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 sheltered seating to a table in the Square where he was joined by a friend with whom he conversed for approximately 20 minutes. The appellant was seated at the table with his back to the Square such that he was facing towards the bowling club and Maryatt Street. There were no children in the area between the appellant and the bowling club.
After sitting with his friend for about 20 minutes, the appellant left the Square and walked towards Commercial Road, intending to go to the Big W shop and the foreshore. At that time, police arrested the appellant. The appellant’s movements in Gladstone Square were recorded (using a video camera) by police officers who were concerned by the appellant’s presence in the Square in the vicinity of children. One of the officers had previously served the appellant with the PRO.
The appellant was charged with failing to comply with the PRO, contrary to s 99I(1) of the Act. The particulars of the charge related to the period when he was sitting at the sheltered seating area in Gladstone Square for about five minutes.
The Magistrate’s findings
The facts were not contested before the Magistrate. Similarly, it was not disputed by the prosecution that the appellant sat in the Square for the purpose of resting his knee. It was not disputed that he did not have any ‘ulterior’ motive in attending the Square. The Magistrate found that at no time did he speak to, wave at or in any way attempt to associate with any child in the Square.
The issue at trial was whether, in the circumstances described, the appellant had contravened or failed to comply with the PRO, contrary to s 99I(1) of the Act.
Section 99I(1) of the Act provides:
A person who contravenes or fails to comply with a restraining order or a registered foreign restraining order is guilty of an offence.
For the purposes of the Act, a restraining order means an order made under s 99 or s 99AA.[1]
[1] Summary Procedure Act 1921 (SA) s 4.
Section 99AA of the Act provides:
(1)On a complaint under this Division, the Court may make a restraining order against the defendant if –
(a)     the defendant has been found loitering near children; and
(b)     -
(i)the defendant has been found guilty of a child sexual offence within the previous five years; or
(ii)the defendant, having been sentenced to imprisonment for a child sexual offence, has been released from prison within the previous five years; or
(iii)the defendant has been found loitering near children on at least one previous occasion and there is reason to think that the defendant may, unless restrained, again loiter near children; and
(c)     the Court is satisfied that the making of the order is appropriate in the circumstances.
(2)A restraining order under this section may restrain the defendant from –
(a)     loitering near children at or in the vicinity of a specified place or class of places or in specified circumstances; or
(b)     loitering near children in any circumstances.
(3)In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Court must have regard to the following:
(a)     whether the defendant’s behaviour has aroused, or may arouse, reasonable apprehension or fear in a child or other person;
(b)     whether there is reason to think that the defendant may, unless restrained, commit a child sexual offence or otherwise act inappropriately in relation to a child;
(c)     the prior criminal record (if any) of the defendant;
(d)     any evidence of sexual dysfunction suffered by the defendant;
(e)     any apparent pattern in the defendant’s behaviour, any apparent connection between the defendant’s behaviour and the presence of children and any apparent justification for the defendant’s behaviour;
(f)    any other matter that, in the circumstances of the case, the Court considers relevant.
(4)For the purposes of this section –
(a)     the defendant loiters near children if –
(i)the defendant loiters, without reasonable excuse, at or in the vicinity of a school, public toilet or place at which children are regularly present; and
(ii)children are present at the school, toilet or place at the time of the loitering; and
(b)     a child sexual offence means any of the following offences committed against or in relation to a child under 16 years of age (including a substantially similar offence against a corresponding previous enactment or the law of another place);
(i)rape;
(ii)indecent assault;
(iii)incest;
(iv)an offence involving unlawful sexual intercourse;
(v)an offence involving an act of gross indecency;
(vi)an offence involving child prostitution;
(vii)an offence involving indecency or sexual misbehaviour including an offence against Part 3 Division 11A of the Criminal Law Consolidation Act 1935 or against section 23 or 33 of the Summary Offences Act 1953;
(viii)an attempt to commit, or assault with intent to commit, any of the offences referred to in the above subparagraphs;
(ix)any other offence (such as homicide or abduction), if there are reasonable grounds to believe that any of the offences referred to in the above subparagraphs was also committed by the same person against or in relation to the child in the course of, or as part of events surrounding, the commission of the offence.
The relevant condition of the PRO provides:
The defendant [appellant] is restrained from loitering near children and / or in the vicinity of places of education such as primary and / or secondary schools and other places where children may congregate.
