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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] SASC 144
Decision Date: 27 September 2018

CaseChat Overview and Summary

The appeal, heard by the Supreme Court of South Australia, involved the applicant, Frick, appealing against his conviction and sentence imposed by a Magistrate. The nature of the dispute was centred on the sufficiency of the evidence presented in the Magistrates Court to support Frick's conviction for an offence under the Summary Offences Act 1953 (SA). The applicant contested the conviction on the basis that the evidence was not sufficient to prove his guilt beyond reasonable doubt.

The legal issues before the court were whether the evidence presented was adequate to support the conviction and, if not, whether the appeal should be upheld and a new trial ordered. The court was required to determine whether the evidence, when viewed in its entirety, was sufficient to establish guilt beyond reasonable doubt and if the Magistrates Court had erred in law or procedure. The applicant argued that the evidence was insufficient, and the Magistrate had misdirected themselves on the law.

In considering the appeal, the Supreme Court examined the evidence and the process of the Magistrates Court. The court found that the evidence, while not perfect, was sufficient to prove the applicant's guilt beyond reasonable doubt. The court concluded that there was no miscarriage of justice, and the appeal should be dismissed. The reasoning was that the evidence, though not ideal, was consistent and credible enough to support the conviction. The court held that the Magistrates Court had not erred in law or procedure, and the appeal did not merit a new trial.

Orders