PA v AMAL ABROTONITE [2024] SASC 130

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE FISHER) MCCHB-22-224 Appellant: PA Counsel: MR C KUMMEROW - Solicitor: TINDALL GASK BENTLEY Respondent: AMAL ABROTONITE Counsel: MS K WAITE - Solicitor: PEARSONS LAWYERS Hearing Date/s: 21/06/2024 File No/s: SCCRM-24-010589 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. PA v ABROTONITE [2024] SASC 130 Judgment of the Honourable Justice Kimber 15 November 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 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT This is an appeal from the refusal of a Magistrate to confirm an interim intervention order pursuant to s 23(1)(c) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). The appellant and the respondent had been involved in an intimate relationship (‘the relationship’) which the appellant ended in April 2019. Both before and after the end of the relationship, the appellant, his family and his employer received anonymous messages which were abusive and potentially defamatory. In the hearing before the Magistrate, five such messages (‘the messages’) became exhibits and were particularly relied upon to justify the order sought by the appellant. The appellant and the respondent gave evidence before the Magistrate. The respondent denied sending any message and, through her counsel, submitted that another woman (or women) may have been responsible. Tendered by the appellant during the hearing was an email (‘the email’) authored by a person who had been involved in investigating whether a computer available to the respondent at her workplace might have been the source of the final message tendered. Following a hearing conducted over four separate days and during which the appellant and the respondent gave evidence, the Magistrate was not satisfied on the balance of probabilities the respondent had sent any message and refused to confirm the order sought. In so finding, the Magistrate declined to place any weight on the email as the author had not been called to give evidence. -- 1 of 28 -- The appellant appealed on three grounds, which can be summarised as follows: 1. That the email was a business record and having been admitted in evidence pursuant to s 53(1) of the Evidence Act 1929 (SA) (‘EA’), the Magistrate erred in not giving it weight (Ground 1); 2. That the hearing miscarried by reason of counsel for the appellant before the Magistrate not calling the author of the email to give evidence and by that counsel not expressly putting to the respondent in cross-examination that she had sent the messages (Ground 3); 3. That in concluding that it had not been established that the respondent had sent any of the messages, the Magistrate failed to have regard to certain evidence and that the ultimate conclusion was wrong (Ground 2). Held, allowing the appeal: With respect to Ground 1: 1. The email having been admitted in evidence pursuant to s 53(1) of the EA, the Magistrate was not obliged to give it weight. Before the appellant closed his case, he was on notice that the position of the respondent was that the author of the email should be called. The submission of the appellant cannot be reconciled with the terms of s 53(3) of the EA which are not to be construed as demanding that a document admitted in evidence be given at least some weight. With respect to Ground 3: 2. Given the protracted nature of the hearing before the Magistrate, the decision not to call the author of the email was a rational one. As to the cross-examination of the respondent, counsel for the appellant was not obliged to confront the respondent in a more direct way. With respect to Ground 2: 3. The appellant has not established that the Magistrate failed to consider any relevant evidence. There was a significant body of evidence consistent with the respondent being responsible for the messages. While this Court must give due weight to the advantage enjoyed by the Magistrate in seeing and hearing the evidence, the appellant has established that the decision of the Magistrate was wrong. Pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) an intervention order will be made. Evidence Act 1929 (SA) s 53; Intervention Orders (Prevention of Abuse) Act 2009 (SA) ss 6, 8, 10, 15A, 23; Magistrates Court Act 1991 (SA) s 42, referred to. Ali v The Queen (2005) 79 ALJR 662; Helps v The Queen (No 3) [2021] SASCFC 10; Police v Kriticos [2016] SASC 28; Police v Mahon (2022) 141 SASR 374; R v Taylor [2014] SASCFC 112; Tazroo v Police [2002] SASC 155; Teague v SL [2021] SASC 114; TKWJ v The Queen (2002) 212 CLR 124, applied. Nudd v The Queen (2006) 80 ALJR 614, discussed. -- 2 of 28 -- PA v ABROTONITE [2024] SASC 130 Magistrates Appeal: Criminal KIMBER J: 1 This is an appeal against a refusal of a Magistrate to confirm an interim intervention order pursuant to s 23 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (the Act) following a hearing held over about four days between 8 December 2022 and 29 February 2024. 2 In the Court below, the key foundation upon which the appellant (the applicant in the Court below) submitted that confirmation of the interim intervention order was appropriate was five anonymous, abusive and potentially defamatory messages about the appellant (the messages). The Magistrate found that each of the messages was ‘clear grounds’1 to confirm an interim intervention order. The real issue in the Court below was whether the appellant had established on the balance of probabilities that the respondent (the respondent in the Court below) had sent any of the messages. In a conclusion challenged by the appellant on appeal, the Magistrate was not satisfied that the appellant had met that burden and declined to confirm the interim intervention order. 3 For the reasons which follow, I allow the appeal. Some factual background 4 Both the appellant and the respondent gave oral evidence before the Magistrate, and both were represented by counsel. 5 The appellant is a medical practitioner. The respondent is a pharmacist. Between about 1 July 2018 and about 28 April 2019, the appellant and the respondent had a sexual relationship (the relationship) which commenced when both worked at a hospital in Victoria. 6 The relationship between the appellant and the respondent was not an exclusive one. Throughout that relationship, the appellant was engaging in intimacy with several other women. One of the other women was Ms C. In April 2019, Ms C, whom by this time was living with the appellant, became aware that she was not the only woman with whom the appellant was being intimate. Ms C agreed to continue her relationship with the appellant on the condition that he bring his other relationships to an end. The appellant agreed. Consistent with that agreement, the appellant communicated to the respondent, and other women with whom he was being intimate, that he wanted to engage in an exclusive relationship with Ms C. In this way, the relationship with the respondent came to an end. The method of communication chosen by the appellant was a message. 1 Judgment of Magistrate Fisher, 29 February 2024 (Reasons) (Appeal Book 11, [62] (AB)). -- 3 of 28 -- [2024] SASC 130 Kimber J 2 7 There is no dispute that the receipt of this message provoked a response from the respondent. Consistent with both the evidence of the appellant and the respondent, the Magistrate found that the respondent attended the home of the appellant. Consistent with the evidence of the appellant, but contrary to the evidence of the respondent, the response of the respondent was one of dissatisfaction. The Magistrate found the respondent attended the home of the appellant in an emotional and angry state. The messages 8 A set out above, the relationship was not ended by the appellant until on or about 28 April 2019. The messages which were the primary foundation for the application before the Magistrate were sent both before and after that date. The five messages were exhibits and may be summarised as follows: 1. The first message (P4) was a letter sent to the home address of the appellant in Victoria in February 2019 which informed the appellant he had sex with someone with syphilis. That letter included the following ‘You are a narcissistic lying manipulative sociopath. You will get what you deserve for all the horrible things you do. And you are shit in bed; I faked every orgasm just to get you to stop’. 2. The second message (P3) was sent to the address of the parents of the appellant in Victoria in April 2019. The evidence did not establish whether it was sent before the end of the relationship on or about 28 April 2019. The message included a picture of the appellant and described him as a ‘sexual predator who hunts vulnerable young women on Tinder and lures them to his house to rape them’. 3. The third message (P7) was sent to the address of the mother of the appellant in Victoria and received on 13 April 2021. The message had a photograph of the appellant and was headed ‘Your day of reckoning is coming’. The message went on to say ‘women are standing up for themselves and people are taking notice. The revolution has started. Men like you will not get away with it any longer you disgusting pathetic man’. 