Ameri v Police - [2006] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
AMERI v POLICE
Judgment of The Honourable Justice Besanko
14 February 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - SUMMONS - GENERAL PRINCIPLES
Appeal against order confirming restraining order made on complaint under Summary Procedure Act 1921, s 99AA – appellant not summoned to hearing of complaint and order made in his absence – pursuant to s 99C, where defendant not summoned to hearing of complaint and order made in his or her absence, Court must summon defendant to appear before Court to show cause why order should not be confirmed – hearing to take place within 7 days of date of order – whether compliance with section – held, appellant not served with summons before hearing, or in sufficient time for him to attend hearing – order improperly confirmed – miscarriage of justice – appeal allowed and order set aside.
Supreme Court Rules 1987 r 96C.02; Summary Procedure Act 1921 ss 99AA, 99C, 99F, referred to.
Moore-McQuillan v Police (1998) 196 LSJS 175; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, considered.

AMERI v POLICE
[2006] SASC 40
Magistrates Appeal

BESANKO J: This is an application for an extension of time within which to appeal against an order made by a magistrate on 14 October 2004 and an appeal against the order should an extension of time be granted. The appeal was instituted on 21 November 2005. The time for instituting an appeal is within 14 days from the date of the order (Supreme Court Rules 1987, r 96C.02). The period of delay in this case is therefore a little under one year.
Facts
Mr Kazem Ameri is the appellant and he is 47 years of age. He is an immigrant from Iran and, on the evidence before me, he neither speaks nor reads English fluently. Before October 2004, he had committed a handful of offences, none of which was of a sexual nature.
In October 2004, the Police had evidence that they considered justified the making of a complaint seeking a restraining order under s 99AA of the Summary Procedure Act 1921 (“SPA”). On the case of the Police, the evidence established that the appellant had been found loitering near children, having been found loitering near children on at least one previous occasion, and there was reason to think that the appellant might, unless restrained, again loiter near children (see s 99AA(1)(a) and (b)(iii)).
The Police made a complaint that came on before a magistrate sitting in Adelaide on 7 October 2004. The appellant was not summoned to appear at the hearing. The magistrate made a restraining order in the absence of the appellant on the basis of evidence received in the form of one or more affidavits (see s 99C(2)). The order was in the following terms:
The defendant is restrained:
1) from loitering in the vicinity of where children frequent or are likely to be present;
2)from attending in Rundle Mall, Adelaide, during South Australian State School holidays;
3) from attending in the premises or carpark adjacent to the Marion Shopping Centre;
4)from being in company with children under the age of 16 years without the presence or permission of a parent or guardian of that child or children;
5)from loitering, without reasonable excuse, at or in the vicinity of a school or place at which children under the age of 16 years are regularly present;
6)for the purpose of this order, the term “loitering” includes remaining in a place without lawful reason and may also include travelling from place to place following a person or sitting in a stationary vehicle.
The magistrate ordered that a summons to the defendant be issued returnable on 14 October 2004 at 11.30 am to show cause why the order should not be confirmed (s 99C(2)). A document entitled “Restraining Order and Summons to a Defendant” was prepared, and the evidence establishes that it was served by a police officer on the appellant at an address in Oaklands Park between 11.00 am and 12.00 noon on 14 October 2004. The evidence is no more precise than that as far as the time of service is concerned.
The matter came on before another magistrate sitting in Adelaide at 11.30 am on 14 October 2004. The appellant did not appear. The magistrate confirmed the order.
Since 14 October 2004, the appellant has been convicted of three breaches of the restraining order. On 13 January 2005 he was convicted of breaches of the order committed on 23 and 28 October 2004, respectively, and on 15 September 2005 he was convicted of a breach of the order committed on 23 March 2005.