In finding that the appellant was loitering near children in sitting at the sheltered seating area in Gladstone Square, the Magistrate reasoned:
Section 99I of the Summary Procedure Act provides that a person who “contravenes or fails to comply with a restraining order” is guilty of an offence and is liable to a penalty of up to 2 years imprisonment. In this case that means that the prosecution must prove beyond reasonable doubt that the defendant was loitering near children or in the vicinity of places where children may congregate.
Section 99AA(4) of the Summary Procedure Act provides a definition of the words “loiters near children”. However, that definition is “for the purposes of this section” and assists only in assessing the information made available to the court when considering whether to issue a PRO in the first instance.
…
I have earlier suggested that the definition of “loiters near children” is only applicable when considering the issue of whether or not a PRO should be granted. That definition provides that a person loiters near children if he or she “loiters without reasonable excuse”. There is no such “defence” in similar terms provided in s 99I of the Act.
… In other words, it is open to a defendant to [sic] an application for an order to prove on the balance of probabilities that he had a reasonable excuse for being in a particular location. If he can satisfy the court that he had such a reasonable excuse, an order may not be made. However, once the order has been made, the only reasonableness that is relevant is that associated with an honest and reasonable belief as to the existence of facts, which, if they existed would have made the conduct giving rise to the alleged breach innocent. That is a different onus.
For the reasons that follow, the Magistrate was in error in finding that s 99AA(4) of the Act is not relevant when considering whether a term of a PRO has been breached and hence an offence against s 99I(1) of the Act committed.
Loitering near children for the purposes of breaching a paedophile restraining order
The Magistrate concluded that the definition of loiters near children, provided in s 99AA(4)(a), was not relevant to determining whether s 99I(1) of the Act had been breached on the basis that that definition was only relevant to ‘assessing the information made available to the court when considering whether to issue a PRO in the first instance’.
Counsel for the respondent submitted that the definition in s 99AA(4)(a) of the Act is applicable only to the question of whether a PRO should be made against a particular defendant.
Section 99AA(2) prescribes the conditions that the Court may impose under a PRO. The condition must expressly or by necessary inference[2] restrain the defendant from loitering near children, as that term is defined by s 99AA(4)(a) of the Act.
[2] See McIntosh v Police [2007] SASC 24, [27]-[28].
Section 99AA(2) of the Act provides that the conditions of a PRO may restrain a defendant from: (1) loitering near children at or in the vicinity of a specified place; (2) loitering near children at or in the vicinity of a class or places; (3) loitering near children in specified circumstances; or (4) loitering near children in any circumstances.[3]
[3] See also McIntosh v Police [2007] SASC 24, [18].
In McIntosh v Police,[4] Mr McIntosh had been subjected to a PRO which contained various conditions. A number of the conditions did not comply with s 99AA(2). It was conceded by the respondent that the conditions were not prescribed in the Act, and that those conditions were not valid. There remained one condition which was the subject of the appeal. The condition provided that Mr McIntosh:
… is restrained from loitering at or in the vicinity of and being within 200 metres of a school, playground, public toilet or other public place commonly frequented by children; provided that this restraint shall not be interpreted to mean the defendant [Mr McIntosh] cannot attend to shopping for personal needs if the defendant goes straight to the premises and leaves the premises after being on the premises for only so long as is reasonably necessary for the purposes of supplying his personal needs, including when attending at premises that are take-away food outlets commonly frequented by children.[5]
[4] [2007] SASC 24.
[5] McIntosh v Police [2007] SASC 24, [3].
Mr McIntosh submitted that the Court may impose a restraining order prohibiting loitering near children. A general prohibition of loitering was, in his contention, beyond power. He submitted that children are required to actually be present when a defendant is alleged to have been loitering in a given place and, for the condition to be valid, the restraining order can only prohibit loitering near children. A general restraint on loitering at or near specified locations was not valid, as the legislation permitted a restraint limited to loitering near children.
Anderson J said:
Condition 5 is different from the other conditions in that it includes the word loitering, but not ‘loitering near children.’ It was submitted by the appellant that condition 5 imposes a condition as to loitering by relation to geographical boundaries and that although children may in fact frequent those areas at times, the condition is invalid because it does not follow the purpose and intent of the section and seek to prevent loitering when children are actually present in such locations.
