Director of Public Prosecutions v Rayment

[2018] VSC 663

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 03447 of 2017

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Mark Adam Vetter)	Appellant
v
SHAUN RAYMENT	Respondent
and
THE ATTORNEY-GENERAL FOR VICTORIA	Intervenor

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JUDGE:	TAYLOR J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2018
DATE OF JUDGMENT:	2 November 2018
CASE MAY BE CITED AS:	DPP v Rayment
MEDIUM NEUTRAL CITATION:	[2018] VSC 663

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JUDICIAL REVIEW – Charge of loitering without reasonable excuse contrary to s 60B(2) of the Crimes Act 1958 – Whether ‘loitering’ requires proof of lack of purpose or unlawful purpose – No such proof required – Nadarajamoorthy v Moreton [2003] VSC 283 distinguished.

STATUTORY CONSTRUCTION – Whether the term ‘loiter’ has fixed, technical meaning – Consideration of statutory history of term ‘loiter’ – No such fixed meaning – Primacy of statutory context in determining meaning of the term ‘loiter’ – Hagan v Ridley (1948) 50 WALR 112; Samuels v Stokes (1973) 130 CLR 490 applied.

HUMAN RIGHTS – Right to freedom of movement – No choice of statutory construction arising – Reasonable and demonstrably justifiable limitation –  Charter of Human Rights and Responsibilities Act 2006, ss 12, 25(1), 32(1), 72(2) considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F. Dalziel	John Cain, Solicitor for Public Prosecutions
For the Defendant	Mr J. McLoughlin with Mr R. de Vietri	Victoria Legal Aid
For the Intervenor	Mr A. Pound Ms E. Thomas	Victorian Government Solicitor

HER HONOUR:

Question Arising

1. This is an appeal under section 272(1) of the Criminal Procedure Act 2009 (Vic) against the final order of a magistrate made on 31 August 2017 to dismiss a charge brought against the respondent. The charge was one of being a convicted sex offender loitering without reasonable excuse near a school contrary to s 60B(2) of the Crimes Act 1958 (Vic) (Crimes Act) [1].

   [1]The section has since been repealed and replaced with s 49N of the Crimes Act. Section 49ZB allows for a ‘reasonable excuse’ exception to s 49N.

1. The question of law arising for determination is ‘did the magistrate err in law in construing the word “loitering” so as to include a component of “lack of purpose”?’

Answer

1. For the reasons outlined below, the answer is yes.

Statutory Context

1. It is convenient to set out the full statutory context. Section 60B of the Crimes Act was, at the relevant time, in the following terms:

60B     Loitering near schools etc.

(1)       In this section, sexual offence means―

(a)an offence against section 38, 39, 40, 44(1), 44(2), 44(4), 45, 47, 47A, 48, 49, 55 or 56; or

(b)any offence specified in clause 7A, 7B, 8, 9, 10 or 12 of Schedule 8; or

an offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in paragraph (a) or (b).

(2)       A person who—

(a)       has been found guilty of―

(i)        a sexual offence; or

(ia)      an offence against―

(A) section 5, 6, 7 or 11 of the Sex Work Act 1994; or

(B)section 5, 6, 7, 8 or 9 of the Prostitution Regulation Act 1986; or

(C)section 59(1)(a) or (b) or 60 inserted in this Act on 1 March 1981 by section 5 of the Crimes (sexual Offences) Act 1980 and repealed on 5 August 1991 by section 3 of the Crimes (Sexual Offences) Act 1991; or

(i)murder where there are reasonable grounds to believe that a sexual offence was also committed on the victim; or

(ii)an offence against section 19 of the Summary Offences Act 1966; or

(iii)an offence against section 68, 69 or 70 or an offence of attempting to commit an offence against section 69; or

(iv)      an offence against―

(A)section 60A of the Classification of Films and Publications Act 1990; or

(B)section 168A, 168B or 168C of the Police Offences Act 1958

as in force at any time before its repeal; and

(b)       is found loitering without reasonable excuse in or near―

(i)a school, a children’s services centre or an education and care service premises; or

(ii)a public place within the meaning of the Summary Offences Act 1966 regularly frequented by children and in which children are present at the time of the loitering―

is guilty of an offence.

(2A)     An offence against subsection (2) is―

(a)an indictable offence for which the offender is liable to level 6 imprisonment (5 years maximum) or a level 6 fine (600 penalty units maximum) if at the time of the commission of the offence the offender had previously been sentenced as a serious sexual offender (within the meaning of Part 2A of the Sentencing Act 1991) for a sexual offence (within the meaning of that Part) or a violent offence (within the meaning of that Part); or

(b)a summary offence for which the offender is liable to level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) in any other case.

(3)If a person has at any time been convicted of an offence against a law of another State or a Territory of the Commonwealth which creates an offence substantially similar to a sexual offence the conviction for the offence against that law must be taken for the purposes of this section to be a conviction of a sexual offence.

(4)       In this section―

children’s services centre means a place at which a children’s service within the meaning of the Children’s Services Act 1996 operates;

education and care service premises means a place at which an education and care service (other than a family day care service) within the meaning of the Education and Care Services National Law (Victoria) educates or cares for children.

Factual Background

1. The respondent was found guilty in 2002 of a sexual offence within the meaning of s 60B(1)(a).[2]

   [2]The respondent was convicted of indecent assault under s 39 of the Crimes Act by the County Court of Victoria on 25 June 2002.

1. On 14 February 2017, the respondent was observed in and around a bus stop near Ave Maria College, a girls’ school in Aberfeldie, Victoria. He was present in that vicinity from about 3.30pm, being the end of the school day, for approximately 20 minutes. School girls boarded buses from that location. One who did so took four photographs of the respondent from the bus. They depict him shirtless and carrying a cricket bat.

1. The respondent, who has an intellectual disability, was interviewed by police in the presence of an independent third person on 20 February 2017.

1. The respondent stated that he knew a student of Ave Maria College called ‘Leah’. He said that Leah had called him on Valentine’s Day (being 14 February), at about 1.30 pm or 2.00 pm, and asked him to bring her a rose to school. The respondent said that he attended at the school at about 3.30 pm and spent about 20 minutes unsuccessfully trying to find Leah. He then tried to telephone her but she did not answer the call, and so he left and went home. The respondent further stated that Leah rang him that night to ask why he had not attended the school. He told her he had, but could not find her. She replied that her mother had collected her from school.

1. When challenged to produce Leah’s telephone number, the respondent said that he had since deleted it from his phone. When asked why he had no rose, the respondent said he was going to buy a rose, but it got too late to do so. He denied talking to other girls at the bus stop. The respondent admitted that the photographs taken from the bus were of him.