The appellant is represented by Ms Jodie-Ann McRae, a solicitor employed by the Legal Services Commission. Ms McRae has sworn two affidavits. She states that she first met the appellant when she appeared for him in the Magistrates Court in Adelaide on 30 June 2005. She states that she had difficulties communicating with the appellant as his English “is not easy to understand and he appeared to have a limited comprehension of his legal situation or the reason why he was appearing in court on that day”. The appellant told Ms McRae that he had concerns about the restrictions placed on him by the restraining order. In August 2005, the appellant sought Ms McRae’s advice as to varying or revoking the restraining order. In September 2005, Ms McRae advised the appellant that the conditions of the restraining order might be disproportionate to the risk to the community and that an application to seek to vary or revoke the order had merit and that the Legal Services Commission was prepared to fund such an application.
An application to vary or revoke the restraining order pursuant to s 99F of the SPA was filed in the Magistrates Court on 6 October 2005. The hearing took place at the Adelaide Magistrates Court on 13 October 2005. Ms McRae states that following the hearing, and after observations made by the presiding magistrate, Mr Harris SM, in the course of that hearing, she sought counsel’s opinion as to the validity of the order. It was not until then that she became aware of the circumstances in which the order had originally been made. On 21 November 2005, she received counsel’s advice that an appeal should be instituted in this Court.
Ms McRae states that from her various discussions with the appellant since she first met him, her opinion is that he does not appear to fully understand the legal processes applicable to the order which has been made against him. He was not aware that he could appeal against the making of the order, nor that there is a time limit within which to lodge such an appeal. When she first spoke to the appellant she asked him if he would like an interpreter present, but he declined. Subsequently, she has been able to persuade him that her discussions with him would be more effective with an interpreter.
Issues on appeal
The first issue is whether an extension of time within which to appeal should be granted. In this case, I have heard the application for an extension of time and the appeal together. There are a number of factors suggesting that an extension of time should not be granted. The delay is very substantial. There is no affidavit from the appellant explaining the causes of the delay, although this might be at least partly explained by the appellant’s language difficulties. An apparently valid restraining order has stood for a considerable period of time and the appellant has been convicted of three breaches of that order. No evidence has been put forward by the appellant to challenge the evidence put forward by the Police. These are all powerful considerations.
On the other hand, the delay is at least partly explained by the appellant’s language difficulties and the fact that he appears not to have had legal representation and advice before mid-2005. A restraining order having significant consequences for him was made in his absence and, for reasons I will give, the magistrate had no power to make the order confirming the restraining order. The appellant has never had the opportunity to put his case on whether the order should be confirmed. There has been a miscarriage of justice. It is not enough to overcome the prejudice to the appellant to say that he can apply to vary or revoke the order because he would need leave to do so and leave may only be granted if there has been a substantial change in the relevant circumstances since the order was made (s 99F).
On balance, I think an extension of time within which to appeal should be granted. I accept that important orders of the Court like this one should, if they are to be challenged, be challenged in a timely fashion. I accept that the orders I will make, having regard to the merits of the appeal, will have a disruptive and unsettling effect. However, the appellant is entitled to succeed on the appeal because he has been denied a basic right, namely, the right to appear and answer the summons.
Paedophile restraining orders are made under Part 4, Division 3 of the SPA. In this case, the restraining order made on 7 October 2004 was made under s 99C(2), which is in the following terms:
A restraining order may be made in the absence of the defendant and despite the fact that the defendant was not summoned to appear at the hearing of the complaint, but in that case, the court must summon the defendant to appear before the court to show cause why the order should not be confirmed.
The restraining order was made in the absence of the appellant and despite the fact that he was not summoned to appear at the hearing of the complaint. The appellant was summoned to appear before the Magistrates Court in Adelaide on 14 October 2004 at 11.30 am to show cause why the order should not be confirmed. However, as I have said, the appellant was not served with the summons until between 11.00 am and 12.00 noon on 14 October 2004 at an address at Oaklands Park. On the evidence, it is not possible to find that the appellant was served with the summons before the hearing at 11.30 am, and even if he was, it is not possible to find that he was served in sufficient time for him to attend the hearing.
Subsections (4), (5) and (6) of s 99C of the SPA are in the following terms:
(4)The Court may, from time to time without requiring the attendance of any party, adjourn the hearing to which a defendant is summoned under subsection (2) to a later date if satisfied that the summons has not been served or that there is other adequate reason for the adjournment.
