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 attending at premises that are take-away food outlets commonly frequented by children.
In addition to adding conditions 4 and 5 above, the Magistrate also varied condition 2 so that it then read:
(2) The defendant is restrained from contacting or communicating with, or attempting to contact or communicate with, whether directly or indirectly, any person under the age of 16 years, whether or not that person is in the company of an adult other than in accordance with this order.
The appellant challenges the validity of conditions 2, 4 and 5 in that it is alleged that s99AA of the Act does not authorise the making of such conditions as part of any paedophile restraining order. The respondent conceded that conditions 1, 2 and 4 of the restraining order were not lawful but maintained that condition 5 is a valid condition authorised by s99 AA. This appeal is therefore concerned with the validity of condition 5.
Argument On Appeal
The appellant contends that there is a plain meaning for s99AA (2) and that the section should be construed in accordance with the plain words used by the legislature. The plain meaning suggested by the appellant is that the Court may impose a restraining order with a condition prohibiting loitering but only if it is loitering near children. It was submitted that this requires children to actually be present when the defendant is alleged to have been loitering in a given place.
Section 99AA is in the following terms:
99AA – Paedophile restraining orders.
(1) On a complaint under this Division, the Court may make a restraining order against the defendant –
(a) the defendant has been found loitering near children; and
(b) –
(i) the defendant has been found guilty of a child sexual offence within the previous five years; or
(ii) the defendant , having been sentenced to imprisonment for a child sexual offence, has been released from prison within the previous five years; or
(iii) the defendant 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; 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-
(a)     loitering near children at or in the vicinity of a specified place or class of places or in specified circumstances; or
(b)     loitering near children in any circumstances….
(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 child sexual offence 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;
(f)    any other matter that, in the circumstances of the case, the Court considers relevant.
(4)     For the purposes of this section-
(a)     a defendant "loiters near children" if –
(i)the defendant loiters, without reasonable excuse, at or in the vicinity of a school, public toilet or place at which children are regularly present; and
(ii)children are present at the school, toilet or place at the time of the loitering; and
The appellant argues that it is apparent from a consideration of sub-section (2) that the power to restrain is limited to restraining the individual from loitering near children (my underlining). That is, it is to be contrasted with restraining an individual from loitering at or near some place where children may from time to time be present but are not necessarily present at the time of loitering. It is said in argument by the appellant that sub-section (4) which defines "loiters near children", requires three conditions to be satisfied; namely (i) an individual loitering at a place where children are regularly present (ii) the individual having no reasonable excuse and (iii) that children are present at the time of loitering.
The Conditions of the Order
Condition 1 prohibited the appellant from residing in his own premises when children were present. It cannot be said to be loitering, and in any event the appellant would have a reasonable excuse. That was conceded by the respondent.
Condition 2 prevented the appellant from communicating with children which again cannot said to be loitering and again this was conceded.
Condition 4 restricts the appellant's right to reside at a place of residence within a certain distance of a school which again cannot said to be loitering and in any event the appellant would have a reasonable excuse. The respondent also conceded this point.
Condition 5 is different from the other conditions in that it includes the word loitering, but not ‘loitering near children.’ It was submitted by the appellant that condition 5 imposes a condition as to loitering by relation to geographical boundaries and that although children may in fact frequent those areas at times, the condition is invalid because it does not follow the purpose and intent of the section and seek to prevent loitering when children are actually present in such locations.
Statutory Scheme
Division 7 of Part 4 of the Summary Procedure Act gives jurisdiction to the Magistrates Court of South Australia to make restraining orders. In 1994 the jurisdiction was enlarged to enable the Court to make paedophile restraining orders. As observed by Lander J in Cryer v Police [2001] SASC 422 at [16]:
Any order made under s99AA has a serious impact upon the liberty of the party to whom the order is directed.
Section 99AA contains 4 sub-sections. Section 99AA(1) provides the Court with jurisdiction to allow for the making of paedophile restraining orders when certain conditions are made out. Section 99AA(2) allows for an order to be made restraining the ‘defendant’ from loitering near children. It allows for either geographical restraints (s99AA(2)(a)) or restraints to be placed upon the defendant in any circumstances (s99AA(2)(b)).
Section 99AA(3) provides the Court with guidance as to when such an order should be made. Finally, sub-section (4) provides a definition for the terms ‘loiters near children’ and ‘child sexual offence’ for the purposes of s99AA.
The respondent argued that one should look to the mischief which the section seeks to avoid, and that the relevant section should be examined to ascertain the underlying purpose in accordance with s22(1) of the Acts Interpretation Act 1915 (SA). Section 22 provides that where a provision, such as s99AA, is reasonably open to more than one construction, the construction to be preferred is one that would promote the purpose or object of the Act. The respondent relies on CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 and Owen v South Australia (1996) 66 SASR 251 and calls in aid the second reading speech of the Attorney General. The respondent submits that the policy and purpose of the legislature is clear. The explanatory clause inserted into the Hansard, South Australia, Parliamentary Debates (italics), Legislative Council, Thursday 6 April 1995 at 1796-1797 states that
The court is empowered to tailor orders to particular circumstances (for example, limiting the order to prohibiting loitering near public toilets, if the defendant's pattern of behaviour indicates that this is the only likely source of concern) or to issue a general order prohibiting loitering near children in all circumstances.
It appears that s99AA of the Act is to protect children against persons who have been found guilty of sexual offences of the kind described in s99AA(1)(b) and who have been found loitering near children. The Court must be satisfied that the making of the order is appropriate in the circumstances.
The respondent submits that the court must have flexibility in making paedophile restraining orders and that consistent with the flexibility of the section and consistent with the court's ability to tailor conditions the court is authorised to impose conditions which would prevent an individual from:
(a) loitering near children at or in a specified place; or
(b) loitering near children at or in a class of places; or
(c) loitering near children in specified circumstances; or
(d) loitering near children in any circumstances.
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.”
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.