Magistrates’ Court Proceedings

1. The respondent was charged in the following terms:

The accused at Aberfeldie on the 14^th of February 2017, being a person found guilty of an offence specified under section 60B(1)(a), indecent assault, was found loitering without reasonable excuse near a school.

1. The matter proceeded before the magistrate on 31 July 2017 in an unorthodox manner. There were three agreed facts. First, that the respondent was a person who had been found guilty of a sexual offence. Second, that on the relevant date he was present near Ave Maria College. Third, that he knew that Ave Maria College was a school at the time of his attendance. It was not agreed that his admitted presence in the admitted circumstances amounted to ‘loitering’. Further, and in the alternative, it was not agreed that if he was ‘loitering’ he did so absent reasonable excuse.

1. The prosecutor tendered the police record of interview and the photographs of the respondent taken by the schoolgirl from the bus. Additionally, the prosecutor handed the magistrate an aerial image depicting the school and bus stop.

1. The magistrate then heard submissions.

1. Counsel for the respondent, who had also previously filed written submissions, argued, first, that the term ‘loiter’ required more than mere attendance or presence. Relying on an extract of Nadarajamoorthy v Moreton,[3] it was submitted that the term conveyed ‘a concept of idleness, lack of purpose or indolence’. And, it was argued, the respondent had a purpose for being at the school, namely meeting Leah.

   [3][2003] VSC 283 [32] (‘Nadarajamoorthy’).

1. Second, it was submitted, again relying upon Nadarajamoorthy,[4] that it followed that the prosecution could not therefore exclude all reasonable hypotheses consistent with the appellant not having been loitering, beyond reasonable doubt.

   [4]Ibid [33].

1. Third, in the alternative, it was submitted that if the respondent had been loitering, he had a reasonable excuse for so doing, namely meeting Leah at her request and invitation.

1. The prosecutor submitted that the charge under s 60B(2) of the Crimes Act did not require proof of the respondent’s ‘intention’. She distinguished Nadarajamoorthy on the basis that the charge in that case related to stalking where there was an ‘intention element’.

1. It is to be inferred that the prosecutor was, in effect, submitting that for the s 60B(2) Crimes Act offence, the particular purpose or lack thereof for the ‘loitering’ was irrelevant. This was in contradistinction to the s 21A Crimes Act stalking offence the appellant had been charged with in Nadarajamoorthy. Under s 21A, loitering is one mode of conduct which amounts to stalking, if done with the intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety or that of any other person, and if forming part of a course of conduct.

1. The prosecutor then submitted that the ‘loitering’ having been established by the unchallenged evidence of the respondent’s presence near the school, the excuse proffered by the respondent for that loitering was not, in all the circumstances, reasonable.

1. The magistrate held that the prosecution had failed to prove that the respondent had been loitering.

1. At the hearing of the matter in this Court, there was some dispute as to the precise nature of the magistrate’s finding. In particular, the respondent disputed whether her Honour had in fact found that the term ‘loiter’ required proof of a lack of purpose and, as the prosecution could not prove that the respondent so lacked a purpose, the element of ‘loitering’ was not made out.

1. Her Honour said:

So on the face of it certainly the accused’s explanation raises a significant issue about the purpose for which he has attended at the school. I think it is common ground that the question of the term ‘loiter’ requires more than mere attendance or presence.[5]

Certainly the accused relied on the decision in Nadarajamoorthy in relation to the discussion of the term ‘loiter’ in the context of a stalking prosecution. Certainly at paragraph [32] Mr Bongiorno J says, ‘It does seem to me that the word must mean more than simply to be and remain at. It conveys a concept of idleness, lack of purpose or indolence.’ So when I refer to the question of purpose it is in that context that the notion of purpose or lack thereof is a relevant consideration for the element in relation to loiter.

At paragraph [33] in relation to the circumstances of the particular case he was dealing with he says, ‘In order to find the charged proved by the Magistrate the Magistrate would have to be satisfied that the appellant was “loitering”. In a circumstantial case such as this he would have had to exclude all reasonable hypothesis consistent with his not having been ”loitering beyond reasonable doubt’’.

It seems to me that is a proper enunciation of course of the test that I must be satisfied beyond reasonable doubt that all reasonable hypotheses consistent with him not loitering beyond reasonable doubt. That then gives rise to the question of the extent to which the purpose for which he is there might be considered relevant. It is important in those circumstances to then take the whole of the circumstances into account.

[5]That concession was not made by the prosecutor.

1. Her Honour concluded as follows:

Ultimately in terms of the facts of this case as I have summarised them there are a number of factors which would predicate against a finding that it comes within the definition of a concept of idleness, lack of purpose or indolence.

…

There is nothing to certainly satisfy me or exclude the issues that have been raised by the accused in his record of interview as to the explanation he gives being so beyond the realms of reasonableness or to be accepted that he was not there for the purpose that he has identified. It seems to me that in terms of this circumstantial case I simply cannot exclude the reasonable hypothesis consistent with him not having been loitering beyond reasonable doubt.

The prosecution certainly raised the issue of the appropriateness of him being there in the vicinity of the school. That may well be the case that it is entirely inappropriate for him to be there, but I am not here to determine whether or not it is appropriate. I am here to determine whether or not he has loitered within the meaning of the act. I cannot be satisfied beyond reasonable doubt that the prosecution has discharged the onus of proof in relation to the question of the accused having been loitering in all of the circumstances.

1. In my view it is clear that the magistrate held that the element of ‘loiter’ required proof of ‘lack of purpose’, quite apart from a separate and secondary consideration of whether the loitering, if proven to the requisite standard, was done absent reasonable excuse.

The Submissions in this Court

1. Counsel for the appellant first submitted that the magistrate had determined that because the respondent had a reason for being outside the school he had not been ‘loitering’, and there was therefore no need to assess the reasonableness of the excuse. She then submitted that the magistrate had erroneously applied Nadarajamoorthy beyond its statutory context. With respect to the exercise of statutory construction, counsel submitted that the plain reading of the text indicated that loitering need not be purposeless. Rather, loitering simply required ‘hanging about’ for any reason. The reason for so doing may or may not in all the circumstances amount to a ‘reasonable excuse’.

1. Counsel for the respondent first submitted that the reasoning of the magistrate did encompass consideration of whether the excuse or purpose was reasonable. That is, counsel contended the reasoning process was done in a single step, rather than in a two-stage process of determining whether the element of ‘loitering’ had been satisfied before considering the reasonableness of the excuse. Counsel submitted that her Honour had been required to grapple with a legislative term with ‘baggage’ and ‘shades of meaning’. The legislature could have chosen words such as ‘be at’ or ‘remain near’, but did not. That meant that the offence was directed not to stop certain people being in certain locations, but to prevent those people being in certain locations when it was reasonable to think that mischief might follow.

