C v Police No. Scgrg-98-786 Judgment No. S6885

[1998] SASC 6885

C v POLICE

[1998] SASC 6885

Magistrates Appeal

Wicks J

1 In this matter, the appellant appeals against an order of a Magistrate sitting at Elizabeth confirming an interim restraining order made on 2 January 1998.
2 The interim order was made restraining the defendant:
"... from assaulting, molesting, harassing, abusing or intimidating Kaye Helen Johnson or any other staff member of the Riverdale Primary School."

Ms Kaye Johnson was the Principal of the school.
3 The order was made under s99C of the Summary Procedure Act 1921 in the absence of the appellant and the appellant was summoned to appear at the Magistrates Court on 11 May 1998 at a hearing to confirm or otherwise the earlier order made.
4 On that occasion, the learned Magistrate pointed out that the original order was beyond power to the extent that it purported to apply to a group of persons, namely teachers at the Riverdale school.  The original order was confirmed by him in the following terms:
"The defendant is restrained from assaulting, molesting, harassing, abusing or intimidating Kaye Helen Johnson.."

5 In the Notice of Appeal, the ground of appeal was stated as follows:
"That the learned special Magistrate erred in law in refusing to allow evidence of those occurrences which motivated the appellant to behave in the manner complained of."

6 The Notice of Appeal was filed by the appellant in person, although at the hearing of the appeal he was represented by counsel. 
7 Section 99 of the Summary Procedure Act 1921, so far as is material, provides as follows:
"99. (1) On a complaint under this Division, the Court may make a restraining order against the defendant if -

(a)     there is a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner; and

(b)     the Court is satisfied that the making of the order is appropriate in the circumstances.

(2) For the purposes of this section, a defendant behaves in an intimidating or offensive manner if on two or more separate occasions -
(a)     the defendant follows a person; or

(b)     the defendant loiters outside the place of residence of a person or some other place frequented by the person; or

(c)     the defendant enters or interferes with property occupied by, or in the possession of, a person; or

(d)     the defendant gives offensive material to a person or leaves offensive material where it will be found by, given to or brought to the attention of a person; or

(e)     the defendant keeps a person under surveillance; or

(f)     the defendant takes any other action in relation to a person or a person's property,

so as to reasonably arouse the person's apprehension or fear.

(3) - (6) ..."

8 Section 99C of the Act is also relevant in that it enables a restraining order to be made in the absence of a defendant, but further provides that if that is done, the defendant must be brought before the Court as soon as possible to show why the restraining order should not be confirmed.
9 As appears from the evidence in this matter, J, a child of the appellant, was a pupil of the Riverdale Primary School, of which Ms Johnson was the principal.  During 1997, J was subjected to harassment from another pupil at the school.  There were about five incidents in all, two of which were of a sexual nature.  J was six or seven years of age at the time.  The evidence does not reveal the age of the other pupil except to describe him as "a little boy".
10 The appellant and his wife, Mrs C, were very concerned about the first incident and wrote a letter of complaint to Ms Johnson.  Ms Johnson took steps to introduce "restricted play" so that the child responsible for the harassment could not come into contact with J.  Due to a misunderstanding amongst staff members, the restricted play arrangements were not effective.
11 After the first incident, the appellant became extremely frustrated by the fact that Ms Johnson and her staff were unable to stop the harassment so that their daughter could attend the school without the prospect of being interfered with.  There were a number of meetings between the appellant and Ms Johnson in which the harassment of J was discussed.  It is clear from the evidence that in some of these meetings the appellant adopted an angry tone.  He raised his voice and, on occasions, shouted at Ms Johnson.  He also gesticulated with a hand and finger whilst standing in close proximity to her.  The appellant also adopted the practice of entering the school grounds at recess and at lunch time to observe or watch over his daughter whilst at play.  If not welcome on the school grounds, he sometimes retired to the adjoining footpath where he continued his vigil.  There is also evidence of an occasion in the last week of the school year in 1997 when the appellant entered Ms Johnson’s office without her permission.  In addition, there were occasions when, in order to remove the appellant from school property, Ms Johnson found it necessary to call the police.
12 Under the Summary Procedure Act 1921, there are two elements required to be proved before a restraining order may be made.  First, there must be a reasonable apprehension that the defendant may, "unless restrained ... behave in an intimidating or offensive manner".  Secondly, the Court must be satisfied that the making of the order is appropriate in the circumstances.
13 Section 99 of the Summary Procedure Act is not without its difficulties.  Par(1)(a) speaks of apprehension of behaviour which is intimidating or offensive.  This is not a reference to past behaviour but rather to future behaviour which is reasonably apprehended, doubtless based on past conduct of the same nature.  The section then proceeds to define intimidating or offensive behaviour by reference to past conduct.  It speaks of the defendant behaving on two or more occasions in relation to a person so as to reasonably arouse the person’s apprehension or fear.  In the present case the learned Magistrate relied upon instances of intimidating or offensive behaviour contained in par99(2)(c) and par99(2)(f) and rightly so in my view.
14 On the proper interpretation of s99, there must be behaviour which reasonably arouses a person’s apprehension or fear on at least two occasions.  If such behaviour occurs on at least two occasions and it is such to create a reasonable apprehension of its continuance, the requirements of par99(1)(a) are made out.  At that point the Court is left with a general discretion, namely whether it is appropriate to make a restraining order in the circumstances.  That provision would enable the Court to do justice in cases where the operation of par99(1)(a) on its own might produce an unfair result.
15 There was nothing in the defendant’s behaviour which would suggest that he was about to desist.  The circumstances of which evidence was given, leave one with a clear apprehension that the intimidating or offensive conduct is likely to continue unless the defendant is restrained.
16 I do not think that in this case, evidence of what motivated the appellant to do what he did in relation to Ms Johnson would in any way justify or excuse the conduct which the learned Magistrate relied upon to confirm the restraining order made against the appellant.  There is already a substantial amount of evidence before the Court of occurrences motivating the appellant to behave in the manner complained of.  In my view it is background and not in any way essential to the case of either party.  Any more of such evidence would not add anything.  I believe that the learned Magistrate was justified in excluding such evidence on the ground that it was irrelevant or not sufficiently relevant.
17 Counsel for the appellant drew my attention to the decision in Moore-McQuillan v Police (Bleby J, 24 April 1998 S6636 unreported) where the learned Judge on appeal said at p14
"                 In considering whether or not to confirm the restraining order under s99 of the Summary Procedure Act 1921, a magistrate is required to consider if there is "a reasonable apprehension that the defendant may, unless restrained, cause personal injury or damage to property or behave in an intimidating or offensive manner", and a court must be satisfied that the making of the order is appropriate in the circumstances.  It is essentially an order preventing the defendant from engaging in future conduct of the prescribed type.  It will obviously be relevant to the exercise of the court’s discretion as to whether or not to grant an order, and in what terms, to inquire as to what has been the cause of the allegedly offensive conduct and to make some inquiry as to the likelihood of its recurrence.  These are all matters which need to be weighed up by the magistrate.  If the offensive conduct is not likely to arise again, or there is no reason for the antagonistic parties to make contact, that will be a relevant but not necessarily decisive factor in determining whether an order should be made."

18 These remarks of Bleby J were made in the context of the case before him.  I can envisage situations where it might well be that the conduct complained of has ceased before application for a restraining order was made or where the cause of the conduct has abated or where differences between parties have been the subject of compromise.  In such cases, the remarks quoted above from the judgment of Bleby J would be entirely apt.  But the case before the Court is not such a case.
19 For these reasons I would dismiss the appeal.