Frick v Police - [2018] SASC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRICK v POLICE
[2018] SASC 144
Judgment of The Honourable Justice Kelly
27 September 2018
CRIMINAL LAW - APPEAL AND NEW TRIAL - OTHER MATTERS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
A Magistrate made an interim paedophile restraining order (PRO) against the appellant pursuant to s99AA Summary Procedure Act 1921. The interim PRO was confirmed by another Magistrate on the date set for trial when the appellant did not appear. The only evidence available when the interim PRO was made and confirmed was an affidavit of a police officer. That affidavit disclosed that the appellant had been identified on several occasions at his own residential address in the company of children and once in the Adelaide CBD.
Some years later, the appellant applied to the Magistrate Court to have the PRO revoked. A Magistrate dismissed the application on the basis that there had been no substantial change in circumstances pursuant to s99F Summary Procedure Act 1921.
The appellant appeals the making of the interim PRO, the confirmation of the PRO and the decision to dismiss the application to revoke the PRO. The Crown Solicitor concedes the appeal.
Held per Kelly J allowing the appeal:
1) The evidence presented in support of the application for the interim PRO and confirmation of the PRO was not sufficient for such orders to have been made.
2) The PRO is revoked.
Summary Procedure Act 1921 Sections 99AA, 99C and 99F ; Criminal Procedure Act 1921 Section 99AA; Magistrates Court Act 1991 Section 42, referred to.
Groom v Police [2017] SASC 21, considered.

FRICK v POLICE
[2018] SASC 144
Magistrates Appeals
KELLY J:

On 31 August 2012 the Police filed an application for a paedophile restraining order (“PRO”) pursuant to the provisions of the former s.99AA Summary Procedure Act 1921.[1]That section relevantly stated:
[1] The relevant provision is now contained in s.99AA Criminal Procedure Act 1921.
99AA—Paedophile restraining orders
(a1)    A complaint may be made under this section by a police officer.
(1)     On a complaint, the Court may make a restraining order against the defendant if—
(a)    the defendant—
(i)is required to comply with the reporting obligations imposed by Part 3 of the Child Sex Offenders Registration Act 2006; or
(ii)    has been found—
(A)loitering near children; or
(B)using the internet to communicate with children or persons whom the defendant believed to be children (other than children or persons with whom the defendant has some good reason to communicate),
on at least 2 occasions and there is reason to think that the defendant may, unless restrained, again so loiter or so use the internet; 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 1 or more of the following:
(a)    loitering—
(i)near children at or in the vicinity of a specified place or class of places or in specified circumstances; or
(ii)    near children in any circumstances;
(b)using the internet or using the internet in a manner specified in the order;
(c)owning, possessing or using a computer or other device that is capable of being used to gain access to the internet.
(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 sexual offence against a child 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;
(ea)any apparent pattern in the defendant's use of the internet (if any) to contact children;
(f)any other matter that, in the circumstances of the case, the Court considers relevant.
(4)     For the purposes of this section, a defendant loiters near children if the defendant loiters, without reasonable excuse, at or in the vicinity of a school, public toilet or place at which children are regularly present, whether or not children are actually present at the school, public toilet or place.
An interim PRO was made at a hearing on 4 September 2012 in the Magistrates Court. The matter was set for trial on 17 January 2013, however on that date there was no appearance by the appellant and the interim PRO was confirmed. On both occasions when the interim PRO was made and confirmed in the appellant’s absence the only evidence before the Court as to why a PRO should be put in place was an affidavit of a police officer named Michael Chamberlain sworn on 30 August 2012.
In that affidavit the police officer made the following allegations to support the application:
·On 3 June 2010 at about 4.50 pm, information has been received that SB, 12 years old, has been a regular visitor at the accused’s home address for a number of nights over the last few weeks. The accused states that SB will walk around naked and go into the accused’s bedroom whilst he is having a shower.
·On 22 June 2010 at about 5.15 pm in Bank Street, Adelaide, the accused was stopped by police whilst in the company with NC, aged 13 years. Further information was obtained that the accused was in breach of his bail conditions by associating with a child under 16 years old.
·On 16 August 2010 at about 12.20 am, police were tasked to the home address of the accused regarding 12-year old SB being injured after allegedly falling out of bed. Further allegations were made that the accused had assaulted him. It was also alleged that the accused had put his hands down SB’s pants in an attempt to touch his backside. There were two other males at the house, JB and HF, aged 14 and 13 years respectively.
·On 15 August 2012 at about 5.15 pm police attended at the home address of the accused, seeking missing person TH, aged 12 years. TH had been at this address earlier in the day but had left. The accused indicated that young persons attend his address to play his PlayStation console.
·On 15 August 2012 at 10.05 pm, police attended the home address of the accused. Information had been received that 12-year old missing person CH was at the address. On arrival, police observed that the accused was nervous and invited police into the housing unit. Police located six youths hiding in the unit. CH was located inside the washing machine. The six youths were aged between 12 years and 14 years old.
·On 29 August 2012 at about 11.30 am, CH disclosed to her schoolteacher she was worried about a male person named “Chris” who lives on the same street as the accused. Allegations are that Chris looks down her friend’s bra when they are at the accused’s housing unit. Allegations are also made that “Chris” is always asking other Guardianship of the Minister children to attend at his housing unit to watch videos of kids having sex. This matter is under investigation.
·On 29 August 2012 at about 6.10 pm, police attended at the address of the accused in an attempt to locate missing person CH. CH was not there but on searching the housing unit, police located five to six open and empty condom packages littered around the house.