1. Counsel submitted that the word ‘loiter’ implies a continuing presence beyond what one might expect is reasonable in the circumstances. That is, it involves some aspect of purposelessness or improper purpose, which can be discerned by the reasonable observer from the manner and circumstances of the person remaining in the particular place. It is then necessary to consider whether any excuse proffered for loitering of that quality is reasonable. While that is of necessity a two-stage test, it does not indicate that the approach said to have been adopted by the magistrate was wrong.

1. Counsel for the respondent also submitted that the statutory construction of the word ‘loiter’ must be governed by s 12 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), which sets out a right to freedom of movement. It was argued that if there was no component of purposelessness or improper purpose imbued into the element of loitering, the right of freedom of movement would be impermissibly curtailed. This was said to be because persons would be required to explain their presence in public places of the most general kind.

1. Counsel for the Attorney-General agreed in submissions that s 60B of the Crimes Act does engage s 12 of the Charter. Accordingly, the Court must consider the potential role of s 32 of the Charter in the statutory construction exercise. However, counsel submitted next that as there is only one possible interpretation of s 60B of the Crimes Act, s 32 of the Charter has no role to play. That one interpretation was said to be that ‘loiter’ in the s 60B(2) offence requires no more than ‘hanging about’ or ‘tarrying’. Counsel submitted that if a requirement of lack of purpose or improper purpose was read into the concept of loitering, the additional element of ‘without reasonable excuse’ in s 60B(2)(b) would have little or no work to do.

1. Counsel for the Attorney-General also submitted that to the extent that the construction contended for places an evidential burden on any person found loitering in the specific circumstances to adduce or identify evidence of a reasonable excuse, that evidential burden does not infringe the presumption of innocence and s 25(1) of the Charter. And, further, the concept of ‘reasonable excuse’ is well known to the law and not bad for uncertainty.

1. In reply, counsel for the appellant submitted that if there needed to be some quality to the loitering such that the independent observer would discern purposelessness or improper purpose, that would say nothing about the actual state of mind of the person so loitering.

Analysis

1. The term ‘loiter’ is one with significant history. Its etymology is probably Middle Dutch (loteren – to wag about) or Dutch (leuteren – to shake, totter). In early usage in English it meant to idle or waste one’s time in idleness. The Oxford English Dictionary suggests that the sense that the word has in English is not found in Dutch earlier than the 16^th century, but it may be much older in slang use. The word was probably introduced to England by foreign ‘loiterers’ or vagrants and is recorded in English from about 1400. The Oxford English Dictionary states that one of its meanings in English has evolved over time to be more specific, namely:

To linger indolently on the way when sent on an errand or when making a journey; to linger idly about a place; to waste time when engaged in some particular task, to dawdle.[6]

[6]Oxford English Dictionary (Oxford University Press, 2000).

1. Given the submissions of counsel as to the ‘baggage’ surrounding the term ‘loitering’, it is instructive to trace the history of the legal interpretation of the term within a criminal context. As will be seen, particular regard must be paid to whether the statute under consideration makes ‘loitering with intent’ an offence, or whether the statute criminalising loitering is silent as to intent but establishes a ‘without reasonable excuse’ or ‘without satisfactory explanation’ requirement.

1. As an offence, ‘loitering’ is entirely a creature of statute. Historically, it is directly associated with ‘vagrancy, vagabondage, or leading a vagabond’s life’.[7] The offence can be traced to a 1494 statute enacted under Henry VII.[8] The offence was re-enacted in various forms under Henry VIII,[9] Edward VI,[10] Elizabeth I,[11] James I,[12] Anne,[13] George II[14] and George III.[15] The 1572 statute enacted under Elizabeth I was the forerunner of the Vagrancy Act 1824; the latter still in force in the United Kingdom in the 20^th century. This linear series of United Kingdom statutory instruments contain a common thread of the

recognition of a well-known and notorious class of unemployed poor persons dealt with as such by Parliament according to their willingness or unwillingness and their ability or inability to work. The phrases ‘idle and disorderly’ and ‘those who use loitering’ are recurrent and both apply to the class.[16]

[7]Ledwith v Roberts [1937] 1 KB 232, 269 per Scott LJ (‘Ledwith’).

[8]11 Henry 7, c 2 (1494) An Act Against Vagabonds and Beggars (‘Vagabonds and Beggars Act’); cited in Ledwith 272 (Scott LJ).

[9]22 Henry 8, c 12 (1530) (‘Vagabonds Act 1530’); 27 Henry 8, c 25 (1535) (‘An Act for Punishment of Sturdy Vagabonds and Beggars’).

[10]1 Edward 6, c 3 (1547) (‘Vagabonds Act 1547’).

[11]14 Elizabeth I, c 5 (1572) (‘Vagabonds Act 1572’); 39 Elizabeth I, c 4 (1597) (‘Vagabonds Act 1597’).

[12]7 James I, c 4 (1609).

[13]13 Anne, c 26 (1713).

[14]13 George 2, c 24 (1739); 17 George 2, c 5 (1744).

[15]32 George 3, c 45 (1792).

[16]Ledwith, 275 (Scott LJ).

1. By the 20^th century, the ‘class’ of persons to which ‘loitering’ under the Vagrancy Act 1824 was aimed was ‘suspected persons’ or ‘reputed thieves’. If any such person was found ‘loitering’ in certain places ‘with intent to commit a felony’, they were guilty of a crime.[17] And, if found so ‘loitering’, any person had the power to apprehend such persons and convey them to police, and police were then required to detain them.[18]

   [17]Vagrancy Act 1824 (UK) s 4.

   [18]Vagrancy Act 1824 (UK) s 6.

Early Australian cases

1. Two cases arose in Victoria soon after the enactment of the by-laws and regulations made under the Police Offences Act 1890 (Vic). These cases considered the meaning of loitering in the context of regulations designed to prevent obstructions in the street.

1. In Murphy v Lee,[19] the defendant had been observed stationary, for about 35 minutes, selling fruit from a cart in a Ballarat street. The relevant regulation required that any person offering for sale any commodity in any street ‘shall not linger or loiter’ in the street, nor occupy a fixed stand, but shall keep moving at a reasonable walking pace of not less than one mile per hour. By majority, the Court held that the defendant had been ‘lingering or loitering’, the regulation having defined that term by the requirement of movement at a certain pace.

   [19][1891] VLR 364.

1. Geelan v Ryan[20] considered a by-law which gave police ‘move on’ powers with respect to any person obstructing a carriageway, footway or public place by standing or loitering. The defendant had been observed selling flowers from a basket in the carriageway in a Melbourne street. He (and other flower sellers) were causing an obstruction. When ordered to move on, he did, but then returned to where he had first been standing.

