McIntosh v Police

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.