Those allegations purported to substantiate the application for the PRO to be made against the appellant on the basis that he had been found loitering near children.
The Court was empowered by virtue of s.99C of the former Summary Procedure Act 1921 to make a restraining order in the absence of the defendant. In such an event the Court was required to summon the defendant to appear before the Court to show cause why the Order should not be confirmed.[2]
[2] Former Summary Procedure Act 1921 s.99C(2).
In fact, that is what happened. A Magistrate made an Order ex parte on 4 September 2012. A summons was issued to the appellant. There was a hearing before another Magistrate on 11 September 2012. At that hearing the appellant appeared unrepresented. The matter was adjourned to a status conference before the same Magistrate on 3 October 2012. Again, at the status conference the appellant appeared unrepresented and there was some suggestion that Ms T Johnson may act for him.
The date for trial was set for 17 January 2013. On that date neither the appellant nor anyone representing him appeared. A Magistrate made an order confirming the Interim PRO.
There the matter rested until 12 January 2018 when the appellant applied for revocation of the PRO made in January 2013.
In support of that application the appellant filed an affidavit in which he deposed to having had a reasonable excuse for being at the addresses nominated in the affidavit sworn by Mr Chamberlain. Most of the excuses were that the addresses nominated by Mr Chamberlain as being places where the appellant was found loitering near children were at the relevant times his home address where he was living. He further deposed to the fact that he is 26 years old. He is intellectually disabled and has been on a disability support pension since the age of 16. He swore that he did not have any sexual attraction to children and has never had any sexual attraction to them.
At a hearing in the Magistrates Court on 9 May 2018 the appellant was represented by Mr Katsaras who made submissions that the PROs made earlier on 4 September 2012 and 17 January 2013 should be revoked. In support of those submissions, a report from a psychologist, Dr Robyn Young, dated 20 January 2017 was tendered. Dr Young expressed the opinion that the appellant suffers from a mild intellectual disability. She concluded that he did not meet sufficient criteria for a diagnosis of autistic disorder but suggested “certainly some aspects of his behaviour which would warrant a more detailed assessment of this diagnosis”. Significantly, she went on to state:
Mr Frick’s account of his interactions with the criminal justice system is consistent with several of my clients who have ASD [autism spectrum disorder]. Due to their social naivety and reduced cognitive capacity they may interact with people younger than them. This, of course, arouses suspicion in our society when in fact, for most of my clients, the intent is not sinister. Further, they are vulnerable and easily manipulated. If Mr Frick is to be believed, his initial difficulties were the result of him being manipulated into caring for young people who placed demands on him that he was unable to manage. Further, the children saw this as a place where they could get a bed for the night.
…
I am not in a position to make judgment regarding the validity of his claims, however, he was able to respond rationally to the charges before him and within the context of an Autism Spectrum Disorder, his argument seemed quite credible.
Although the report was obtained in respect of other proceedings, it does put into context why the appellant failed to attend court back in 2012/2013 when the PRO was first considered.
The application for revocation of the restraining order was governed by the legislation in place as at the date of the application, namely s.99F(1a) of the Summary Procedure Act 1921 which relevantly stated:
(1a) An application for variation or revocation of a restraining order may only be made by the defendant with the permission of the Court and permission is only to be granted if the Court is satisfied there has been a substantial change in the relevant circumstances since the order was made or last varied.
The Magistrate found that there was no relevant change of circumstances and in accordance with other authorities which bore upon such an application[3] his Honour dismissed the application.
[3] See for example Vanstone J in Groom v Police [2017] SASC 21.
Thus, the appellant now appeals to this Court to revoke the PRO made in the Elizabeth Magistrates Court on 4 September 2012, confirmed on 17 January 2013 and not revoked on 26 June 2018.
An order made in response to an application to revoke a confirmed PRO is interlocutory in nature and does not constitute a final determination of a party’s rights. Accordingly, permission to appeal to this Court is required by virtue of s.42(1a)(c) of the Magistrates Court Act 1991.
On the hearing of this appeal counsel for the Crown Solicitor did not oppose permission on the basis that the issue which arises on this appeal is the validity of the original order made in 2013 and it would be in the interests of justice to have the appeal determined.
In fact, the police conceded that the appeal ought to be allowed on the basis that there were no proper grounds in the first instance for the interim PRO to have been made on the basis of the evidence before the Court at that time.
The matters deposed to in Mr Chamberlain’s affidavit and referred to in paragraph [3] of these reasons related in the main to the attendance of police at the appellant’s own residence. The only other place relied on by the police to substantiate the application was the sighting of the appellant in Bank Street, Adelaide with a minor. It was never suggested that Bank Street, Adelaide is a place where children are regularly present for the purposes of s.99AA(4) of the former Summary Procedure Act 1921.
For these reasons, the evidence presented in support of the original application for the interim PRO was never sufficient grounds for it to have been made.
The appellant’s affidavit filed on 29 March 2018 and the report of Dr Robyn Young dated 20 January 2017 would, in any event, have provided an innocent explanation for the allegations made in the affidavit of Mr Chamberlain. However, it is not necessary to rely on that material because the allegations on their face nominating as they did places where the appellant then resided, were incapable of making out a proper basis on which to issue a PRO.
For these reasons, the PRO made in the Elizabeth Magistrates Court on 4 September 2012, confirmed on 17 January 2013 and not revoked on 26 June 2018, is revoked.