   [20](1891) 17 VLR 364 (‘Geelan’).

1. Hodges J held that the defendant had been wrongly convicted of infringing the by-law. His Honour said:

It appears from the evidence that he was as busy as he could be selling flowers. But it is said that because this business did not take him far away from one spot in the street, that therefore he was loitering. The contention on behalf of the prosecution is that by reason of the words in the by-law ‘standing or loitering’, loitering must be construed to mean any hovering about any one particular part of the street, and that if a person remains any considerable length of time in or near one spot then that is loitering in or about or near that spot. A man using all the energy he possessed, and working as hard as he could in erecting a pillar would be loitering according to that view, or a man building a brick wall, or a man using all his powers in sinking a shaft for a sewer. But that is in direct conflict with the ordinary meaning of the word. There is in my opinion implied in the meaning of the work ‘loiter’ some amount of inactivity, and it is an essential ingredient in loitering that there should be an absence of energy.[21]

[21]Geelan, 531.

1. Other Victorian cases also arose in the context of later iterations of the Police Offences Act and, specifically, the provision that made it an offence for a ‘suspected person’ to loiter in a public place with the intention of committing a felony. These authorities, interpreting the broadest formulation of a loitering offence, all held that proof of loitering required either a lack of purpose or an unlawful purpose.

1. In Olholm v Eagles (Olholm),[22] Eagles was charged with being ‘a rogue and a vagabond within the meaning of the Police Offences Act 1912 [(Vic)] for that he, being a suspected person and a reputed thief, did loiter in a public place to wit the flat of the Williamstown Racecourse with intent to commit a felony’.[23] During the course of argument, A’Beckett ACJ observed that ‘loitering means standing about without any ostensible reason for being there’.[24] In his decision, his Honour said:

The point on which I felt most doubt was on the question of loitering – whether a person who is in a place which is used for the purposes of amusement, and in which numbers of persons congregate expressly for the purpose of loitering, and being amused while loitering, can be considered from his mere presence there as loitering in that place. I think, however, that a suspected person in such a place cannot rely upon the fact that it is a place where other people loiter for innocent purposes as an answer to a charge that he is loitering there for criminal purposes indicated by his conduct...[25]

[22][1914] VLR 379.

[23]Ibid 380.

[24]Ibid 381.

[25]Ibid 383.

1. In the same case, Cussen J said:

[T]here was evidence justifying the justices in concluding that the accused did loiter on the racecourse with intent to commit a felony. For the purpose of determining whether [the] accused loitered, we must conclude, I think, as to time the whole afternoon, and as to place the whole of the flat of the racecourse. So considering it, the fact that at particular times the accused was shuffling in and out of the crowd, to whom moneys were being paid, is not of much importance. Loitering, when considered with respect to a period of time, and an area like a racecourse, is not inconsistent with movement – even rapid movement – at particular moments, and in particular spots, and, so considered, a person may, I think, be loitering with intent to commit a felony, even though for portions of the period he may be enjoying the races.[26]

[26]Ibid 384-5.

1. In Olson v Johnson,[27] Olson had been convicted of an offence of ‘loitering’ under the Police Offences Act 1915 (Vic), a later equivalent of the Police Offences Act 1912 (Vic) offence considered in Olholm on evidence that he was one of a crowd of persons in Collins Street looking at a procession of soldiers. Hood J quashed the conviction on the basis that there was no evidence that the accused was loitering.  This, it seems, was on the basis that there was no evidence to establish what Olsen had been doing in the street or for how long he had been there. He was not noticed in the crowd until he touched the arm of the man who complained of attempted robbery.

   [27][1917] VLR 206.

1. In Milne v Mutch,[28] the appellant, who did not dispute that he was a ‘suspected person’, argued that as the loitering was alleged to have occurred whilst he was travelling on a tram, he could not have been ‘loitering’. McArthur J held that loitering had been established because the appellant was ‘not a bona-fide traveller and was not on the tram for any lawful purpose.’[29] This was in contradistinction to the other passengers, who were in the tram for the lawful purpose of being carried from one place to another. His Honour said:

Assuming that they were not actively engaged in doing anything beyond sitting or standing in the tram while being carried, they could not, in my opinion, properly be described as ‘loiterers’; they were not ‘lingering idly’ or ‘wasting time when engaged on a particular task’ or ‘dawdling’ to use some of the dictionary definitions of ‘loitering’. …During the time or times – short as they may have been – when [the appellant] was amongst the crowd of passengers watching for an opportunity to steal, I think he could properly be described as ‘loitering’.[30]

[28][1927] VLR 190.

[29]Ibid 193.

[30]Ibid 192-3.

1. The breadth of the provision, the ease with which an offence could be proved and the expansive police powers with respect to arrest vis-à-vis the charge informed the restrictive interpretation of the term loitering as requiring proof of either unlawful purpose or purposelessness.[31]

   [31]See, e.g., Olhom, 387, at which Cussen J noted that a suspected person could not be ‘successfully charged or properly arrested’ unless he was loitering with intent to commit a felony or misdemeanour. See also Connor v Pittaway [1969] VR 355; Taylor v Guilfoyle [1925] VLR 213; Harrison v Hegarty [1975] VR 352 (‘Harrison’).

Ledwith

1. In 1937 the UK Court of Appeal in Ledwith[32] considered the meaning of ‘loitering’ in the context of both s 4 of the Vagrancy Act 1824 (UK) and a similar anti-vagrancy provision in the Liverpool Corporation Act 1921 (UK).[33] Section 4 of the Vagrancy Act 1824 stated, relevantly, ‘every suspected person or reputed thief loitering about … with [intent to commit felony] … shall be deemed to be a rogue and a vagabond.’ Section 513 of the Liverpool Corporation Act 1921  stated ‘[i]t shall be lawful for any police constable … to arrest and detain without warrant … (2) Any loose idle or disorderly person … whom he shall have good cause to suspect of having committed or being about to commit any felony misdemeanour or breach of the peace or to instigate or abet any such breach; (3) Any person whom he shall find between sunset and the hour of eight in the morning lying or loitering in any street yard or other place and not giving a satisfactory account of himself.’

   [32][1937] 1 KB 232.

   [33]Liverpool Corporation Act 1921 s 513.

1. The Court of Appeal held that the two men had been falsely imprisoned, on the basis that they could not be said to be either ‘suspected persons’ or ‘loose, idle or disorderly persons’. In so finding, each judge considered the meaning of ‘loitering’.

