person introduced by a police officer. It was submitted that s 21(6) of the Act only permits the issuing of an interim intervention order on the basis of affidavit material when the application is made by “a police officer or a person introduced by a police officer”. 3 It follows that the determinative issue on this appeal is whether it was open for the Magistrate, on the private application of the respondent, to issue an interim intervention order on the basis of affidavit material alone. Leave to appeal 4 This appeal is brought pursuant to s 40(2) of the Magistrates Court Act 1991 (SA) and r 213.1 of the Uniform Civil Rules 2020 (SA). 1 An interim intervention order is an interlocutory judgment, as it does not finally determine the rights of the parties, and consequently leave to appeal is required. 5 Section 40(2) provides no criteria by which it is to be determined whether leave should be granted.2 The purpose of limiting the right of appeal from interlocutory judgments and orders is to prevent summary proceedings from being delayed and fragmented. As Bleby J observed in van Reesema v Police:3 If an error is made in an interlocutory judgment it may or may not affect the final outcome. If it does it can be corrected on appeal from the final substantive decision in the case, rather than by an appeal against an interlocutory order at a stage when all the evidence is not before the Court and the ultimate practical significance of the interlocutory order is not yet known. 1 Since 29 August 2022 the Intervention Orders (Prevention of Abuse) Act 2009 (SA) came to be governed by Part 6 of the Uniform Special Statutory Rules 2022 (SA), which means, according to those rules, the Uniform Civil Rules 2020 (SA) apply. 2 This is to be compared with s 42 of the Magistrates Court Act which relates to criminal appeals. “Special Reasons” are required to grant permission to appeal from an interlocutory judgment in criminal proceedings. 3 [2009] SASC 8 at 23. -- 3 of 13 -- [2024] SASC 81 McDonald J 2 6 It follows that in order for leave to be granted there must be some feature of the case that takes it out of the ordinary and distinguishes it from the usual cases. 7 The appellant submitted that leave should be granted on the basis that the appeal raises a question of law of general importance that has not yet been the subject of a considered decision of this Court. Further, private applications for intervention orders are a common occurrence in the Magistrates Court. It was submitted that there is at least an arguable case that the Magistrate departed from the proper approach to be adopted in determining whether to make such an order. Whether this was because of an idiosyncratic approach of a single Magistrate or a broader misunderstanding amongst the magistracy, it was the appellant’s submission that it is important that this Court address the appropriate procedure to be adopted when someone other than a police officer makes an application for an interim intervention order. 8 The appellant submitted that a second factor to be taken into account in determining whether leave should be granted are the practical consequences of the order. The terms of the order have serious consequences for the appellant. She is deprived of having any form of contact with her children, who had previously been in her care and custody. The order was made in the appellant’s absence on the basis of an untested, unchallenged affidavit. Mr Culshaw, who appeared for the appellant, effectively summarised the impact of such an order on an individual in the following terms:4 The effect of an interim intervention order is to criminalise things that a person would otherwise do in their everyday life; send a text message to their partner, pick up their children from school, that sort of thing. And so the creation of that criminal liability and the corresponding incursion into a person’s liberty arising from an almost Kafkaesque situation where one has no ability to defend themselves at the preliminary hearing, one does not know what the allegations are, In fact one does not even know that the preliminary hearing is happening at all, means that, in my submission, this court ought to more readily grant permission to appeal in the case of an intervention order than in a circumstance of, for example, the sort of archetypal case of an interlocutory decision of a criminal court, you lose a search argument in the Magistrates Court and you say ‘well your Honour put the brakes on me, go and appeal that’. 9 In support of the application for leave, Mr Culshaw made the further submissions that the Magistrate made a significant and fundamental error of law. If his argument is correct, the Magistrate had no jurisdiction to make an interim intervention order on affidavit evidence alone. He submitted that if that is so, the proper remedy for an order made without power is that it be quashed on appeal. That is particularly as the Magistrates Court, as a creature of statute, has no inherent power to correct its own errors. Absent a specific power to re-open or revisit a decision,5 once the order of the Court is perfected, the only means by 4 T7. 5 Section 76A of the Criminal Procedure Act 1921 (SA) provides a Magistrate the power to set aside a conviction or order. However, pursuant to s 76(A)(1)(b) an application by a party must be made within 14 days after the party receives notice of the conviction or order. -- 4 of 13 -- [2024] SASC 81 McDonald J 3 which to correct the error is on appeal. It was on that basis that the appellant brought this application. 10 It was the respondent’s position that leave should be refused. It was the submission of Mr Redford, who appeared for the respondent, that the appellant’s arguments were technical, and in bringing proceedings in this Court the appellant was fragmenting and protracting the processes that could take place relatively expeditiously in the lower Court. 