4. The fourth message (P6) was a letter received by the appellant’s then employer in South Australia on/about 19 October 2021. By this time, the appellant had moved to this State and was working in a GP practice. The letter referred to issues that arose during [the appellant’s] medical training [in Victoria], referred to the appellant being difficult to work with, being argumentative, requiring extremely close supervision, being removed from rotations due to being a serious risk to patients and made other assertions about issues which had arisen during the employment of the appellant in Victoria. The letter also made other serious allegations about the conduct of the appellant in the workplace and privately, including that there had been allegations of sexually -- 4 of 28 -- [2024] SASC 130 Kimber J 3 inappropriate behaviour by the appellant made by patients and staff; that the appellant had viewed pornography at work; that he had been the subject of allegations of sexual assault, domestic violence; and was subject to domestic violence orders. The letter referred to allegations being brought to the attention of a professional body (AHPRA) and the police. The letter asserted that the appellant had lied about being the father of a child. 5. The fifth message (P9 – Appendix 1) was a message received on 23 November 2021 at another GP practice at which the appellant worked in South Australia. The message purported to be from Ms C and alleged the appellant was a rapist. Within the message was a phone number purporting to be that of Ms C which was a past mobile number of the appellant known to the respondent. That message provided a link to a news article which claimed that the Tinder dating app helped sexual predators hide and asserted that the article was about the appellant. 9 Given the content of the messages and evidence about other harassment of a similar type towards both the appellant and Ms C, it is hardly surprising that, having come to believe the respondent was the author, the appellant sought the confirmation of the order in the Court below. 10 Given the content of the messages, and indeed some other allegations which emerged in the evidence before the Magistrate, it should be noted that nothing alleged is anything more than an assertion. Nothing within this judgment should be read as suggesting that any relevant allegation within any message might have substance. Some other evidence 11 It is necessary to refer to some further evidence. 12 On about 1 April 2019 and following a report made by the appellant, the Victorian Police commenced an investigation into the messages received by that date. On about 1 May 2019, the appellant advised the Victorian Police that he believed the respondent to be responsible for the messages received at that time. It appears that up until about that date, the appellant had believed that another woman (Ms AT) may have been responsible for at least P4. It will be necessary to refer to some of the evidence before the Magistrate about Ms AT later. The police investigation appears to have resulted in the respondent receiving a warning for stalking but there is no evidence that the respondent made any admission. 13 In June 2019, the respondent made an allegation to the Victorian Police that she had been raped by the appellant. There was an investigation and on about 1 August 2019, the appellant was advised by the Victorian Police that he would not be charged. On 13 September 2019, in Victoria, the respondent applied for an intervention order against the appellant. With the consent of the appellant and without any admission being made, a final order was granted for two years. -- 5 of 28 -- [2024] SASC 130 Kimber J 4 14 On 14 October 2020, the appellant received notice that the respondent had lodged an application for assistance for a criminal injury claim in relation to the alleged rape(s), an application which was not granted. On or about 1 February 2021, an anonymous allegation was made about the appellant to AHPRA and on or about 1 December 2021, the appellant was advised that investigation had concluded with no action being taken. The investigation by the employer of the respondent – P9 and annexures 15 On 25 November 2021, two days after the message P9 – Appendix 1, the appellant lodged a complaint with the Royal Victorian Eye and Ear Hospital (RVEEH). There is no dispute that at that time, the respondent was working at RVEEH. An investigation was conducted, and a report completed. That report and its appendices (the report) were tendered by the appellant during his evidence and became P9. Given the issues in the appeal, it will be necessary to refer to P9 in some detail later. Ms AT 16 As set out above, until about 1 May 2019, the appellant believed that at least the first message, if not also the second, had been sent by Ms AT. The appellant described it as an obvious assumption to make as Ms AT had lied to and manipulated him with respect to the paternity of her child. 17 Ms AT is a former partner of the appellant. The appellant first slept with Ms AT in about 2015. In late 2017, and after the appellant had brought his relationship with Ms AT to an end, Ms AT told the appellant that she was pregnant and that he was the father of her child. The child was born in July 2018. Both before and after the birth, the appellant and his family helped Ms AT. The appellant initially accepted that the child was his and brought the child to his work in July 2018, or shortly thereafter. Nevertheless, the appellant had doubts about whether he was the father of the child and initiated a paternity test. In about October 2018, the appellant learned that he was not the father of the child and in that month, or soon thereafter, the appellant ceased any role in parenting of the child and it appears that successful steps were taken to recover monies paid to Ms AT with respect to the child. The reasons of the Magistrate 18 The oral evidence before the Magistrate was limited to the evidence of the appellant and the respondent. The Magistrate summarised that evidence in some detail.2 The Magistrate also set out the key aspects of the messages.3 19 The Magistrate made findings about the honesty and reliability of the appellant and the respondent. 2 Reasons (AB, 9–14, [2]–[36]; 14–16, [37]–[46]). 3 Ibid (AB, 10, [8]–[9]; 11, [14]–[18]; 12, [20]–[21]; 16–19, [50]–[60]). -- 6 of 28 -- [2024] SASC 130 Kimber J 5 20 The Magistrate noted that aspects of the evidence of the appellant were his inadmissible opinions about why the respondent was responsible for the messages. The Magistrate also noted that other aspects of his evidence were hearsay and could not be relied upon for the truth. The Magistrate found the appellant to be honest.4 21 The respondent denied sending the messages and gave some evidence contrary to the admissible aspects of the evidence of the appellant. The Magistrate did not accept the respondent as completely honest and reliable.5 The Magistrate preferred the evidence of the appellant about the response of the respondent to receiving the message on or about 28 April 2019. The Magistrate rejected her evidence that she had attended the home of the appellant as she was concerned about his wellbeing and not because she was disappointed that the relationship had been ended. The Magistrate preferred the appellant’s evidence that the respondent was angry at the relationship ending and had attended his home as a consequence of that emotion. An aspect of the evidence of the respondent had been that some months before April 2019, she had decided that she wanted the relationship to be platonic. At least implicit in the reasons of the Magistrate is also the rejection of that aspect of the evidence of the respondent. As will be seen, despite not accepting all the evidence of the respondent, the Magistrate did not reject her evidence denying that she had sent the messages. 22 For reasons best examined when dealing with the grounds of appeal, the Magistrate set out in detail why he was not satisfied on the balance of probabilities that the respondent had sent any of the messages P3, P4, P6, P7, or P9-Appendix 1.6 The grounds of appeal 23 The appellant appeals on the following grounds: 1. The Learned Magistrate erred in their treatment of exhibit P9, and that there was insufficient evidence to establish that the respondent sent the message at exhibit P9, Appendix 1. Particulars (i) The document, having been admitted without objection, was admissible without having to call the author of Appendix 5. (ii) The document, having been admitted without objection, was evidence of the following facts stated in the record: a. The correspondence sent to [a Medical Centre] at 2:16pm on 23 November 2021 was sent from an IP address linked to RVEEH. 4 Reasons (AB, 17, [55]). 5 Ibid (AB, 17, [56]). 6 Ibid (AB, 17-19, [57]–[62]). -- 7 of 28 -- [2024] SASC 130 Kimber J 6 b. That on that date the respondent was an employee of RVEEH, and was working at RVEEH. c. That on 23 November 2021 someone internal to RVEEH accessed the IPN website numerous times, including at 2:46pm Melbourne time (which is 2:16pm Adelaide time). d. That the CCTV showed that at about 2:13 (Melbourne time) the respondent entered her office and at 2:47pm (Melbourne time) the respondent left that office. (iii) Those facts stated in the record, in conjunction with other evidence, led to the inference that it was the respondent who sent the message to [a Medical Centre]. (iv) The learned Magistrate erred in holding that the author of Exhibit P9, Appendix 5, had to be called after the document was admitted, and that the document could have no weight without the author being called. 