Dorian v Police - [2011] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
DORIAN v POLICE
[2011] SASC 60
Judgment of The Honourable Justice Sulan
14 April 2011
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - OTHER ORDERS
Appeal against conviction for failure to comply with restraining order - whether defendant attending outside the premises constitutes a contravention of the order - whether Magistrate erred in inferring a wide interpretation of order - express terms of order not incapable of achieving specific purpose - Magistrate erred in applying purposive construction to imply additional restraints - appeal conceded by Crown - appeal allowed - conviction set aside and verdict of acquittal entered.
Summary Procedure Act 1921 (SA) s 99(3), s 99(4), s 99A(2), referred to.
McIntosh v Police [2007] SASC 24, distinguished.
Ex Parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182; Krakouer v The Queen (1998) 194 CLR 202, considered.

DORIAN v POLICE
[2011] SASC 60
Magistrates Appeal: Criminal

SULAN J: The defendant, Colin David Dorian, was found guilty by a Magistrate that on 22 January 2011 he failed to comply with a restraining order which had been imposed in the Holden Hill Magistrates Court on 1 October 2008. The restraining order had been issued upon the application of Ms Zapris, the defendant’s former partner. The order restrained the defendant from attending any premises at which Ms Zapris resided or worked. The defendant was observed outside the home at which Ms Zapris resided.
At the hearing of the appeal on 23 March 2011, the respondent conceded that the appeal should be allowed. I allowed the appeal, and ordered that the conviction be set aside. I now publish my reasons.
Background
The defendant’s former partner sought and obtained a restraining order, pursuant to section 99 of the Summary Procedure Act 1921 (SA), to restrain the defendant from attending at her premises. Subsections 99(3) and 99(4) provide:
99 – Restraining orders
…
(3) A restraining order may impose such restraints on the defendant as are necessary or desirable to prevent the defendant acting in the apprehended manner.
…
(4) The Court may make a restraining order restraining the defendant from entering premises, or limiting the defendant’s access to premises, whether or not the defendant has a legal or equitable interest in the premises.
The terms of a restraining order can be limited or can be broad, having regard to the circumstances of a particular case. Subsection (4) empowers the Court to make orders restraining a person from entering specific premises.
The restraining order was varied from time to time. On 30 April 2009, the restraining order was varied as follows:
Other than by invitation or prior arrangement, defendant is not to attend any premises that Mary Louise Pip Zapris may from time to time reside or work. (underlining is mine)
It is alleged that the defendant attended at Ms Zapris’ premises at around 9 pm on Friday, 22 January 2011. Police were present at the time, after which they briefly spoke to the defendant and arrested him.
The issue at trial was whether or not it had been proven beyond reasonable doubt that the defendant attended the premises.
I will briefly deal with the facts. The exact location of the defendant on the relevant night was in contention at trial. The defendant’s ex-partner gave evidence that she saw the defendant on her driveway speaking to police. A police officer, Constable Gough, gave evidence that he first saw the defendant on or about the position in which there are two stormwater drains leading from the adjoining properties out on to the street. The defendant had not entered the land or premises. The position was identified by the witness on a diagram as a position on the footpath adjacent to the neighbouring property. The defendant gave evidence that he was outside the premises on the footpath.
Findings of the Magistrate
The Magistrate was satisfied beyond reasonable doubt that Constable Gough’s recollection of the position of the defendant was accurate. However, he considered it possible that the defendant could have been on the driveway, as described by Ms Zapris, and that Constable Gough did not see this. He made no positive finding of that fact beyond reasonable doubt. Having been satisfied beyond reasonable doubt that Constable Gough’s evidence was accurate, he found the defendant guilty. Counsel for the Police accepts that the conclusion to be drawn from the Magistrate’s reasons is that he was satisfied beyond reasonable doubt that the defendant was on the footpath adjacent to the neighbouring property, close to but not within the border of the relevant premises. The Magistrate concluded that the defendant, being on the footpath near the driveway, constituted a contravention of the restraining order.
At trial, Mr Mesecke, who appeared for the defendant, submitted that ‘premises’ include that area only up to the fence line and gates and not the public area at large. The Magistrate determined that section 99 must have a wider meaning than that submitted by Mr Mesecke. The Magistrate considered that a wide interpretation of the term ‘at the premises’ should be given, otherwise restraining orders would have little meaning. He concluded that he was satisfied beyond reasonable doubt, having regard to Mr Gough’s evidence and the defendant’s evidence, that he was at the premises within the meaning of the Act.