11 It was said that the seeking of a remedy in this Court should be discouraged in circumstances in which the overall policy of the Act is to ensure expeditious hearings, especially at the interim order stage. 12 Mr Redford encapsulated his position in the following submission:6 [The Act is] an important piece of protective legislation where families and others are confronted with extraordinary challenges, that it is to assist in preventing domestic abuse and the exposure of children to the effects of domestic abuse and it goes on and says in the objects it’s there to protect persons witnessing domestic abuse. He continued: …if the appellant’s argument is to be accepted, a triumph of form over substance. Again, the rules talk about the object is to facilitate the just, efficient, timely and cost effective administration of law. Nowhere has my learned friend suggested how if this appeal is granted that would fit within the facilitation of a just, efficient and timely outcome. 13 It was submitted that this Court should be reticent to grant leave when the appellant had other options open to her to remedy the situation without calling on the jurisdiction of this Court. Amongst the options Mr Redford pointed to were the ability to take out proceedings in the Family Court or seek a variation or revocation of the order pursuant to s 26 of the Act. 14 The respondent submitted that it was open to the appellant to bring forward the hearing of the application in the Magistrates Court for a final intervention order and seek orders that the application be dismissed and the interim intervention order be revoked. Mr Redford submitted that even if I formed the view that there had been an irregularity, an appropriate, pragmatic course would be to refuse leave to appeal and instead make observations in my reasons about the appropriate process that should have been undertaken. 15 Whilst there is some force in what was put by Mr Redford, I am of the view that there is merit to this appeal and it raises an important issue to be determined. If it is in fact the case that practices have developed that do not comply with the legislative requirements, this Court having been made aware of that fact, should not disregard the issue by declining to grant leave to appeal. Equally, if Mr Culshaw is incorrect in his argument, and it was open for the Magistrate to 6 T16. -- 5 of 13 -- [2024] SASC 81 McDonald J 4 determine the application on the basis of an affidavit, then, for reasons that I will come to, the Uniform Special Statutory Rules 2022 (SA) may be inconsistent with the requirements of the legislation. 16 In my view it is appropriate to grant leave to appeal. 17 A further matter that I take into account in arriving at the decision to grant leave is that the sort of disruption and fragmentation of proceedings that is the basis of the requirement for leave is not present in these circumstances. The application for an interim intervention order has been heard and determined. The bringing of this appeal has not had the consequences that would commonly occur when, during the course of a trial, interlocutory decisions become the subject of an appeal. Extension of time 18 The appellant also seeks an extension of time. 19 An appeal must be instituted within 21 days after the judgment or the order that is the subject of the appeal.7 20 The interim intervention order was made on 23 January 2024. The notice of appeal was filed on 6 March 2024. The effect of that is that the notice was filed just over three weeks out of time. The appellant has provided an affidavit8 setting out the various steps that she undertook to engage with lawyers over this period. She was no doubt at that time still struggling with the legacy of her recent mental health episode. 21 The determination of whether to grant an extension of time is an evaluative exercise in which The Court must take into account four matters. These are the length of the delay, the reasons for the delay, whether there is an arguable case on the appeal and the degree of prejudice to the respondent.9 22 The length of the delay is not significant and the explanation for the delay is reasonable. The respondent has not suggested that he has suffered any prejudice or forensic disadvantage as a consequence of the delay, and as I have said, in my view there is merit to the appeal. In those circumstances, I grant an extension of time until 6 March 2024. Background 23 In order to understand the various arguments on this appeal, it is necessary to have an appreciation of the events that led up to, and the circumstances in which the interim intervention order came to be made. 24 The appellant and respondent are former domestic partners. There are two children of the relationship, a daughter aged 13 and a son aged 16 (at the time of 7 Uniform Civil Rules 2020 (SA) r 214.1. 8 FDN 4. 9 Thakur v Police [2016] SASC 75 at [28] per Stanley J. -- 6 of 13 -- [2024] SASC 81 McDonald J 5 writing). Whilst there was no doubt an acrimonious breakdown of the relationship, with each party attributing the blame to the other, the essential facts relevant to the disposition of this appeal do not appear to be in dispute. These are: • The appellant and the respondent had been in a relationship for approximately 16 years. • On 14 January 2024, the appellant suffered a mental health episode that resulted in her attempting suicide. As a consequence, the appellant was admitted to the Wallaroo Hospital where she remained until her release on 17 January 2024. • Upon her release, the appellant moved to Adelaide to stay with her family for a period of time. During that time the children continued to live with the respondent. • On 18 January 2024, the respondent swore a