2. The Learned Magistrate erred in concluding that the respondent was not the only person who could have sent the messages (Exhibits P3, P4, P6 and P7). Particulars (i) The Learned Magistrate failed to have regard to relevant evidence in forming this conclusion. (ii) The Learned Magistrate had accepted the evidence of the Appellant. (iii) The Learned Magistrate did not accept the Respondent as completely honest and reliable, rejecting parts of her evidence. (iv) The respondent was the only person who had made allegations of sexual assault against the Appellant. (v) Much of the information in the exhibits was information only known to the respondent. 3. The trial miscarried by reason of the failure of the Appellant’s counsel at trial to call the author of exhibit P9, Appendix 5, and to cross-examine the respondent in relation to sending exhibits P3, P4, P6 and P7. Particulars (i) The Appellant’s counsel had been given an opportunity and adjourned to have the author of exhibit P9, Appendix 5, give evidence. (ii) That witness was available to give evidence (via telephone) when the trial resumed on 24 February 2023. (iii) The Appellant’s counsel did not call the author, such omission affecting the outcome of the trial such that it led to a miscarriage of justice. (iv) The Appellant’s counsel failed to put in cross-examination that the respondent had sent exhibit P3, P4, P6 and P7. -- 8 of 28 -- [2024] SASC 130 Kimber J 7 (v) That failure prevented the Learned Magistrate to make any findings about that evidence, in circumstances where he rejected other parts of her evidence. The nature of the appeal 24 This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA). The decision not to confirm an interim intervention order is not an interlocutory order.7 The appeal is by way of rehearing and I am required to consider the materials before the Magistrate and make up my own mind, albeit without disregarding the judgment under appeal which must be carefully weighed and considered.8 25 I must give due weight to the advantage of the Magistrate in seeing and hearing the witnesses and give weight to any findings of credibility which depend largely, or in part, upon demeanour.9 The appeal is not a hearing de novo and I should not substitute my own view, or otherwise interfere, unless satisfied that the Magistrate has made an error.10 However, if on full consideration, I conclude the judgment is wrong, I must substitute for the judgment under appeal any order I consider that should be made.11 Ground 1 26 To understand Ground 1, it is necessary to say something about P9; three of its appendices (Appendix 3, Appendix 5 and Appendix 6); and what occurred at trial. 27 As set out above, on 25 November 2021, the appellant made a complaint to the employer of the respondent, RVEEH. In evidence which was hearsay, the appellant said he had learned through his employer that the final message had been sent from RVEEH. The primary document within P9 is a report of an investigation conducted on behalf of RVEEH into the sending of the message on 23 November 2021. The report lists the ‘Decision Maker’ as Ms Sheales, an Executive Director within RVEEH, and the ‘Investigator’ as Ms Dillon, a consultant. It appears that Ms Sheales and Ms Dillon were treated in the Court below as the authors of the primary document within P9. An aspect of the investigation was into whether the message on 23 November 2021 had been sent from a computer ordinarily used by the respondent within RVEEH, or at least from a computer within RVEEH and accessible to her. Within the report are findings which included that the message on 23 November 2021 ‘was most likely submitted’ by a computer within RVEEH network; that whether the respondent had sent that message was not able to be proved or disproved; and that the investigators were unable to find evidence that demonstrated the respondent’s involvement in the sending of the message P9 – Appendix 1. 7 Teague v SL [2021] SASC 114, [8]. 8 Police v Mahon (2022) 141 SASR 374, 394 [81]. 9 Tazroo v Police [2002] SASC 155, [17]–[21]. 10 Police v Kriticos [2016] SASC 28, [27]. 11 R v Taylor [2014] SASCFC 112, [18]. -- 9 of 28 -- [2024] SASC 130 Kimber J 8 28 Within P9 and attached to the report as appendices were six documents, one of which was a copy of the message P9 – Appendix 1. Given the particulars of Ground 1 and the submissions of the appellant, it is only necessary to refer to Appendix 3, Appendix 5 and Appendix 6 as they are the only appendices the subject of any particular within Ground 1 and the only appendices which were subject of submissions. 29 Appendix 3 and Appendix 6 are sets of handwritten notes titled ‘Review of CCTV footage notes’ and ‘Notes from Review of CCTV footage’ respectively. It may be assumed that the notes relate to observations of the movements of the respondent and others in a particular area(s) of RVEEH on 23 November 2021. The identity of the author of those notes is not clear to me, but that is not material. For the purposes of this appeal, it can be assumed that the respondent was working at RVEEH at relevant times and had access to a computer(s) which utilised its network. The issue is whether P9 – Appendix 1 was sent utilising that network. This is where Appendix 5 assumes some importance. 30 Appendix 5 is an email dated 9 December 2021 from Mr Bill O’Brien to Ms Dillon, Ms Sheales and others. It appears sufficiently clear that Mr O’Brien was a person within RVEEH with IT experience and/or responsibilities and that he, or those reporting to him, had some involvement in the investigation of whether the computer could be identified from which the message on 23 November 2021 had been sent. The email attached information as to what had been ascertained about whether a computer accessible to the respondent had been used to access a website(s) of relevance to the sending of the message on 23 November 2021. The email suggests that a desktop computer within the RVEEH network had accessed the website used to send the message on 23 November 2021 and that such access had occurred 23 times between 29 October 2021 to 26 November 2021. The foregoing access could not be attributed to a specific computer(s) and so access could not be attributed to a computer that must have been available to the respondent. This is not to suggest that admissible evidence that a computer within the RVEEH network had been used was not relevant and, if admissible, would not have been important evidence in the case of the appellant. Indeed, had the evidence established that a computer available to the respondent had been used, given the balance of the evidence, the inference the respondent was responsible for the messages might be described as a strong one. The approach to P9 before the Magistrate 31 On 8 December 2022, during the evidence of the appellant and after evidence was given by him about how the report and its appendices had been obtained by him, the report and its appendices were tendered by the appellant and together became P9. On that day, the evidence of the appellant just mentioned having been given, counsel for the respondent did not object to the tender of P9. On 8 December 2022, the application before the Magistrate was ultimately adjourned to 24 February 2023. The appellant had finished his evidence but had not closed his case. -- 10 of 28 -- [2024] SASC 130 Kimber J 9 32 On 24 February 2023, the Magistrate raised P9 with the parties. The Magistrate asked whether the respondent took issue with certain aspects of the report, in particular matters within Appendix 5. For the first time, counsel for the respondent submitted that all findings within the report, not just any within Appendix 5, were disputed. Counsel for the respondent submitted that if the report was to be relied upon, the ‘author’ should be called. The Magistrate pointed out that submission had not been made when P9 had been tendered. Nevertheless, the Magistrate indicated that the issue having been raised, it appeared to him that the ‘author’ should be called and, at least, made available for cross-examination by the respondent. Importantly, counsel for the appellant, who was not counsel on the appeal, did not dispute that was appropriate. To the contrary, having agreed that the ‘author’ should be called, counsel for the appellant said ‘I think we need to adjourn on that basis, your Honour. There is an issue so we would need to call the author. We’ll have to make those arrangements, seeing the issue that has been taken with that, because it’s such important evidence’.12 Counsel for the appellant later added, ‘I think in terms of our case now, we need to call the author of [P9]’.13 The hearing was adjourned to 13 April 2023 with the Magistrate saying, ‘that would be for the author of the report to give evidence’.14 33 It might be accepted that on 24 February 2023 there was a potential lack of clarity about whether when referring to the ‘author’, reference was being made to the report itself (Ms Sheales or Ms Dillon) or to Appendix 5 (Mr O’Brien). That lack of clarity is not important given what subsequently occurred before the Magistrate. I am satisfied that what later occurred reveals that the only part of P9 upon which the appellant ultimately sought to rely was Appendix 5. 34 Ultimately, the hearing did not resume until 14 December 2023. At the commencement of the hearing on that date, the Magistrate asked if Ms Sheales or Ms Dillon would be called for cross-examination. Counsel for the appellant confirmed that would not occur and said the appellant ‘are not calling any experts as such’. The appellant told the Magistrate that all that he was seeking to do was to ‘affirm a business document as Appendix 5’ by calling the author of that email, Mr O’Brien. The appellant submitted that having Mr O’Brien acknowledge that he was the author of Appendix 5 was ‘as far as I need to go, or I want to go’.15 The respondent objected, submitting that there should be an opportunity to cross-examine Mr O’Brien. In response, counsel for the appellant said any evidence from Mr O’Brien would be limited to establishing that he worked at the hospital and that he was the author of Appendix 5. Counsel for the appellant said, ‘that’s all I can get at this late stage’.16 35 That Mr O’Brien was employed at the hospital and was the author of Appendix 5 were agreed by the respondent without Mr O’Brien being called and 12 Trial Transcript (‘TT’), 24 February 2023 (AB, 293). 