1. Scott LJ delivered the leading judgment, and traced the history of the offence to the first statute criminalising such behaviour, enacted in 1494. Analysing the language of these statutes, Scott LJ considered that the offence of ‘loitering’ was directed at ‘an unemployed class which was only too well known and always regarded as a public menace, and it was this class which was intended by all the expressions “idle and disorderly persons” and “persons using loitering”…’.[34] His Lordship found that:

The two expressions ‘idle and disorderly persons’ and ‘loitering’ by their use in a very large number of previous statutes in pari materia … have acquired a statutory meaning of that kind … for the word ‘loiterer’ was habitually and indifferently used in the old statutes as having the same meaning as ‘idle and disorderly person...’[35]

[34]Ledwith, 276.

[35]Ibid 270.

1. It followed that subsections (2) and (3) of s 513 of the Liverpool Corporation Act 1921 were to be read together so that persons were subject to arrest in subsection (3) for loitering only if they were also ‘loose and disorderly persons’ within the meaning of subsection (2).[36] Scott LJ expressed the concern that if this limitation was not read into the provision, the statue would afford an ‘absurd’ interference with personal liberty, particularly giventhe power of summary arrest.[37]

   [36]Ibid 267-268.

   [37]Ibid 267.

1. Greer LJ, similarly, held that s 513 had to be read down to require proof of an unlawful purpose:

Sub-s 3 creates some difficulty, especially with regard to the apprehension of the plaintiff Ledwith, inasmuch as he was, in what may be considered in one sense of the word, loitering in a street; but I do not think when we are dealing with a criminal matter we ought to interpret the word ‘loitering’ in the wide sense of standing or waiting in the street. I think it means loitering in such a way as to indicate that the person was idling in the street for some unlawful purpose.[38]

[38]Ledwith, 246-247

1. As has been seen, at the time of Ledwith, various similar statutory formulations of ‘loitering with intent to commit a felony’ had been enacted in the Australian jurisdictions.[39] Similar statutory formulations continued.[40] Indeed, loitering with intent to commit an indictable offence is still criminalised in Victoria under the Summary Offences Act 1966 (Vic).[41] Until 1937 the restrictive interpretation of the term ‘loitering’ in these kindred legislative instruments requiring proof of an unlawful purpose was common between the United Kingdom and Australia.

   [39]See, for example, Police Offences Act 1915 s 72(9).

   [40]See, for example, Vagrancy Act 1966 (Vic) s 7(1)(f).

   [41]Section 49B. However, the section applies only to persons who are ‘a known or reputed thief’ or ‘known or reputed to have committed drug-related offences’ who loiter in a public place with intent to commit an indictable offence. Further, it must be established that whilst ‘loitering’, the person engages in conduct in furtherance of the commission of the indictable offence.

Divergence

1. In 1948, the Supreme Court of Western Australia in Hagan v Ridley[42] (‘Hagan’) interpreted s 43 of the Police Act 1892 (WA) in light of Ledwith. Their Honours suggested that the UK Court of Appeal’s definition of ‘loitering’ in Ledwith should not be followed because the harm at which that legislation was aimed was inapposite to Australia.[43]

   [42](1948) 50 WALR 112 (‘Hagan’).

   [43]Hagan v Ridley (1948) 50 WALR 112, 122.

1. In Hagan, the accused had been charged with loitering in a place, to wit, Avalon Flats, Adelaide Terrace, Perth, and not giving a satisfactory account of himself. The offence provision did not require that an accused fall within a class of ‘suspected persons’ or be a ‘reputed thief’, and did not require loitering to be ‘with intent’, but it did require a person seen to be loitering to give a satisfactory account of himself. It was therefore quite different from the statutory provisions in the various iterations of the Police Act considered in the Australian cases discussed above, and partially different to that considered in Ledwith.

1. As noted above, the distinction is important. A review of statutory instruments shows that alongside the species of legislation that criminalise ‘loitering with intent to commit an offence’ there is another, younger species of legislation that criminalises ‘loitering without reasonable excuse’ or ‘loitering without satisfactory explanation’.

1. The accused in Hagan was acquitted at first instance, the magistrate holding that s 43 of the Police Act 1892 (WA) was similar to the section of the Liverpool Corporation Act considered in Ledwith. After so finding, the magistrate had applied the reasoning of Ledwith to find that the prosecution was required to prove that the accused had an unlawful purpose in order to show that he was ‘loitering’.  The magistrate stated:

Section 43 gives any police officer or constable power to arrest certain classes of persons, including ‘all persons whom he shall find or who shall have been loitering in any street, yard, or other place, and not giving a satisfactory account of themselves’. If these words are to be construed literally, and ‘loitering’ is to be given the wide definition of standing or waiting about, then the defendant, having failed to give a satisfactory account of himself, is guilty of an offence… That surely is not the position, and all authorities say so.[44]

[44]Ibid 114.

1. In allowing the appeal, Dwyer CJ distinguished the reasoning of Scott LJ in Ledwith and held that it did not apply to the police laws in WA, primarily because ‘the original meaning suggested [by Scott LJ] no longer attached to the word “loitering”, and the mischief at which the ancient legislation had been aimed was not present in WA.’[45]

   [45]Ibid 122.

1. Nonetheless, Dwyer CJ warned against ‘the too harsh view which may be taken of the law, if the loitering is to have its widest sense.’[46] The preferred view of Dwyer CJ was that

loitering…should be taken to mean not lingering on the way to some other destination, but remaining in or about or in the near vicinity of a restricted but not necessarily defined place without any apparent purpose or reason such as one might be expected to have in the conditions existing.[47]

[46]Ibid 123.

[47]Ibid 124.

1. This definition, and particularly the reference to an ‘apparent purpose or reason such as one might be expected to have’, appears to subsume the requirement of ‘satisfactory explanation’ into the element of loitering.

1. Wolff J agreed with Dixon J that the offence of loitering did not require proof of an unlawful purpose, and that Ledwith was not helpful in construing a statute that did not share the same legislative history.[48] Rather, the term ‘loitering’ must be construed according to the context of its use. As the ordinary dictionary meaning of loitering was ‘to tarry or wait or idle aimlessly about a particular spot’, his Honour held that nothing in the context of the Police Act 1892 (WA), including the other offences listed in s 43, indicated that it should be given a different meaning.[49]

   [48]Ibid 125.

   [49]Ibid 125-126.

1. Similarly, in Wilson v O’Sullivan,[50] Travers J held that ‘loitering’ meant ‘to remain in a restricted but not necessarily defined area without any apparent or legitimate reason.’[51] In that case, his Honour was considering s 18 of the Police Offences Act 1953-1961 (SA), which made it an offence to loiter without ‘satisfactory reason’.

Samuels v Stokes[52]

[50][1962] SASR 194.

