HARRISON v POLICE

[2012] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

HARRISON v POLICE

[2012] SASC 113

Judgment of The Honourable Justice Peek

6 July 2012

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRELIMINARY PROCEDURE - TIME FOR APPEAL AND EXTENSION OF

Appellant brought an application for extension of time within which to appeal against a paedophile restraining order.

Held: Application for extension of time dismissed. The circumstances of the case do not warrant an extension of time and even if it were granted the appeal would fail.

Magistrates Court Act 1991 (SA) s 42(1a), referred to.

HARRISON v POLICE
[2012] SASC 113

Magistrates Appeal

1. PEEK J.

   Application for an extension of time within which to appeal.

2. On 19 September 2005 the applicant was given a formal loitering warning by SAPOL concerning him being seen in the vicinity of a kindergarten on a number of occasions.  Despite that warning, he continued to attend near the kindergarten and on 24 January 2006 a complaint was laid by SAPOL in the Magistrates Court alleging that the applicant:

   has been found loitering near children on at least one previous occasion and there is reason to think that the defendant may, unless restrained again loiter near children.

3. As is permitted, this complaint was laid before the Court ex parte and was not served on the applicant.  An interim restraining order was made by the Court on 24 January 2006 in the form of a “Restraining Order (Paedophile) and Summons” and was duly served on the applicant requiring his attendance at Court on 31 January 2006.  Unfortunately, the recital therein took the following form:

   The Court was satisfied that the defendant had been found loitering near children; and has been found guilty of a child sexual offence within the previous five years or been found loitering near children on at least one previous occasion and there is reason to think that you may, unless restrained, again loiter near children.

   (Emphasis added)

4. It can be seen that the first part of the recital “The Court was satisfied that the defendant had been found loitering near children” was correct but the middle part “and has been found guilty of a child sexual offence within the previous five years” was not.  It had apparently been somehow “pasted” in from legislation which addresses a number of possible grounds upon which such an order might be confirmed, the paster (no doubt a staff member rather than a Magistrate) having no regard to the fact that the matter of a previous conviction for a child sexual offence had never been suggested by the complainant SAPOL in the present case and had no application to the applicant.

5. On 4 September 2006, the matter finally came on for the confirmation hearing and the error was drawn to the attention of the presiding Magistrate who recorded that he confirmed the order only on the correct basis and without any reference to “and has been found guilty of a child sexual offence within the previous five years” (“the confirming order”).  His Honour then made substantive restraining orders that were authorised to be made on that correct basis.  The applicant in fact is recorded as consenting to that procedure.

6. Much later, on 18 June 2010, a different Magistrate heard an application by the applicant for the order to be revoked on the basis of changed circumstances.  His Honour granted that application and revoked all of the previous orders.

   The appeal proceedings

7. On 10 April 2012 the applicant filed a Notice of Appeal purporting to appeal against the confirming order made on 4 September 2006.  He sought orders that the confirming order be struck out as invalid and for “relief” as set out in an affidavit he filed and which deposed to damages and loss said to have been suffered as a result of various events that had occurred due to the initial error in the ex parte order.  The Notice of Appeal was over five years out of time.  On the hearing, the respondent opposed the extension of time application.

8. The applicant appeared in person.  I accept that he believes that he has a genuine grievance arising out of the original error by the Court.  However, I consider that this is not a case warranting an extension of time as presently sought because:

   ·The order to which the proposed appeal was directed was that made on 4 September 2006 which order was made by consent.  An appeal against that order had no prospect of success.

   ·If the appeal had been directed to the prior ex parte order, an appeal still could not succeed because that earlier order had already been corrected on the confirmation hearing on 4 September 2006 and had come to an end at that time.

   ·Further, the substantive restraining orders had all since been revoked on 18 June 2010 on the applicant’s application leaving no orders to which an appeal could now relate.  There is no live issue to be resolved in the circumstances.

   ·There is a further problem in that the orders were probably interlocutory orders and in the particular circumstances here, s 42(1a) Magistrates Court Act 1991 probably cannot apply since any “trial” to which it might relate has terminated and the orders in any event no longer exist.

   ·Finally, even if an extension of time were granted and even if an appeal were somehow allowed, this Court has no jurisdiction on an appeal of the present type to make the orders for damages and compensation that the applicant sought.

   ·The delay was very great and not adequately explained.

   ·Even if the extension of time were granted, the appeal would fail.

9. I am prepared to say that it is regrettable that the original error was made.  It appears it occurred through some form of “tick box drafting” with inadequate attention being paid to the question of whether the resultant document correctly and appropriately dealt with the particular case.  The applicant has not been found guilty of a child sexual offence and although the disjunctive “or” is present, many a reader of such a document would no doubt interpret the document as asserting that the applicant had in fact been found guilty of such an offence.  The plain and simple fact is that the form of words “and has been found guilty of a child sexual offence within the previous five years” had no place in the document and their inclusion should not have occurred.

10. However, for the reasons above, the application for an extension of time must be dismissed.