supporting affidavit in support of an application for an interim intervention order against the appellant. On that same day, the appellant contacted the police to advise them that she wished to “press charges” against the respondent and requested that they make on application for an interim intervention order on her behalf. The appellant provided the police with an affidavit setting out complaints of domestic violence in the marriage. The appellant was advised by police that they would apply for an interim intervention order at the time that the charges were laid against the respondent. No particular date was nominated. • On 23 January 2024, a preliminary hearing occurred in the Kadina Magistrates Court in relation to the respondent’s application for an interim intervention order pursuant to s 21 of the Act. The respondent was present in court for the application, however, did not give evidence on oath. The Magistrate relied on the respondent’s affidavit as the basis of the application. During the course of the hearing, the Magistrate said:10 I’ll take the affidavit as read and treat that as evidence on oath. The application for an interim order is allowed. • The Magistrate granted the application for the intervention order. The terms of the order included that the appellant have no contact with her children. • The appellant was served with the Court documents regarding the interim intervention order on 25 January 2024. • On 6 March 2024 the appellant filed a notice of appeal in this Court. 10 The parties were provided with an audio recording of the Magistrates Court hearing of 23 January 2024. -- 7 of 13 -- [2024] SASC 81 McDonald J 6 The relevant sections of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) 25 Part 3 of the Act contains the substantive and procedural provisions for the making of intervention orders. Division 1 – General (ss 6-17) sets out the substantive law to be applied in determining whether an intervention order is to be made and, if so, on what terms. 26 Division 2 – Police Orders (ss 18 and 19) provides South Australian police officers above a certain rank with the power to authorise, issue or revoke interim intervention orders if certain criteria are met. 27 Division 3 – Court Orders (ss 20-25) governs the procedure by which an intervention order is made by a Court.11 Section 20(1) identifies who may apply to the Court for an intervention order. Relevant to this appeal, this includes a police officer (s 20(1)(a)),12 and “a person against whom it is alleged the defendant may commit an act of abuse” (s 20(1)(b)).13 28 Section 21 sets out the procedure to be undertaken when an application is made to the Court for an ex parte hearing for an interim intervention order. This section applies in circumstances in which a police officer has not issued an interim intervention order under s 18 of the Act. 29 The first requirement under s 21 is for the matter to be determined in a timely manner. Section 21(1) provides as follows:14 21—Preliminary hearing and issue of interim intervention order (1) On an application for an intervention order in circumstances in which an interim intervention order has not been issued by a police officer, the Court must hold a preliminary hearing as soon as practicable and without summoning the defendant to appear. 30 Section 21(2) relates to circumstances in which the application is made by telephone or other electronic means and has no direct bearing on the issues in contention on this appeal. Having said that, the appellant contends that some support for their position may be found in this section. It was submitted that the purpose of s 21(2) is to expand the manner of the hearing of a preliminary application so as to facilitate telephone or electronic hearings.15 Section 21(2)(a) provides that if the application is made by telephone or other electronic means “the preliminary hearing may occur by oral questioning of the applicant and any other available witness or by other means contemplated by the rules”, on the appellant’s argument, thereby expanding on the default position that oral evidence is required 11 Section 3(1) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) defines the “Court” as “the Magistrates Court of South Australia”. 12 Ibid s 20(1)(a). 13 Ibid s 20(1)(b). 14 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21.1. 15 Applicant’s written submissions dated 21 March 2024 (FDN 10) at [14]. -- 8 of 13 -- [2024] SASC 81 McDonald J 7 before an interim order can be made. The point was made that if it was intended by Parliament that the starting point was that a preliminary hearing could be conducted on the basis of affidavit evidence, it would be expected that such a starting point would be reflected in s 21(2)(a). There is some force to this argument. 31 Section 21(3) sets out the Court’s binary powers at a preliminary hearing, to either dismiss the application or issue the interim intervention order. 32 Section 21(4) and 21(4a) relate to allegations of non-domestic abuse and are consequently not directly relevant to the determination of the application that came before the Magistrate in this case. It does however have some bearing on an overall understanding of the construction of the Act in that it sets out separate approaches to be adopted by the Court dependent upon whether or not the applicant is a police officer. In the event that the applicant is a person other than a police officer s 21(4) applies. This section reads: 21 – Preliminary hearing and issue of interim intervention order (4) If the applicant alleges non-domestic abuse and is a person other than a police officer, the Court must, in determining whether to exercise the discretion to dismiss the application, take into account – (a) whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means; and (b) whether the application is in the nature of a cross application; and (c) any other matters that the Court considers relevant. 