[51]Ibid, 199. See also Mills v Brebner [1962] SASR 209.

[52](1973) 130 CLR 490 (‘Samuels’).

1. The primacy of the statutory context in interpreting the term ‘loitering’ was confirmed in 1973, when the High Court considered the meaning of the term with respect to a charge of failing to cease loitering when requested to do so under the Police Act 1953-1972 (SA).

1. Stokes had been protesting against the Vietnam War and had remained on a street corner contrary to police instruction. The Full Court of South Australia had held she was not guilty of loitering because the prosecution had not proved she was there ‘idly’ or for an unlawful purpose. That is, she remained in the street for a (lawful) purpose, being to protest.

1. The High Court overturned that decision. Each judge gave a different reason for doing so.

1. Menzies J, with whom Barwick CJ agreed,[53] held that in the context of the Police Act 1953-1972 (SA), loitering meant nothing more than ‘tarrying’ or ‘hanging about’.[54] It was critical to that construction that the provision allowed a person loitering to ‘give a satisfactory reason for doing so.’ This meant that a person may loiter for a satisfactory reason or for a purpose.[55] Therefore, his Honour stated 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 doing.[56]

[53]Ibid 491.

[54]Ibid 498.

[55]Ibid.

[56]Ibid 499.

1. Barwick CJ considered that the statutory context in which the term ‘loiter’ is used is the primary consideration. He declined to put forward a concluded view as to its meaning due to the many different contexts in which ‘loitering’ can be used.[57]

   [57]Ibid 491-492.

1. Gibbs J reviewed the case law, including Ledwith and Hagan. He held that:

it cannot be said that the word “loiter” has acquired a fixed “statutory meaning” to be given to it wherever it appears … there is in any case no justification for treating “loiter” as a technical word to be construed in a technical sense. It ought normally to be understood in its ordinary sense but its meaning may, of course, be controlled by the context in which it appears. [58]

[58]Ibid 503.

1. He held that a person may loiter for a legitimate reason[59] and therefore what was important when considering whether a person was loitering was:

an objective consideration of the observable facts rather than…an inquiry into the person’s state of mind. There mere fact that a person is standing still in a street will not necessarily mean that he is loitering although when all the circumstances are regarded it may be held that he is.[60]

[59]Ibid.

[60]Ibid 504.

1. McTiernan J held that an appropriate definition of ‘loitering’, considered in context, is that ‘a person is seen to be unnecessarily slow in leaving or is staying around without real necessity.’[61]

   [61]Ibid 493.

1. Thus, the majority of the High Court held that in the particular statutory context, the prosecution did not have to prove a lack of purpose – although the decision of Gibbs J is more equivocal than those of Barwick CJ and Menzies J. The reasoning of McTiernan J does appear to require a residual element of lack of purpose.

Decisions post Samuels

1. Australian authorities have considered the differences in the separate judgments of the High Court in Samuels in the years that have followed.

1. In Power v Huffa,[62] Bray CJ identified ambiguity in Samuels as to whether any tarrying in public amounted to loitering.[63] Ultimately, the Full Court in Power held that the High Court’s reasoning in Samuels did not require that people who were under an obligation to remain in a certain place were ‘loitering’ within the meaning of the Police Act 1953-1972 (SA).[64] Bray CJ said:

I think all I can say is that, in my view, a duty or obligation to remain in a public place may be of such gravity as to prevent those who act in obedience to it from loitering in that public place.[65]

[62](1976) 14 SASR 337 (‘Power’).

[63]Ibid 341.

[64]Ibid 343.

[65]Ibid.

1. In Cross v Police,[66] which considered the same statutory provision as Power, White J held that the High Court in Samuels had overruled previous authority that required the prosecution to prove either ‘apparent aimlessness or unlawful purpose’.[67] In that case, his Honour held that the appellant had been loitering in circumstances where he had failed to follow a direction from a police constable to cease loitering outside a hotel. The appellant claimed to be a victim of crime and, as such, claimed that he had a duty or obligation to remain and report the crime to police. White J said:

[T]he appellant was not entitled to insist, over a period of some 10-15 minutes and in the face of repeated requests that he leave the area, that Constable Hutchins take his report then and there. It follows that, after being directed to leave, the appellant did not have a legal, contractual, moral or social obligation of the kind to which Bray CJ referred in Power v Huffa.[68]

[66](2012) 113 SASR 299 (‘Cross’).

[67]Ibid [19].

[68]Ibid [32].

1. In Wynne v Lockyer,[69] the accused was charged under s 7(1)(f) of the Vagrancy Act 1966 (Vic) with being a reputed thief who loitered in a public place with intent to commit a felony. Harris J reviewed the authorities and noted, particularly, the emphasis of the High Court in Samuels on the importance of the statutory context in interpreting the term ‘loitering’.[70] His Honour held that loitering within the Vagrancy Act 1966 (Vic), in contradistinction to the Police Act 1953-1972 (SA) considered in Samuels, should be interpreted as requiring an element of purposelessness, that is ‘linger idly or hanging about idly’.[71]

   [69][1978] VR 279 (‘Wynne’).

   [70]Ibid 285-286.

   [71]Ibid 286.

1. While it might be interpolated that his Honour reached that conclusion because of the absence of ‘satisfactory explanation’ or ‘reasonable excuse’ type elements in the Vagrancy Act1966 (Vic) offence, coupled with the history of the interpretation of the term ‘loiter’ in the context of vagrancy generally, that was not made clear in the judgment.

1. In Attorney-General of Hong Kong v Sham Chuen,[72] the Privy Council considered the term loitering within the context of the Crimes Ordinance (Laws of Hong Kong, 1984). Section 160(1) of that legislation provided that ‘any person who loiters in a public place … shall, unless he gives a satisfactory account of himself and a satisfactory explanation for his presence there, be guilty of an offence’. The Privy Council noted that ‘loitering’ in this context could be interpreted in three ways: any lingering; lingering with no apparent purpose at all; and lingering in circumstances which suggest an unlawful purpose.[73]

   [72][1986] AC 887 (‘Sham Chuen’).

   [73]Ibid 895-896.

1. The Privy Council said that the legislative history of the provision, the legislative history of similar provisions in other Commonwealth jurisdictions, and decisions on those other provisions, offered ‘no helpful guidance’. The word is simply to be construed in light of the context it appears in any particular enactment.[74] In the enactment considered in that case, loitering was to be interpreted as ‘loitering in circumstances which reasonably suggest that its purpose is other than innocent.’[75]

   [74]Ibid 896.

   [75]Ibid.