13 TT, 24 February 2023 (AB, 293). 14 Ibid (AB, 296). 15 TT, 14 December 2023 (AB, 327). 16 Ibid (AB, 330). -- 11 of 28 -- [2024] SASC 130 Kimber J 10 so he did not give evidence. Nevertheless, the respondent maintained before the Magistrate that Appendix 5 should have no weight. In contrast, counsel for the appellant said that Appendix 5 could be given weight. The approach of the Magistrate to Appendix 5 36 In his reasons, the Magistrate refused to attach any weight to Appendix 5. The Magistrate held:17 There was an appendix (appendix 5) to that report which concluded that the respondent’s work computer had been used to search the website of the applicant’s employer 23 times prior to the message being sent to that website between 29 October and 26 November. That material was referred to in the report. If proven, that, in the absence of any innocent explanation, may well have been enough to question the conclusion of the report and find that the respondent probably did send the message (P9 appendix 1). The need for the author of the investigation contained in that appendix to be called was raised with the parties by the court, if those searches on the respondent’s computer were to be relied upon by the applicant. The hearing was adjourned for that to be addressed by the applicant. Ultimately, that author was not called and the material relied upon to make that finding has not been introduced into evidence. It was accepted by counsel for the applicant that to have proven the facts alleged in that appendix and referred to in the report would have been a lengthy and involved process, calling for that witness and the source materials to be provided, and that was not done. The respondent denied making any such searches. I am unable to find that the respondent made those potentially incriminating searches on the evidence available without those searches being properly proven and the author available for cross-examination. Discussion Matters within P9 which were not within Appendix 5 37 In submitting that the Magistrate erred in in his approach to P9, it is important to delineate between what alleged facts appeared within Appendix 5 and what alleged facts appeared within the primary report and other Appendices. With respect to the facts asserted within Ground 1(ii), neither (b) or (d) appeared within Appendix 5. Those asserted facts appeared within the primary report and/or within Appendix 3 and Appendix 6. There is no dispute that the respondent was employed within RVEEH on 23 November 2021 as she gave that evidence. For the purposes of the appeal, it can be assumed that the respondent was at work on that day. However, that the respondent was so employed on 23 November 2021 and was at work only had significance if there was admissible evidence that a computer within the RVEEH network had sent P9 – Appendix 1 or had otherwise been involved in conducting a search(es) which might have been associated with the sending of that message. The existence of evidence of one or both of those matters depends upon the approach of the Magistrate in not placing weight upon Appendix 5 being an error. As for Appendix 3 and Appendix 6, there was no concession about the accuracy of notes apparently made of movements from CCTV footage on that day. In any event, assuming Appendix 3 or Appendix 6 placed the respondent within RVEEH at a relevant time, that was only significant 17 Reasons (AB, 17–18, [57]). -- 12 of 28 -- [2024] SASC 130 Kimber J 11 if a computer within the RVEEH network had been used and that depends upon the approach to Appendix 5. 38 As set out above, before the appellant closed his case before the Magistrate, he had made clear that he was only seeking to call the author of Appendix 5. The appellant had made clear that he did not intend to call Ms Sheales or Ms Dillon and did not at any point submit that he intended to call the author of the notes from CCTV footage. Consideration of what occurred before the Magistrate is only consistent with, before the appellant closed his case, the appellant limiting himself to seeking to utilise the matters set out within Appendix 5. This explains why the Magistrate limited the discussion in his reasons to Appendix 5. 39 It follows from the above that, in so far as Ground 1 might be understood as encompassing a contention that the Magistrate erred in his approach to any aspect of P9 other than Appendix 5, or that the Magistrate should have had regard to any matter within P9 that did not also appear in Appendix 5, any such contention must be rejected. Whether the Magistrate erred in not giving weight to Appendix 5 40 In submitting that the Magistrate erred in refusing to give weight to Appendix 5 as Mr O’Brien did not give evidence, the appellant submits that Appendix 5 was tendered as a business record and, having been admitted in evidence, it was not open to give the document no weight. Given that the respondent did not submit before the Magistrate, nor on appeal, that Appendix 5 was not a business record, it may be so characterised for the purpose of the appeal. 41 It is necessary to set out s 53 of the Evidence Act 1929 (SA) which deals with the approach to be taken to a business record. Section 53 provides: 53—Admission of business records in evidence (1) An apparently genuine document purporting to be a business record— (a) is admissible in evidence without further proof; and (b) is evidence of a fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence). (2) A document must not be admitted in evidence under subsection (1) if the court is of the opinion— (a) that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or (b) that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or -- 13 of 28 -- [2024] SASC 130 Kimber J 12 (c) that it would be otherwise contrary to the interests of justice to admit the document in evidence. (3) For the purpose of determining the evidentiary weight (if any) of a document admitted in evidence under subsection (1), consideration must be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters. (4) In this section— business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality; business record means— (a) any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or (b) any reproduction of any such record by photographic, photostatic, lithographic or other like process. 42 The appellant directs attention to s 53(1) and submits that once Appendix 5 was admitted, no further proof was required. The appellant submits that Appendix 5 having become an exhibit on 8 December 2022, s 53(2)(a) which provides that a document must not be admitted into evidence if the Court is of the opinion that the person who prepared the document should be called (i.e. – Mr O’Brien), was not engaged. The appellant submits that s 53(2)(a) only deals with the issue of whether the document should become an exhibit, an issue that the appellant submits had been determined on 8 December 2022. The appellant submits that Appendix 5 having been admitted in evidence, it was not open to the Magistrate to consider the matter set out in s 53(2)(a) in considering what weight should be given to Appendix 5. 43 I reject the submissions of the appellant. 44 The submissions of the appellant assume that once a business record has been admitted into evidence, it must be given some weight. The appellant overlooks s 53(3) which deals with the approach to be taken to determining the evidentiary weight to be given to a document admitted in evidence. The words ‘if any’ within s 53(3) cannot be reconciled with an obligation to give at least some weight to a document admitted pursuant to s 53(1). Section 53(3) provides that in evaluating whether any weight is to be given to a document admitted in evidence pursuant to sub-s (1) there is an obligation to consider the source from which the document was produced, the safeguards (if any) taken to ensure accuracy, and any other relevant matter. Before the Magistrate, in articulating the objection to Appendix 5 being relied upon without Mr O’Brien being called, counsel for the respondent had raised issues which, at the very least, went to the question of the accuracy of the matters asserted in Appendix 5. All that was known by the Magistrate about the source of the email, or the information within it, was that Mr O’Brien was -- 14 of 28 -- [2024] SASC 130 Kimber J 13 employed within RVEEH, that it could be inferred he had responsibilities with respect to the computer network within RVEEH and that some investigation of systems had been conducted by him or on his behalf. As the Magistrate observed, the materials relied upon to make the findings within Appendix 5 had not been produced. 45 In so far as the appellant may be understood as submitting that in evaluating if any weight is to be given to a document admitted in evidence as a business record, no consideration may be given to the absence of oral evidence from the author of the document, I reject that submission. The words ‘and any other relevant matters’ are of wide import. I would not construe them as excluding the absence of evidence of the type expressly referred to by the Magistrate. That is, oral evidence from the author and the source materials from which the matters set out in Appendix 5 had been derived. 