(5)The date fixed in the first instance for the hearing to which a defendant is summoned under subsection (2) must be within 7 days of the date of the order, and the date fixed under subsection (4) for an adjourned hearing must be within 7 days of the date on which the adjournment is ordered, unless the Court is satisfied—
(a)     that a later date is required to enable the summons to be served; or
(b)     that there is other adequate reason for fixing a later date.
(6)     A restraining order made under subsection (2)—
(a)     continues in force until the conclusion of the hearing to which the defendant is summoned or, if the hearing is adjourned, until the conclusion of the adjourned hearing; but
(b)     will not be effective after the conclusion of the hearing to which the defendant is summoned, or the adjourned hearing, unless the Court confirms the order—
(i)on failure of the defendant to appear at the hearing in obedience to the summons; or
(ii)having considered any evidence given by or on behalf of the defendant; or
(iii)     with the consent of the defendant.
The date fixed for the hearing to which the appellant was summoned under s 99C(2) was within seven days of the date of the order, in accordance with s 99C(5). The court did not adjourn the hearing (as it might have done) under s 99C(4).
Under s 99C(6), a restraining order continues until the conclusion of the hearing to which the defendant is summoned. It is not effective after that time unless it is confirmed by the court. It may be confirmed in certain circumstances, the only one of which that could be said to be relevant in this case being “on failure of the defendant to appear at the hearing in obedience to the summons” (s 99C(6)(b)(i)).
However, in this case, the appellant did not “fail” to appear at the hearing in obedience to the summons, because he was not served with the summons before the hearing, or at least not in sufficient time for him to appear at the hearing. In my opinion, the magistrate did not have the power to confirm the restraining order at 11.30 am on 14 October 2004 and the order to that effect must be set aside.
The respondent submits that even if I reach this conclusion, the restraining order remains effective and the issue of whether it should be confirmed should be referred back to a magistrate for hearing and determination. The appellant submits that the restraining order came to an end at the conclusion of the hearing on 14 October 2004, and that there is nothing to refer back to a magistrate.
In my opinion, the appellant’s submission is correct. Parliament has seen fit to empower the court to make wide-ranging orders affecting the liberty of the person in the absence of that person. However, it has done so subject to important safeguards which require the defendant to be brought before the court within a short period of time (ie, seven days). If there is a difficulty in serving the defendant, the hearing may be adjourned, but again only for a short period of time (ie, within a further seven days, or a later date if the circumstances warrant it). The restraining order thereafter becomes ineffective unless confirmed and, as I have said, it may then only be confirmed in certain circumstances. As a matter of statutory construction of the relevant provisions of the SPA, and, in particular, s 99C(6), the order came to an end on 14 October 2004, because it was not properly confirmed.
This conclusion is supported by the fact that a defendant’s ability to have a restraining order varied or revoked is not unlimited. An order may only be varied or revoked with the leave of the court and that leave may only be granted if there has been a substantial change in the circumstances since the order was made (s 99F). The conclusion is also supported by the fact that Duggan J took a similar approach in Moore-McQuillan v Police (1998) 196 LSJS 175.
It will be apparent from what I have said that I think the hearing on 14 October 2004 was “the hearing to which the defendant is summoned” within the provisions of s 99C(6). Even if I am wrong on this point because service was not effected in a timely fashion, and there has not been a hearing to which the respondent has been summoned, I do not think that that approach preserves the restraining order made on 7 October 2004. In those circumstances, there would have been a failure to comply with subsections (2) and (5) of s 99C and, having regard to the purpose of the relevant sections ascertained by reference to the language used, and the scope and object of the sections, the non-compliance would be fatal to the effectiveness of the restraining order after 7 days (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
Conclusions
For these reasons, I make the following orders:
1The time within which to appeal is extended up to and including 21 November 2005.
2The appeal is allowed and the order made by the magistrate on 14 October 2004 is set aside.
I think the restraining order became ineffective at the conclusion of the hearing on 14 October 2004 and I decline the respondent’s application to refer the matter back to a magistrate. I will hear the parties as to any other orders.