33 In the event that the applicant is a police officer s 21(4a) applies: (4a) If the applicant is a police officer – (a) the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and, (b) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. 34 Section 21(6) is the subsection central to this appeal. It reads: (6) The Court may issue an interim intervention order on the basis of evidence received in the form of an affidavit if the application is made by a police officer or a person introduced by a police officer but, in that case – (a) the deponent must, if the defendant so requires, appear personally at the proceedings for the determination of the application to give oral evidence of the matters referred to in the affidavit, and -- 9 of 13 -- [2024] SASC 81 McDonald J 8 (b) if the deponent does not appear personally to give evidence as so required – the Court may not rely on the evidence contained in the affidavit for the purpose of determining the application. 35 It is self-evident that this subsection applies only when it is “a police officer or a person introduced by a police officer” who makes the application. Unlike s 21(4) and 21(4a) there is no alternative procedure or approach provided for circumstances in which the applicant is a person other than a police officer. It is the significance of that omission that will determine the outcome of this appeal. 36 Subsections 21(7) – (13) relate to the form of the interim intervention order and other procedural matters including the requirements for service. They are not relevant for current purposes. The relevant Uniform Special Statutory Rules 2022 (SA) 37 Although it was not suggested that the rules of Court overcome the correct construction of the legislation, it was submitted by the appellant that some support for their position can be gained from the Uniform Special Statutory Rules 2022 (SA). It was contended that at least the makers of those rules,16 considered that the construction of s 21(6) advocated for by the appellant is the correct one. 38 Rule 84.2 falls within Part 6 – Intervention Orders: Magistrates and Youth Orders, Division 2 – Police and Criminal Court Issued Interim Intervention Orders, Subdivision B – Criminal Court-Issued Interim Intervention Orders and relevantly provides:17 84.2 – Conduct of preliminary hearing (1) Unless the applicant is the Commissioner of Police, the application for an intervention order must be supported by oral evidence (in person or, with leave, by audio visual link or audio link). (2) If the applicant is the Commissioner of Police, the Court may require either of the following to give oral evidence (in person or by audio visual link or audio link)— (a) the deponent to the affidavit; or (b) subject to section 28A(2)(b), the person the subject of recorded evidence sought to be admitted under section 28A of the Act. 39 This rule clearly does not contemplate or allow for an application to be made for an interim intervention by someone other than the Commissioner of Police supported only by an affidavit. It is also of note that the rule does not refer to sworn evidence, rather it sets out a requirement for oral evidence. 16 The Chief Justice of the Supreme Court, the Chief Judge of the District, the Judge of the Youth Court and the Chief Magistrate of the Magistrates Court. 17 Uniform Special Statutory Rules 2022 (SA) r 84.2(1)-(2). -- 10 of 13 -- [2024] SASC 81 McDonald J 9 Appellant’s argument 40 It was the appellant’s submission that the relevant subsections of s 21 of the Act, by design, make it easier for the police to obtain an interim intervention order, than a private applicant. They operate in conjunction with s 18 of the Act which gives a police officer, above a certain rank, the power to authorise or issue an interim order in certain circumstances. These provisions place police in a “distinct and privileged class of applicant when compared to a member of the public in attempting to obtain an interim intervention order”.18 41 The appellant contends that there are only three possible constructions of s 21(6). These are:19 1. Any applicant can be granted an interim intervention order on the basis of affidavit evidence, subject to the qualifications in subsections 21(6)(a) and (b): 2. Any applicant can be granted an interim intervention order on the basis of affidavit evidence, but if (and only if) the applicant is a police officer or a person introduced by a police officer, the qualifications in subsections 21(6)(a) and (b) apply; or 3. Only an applicant who is a police officer or a person introduced by a police officer can be granted an interim intervention order on the basis of affidavit evidence, and when such an order is granted in those circumstances, the qualifications in subsections 21(6)(a) and (b) apply. 42 It was submitted that whilst the second construction is theoretically open, it can be readily rejected as it results in an outcome with the opposite effect to that intended by Parliament. It would make it easier for a private applicant to obtain a final intervention order than a police applicant. It would mean that a police applicant, a person in a position of trust and authority may be required to jump hurdles not required of a private applicant. It was the appellant’s submission that such an outcome would be perverse and inconsistent with the clear legislative intention underpinning the regime that has been put in place for intervention orders.20 43 I agree with that submission. 44 It is the appellant’s submission that construction three is the correct construction, in that it is the only construction that gives meaning to all of the words in the section. It is also in accordance with the express and implicit intention of Parliament as it relates to the powers of police in respect of interim intervention orders. 