…
… As I understand the argument there would be no challenge if condition 5 actually said loitering near children. The question is whether ‘loitering near children’ should be inferred from a reading of the statute pursuant to which the conditions were imposed.[6]
[6] McIntosh v Police [2007] SASC 24, [12] and [19].
Anderson J observed that the intention of Parliament was to prevent paedophiles from loitering near children in such a way and in such a manner as to make it likely that at some stage a further offence will be committed. Mr McIntosh had been observed continuously hanging around a school when children arrived and left. He was also observed watching children in the school grounds. He concluded that condition 5 should be read as prohibiting Mr McIntosh from loitering near children. He said:
It can thus be inferred that the word loitering in condition 5 should be interpreted consistently with s 99 AA to mean that the appellant is prohibited from loitering near children.[7]
[7] McIntosh v Police [2007] SASC 24, [27].
I agree with Anderson J that any condition of a PRO is limited to restraining a defendant from ‘loitering near children’.
The Court has a discretion to impose geographical restraints or restraints by reference to circumstances in setting a condition to a PRO. For a condition of a PRO to be valid, it must expressly or implicitly restrain the defendant from loitering near children. The term “loitering” in a PRO is to be used to mean “loitering near children”. The term loitering near children is defined in s 99AA(4)(a) of the Act. Consequently, the defendant is restrained from loitering without reasonable excuse at or in the vicinity of a place in which children are regularly present, when children are present. Section 99AA(4)(a) deems a school or public toilet to be a place at which children are regularly present.
It follows that to establish the offence of breaching a PRO, the prosecution must prove:
·That the defendant was loitering.
·That he had no reasonable excuse.
·That it was in the vicinity of a school, public toilet or a place at which children are regularly present.
·That children were present at the place specified.
The Magistrate concluded that the definition of loitering near children provided by s 99AA(4)(a) affords a defendant a defence of reasonable excuse only on an application that a PRO be made against that defendant. The error in this finding is two-fold.
First, the definition of loitering near children in s 99AA(4)(a) requires the complainant to establish that the defendant is loitering without reasonable excuse. The evidential burden is on the defendant. However, once raised, the onus is on the prosecution to prove that the defendant’s excuse is not reasonable.
Secondly, for the reasons given, the definition of loitering near children provided by s 99AA(4)(a) is relevant to proceedings concerning the imposition or contravention of a PRO.
The Magistrate convicted the appellant upon an erroneous construction of the section. The appeal must be allowed.
The appeal
The issue at trial was whether, on a proper construction of the relevant provisions of the Act, the appellant breached the PRO. On that basis, this Court can determine whether the conviction should stand on a proper construction of the legislation.
Before turning to consider that question, I note that the condition prohibiting the appellant from loitering near children complies with s 99AA(2) of the Act.[8]
[8] See McIntosh v Police [2007] SASC 24, [23]-29].
I first deal with the application made by counsel for the appellant seeking leave to amend the notice of appeal. The amendments sought were to add further grounds of appeal, the effect of which were to allege that the PRO should be set aside.
Counsel for the appellant submitted that the PRO which was made by a Magistrate, other than the Magistrate from whom this appeal lies, should not have been made as there had been a failure to supply to the appellant the affidavit material upon which the order was made.She further submitted that the magistrate who confirmed the order erred in so doing in the absence of the appellant and without giving the appellant an opportunity to contest the confirmation of the order. It was not suggested that the appellant had not been served with the PRO or that he had not been served with a notice of the hearing. Counsel for the respondent opposed the application on the ground that it was, in substance, an attempt to appeal against the original order from which there had been no appeal. He further submitted that no challenge to the validity of the PRO had been made before the Magistrate when the appellant answered the charge the subject of this appeal.
I refused the application on the grounds that, in substance, it sought to appeal the order made on 6 July 2006 by another magistrate from which no appeal had been instituted. The grounds were not proper grounds in respect of the appeal before me.
Turning to the grounds of appeal. In order to establish that the appellant has committed an offence against s 99I(1) of the Act, the prosecution must establish that, in sitting for the time he did at the sheltered seating area in Gladstone Square, the appellant:
·was loitering;
·without reasonable excuse;
·at or in the vicinity of a place where children are regularly present; and
·children were present at the time of the loitering.