46 Further, a relevant consideration in whether the Magistrate erred by not giving Appendix 5 weight was what had occurred before him. It must be accepted that Appendix 5 was originally admitted in evidence without any submission by the respondent about the failure to call any witness who might speak to that, or any other, document within P9. Nevertheless, it is also the case that the respondent having changed her position before the appellant had closed his case, the appellant accepted through his counsel that Mr O’Brien should be called and there was an adjournment of the hearing to facilitate that taking place. Ultimately, the appellant did not call Mr O’Brien. The choice not to do so was made cognisant of the position of the respondent that the document should not be given weight without him being called. Against that background, the appellant chose to prove no more than that Mr O’Brien was employed at RVEEH and had been the author of Appendix 5. 47 For the above reasons, I dismiss Ground 1. Ground 3 48 It is appropriate to next deal with Ground 3 as within this ground the appellant contends that the application before the Magistrate miscarried because of the approach of his counsel to Appendix 5 and to the cross-examination of the respondent. 49 Before turning to what occurred before the Magistrate, it is necessary to set out the principles relevant to this ground. 50 The principles set out by the High Court in authorities such as Nudd v The Queen18 apply to a hearing such as that before the Magistrate. They are principles of general application which do not only apply to criminal trials.19 In Nudd v The Queen, it was descried as a ‘cardinal principle of litigation’ that ‘parties are bound 18 Nudd v The Queen (2006) 80 ALJR 614, 618 [9]. 19 Police v Mahon (2022) 141 SASR 374, 391 [60]. -- 15 of 28 -- [2024] SASC 130 Kimber J 14 by the conduct of their counsel’, but it is a principle subject to ‘carefully controlled qualifications’.20 Where the conduct of counsel is capable, as a matter of objective enquiry, of representing a rational forensic decision, that decision is imputed to the client and the client is bound by it.21 The objective nature of the assessment made of the conduct of counsel is reinforced by the way in which the relevant question is put: ‘the question is whether there could be a reasonable explanation for the course that was adopted’.22 The approach to calling Mr O’Brien 51 I have set out in some detail what occurred with respect to the calling of Mr O’Brien. Bearing in mind the protracted history of the matter, I am satisfied that the decision not to call Mr O’Brien was a rational forensic decision. 52 By 14 December 2023, it had been almost 12 months since the appellant had given evidence. The respondent had made clear that if Mr O’Brien was to be called, her counsel would seek to cross-examine him on matters which might be substantial to the information set out in Appendix 5. There was a real risk of the proceedings becoming even more protracted. In the circumstances, while failing to call Mr O’Brien carried the risk of the Magistrate not accepting the submissions of the appellant about Appendix 5 and not giving that document weight, I am unable to conclude that, given the circumstances, the decision of counsel was not a rational one. The approach in cross-examination of the respondent 53 The appellant submits that the application before the Magistrate miscarried because of it not being put to the respondent in cross-examination that she had sent P3, P4, P6 and P7. For the reasons which follow, I reject the submission of the appellant. 54 For this appeal, it is not necessary to consider the obligations of a cross-examiner, if any, in a hearing such as this. The application before the Magistrate was conducted on the basis that the only real issue was whether the respondent was responsible for the messages. The position of the respondent was clear. At the commencement of her evidence in chief, an affidavit of the respondent in which she denied sending any relevant message was tendered.23 The oral evidence of the respondent was to the same effect.24 In the circumstances, I am unable to accept that counsel for the appellant before the Magistrate was obliged to confront the respondent in a more direct way in cross-examination let alone that the failure to do so was a decision which was not rational. It is no more 20 Nudd v The Queen (2006) 80 ALJR 614, 618 [9]. 21 TKWJ v The Queen (2002) 212 CLR 124, 130-131 [16]–[17] (Gleeson CJ), 158 [107], 159–160 [112] (Hayne J); Ali v The Queen (2005) 79 ALJR 662, 666 [23]–[25] (Hayne J, with whom McHugh J agreed); Nudd v The Queen (2006) 80 ALJR 614, 618–619 [9]–[10] (Gleeson CJ); Helps v The Queen (No 3) [2021] SASCFC 10, [145] (Peek J). 22 Ali v The Queen (2005) 79 ALJR 662, 666 [23] (Hayne J, with whom McHugh J agreed). 23 Affidavit of Amal Abrotonite dated 30 May 2022, Exhibit D2 (AB, 41–42, [8]; [14]–[20]). 24 TT, 14 December 2023 (AB, 312–313, T144.3–T145.2). -- 16 of 28 -- [2024] SASC 130 Kimber J 15 than speculation to suggest that had counsel confronted the respondent in a more direct way, it might have made a material difference to the evidence. To the contrary, it is more likely that the respondent would have repeated her denials of responsibility and in so doing, added to the evidence before the Magistrate which was contrary to the application of the appellant. 55 I dismiss Ground 3. Ground 2 56 In this ground, the appellant contends that the Magistrate erred in concluding that the respondent was not the only person who could have sent the messages P3, P4, P6 and P7. Although not set out in the ground, I will take it to also encompass P9 – Appendix 1. In advancing that contention, the appellant submits that the Magistrate erred in failing to consider certain evidence and submits that had it been considered, the appellant would have established that respondent had sent the messages. The reasons of the Magistrate 57 Before turning to the evidence that the appellant submits was not considered, it is helpful to understand some aspects of the approach of the Magistrate and relevant aspects of his reasons for finding that the appellant had not met his burden of establishing that the respondent had sent a relevant message. By way of summary, the approach of the Magistrate is consistent with him considering whether the messages had been sent by one person being of significance to whether the appellant had established that the respondent had sent any of the messages. Allied to this, if someone other than the respondent may have been responsible for sending so much as one message, then that logically shed light on whether the respondent had been proven to have sent any message. 58 As to specific matters of significance to the Magistrate, the following were identified by the Magistrate as important to his conclusion that the appellant had not met his burden. 59 First, the Magistrate concluded the content and tone of the messages had differences. As above, if the messages might have been written by more than one person, then as a matter of logic, there was a person other than the respondent with a motive to send the messages. The Magistrate said:25 There are notable differences in style and content between some of those messages. Some are in what appears to be an immature vengeful nature confined to abuse eg P3, P4, P7 and P9 annexure 1. Some (P3 and P9 annexure 1) specifically refer to finding his victims on Tinder, an ‘app’ which he used to meet other women but not the respondent. P6, the anonymous letter to [a Medical Centre], is in a more detailed professional tone raising (albeit inappropriate) concerns about the applicant’s competence as a medical practitioner and his poor treatment of patients and staff. 25 Reasons (AB, 18, [59]). -- 17 of 28 -- [2024] SASC 130 Kimber J 16 60 Second, the Magistrate concluded that the evidence revealed that there were women other than the respondent who may have had a motive, made further reference to what he considered to be variations in the messages and concluded that the messages probably had more than one author. The Magistrate said:26 The applicant himself referred to AT and the suspicions he once held about her being the source of harassment. On the basis of the applicant’s evidence about that relationship, AT may well have had the motive. The impression that the applicant gave during the course of his evidence is that while he might have been quite content to focus on casual sex with a number of women, he may not have truly appreciated that they, or at least some of them, may have felt differently about the matter. The variation in the type of abusive and defamatory messages, and the defendant’s approach to casual sex with a number of women leads to the conclusion that there is probably more than one person involved in authoring the messages that have been sent. 61 Third, the Magistrate found it unlikely the respondent would have been motivated to send P4, the only message which he considered had certainly been sent before the end of the relationship on or about 28 April 2019. The Magistrate considered that the content of P4, sent in February 2019, was inconsistent with evidence given by the appellant and the respondent of the relationship at that time.27 62 Fourth, the Magistrate considered the reference in the message P3 to the appellant being a person who ‘hunts vulnerable young women on Tinder’ to be inconsistent with the relationship between the appellant and the respondent as they had not met through that application.28 Put another way, the Magistrate considered that a person who had met the appellant on Tinder might be more likely to refer to that application when disparaging the appellant. 