1. In reaching that conclusion, judicial concern with the breadth of police powers was evident when the Privy Council noted that the provision implicitly authorised police officers to ask questions to any person on the street that the police considered was loitering:

The putting of questions is intrusive, and the legislation cannot be taken to have contemplated that this would be done in the absence of some circumstances which make it appropriate in the interests of public order.[76]

[76]Ibid.

Other ‘reasonable excuse’ cases

1. Since Samuels, other cases have applied its reasoning in considering legislative provisions similar to s 60B of the Crimes Act.

1. In Coulter v Police,[77] the accused was charged with breaching a paedophile restraining order by loitering near a playground. Under the Criminal Law Consolidation Act 1935 (SA), the prosecution had to prove that the defendant was loitering, that the loitering was in the vicinity of a school, public toilet or place at which children are regularly present, that children were in fact present at that place, and the defendant did so without reasonable excuse.

   [77][2007] SASC 287 (‘Coulter’).

1. Sulan J considered Samuels and said:

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 had a reason for tarrying or hanging about … in sitting at the sheltered seating area for a period of time, the appellant was loitering.[78]

[78]Ibid [41]-[42].

1. However, there the accused had a reasonable excuse for loitering. His knee had been hurting and he needed to rest it. On appeal, the conviction was quashed.

1. In Police v Anthony Reid,[79] a magistrate considered a similar section to s 60B of the Crimes Act, namely s 11G of the Summary Offences Act 1988 (NSW). That section made it an offence for a convicted child sexual offender to loiter, without reasonable excuse, in or near a public place regularly frequented by children and in which children are present at the time of the loitering. The accused had been charged with four such offences. The magistrate did not find it necessary for to the prosecution to prove purposelessness or unlawful purpose with respect to the loitering. Rather, the magistrate relied upon the definition of loiter in both the Butterworths Australian Legal Dictionary – ‘to idle or linger’ – and the Macquarie Dictionary – ‘to linger idly or aimlessly in or about a place; to move or go in a slow or lagging manner; to waste time or dawdle.’

   [79][2010] NSWLC 16.

1. The first charge related to an incident in which the accused was observed to float through water on a body board at the time a ‘surf school’ of 30 to 100 children were in the ocean. The magistrate found that as the accused moved with the current and did not do anything which caused him to ‘linger idly or aimlessly’ or ‘to move or go in a slow or lagging manner’, he could not be satisfied that the accused had loitered. The second charge related to the same day in which a man had been observed standing on the water’s edge staring out to sea in the direction of the school children for two periods of about seven minutes each. This charge would have satisfied that definition, but the evidence did not allow the accused to be identified as that man to the requisite standard. The third charge related to an incident in which the accused walked through a carpark which, at the time, had a crowd of children getting onto buses, and go into an amenities block to use a urinal. There were children in the amenities block. The magistrate held that as the accused had walked through the carpark at a normal pace and, on the evidence, entered the amenities simply to use the urinal, the behaviour did not amount to loitering.

1. The fourth charge was found proven. The accused was observed standing for about five minutes on the edge of pool into which children were going into and out of within metres of the accused. His Honour found that the behaviour amounted to loitering and noted that the accused did not offer an excuse for his actions, let alone a reasonable one.

1. In DPP v Field,[80] a decision of this Court considering s 60B(2) of the Crimes Act, Ashley J held that the element of loitering did not require the prosecution to prove a particular unlawful purpose.

   [80](2001) 126 A Crim R 317 (Ashley J) (‘Field’).

1. In that case, the accused, a convicted sex offender, had, for about 45 minutes, sat in a vehicle opposite a childcare centre. Before the magistrate at first instance, his counsel had argued that although the natural meaning of the word ‘loiter’ suggests indolence or inactivity, it was relevant ‘to consider its relationship with an intended activity’ on the part of the accused.[81] The prosecutor had submitted that intent was not mentioned in s 60B of the Crimes Act and was not a necessary ingredient of the offence. Rather, it was enough, absent reasonable excuse, that the respondent had been loitering in or near a childcare centre.[82]

   [81]Ibid [10].

   [82]Ibid [11].

1. The magistrate had held that an apparent intention of committing a sexual offence, including a sexual offence against a child, was required by the statute.[83]

   [83]Ibid [14].

1. While expressly stating that no question of whether any other intent must be proved by the prosecution under s 60B of the Crimes Act arose on the appeal,[84] Ashley J said:

In my opinion the learned Magistrate’s ruling as to the particular intent was insupportable. There is absolutely nothing in s 60B(2) which would convey a need to prove any such thing. If the legislature had intended that such an intent be necessary, one would have expected it to be set out in the section. In the past, loitering with particular intent has been the language of a number of statutory offences. Not so here.[85]

[84]Ibid [17].

[85]Ibid [18].

1. A review of the above authorities thus reveals a number of matters. First, the term ‘loiter’ does not have a fixed, technical meaning. It derives its meaning entirely from the statutory context in which it is found.[86]

   [86]Samuels, 490-492 (Barwick CJ); 503 (Gibbs J); Hagan, 125 (Wolff J).

1. Second, its interpretation has, historically, been influenced by a number of variables: the class of persons potentially caught by the statutory provision; the breadth of the discretionary power of those who may arrest and/or detain a  suspected loiterer; the temporal relationship between the loitering and the intention to commit a felony; and the opportunity or obligation of a suspected loiterer to offer (reasonable) excuse.[87]

   [87]See, for example, Ledwith.

1. Third, loitering, while always requiring some degree of ‘hanging about’ or ‘tarrying’, is not limited by a minimum period for which that behaviour must occur.[88] Nor does it require the loiterer to be stationary.[89] Nor does it need to be continuous.[90]

   [88]Milne v Mutch [1927] VLR 190, 192.

   [89]Olholm, 385 (Cussen J); Milne v Mutch [1927] VLR 190, 193.

   [90]Olholm, 385 (Cussen J).

Nadarajamoorthy

1. Given the reliance of the magistrate in this matter on Nadarajamoorthy, it is also necessary to analyse the reasoning in that case.

1. As stated above, the s 21A Crimes Act stalking offence defines stalking as a course of conduct done for a specific intention, and allows for various species of conduct to form part of that course. Loitering is one of those species. That means if loitering is relied upon as an act for the purposes of stalking, that act must have been performed with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety for that of another person.