I turn firstly to the question of whether the appellant was loitering. In Samuels v Stokes,[9] the High Court considered what constitutes ‘loitering’ for the purposes of the then s 18 of the Police Offences Act 1953-1972 (SA). Section 18(1) provided:
Any person who lies or loiters in any public place and who, upon request by a member of the police force, does not give a satisfactory reason for so lying or loitering shall be guilty of an offence.
[9] (1973) 130 CLR 490.

Menzies J said:
… it seems to me that the word “loiter” means no more than “tarrying”, or, to use a phrase that has received judicial recognition, “hanging about”. A person may loiter who has a reason, lawful or unlawful, for standing sitting or sauntering in a public place.
…
I consider that, without any context, the word “loiters” does ordinarily carry the meaning lingering idly or aimlessly, and not merely lingering, but the context to which reference has been made suggests that here a person who merely lingers is a person who loiters, regardless of his reason for so lingering.[10]
[10] Samuels v Stokes (1973) 130 CLR 490, 498-9.
Gibbs J, as he then was, said:
The question whether a person is loitering would seem to me to be in general one that should be answered by an objective consideration of the observable facts rather than by an inquiry into the person’s state of mind.[11]
[11] Samuels v Stokes (1973) 130 CLR 490, 504.
A person loiters for the purposes of s 99AA when that person is “tarrying” or “hanging about”. It matters not, for the purpose of determining whether that person “was loitering”, whether that person has a reason for tarrying or hanging about.
In sitting at the sheltered seating area for a period of time, the appellant was loitering. It follows that the first limb of loitering near children had been established.
The playground area in Gladstone Square is clearly a place in which children are regularly present and children were present at the time the appellant was loitering. It follows that the third and fourth limbs of loitering near children had been established.
The determinative issue is whether the appellant was loitering in the vicinity of the playground “without reasonable excuse”.
What constitutes a reasonable excuse will depend on the circumstances of each case. For example, factors personal to the defendant, such as the defendant’s physical and mental condition may be relevant. The circumstances in which a person may have a reasonable excuse to be present at a place are varied, but may include a duty or obligation, be it legal, contractual, moral or social, or a necessity to be at the place.[12]
[12] Power v Huffa (1976) 14 SASR 337; Millbanks v Ford (1984) 35 SASR 389; Walker v Hayes (1986) 44 SASR 250.
The appellant walked from his home to the town centre in order to attend a festival at the foreshore and collect cans from bins situated on the main streets along the way. As I have already indicated, this was a considerable walk for the appellant, given his age and the health problems from which he suffers, particularly the arthritis and pain which afflicts his right knee.
The appellant was entitled to walk through Gladstone Square for the purpose of checking the bins for cans. In this endeavour it could not be said that the appellant was loitering in the Square. However, after checking one of the bins, the pain in the appellant’s knee became such that he was compelled to sit and rest.
The appellant gave evidence that he suffers from arthritis. He also suffers from epilepsy. He said that the reason he sat down at the place at which he was observed by the police was to rest his leg which was aching.
At trial, a letter from the appellant’s General Practitioner, Dr Anderson, was tendered by consent. Dr Anderson’s letter advised:
I first consulted with Mr Raymond Coulter on 14/3/05. He has a history of epilepsy, hypertension, B12 deficiency, osteoarthritis and a past history of leg ulceration. He is on medication to control the epilepsy, hypertension and B12 deficiency.
His age of 72 years and obesity would make it necessary for him to rest intermittently while walking. His medical conditions make him less well and the osteoarthritis can cause pain at times requiring a period of rest such as sitting down before he could continue.
It was not disputed that there was a real necessity for the appellant to sit and rest before he could continue walking.
A PRO is imposed for the protection of children. The public must be confident that the Courts will enforce that protection.[13] Nevertheless, a person subject to a PRO who has a lawful excuse to stop and remain at a place which is subject to the order does not breach the order.
[13] Cryer v Police (2001) 217 LSJS 43, see esp 47-48 [330]; McIntosh v Police [2007] SASC 24, see esp [26].
There is no dispute that the appellant sat at the sheltered seating area in Gladstone Square for the genuine purpose of resting. The appellant was not attempting to associate with any children in the Square while resting. Moreover, on the uncontested medical evidence of Dr Anderson, the appellant was constrained to rest before he could continue walking.
For these reasons, the second element of loitering near children has not been satisfied. The appellant did not loiter in the Square without reasonable excuse.
The appeal is allowed. I quash the conviction and I find the appellant not guilty.