McIntosh v Police - [2007] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCINTOSH v POLICE
[2007] SASC 24
Judgment of The Honourable Justice Anderson
6 February 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS
Appeal against a paedophile restraining order made by a Magistrate –purpose and scope of relevant section considered – meaning of the words "loitering near children" discussed – whether condition 5 of the order was validly imposed. Held: Appeal dismissed in relation to condition 5 – condition 5 imposed to address the appellant's prior behaviour – it can be inferred that the Magistrate intended the word "loitering" in condition 5 to mean "loitering near children" – condition 5 valid and consistent with the purpose of the Act.
Summary Procedure Act 1921 (SA) s 99 AA; Acts Interpretation Act 1915 (SA) s 22, referred to.
Cryer v Police [2001] SASC 422; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Owen v South Australia (1996) 66 SASR 251, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Loitering near children"

MCINTOSH v POLICE
[2007] SASC 24
Background

The appellant in this matter has challenged the validity of a condition which is part of a paedophile restraining order made by a Magistrate pursuant to s99AA of the Summary Procedure Act 1921 (SA) ("the Act").
The appellant had earlier been convicted of an indecent assault in Port Augusta in 1999. In 2000 an order was sought and granted pursuant to s99 AA of the Act. That order was varied shortly after, on 27 April 2000, to prevent the appellant from:
1.Remaining on any premises occupied by himself if any person under the age of 16 years comes within those premises;
2.Associating or attempting to associate with any person under the age of 16 years, whether or not that person is in the company of an adult.
3.Mr McIntosh is at liberty to associate with the children of his sister Isabel Alice Knight.
The appellant breached the order and in May 2004 pleaded guilty to one count of breaching a paedophile restraining order. The Magistrate when sentencing the appellant again varied the order and added conditions 4 and 5 as follows:
(4)The defendant is restrained from residing within 300 metres of any school or other facility where children are regularly present, and
(5) The defendant is restrained from loitering at or in the vicinity of and being within 200 metres of any school, playground, public toilet or other public place commonly frequented by children; provided that this restraint shall not be interpreted to mean the defendant cannot attend to shopping for personal needs if the defendant goes straight to the premises and leaves the premises after being on the premises for only so long as is reasonably necessary for the purposes of supplying his personal needs, including when…

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.

Continue reading McIntosh v Police

Details

AGLC: McIntosh v Police [2007] SASC 24
Case: [2007] SASC 24
Decision Date: 6 February 2007

CaseChat Overview and Summary

In McIntosh v Police, the Supreme Court of South Australia was asked to consider the validity of a paedophile restraining order imposed on McIntosh by a Magistrate. The order, under section 99AA of the Criminal Law (Sentencing) Act 1988 (SA), contained various conditions, one of which prohibited McIntosh from loitering in certain areas. McIntosh appealed against the order, arguing that the term "loitering" should be interpreted as "loitering near children," and that the order was therefore invalid as it did not meet this specific requirement. The court needed to determine whether the term "loitering" in the order could be interpreted to mean "loitering near children" and whether the order was validly imposed under the relevant statute.

The court considered the purpose of the paedophile restraining order, which was to prevent potential offences against children by addressing the appellant's specific pattern of behaviour. The court noted that the appellant had been observed loitering in the vicinity of a primary school, particularly when children were present. The court held that the Magistrate intended the term "loitering" in condition 5 to mean "loitering near children," as it was consistent with the purpose of the Act to prevent offences against children and to provide a practical balance between restraining the appellant's behaviour and his civil liberties. The court further noted that the legislation was designed to be flexible and preventive, allowing the court to tailor an order to suit the particular situation. The court concluded that the condition was a valid condition and dismissed the appeal on that ground.

The court further found that conditions 1, 2 and 4 of the order were incorrectly imposed upon McIntosh and would hear counsel as to whether any further orders were required. In summary, the court upheld the validity of condition 5 of the paedophile restraining order, finding that it was consistent with the purpose of the Act and did not fail to achieve the intended preventative effect.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is argued by the respondent that condition 5 comes within (b) above, but of course that does not answer the appellant's argument that condition 5 nominates loitering per se and not loitering near children. As I understand the argument there would be no challenge if condition 5 actually said loitering near children. The question is whether 'loitering near children' should be inferred from a reading of the statute pursuant to which the conditions were imposed.Evidence of Loitering It is clear from the affidavits placed before the court that one aspect of the conduct alleged against the appellant included him walking and generally loitering in the close vicinity of a particular primary school. The affidavit evidence shows that the appellant was loitering close to the school when observed by the deponents of the various affidavits but that on some of those occasions there were not always children present. He was "hanging around continuously" one witness said. He watched the children as they walked to school. He watched the children as they left school. He seemed to be around when children were either arriving at or leaving school. He also watched the school grounds when the children were actually in class and before the siren went to end school. He watched the children from various different positions near to the school. One witness said, "he hovered back and forth down the street". The same witness said that this behaviour occurred over a period of about 15 minutes and that there were no children present at that time. In this matter the appellant is not arguing that it was inappropriate to make a paedophile restraining order in these circumstances but argues simply that mere loitering is not sufficient, that it must be loitering near children and that therefore condition 5 is invalid. It is argued that the fact that children commonly frequent a place is insufficient unless children are actually present at the time of the loitering. Restraining orders are imposed for the protection of classes of persons. In my opinion condition 5 was imposed upon the appellant to protect children and to generally prevent a particular pattern of his behaviour, namely, the appellant’s "hanging around" and in the close vicinity of a primary school when children were present. A primary school is a place commonly frequented by children (s99AA(3)(e)). Given the background facts in this matter, as established by the affidavit evidence before me, it would seem to me to fly in the face of reality to actually say the Magistrate’s use of the word 'loitering' in condition 5 was not intended to address the appellant’s behaviour of loitering near the school when children were in fact present. It is my view that the purpose or object of the Act is to place a restraining order on a paedophile to prevent potential offences against children. It is clear from the second reading speech of the Attorney General that the legislation was designed to be flexible and to enable the court to tailor an order to suit the particular situation. However in addition and perhaps more importantly the Attorney-General made the point that the legislation is preventive. He said that:"Not only can police act before anything more serious occurs but, because the process is aimed at the individual, he will have very serious warning that he is under notice and that if he continues he will be in breach of a court order.”

Decision

Reasons for decision

In my opinion, it is evident that the purpose of condition 5 is to address the pattern of the of Appellant’s behaviour in accordance with the policy and purpose of s99AA. I agree with the respondent’s submission that condition 5 provides a practical balance between the restraining effect of the condition and the appellant’s civil liberty by recognising the need for him to attend to his shopping. I do not consider that condition 5 is ultra vires or invalid when reading the condition to mean that the appellant is restrained from loitering in those designated places when children are present. This interpretation is also consistent with the exemption for the appellant to attend at takeaway food outlets. Conclusion It is my view that the clear intention of Parliament was to prevent paedophiles from acting in the matter 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 s 99 AA, as against the background facts. It can thus be inferred that the word loitering in condition 5 should be interpreted consistently with s 99 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. It is my view therefore that condition 5 is a valid condition. The appeal on that ground is therefore dismissed. In relation to conditions 1, 2 and 4, as the respondent concedes, those conditions were incorrectly imposed upon the appellant. I will hear counsel as to whether any further orders are required.

Ratio Decidendi

Legal Principle Established

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