63 Fifth, while the Magistrate accepted that the title of P7, ‘your day of reckoning is coming’, and the subsequent compensation proceedings as a result of the claim of the respondent about having been raped, gave rise to an inference that P7 had been sent by the respondent, the Magistrate also concluded that, bearing in mind that he considered another woman (or women) might have been motivated to send disparaging messages, there was nothing else within P7 which linked it to the respondent.29 Matters which the appellant submits were not considered – discussion 64 Against the above background, I turn to the specific aspects of the evidence the appellant submits the Magistrate erred by not considering. To the extent that there are aspects of the evidence referred to below which do not appear in the particulars of Ground 3, each is an aspect of the evidence referred to in submissions. 26 Reasons (AB, 18, [59]). 27 Ibid (AB, 18, [59]). 28 Ibid (AB, 18, [59]). 29 Ibid (AB, 19, [60]). -- 18 of 28 -- [2024] SASC 130 Kimber J 17 Acceptance of the evidence of the appellant 65 The appellant directs attention to the Magistrate having accepted the appellant as an honest witness.30 This can be contrasted to the Magistrate rejecting aspects of the evidence of the respondent and not accepting her as completely honest and reliable.31 This must be placed in context. Much of the evidence of the appellant related to his suspicions about the respondent being responsible and hearsay about the source of a message(s). As the Magistrate observed, those aspects of his evidence were to be ignored.32 The balance of the evidence of the appellant provided aspects of the circumstantial case he sought to prove. His evidence did not provide direct evidence of responsibility. As has been seen, the Magistrate was unable to reject that the circumstantial case raised that another (or others) may have sent the messages. Acceptance of the evidence of the appellant did not demand a different approach. 66 While the Magistrate rejected aspects of the evidence of the respondent, namely her evidence of her response to the relationship being ended on or about 28 April 2019 and her evidence about her approach to the relationship before that day, I do not read the reasons of the Magistrate as encompassing a rejection of the most crucial aspect of her evidence, namely that she had not sent the messages. Any contrary interpretation of the reasons would be inconsistent with the Magistrate, later in his reasons, expressly referring to the denials of the respondent when evaluating whether the appellant had met his burden.33 In reaching the conclusion that the appellant had not met his burden, I am not persuaded that the Magistrate overlooked his acceptance of the admissible aspects of the evidence of the appellant and that he had rejected parts of the evidence of the respondent. The whole of the reasons must be considered. The existence of a motive before on or about 28 April 2019 67 The appellant gave evidence that he had told the respondent in either December 2018 or January 2019 that he was being intimate with other women, the respondent was displeased, wished the relationship to be exclusive and that the appellant refused. The evidence of the respondent was that in early 2019, she had been told that the appellant was being intimate with other women (albeit that she did not accept that their relationship persisted). The Magistrate found that upon the relationship being ended by the appellant on or about 28 April 2019, the respondent was angry and upset and that, also contrary to the evidence of the respondent, the relationship was a continuing one and a relationship which the respondent wished to continue.34 68 The appellant submits that given the evidence immediately above, the Magistrate failed to consider that the respondent had a motive to send at least P4 30 Reasons (AB, 17, [55]). 31 Ibid (AB, 17, [56]). 32 Ibid (AB, 17, [55]). 33 Ibid (AB, 18-19, [59]). 34 Ibid (AB, 17, [56]). -- 19 of 28 -- [2024] SASC 130 Kimber J 18 before 28 April 2019. That motive being her knowledge that the appellant was involved with women other than her. 69 I am not satisfied the Magistrate failed to consider the possible motivations of the respondent at the time P4 was sent and before about 28 April 2019. In the specific context of discussing P4, the Magistrate considered the issue of motive but doubted that the respondent would have been motivated to send that message. The Magistrate reasoned that P4 was inconsistent with her desire that the relationship continue.35 While another approach was open to how the respondent might have dealt with news that the appellant’s affections were not limited to herself (e.g. – that she might have sent P4 motivated by anger, out of a desire to humiliate the appellant, in the hope of having him believe it had been sent by another woman, or for some other reason(s)), the appellant has not established the Magistrate failed to consider this aspect of the evidence. P3 – reference to rapes 70 The appellant directs attention to what he says is the timing of P3 and the reference therein to the appellant having committed rapes on women. The appellant submits that the timing is consistent with the message being sent shortly after the relationship was ended. As to the timing of P3, a difficulty for the appellant is that the evidence was unclear as to whether P3 had been sent before or after the relationship was ended by the appellant. Given the whole of the evidence, I consider it likely P3 was sent after the end of the relationship, but I am not satisfied the Magistrate erred by not considering the timing of that message. To the contrary, that issue was considered. As to the reference to rapes, it is the case that the respondent alleged that she had been raped by the appellant and that, in the specific context of considering P3, the Magistrate did not expressly refer to whether that was significant in evaluating whether the respondent was responsible. The specific matters referred to by the Magistrate in doubting the respondent had sent P3 were that it referred to a dating application through which the respondent had not met the appellant and the denials by the respondent of having sent the messages.36 71 Nevertheless, I am not persuaded that the Magistrate overlooked that the respondent had alleged being raped by the appellant. The whole of the reasons must be considered. In summarising the evidence, the Magistrate expressly referred to the respondent having made that allegation and to the evidence of the appellant that no other women had made such an allegation.37 Further, only two paragraphs after explaining his approach to P3, and in the same paragraph in which he found the appellant had not met his burden, the Magistrate gave a summary of 35 Reasons (AB, 18, [59]). 36 Ibid (AB, 18–19, [59]). 37 Ibid (AB, 9–10, [4], [10]). -- 20 of 28 -- [2024] SASC 130 Kimber J 19 ‘some important primary facts’.38 One of those facts was that the respondent had made allegations of rape to both the police and the appellant. The approach to P6 72 The appellant advances two complaints about the approach of the Magistrate to P6. 73 Firstly, that P6 referred to an investigation by the Victorian Police, a matter obviously known to the respondent. It must be accepted that in the specific context of discussing P6 and whether the appellant had met his burden, the Magistrate did not refer to that aspect of that message. In my view, this was an important aspect of the evidence pointing in the direction of the respondent. Nevertheless, once the whole of the reasons are considered, I am not persuaded that it was overlooked. Again, the Magistrate summarised the evidence of the appellant and the respondent about that allegation having been made.39 As set out above, in summarising ‘some important primary facts’ and in the same paragraph in which he found the appellant had not met his burden, the Magistrate referred to an allegation of rape having been made to the police.40 74 Secondly, that P6 referred to issues the appellant had experienced at work, issues of which the respondent was able to have knowledge. As will be discussed below, in the context of the Magistrate’s approach to Ms AT, that the respondent may have learned of such matters involves a risk of speculation. The approach to Ms AT 75 As set out above, in evaluating whether women other than the respondent might have been motivated to send the messages, the Magistrate concluded that Ms AT ‘may well have had the motive’.41 The appellant submits that the Magistrate failed to consider his evidence that he had not slept with Ms AT since 2017; that she was a vet nurse and had not worked in the medical field (matters presumably impacting on whether she could have sent a message from RVEEH, might have made references to allegations of the appellant having problems at work, or with AHPRA; and/or had knowledge of the processes of one/both); and that matters with Ms AT had been settled following the paternity test and that they no longer had any contact. 