The appeal
Counsel for the Police accepts that it was not proved beyond reasonable doubt that the defendant at any time entered into the house or on to the surrounding property which formed the premises. The issue is whether the defendant’s actions nevertheless contravened the terms of the restraining order.
It is common for restraining orders to be drafted so as to restrain a person from attending ‘at or in the vicinity of the relevant premises’. The order in this case did not contain such words. It restrained the appellant from ‘attending any premises’. Did the Magistrate err in interpreting the words of the restraining order to include ‘attending near or in the vicinity of the premises’?
The Magistrate sought to determine the matter by adopting an interpretation which he believed gave effect to the purpose for which the order was made. If the words of the order are unambiguous, then the order cannot be construed to include alleged breaches which do not contravene the terms of the order and, therefore, impose criminal liability upon the basis of the Court’s view of what was intended by the order. Care must be taken to ensure that the terms of the order reflect the width and ambit of the order that the Magistrate intends to make.
Counsel for the Police accepts that, to apply a purposive test would result in eroding the certainty that is required when prohibiting conduct, the breach of which may result in a criminal sanction.
In Ex Parte Fitzgerald; Re Gordon,[1] Jordan CJ observed:
If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through the inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.[2]
[1] (1945) 45 SR (NSW) 182.
[2] Ibid 186.
In Krakouer v The Queen,[3] after citing this passage, McHugh J observed:
Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion.[4]
[3] (1998) 194 CLR 202.
[4] Ibid 223.
There are few authorities on the construction of the terms of restraining orders. In McIntosh v Police,[5] a term of a paedophile restraining order restrained the appellant from loitering at various places commonly frequented by children. It did not expressly prohibit loitering near children, as provided in section 99A(2) of the Act. McIntosh argued that the term of the restraining order was therefore invalid. Anderson J held that the term was valid, notwithstanding the absence of the expression ‘near children’. He observed:
It is my view that the clear intention of Parliament was to prevent paedophiles from acting in a manner in which this appellant has been observed to act, namely, 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. Condition 5 was imposed by the Magistrate after a consideration of the relevant sub-sections within s99 AA, as against the background facts.
It can thus be inferred that the word loitering in condition 5 should be interpreted consistently with s99 AA to mean that the appellant is prohibited from loitering near children.
If an over literal approach to the interpretation of the section and its relationship to the condition imposed were adopted it would fail to achieve the purpose of paedophile restraining orders.[6]
[5] [2007] SASC 24.
[6] Ibid [26] – [28].
Anderson J was considering the terms of an order made pursuant to section 99A(2) of the Act, and whether the absence of the words ‘near children’ invalidated the order. Section 99A(2) provides specifically that an order may restrain a defendant from loitering near children at or in the vicinity of a specified place or class of places, or in specified circumstances. However, section 99 is more general in its terms. It follows that restraining orders may contain any restraint necessary or desirable to prevent the defendant acting in a particular manner. Anderson J was considering the validity of the order made pursuant to section 99 AA(2), which is in different terms to section 99. The decision in McIntosh is distinguishable.
It is necessary that the protected party and defendant understand the ambit of the proscribed conduct. It is imperative that any restraint upon a defendant is in clear unambiguous terms.
The terms of a restraining order are determined by the issuing Magistrate upon the material before him. The court must consider the scope of the restraint in order to prevent the particular behaviour of which there is complaint. It is not for a trial court considering an alleged breach of the order to imply additional terms of the order.
The Magistrate considered the purpose of the legislation would be defeated if an overly literal interpretation were taken of the expression ‘attend premises’ appearing in the order. He considered the case of a defendant parked just outside the boundary premises as falling within the scope of behaviour against which the order should protect.
In this case, the terms of the order were clear. There is nothing to suggest that the express terms of the order are incapable of achieving the specific purpose intended by the issuing Magistrate. The Magistrate was in error in applying a purposive construction to imply additional restraints upon the defendant. Counsel for the Police was correct in submitting that any purposive construction must yield to the countervailing principle that a statutory instrument ought not to be construed in such a way as to confer additional criminal liability beyond its express terms.
For these reasons, I allowed the appeal. The conviction was set aside and a verdict of acquittal entered. Counsel for the Police did not oppose an order that the defendant is entitled to costs of the trial in the sum of $7,865, and I so ordered.
The defendant did not seek an order for costs of the appeal.