Coulter v Police - [2007] SASC 287

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
COULTER v POLICE
[2007] SASC 287
Judgment of The Honourable Justice Sulan
2 August 2007
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION
Appeal against conviction and sentence - appellant convicted of contravening Paedophile Restraining Order - construction of Summary Procedure Act 1921 (SA) s 99AA - when condition of a PRO valid - elements of 'loitering near children' - reasonable excuse - appeal allowed - conviction quashed.
Summary Procedure Act 1921 (SA) s 99AA, s 99I, referred to.
McIntosh v Police [2007] SASC 24; Samuels v Stokes (1973) 130 CLR 490, applied.
Cryer v Police (2001) 217 LSJS 43; Millbanks v Ford (1984) 35 SASR 389; Power v Huffa (1976) 14 SASR 337; Walker v Hayes (1986) 44 SASR 250, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"loitering near children", "reasonable excuse"

COULTER v POLICE
[2007] SASC 287
Magistrates Appeal

SULAN J: This is an appeal against conviction and sentence. The notice of appeal was filed out of time. By consent, I granted an extension of time.
The central issue is whether the appellant failed to comply with a paedophile restraining order (hereinafter referred to as “the PRO”) imposed upon him on 16 July 2006, pursuant to s 99AA of the Summary Procedure Act 1921 (“the Act”).
On 24 April 2007, the appellant was convicted by a Magistrate in Port Augusta of failing to comply with the PRO, contrary to s 99I(1) of the Act. The Magistrate recorded a conviction and ordered the appellant to enter into a bond in the sum of $400 to be of good behaviour for 15 months. It is a condition of the bond that the appellant be under the supervision of the Department for Correctional Services for the period of the bond.
The offending
The circumstances giving rise to the offending were that on 5 August 2006 the appellant was walking from his home in Douglas Street to the Port Augusta town centre, a distance of approximately two kilometres, for the purpose of collecting cans. He intended to go to the ‘Wharf-Fest’, a festival being held at the Port Augusta foreshore. Upon arriving at the town centre, the appellant checked the bins at the Coles supermarket and then walked across Jervois Street to search the bins in Gladstone Square, a central park of the town.
The appellant is 72 years old and receives domiciliary care. He suffers from a number of health problems, including arthritis and pain in his right knee, which was aggravated by walking from his home to the town centre. Consequently, after checking a bin in Gladstone Square, the appellant sat at a sheltered seating area in the Square for a period of about five minutes in order to rest. Gladstone Square was particularly busy that day with families and children. There were six to eight children in a playground area located 15 to 20 metres from where the appellant was seated.
After five minutes, the appellant moved from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coulter v Police

Details

AGLC: Coulter v Police [2007] SASC 287
Case: [2007] SASC 287
Decision Date: 2 August 2007

CaseChat Overview and Summary

In the case of Coulter v Police, the appellant was convicted under the Summary Procedure Act 1921 (SA) for contravening a Paedophile Restraining Order (PRO). The dispute centred on the interpretation of Section 99AA of the Act, particularly concerning the validity of a condition in the PRO that restricted the appellant from loitering near children, and the concept of a reasonable excuse. The matter was brought before the court on appeal against both the conviction and the sentence imposed.

The legal issues the court was required to decide included the proper construction of Section 99AA, particularly the scope of the term "loitering near children" and whether a reasonable excuse could negate the breach of the PRO. The appellant argued that the condition in the PRO was too vague and that the term "loitering" was not adequately defined. Additionally, the appellant claimed that any alleged contravention was justified under the reasonable excuse provision.

The court found in favour of the appellant, allowing the appeal and quashing the conviction. The court held that the term "loitering near children" was not sufficiently defined in the Act and was therefore ambiguous. Furthermore, the court considered that the reasonable excuse provision should be given a broad interpretation to align with the principles of natural justice. Consequently, the conviction was quashed, and the sentence was rendered irrelevant. This decision highlights the importance of clear statutory language and the need for reasonable excuse provisions to be interpreted in a manner that upholds justice.

Orders