1. That is obviously an entirely different statutory formulation from s 60B of the Crimes Act. It is more like the statutory formulation of ‘loitering with intent to commit a felony’, which is why Bongiorno J said:

The matters set out in s21A(2)(a) to (f)[91] are actions which are not necessarily unlawful. It is the confluence of these actions in a course of conduct directed to a person with a specific intent and a specific result which constitutes the criminality. The purpose of the section is to extend the law and render illegal actions which did not constitute offences at the time it was enacted. There is no basis for reading into the word ‘loitering’ as it appears in this section any notion of necessarily unlawful purpose. However, it does seem that the word must mean more than simply ‘be and remain at’. It conveys a concept of idleness, lack of purpose or indolence. In the context of the statutory provision under consideration, s 21A(2)(c), loitering must mean being and remaining at or near the places specified for at least one or more of the purposes specified in s 21A(2), namely causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person. In other words it must have a similar meaning to that which Harris J, held it had in the Vagrancy Act in Wynne v Lockyer save that the intent which must be proved here is not the intention to commit a felony but rather the intention set out in the sub-section. Where the person accused is engaging in activities at the relevant time which render a description of ‘loitering’ inapt in the circumstances he will not be guilty of stalking by engaging in the activity described in s 21(A)(2)(c) of the Crimes Act, whatever else he may be guilty of.[92]

[91]Now (a) to (g).

[92]Nadarajamoorthy, [32] (citations omitted).

1. Given the need to prove the intention with respect to stalking, it follows that it was necessary for the prosecution to exclude all reasonable hypotheses consistent with an accused not having been ‘loitering’ – that is, that an accused ‘was there for a purpose or purposes other than one of the statutory purposes set out in s 21A(2).[93]

   [93]Nadarajamoorthy, [33].

1. Section 60B of the Crimes Act does not ‘set out’ an intention that must accompany the loitering. It follows that there is no innocent purpose attaching to the loitering which must be excluded by the prosecution beyond reasonable doubt.

Summary

1. According primacy to the statutory context, and in keeping with the history of the statutory interpretation of the word ‘loiter’ according to the variables identified above, the term loiter in s 60B of the Crimes Act should not be construed as to require proof of a lack of purpose or unlawful purpose. To establish the element of loitering, it is enough that a person in the prohibited circumstances ‘hangs about’ or idles . Whether an offence is committed depends upon whether that person has reasonable excuse for doing so.

1. The legislation admits of no other interpretation.

The Charter

1. I accept the submissions of counsel for the respondent and counsel for the Attorney‑General that s 60B of the Crimes Act engages s 12 of the Charter, namely the right to move freely within Victoria.

1. Section 32(1) of the Charter provides:

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

1. However, this section does not establish

a new paradigm of interpretation which requires courts, in the pursuit of human rights compatibility, to depart from the ordinary meaning of the statutory provision and hence, from the intention of the parliament which enacted the statute.[94]

[94]Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [85].

1. This means that

if the words of a statute are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and apparent purpose of the enactment. [95]

[95]Slaveski v Smith (2012) 34 VR 206, [24].

1. As already stated, there is only one available construction of the word loitering in s 60B of the Crimes Act. The section admits of no ambiguity. Consequently there is no constructional choice to be resolved by s 32(1) of the Charter.

1. In any event, even if s 32(1) of the Charter was engaged, the objective served by s 60B in protecting children from the risk of sexual offending is of such importance that the interpretation of ‘loiter’ in that section to mean nothing more than ‘hanging about’ or ‘tarrying’ is a justified restriction on the right to freedom of movement in s 12 of the Charter.

1. In this regard, s 72(2) of the Charter requires any limitation on a human right be reasonable and demonstrably justifiable, taking into account all relevant factors, including those delineated in s 7(2)(a) to (e). It is important to remember that the section does not prohibit a person from idling at or near any place absent the prohibited circumstances, or in the prohibited circumstances where they have a reasonable excuse for doing so. In essence, the ‘without reasonable excuse’ element of the offence ensures that the freedom of movement of a member of the specified class of persons is limited only to the extent reasonably necessary to achieve the purpose of the limitation.

1. I accept the submission of the Attorney-General that the concept of ‘reasonable excuse’ is well known to the law[96] and not bad for uncertainty. Further, to the extent that s 60B of the Crimes Act places an evidential burden on any person found loitering in the specific circumstances created by that section to adduce or identify evidence of a reasonable excuse, it follows that that, too, is well known to the law and does not infringe either the presumption of innocence or s 25(1) of the Charter.

   [96]See for example: Firearms Act 1996 (Vic), s 134C; Forests Act 2006 (Vic), s 95A; Funerals Act 2006 (Vic), s 72; Pharmacy Regulation Act 2010 (Vic), s 80; Prevention of Cruelty to Animals Act 1986 (Vic), s 13; Tobacco Act 1987 (Vic), s 5N.

International comparisons

1. The Respondent referred to two international authorities concerning the interpretation of loitering offences in the context of human rights instruments. In both cases the word ‘loiter’ was used in a very different statutory context. As such, they  are of no assistance to the statutory construction exercise in this matter.

1. In R v Heywood,[97] the Supreme Court of Canada considered a loitering provision to impermissibly impact the right to liberty. But, the offence provision was very different from s 60B of the Crimes Act. It did not contain any ‘without reasonable excuse’ type formulation as found in s 60B(1)(b)(ii) of the Crimes Act, and it applied not only to schools and playgrounds, but extended to all public parks and bathing areas without any qualification, such as ‘regularly frequented by children and in which children are present at the time of the loitering’. It is noteworthy that the majority considered the schools and playgrounds stipulation to be permissible as these were ‘the very places children are likely to congregate’.[98]

   [97][1994] SCR 76.

   [98]Ibid 794-795.

1. In R v New Zealand Police,[99] the offence provision applied to all persons and to all places where another person lives or works or carries on business or happens to be. It included a mens rea element which required an intent to frighten or intimidate another person, or knowledge that the conduct was likely to cause the other person reasonably to be frightened or intimidated. It did not have any ‘without reasonable excuse’ type formulation. Harrison J found that the offence was capable of applying to ‘active behaviour associated with the affirmative purpose of exercising the freedom to protest’.[100] Accordingly, the New Zealand Bill of Rights Act mandated a narrow construction of the word loitering. In a statutory formulation that did contain a ‘without reasonable excuse’ type clause, participation in lawful process would be likely to constitute such reasonable excuse.

   [99][2006] NZHC 931.

   [100]Ibid [27].

Conclusion

1. The magistrate did err in law in construing the word ‘loitering’ in s 60B(2) to require a finding of a lack of purpose. The word, taken in the context of the provision in which it appears, requires no more than hanging about or tarrying.

1. On the evidence, that element is made out. It is thus a question for the magistrate to determine whether, in all the circumstances, the proffered explanation of the respondent that he was at a girls’ high school, without a rose, because he had been invited there by ‘Leah’, a schoolgirl whose telephone number he stated he had possessed but then deleted, amounted to a reasonable excuse.

1. Accordingly, the appeal is allowed. The order of the Court will be that the matter is remitted to the Magistrates’ Court to be determined according to law.

1. I will hear the parties as to costs.