18 Appellant’s written submissions dated 21 March 2024 (FDN 10) at [17]. 19 Ibid at [21]. 20 Ibid at [22.2] -- 11 of 13 -- [2024] SASC 81 McDonald J 10 The Respondent’s submissions 45 Although the focus of the respondent’s submissions were on the reasons why leave should be refused, some limited submissions were made on the merits of the construction of the Act advocated for by the appellant. 46 The respondent challenged the submission made by the appellant that the Act creates a regime by which the bar is not set as high for an application made by a police officer as opposed to a member of the public. Mr Redford submitted that it could not have been the intention of Parliament to create a more advantageous system for a police officer than a legal practitioner, who is an officer of the Court.21 47 With respect, that submission glossed over the fact that it cannot be assumed that an applicant would instruct a lawyer to make the application on their behalf. Whilst the respondent was legally represented in the Magistrates Court, that is not necessarily the norm. To the contrary, given the jurisdiction and the nature of the application, it is likely to be the exception rather than the rule that an applicant is legally represented. 48 As to the meaning of s 21(6), Mr Redford advocated for option one of the three possible constructions set out by Mr Culshaw, as the correct interpretation of the section. 49 Mr Redford submitted that whilst s 21(6) relates to police who are making an application on behalf of a third party, it should not be construed as restricting the means by which a non-police officer can obtain an order. It was contended that if the section is to be construed in the manner advocated for by the appellant, it would be expected that the section would be express in its terms. It was Mr Redford’s submission that “the requirement for sworn evidence has effectively been met/subsumed by the affidavit.”22 Mr Redford asked rhetorically what need would there be for oral evidence in circumstances in which these hearings are conducted ex parte and consequently the evidence is not tested by the respondent. Was the Magistrate in error in making the order on the basis of an affidavit? 50 The Act came into operation on 9 December 2011. It replaced the Domestic Violence Act 1994 (SA) and parts of the Summary Procedure Act 1921 (SA) that governed personal restraining orders. New features introduced in the legislation included:23 Improved police powers to intervene in situations of domestic or personal abuse, including the power to issue an interim intervention order, to direct that person remain in a certain place and if necessary to detain the person while arrangements are made to protect the victim or to facilitate the preparation and service of orders. 21 T20. 22 Respondent’s written submissions dated 27 March 2024 at [26]. 23 South Australia Parliamentary Debates, Legislative Council, 10/09/09, P.3939 (Hon. M.J Atkinson). -- 12 of 13 -- [2024] SASC 81 McDonald J 11 51 Section 18 of the Act created a new police power that did not exist under the previous scheme. By empowering police to issue interim intervention orders, Parliament indicated a clear intent to increase police powers with respect to making these orders as compared to the previous regime. In doing so, they placed police in a position of authority with respect to interim intervention orders as compared to members of the public. 52 In my view, that intent is also reflected in s 21(6) of the Act. It enables the police to rely upon affidavit material in support of an interim order in a manner not open to a member of the public. The policy reason is obvious. The Act ensures that someone, a public officer, whether a police officer or a Magistrate, has the opportunity to see and hear the applicant give their account either in the process of swearing the affidavit or from the witness box. True it may be that the evidence is uncontested, however given the consequences to a defendant can be so extreme, there are sound public policy reasons for this requirement. In circumstances in which a defendant is not even aware that there is a proceeding underway, and does not have a right to be heard, it is unsurprising that Parliament identified the need for a gatekeeper to hear the account of the deponent, either in taking the affidavit or in the courtroom. 53 This also accords with the words of the section. The correct construction is that identified by Mr Culshaw as construction three. That construction gives work to all of the words in the provision whilst according with the express and implicit intention of Parliament as it relates to the powers of police in respect of interim intervention orders. It also sits harmoniously with the rest of s 21 in the broader context of the Act. 54 It follows that the Magistrate was in error in issuing an interim intervention order on the basis of evidence received in the form of an affidavit, in circumstances where the application was not made by a police officer or a person introduced by a police officer. 55 I make the following orders: 1. The time within which to appeal is extended to 6 March 2024. 2. The appeal is allowed. 3. That the interim intervention order dated 23 January 2024 be quashed. 4. The application is remitted to a different Magistrate for a preliminary hearing. 56 As mentioned, the appellant has also made an application for an interim intervention order. Applications of this nature should not be a contest as to who can arrange for their application to come before the Court first. In my view, one Magistrate should hear both applications to attempt to deal with the matter expeditiously and in a manner that is fair to both parties. -- 13 of 13 --