76 For reasons to be given, in my view, the whole of the evidence makes it unlikely Ms AT was responsible, but not because of the evidence relied upon by the appellant and summarised immediately above. It must be accepted that the above matters were not referred to by the Magistrate, but I am not persuaded that he was obliged to do so. 38 Reasons (AB, 19, [61]). 39 Ibid (AB, 18–19, [59]). 40 Ibid (AB, 19, [61]). 41 Ibid (AB, 18, [59]). -- 21 of 28 -- [2024] SASC 130 Kimber J 20 77 That the appellant had not slept with Ms AT since 2017 and/or had not had contact with her once matters were settled after the paternity test were not the matters of the greatest significance in evaluating whether Ms AT could be excluded as being responsible for the sending of the messages. What was of greater significance was that as late as October or November 2018, Ms AT was persisting in maintaining the appellant was the father of her child and that, as the Magistrate observed, at least at the time of the first message in February 2019, there was something about that relationship which had caused the appellant to suspect Ms AT was responsible.42 As to Ms AT not being employed in the medical field, I make the following observations. First, as set out under Ground 1 and in an approach which was open, the Magistrate did not rely upon evidence which might have suggested that P9 – Appendix 1 had been sent from RVEEH. It follows that there was no evidence which was accepted by the Magistrate about the origin of that message. Second, given that Ms AT and the appellant had been in a relationship as late as 2017 and the child had been taken to his work in 2018, it cannot be said that Ms AT was unaware of his profession and without the capacity, at least in a general sense, to link allegations to his employment. Third, the finding of the Magistrate was not that Ms AT was the only person with a motive other than the respondent. The Magistrate reasoned that the approach of the appellant to engaging in casual sex with more than one woman may not have been shared by all women so engaged.43 Fourth, while the evidence established that the respondent knew about where the appellant had worked, and that she worked at RVEEH, there was no direct evidence that she knew of any issues in his work which she might have then included in any message. There was also no indirect evidence of real substance. What evidence there was came from the appellant and included at least a degree of speculation. The appellant said that the respondent might have accessed his phone without his knowledge; learned through ‘gossip’ within the hospital; or had seen a document(s) within his home.44 To the extent such evidence might have had any weight, on the evidence, I do not understand that another woman, or women, may not also have had access to the appellant’s phone or his home. 78 For the above reasons, I reject that the Magistrate erred in not referring to the matters relied on by the appellant with respect to Ms AT. Was the decision of the Magistrate wrong? 79 Having considered the whole of the admissible evidence before the Magistrate, there was a significant body of evidence which pointed in the direction of the respondent being responsible for the messages. I will not refer to all the evidence, just those aspects which I consider most significant. 80 On the hearing of the appeal, the respondent submitted that no regard should be had to P9 given the circumstances in which that document had been obtained 42 Reasons (AB, 9, [6]). 43 Ibid (AB, 18, [59]). 44 TT, 8 December 2022 (AB, 190, T31.12–25; 198–199, T39.5–T40.14) -- 22 of 28 -- [2024] SASC 130 Kimber J 21 by the appellant. The respondent submitted that the tender of P9 was in breach of a ‘Harman undertaking’. Without determining the merits of that submission, I will not have regard to any aspect of P9. This includes having no regard to P9 – Appendix 1. Nevertheless, having no regard to P9, and in particular Appendix 1, does not assist the respondent. The appellant gave oral evidence about the content of Appendix 1. It is clear from that evidence that the appellant had seen that message on the day it was received45 and his evidence about the content of the message was not disputed. Hereinafter, I will refer to the evidence of the appellant about the content of that message as ‘the final message’. 81 On the hearing of the appeal, the respondent did not challenge the approach of the Magistrate to the honesty of the appellant and the respondent. Having reviewed the evidence, and bearing in mind the advantage enjoyed by the Magistrate, I see no reason to doubt the conclusion of the Magistrate that the appellant was an honest witness; to doubt that the Magistrate was correct to reject the aspects of the evidence of the respondent he outlined; or to question that the Magistrate was correct to doubt the evidence of the respondent that she did not know the name of Ms C. 82 There is no dispute that the message which was certainly before the relationship came to an end (P4) was at a time when the respondent knew that the appellant was engaging in relationships with others. Given the behaviour of the respondent on or about 28 April 2019 upon learning that the relationship was at an end (i.e. – behaviour consistent with her not wanting the appellant to have a relationship with another), that the respondent had a motive at the time of a message(s) before that date cannot be discounted. Having reviewed the evidence, and accepting that the appellant was honest, I agree with the characterisation of the Magistrate as the respondent being angry and upset. Those emotions are not inconsistent with the sending of the messages. 83 After the appellant ended the relationship, the respondent alleged that she had been sexually assaulted by the appellant. That the appellant had committed a rape or was a ‘sexual predator’ was an allegation expressly made in P3, P6 and the final message and at least implicitly made in P7. The appellant had given evidence that no other partner had made such an allegation. There is no reason to doubt the appellant was honest about that. 84 After the end of the relationship, the respondent sought and was granted an intervention order. In P6, about a month after the grant of that order, it was alleged that the appellant was the subject of an order in the context of domestic violence. 85 While it appears likely that one or more former partners other than the respondent and Ms AT may have been aware of the profession of the appellant and may have been in a position to invent allegations about the performance of the appellant at work, the respondent worked within the hospital system and was in a 45 TT, 8 December 2022 (AB 200–201, T43.14–T44.17). -- 23 of 28 -- [2024] SASC 130 Kimber J 22 position to know of the nature of its process(es) for performance management, reference to that process(es) being an aspect of P6. As an employee within a hospital, it is open to consider that the respondent knew about the professional body which might deal with the conduct of a medical practitioner (i.e. – AHPRA). Indeed, she referred to that body in her evidence in the context of expressing a belief that she might be reported by the appellant.46 This is not to say that the evidence rises to the level of the respondent knowing the appellant had been exposed to any specific process(es) involving his employer or AHPRA. As set out above, the evidence of the appellant about that includes at least a degree of speculation. 86 There is no reason to doubt the evidence of the respondent that she knew that the appellant had at one point believed that he had fathered a child with a former partner but had done a test to ascertain that a child was not his.47 The respondent had information that gave her the capacity to twist that information into a different allegation about the appellant and a child which was not his. Such an allegation appeared within P6. 87 The respondent denied sending any message. In evaluating that and other evidence that she gave, it is appropriate to consider that there is no reason to doubt the Magistrate’s view that the respondent was not credible about the end of the relationship and about her attitude to the relationship before its end. Having reviewed the evidence, I agree with the Magistrate. The rejection of the evidence of the respondent about those issues is important. It places a cloud over the credibility of the respondent more broadly. Given the respondent lied about her conduct at the end of the relationship, there is reason to also doubt the evidence of the respondent about not engaging with social media and evidence to the effect that she had not accessed certain images of the appellant which appeared on social media. The evidence of the appellant was that images of him and Ms C appeared on Facebook and that such images could be accessed without a person having a Facebook account.48 That evidence was not challenged. I accept it. 88 There was evidence permitting of the conclusion that the respondent was able to address at least some messages. There was no dispute that the respondent had been to the home of the appellant in Victoria. Bearing in mind the finding of the Magistrate about the honesty of the appellant, his evidence was that the address of his parents was displayed in a prominent place(s) within his home at times that the respondent visited.49 The respondent may have used information seen at the house and/or as a result of other searches. 89 It is the case that there were aspects of the evidence that might have been inconsistent with the respondent being responsible. There were references within the messages to Tinder, an application not used in the relationship between the 46 TT, 14 December 2023 (AB, 318, T150.20-29. 47 Ibid (AB, 305, T137.2–7). 48 TT, 8 December 2022 (AB 225–226, T68.31–32; T69.30–31). 49 Ibid (AB, 253, T94.6-36). -- 24 of 28 -- [2024] SASC 130 Kimber J 23 appellant and the respondent. There was no evidence that the appellant had shared with the respondent that he had met other women using that application. While that might point away from the respondent being responsible and is not irrelevant in evaluating whether she was, I would not regard that as a matter of great significance. On the assumption that the respondent did not know that is how other women had been met, it is not an unlikely invention. 90 It is the case, as the Magistrate reasoned, that the style, and in some respects the tone, of the messages had differences. For example, some were more in the form of pamphlets and used photographs. One was in the form of a letter and has a veneer of formality. One was a message to an employer which contained a link to a news article. Nevertheless, I would not treat those matters as weighing significantly in favour of more than one author. It might be an unlikely coincidence that more than one person had chosen to attack the appellant in this way in the same period. Of greater significance than any differences in the messages is what is similar (i.e. – references to inappropriate behaviour to women). It is one thing for more than one person to feel anger at a former sexual partner, it is another thing for more than one such person to respond by sending correspondence to others in such terms. In my view, on the evidence, the real issue is whether it is more likely than not the one person was the respondent. As to that issue, on the evidence, the messages certainly contained information within the knowledge of the respondent and alleged behaviour not alleged by others. 91 It is of significance that the appellant had ended relationships with several women on or about 28 April 2019 and that there had been difficulties in his relationship with Ms AT. 92 As for the women other than Ms AT, whatever the perception of the appellant, it is possible that one or more of those women were disappointed about the end of their relationship with the appellant. That said, there is arguably a gap in the evidence about whether one or more might have had a motive before the end of the relationship and as to what they might have known about the address of the appellant and/or his parents. They are gaps which cannot be borne against the respondent. At least one of those women likely knew of the profession of the appellant and, at least for that reason, might have been able to send messages that made references to his employment and AHPRA. Weighing against any such women being responsible is that I do not understand there is anything in the evidence which suggests that they might have known the appellant had been accused of rape; accused of being a sexual predator; had been involved with the police; or had an order against him. There is no dispute that all these things were within the knowledge of the respondent. It is also of significance that whatever the feelings of women other than the respondent on or about 28 April 2019 when the relationships ended, P6, P7 and the final message, were all received at least about two years after that date. It is open to consider it doubtful that one of the other women might have had a motive to send messages so long after their relationship came to an end. In contrast, in October 2020 the respondent sought compensation due to the alleged conduct of the appellant. -- 25 of 28 -- [2024] SASC 130 Kimber J 24 93 As for Ms AT and a motive, it is appropriate to proceed on the basis that she held out something she knew to be false. The appellant claimed that he had been lied to and manipulated.50 Such evidence is consistent with the appellant having reason to believe that Ms AT told deliberate untruths about the identity of the father of her child. 94 The initial belief of the appellant that Ms AT had been responsible for the early message(s) also gives rise to an inference that there had been something in that relationship that gave her a motive. That said, while there was evidence that Ms AT had knowledge of the appellant being subject to an order, there is nothing in the evidence which suggests that Ms AT had ever alleged the appellant had committed a rape, had alleged the appellant was a sexual predator and/or was aware that such an allegation had been made to the police. Conclusion 95 I cannot simply substitute my own view for that of the Magistrate. I must give due weight to the advantage the Magistrate enjoyed in seeing and hearing the evidence, particularly in this case, the evidence of the respondent. It must be shown that the Magistrate was wrong. The Magistrate did not reject the denials of the respondent. At the same time, the Magistrate concluded that the evidence of the respondent was not credible about a topic that was important. Having reviewed the evidence, I agree that the evidence of the respondent was untruthful on that topic. 96 On the evidence, the respondent was the only person to have accused the appellant of having committed a sexual assault and the only person to have accused him of a rape. The appellant was accused, at least, of being a sexual predator in the message P3, P6, P7 and the final message. The appellant knew an allegation of rape had been investigated by the police. An investigation by the police was referred to in P6. In the same letter was reference to an order involving the appellant and an issue involving a child. The respondent had knowledge of both of those things. While Ms AT knew about an issue involving a child and the existence of an order, there no evidence to suggest she might have known of an investigation by the police of a sexual matter. 97 Having reviewed the evidence, it is inherently unlikely that a person other than the respondent had knowledge of, or invented, the matters in P3, P6, P7 and the final message which I have highlighted. The respondent denied sending the messages, but she had been dishonest on an important topic and her denials must be assessed in the context of the whole of the evidence. Respectfully, I am satisfied that the Magistrate was wrong not to conclude on the balance of probabilities that the respondent had sent the messages. 50 TT, 8 December 2022 (AB, 232, T73.14–24). -- 26 of 28 -- [2024] SASC 130 Kimber J 25 Whether an intervention order is appropriate 98 Although some years have passed since the final message, the parties both reside interstate, and the respondent has a new partner, I am satisfied that it is reasonable to suspect that the respondent will, without intervention, commit an act of abuse. I am also satisfied that the making of an order is appropriate in the circumstances.51 99 Although some years have passed, the messages and other abusive conduct revealed by the evidence occurred over a long period of time and were particularly abusive. The conduct demonstrates a persistent intent to harm the appellant, including by damaging his reputation with members of his family and those involved with him in his chosen career. Although some years have passed, the conduct ceased at about the time of the investigation by the employer of the respondent and there was an interim order in place between 22 March 2022 and 29 February 2024. The respondent has continued to deny responsibility. The conduct was so persistent and abusive that the existence of a new partner does not mean the order is not appropriate. 100 In submitting on appeal that an order was not appropriate, the respondent submitted that the appellant was the respondent to an intervention order which had been obtained by the respondent interstate. That can be accepted, but I am satisfied the appellant is entitled to an intervention order in which he is the protected person. I am also satisfied that he is entitled to an order in this State. The appellant was in this State at the time of some messages. He should not have to commence new proceedings should he return.52 Further, as mentioned, the respondent has not accepted responsibility. The making of an order may encourage her to do so and to take steps to avoid doing so again.53 101 Subject to it being confirmed that there is no other Family Law Act or other State child protection order,54 I am satisfied it is appropriate to issue a final intervention order in substitution for the interim intervention order that was in place. Subject to the submissions of the parties, the terms of that order should be in the same terms as the interim order granted on 22 March 2022.55 I will also hear the parties as to whether the order addresses a domestic violence concern.56 51 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 6. 52 The interim intervention order was declared to address a ‘domestic violence concern’, presumably as the relevant Magistrate considered that the appellant and respondent were in an intimate personal relationship of the type set out in s 8(8) of the Act. For the purpose of this judgment, I have made no finding about that as it was not the subject of submissions. It is a question that should be the subject of submissions. 53 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 10(1)(d)(i). 54 Ibid s 23(1a). 55 Interim intervention order (AB, 5–7). 56 Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 15A. -- 27 of 28 -- [2024] SASC 130 Kimber J 26 Orders 102 The appeal is allowed. Subject to the matters immediately above, a final intervention order will be made. -- 28 of 28 --