Morrow v UJC
[2012] WASC 114
•3 APRIL 2012
MORROW -v- UJC [2012] WASC 114
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 114 | |
| Case No: | SJA:1102/2011 | 12 MARCH 2012 | |
| Coram: | HALL J | 3/04/12 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Acquittal set aside Respondent found guilty and sentenced | ||
| A | |||
| PDF Version |
| Parties: | KIRSTEN BROOKE MORROW UJC |
Catchwords: | Criminal law Move-on order Whether order valid Whether an additional order can set a distance by reference to surrounding streets meaning of 'distance' |
Legislation: | Criminal Investigation Act 2006 (WA), s 3, s 27, s 153 |
Case References: | Spatolisano v Hyde [2009] ATCSC 161 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
UJC
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE S R MALLEY
File No : PE 24742 of 2011
Catchwords:
Criminal law - Move-on order - Whether order valid - Whether an additional order can set a distance by reference to surrounding streets - meaning of 'distance'
Legislation:
Criminal Investigation Act 2006 (WA), s 3, s 27, s 153
(Page 2)
Result:
Appeal allowed
Acquittal set aside
Respondent found guilty and sentenced
Category: A
Representation:
Counsel:
Appellant : Mr P D Lochore
Respondent : Mr S A Gabriel
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Stephen Gabriel
Case(s) referred to in judgment(s):
Spatolisano v Hyde [2009] ATCSC 161
(Page 3)
- HALL J:
Introduction
1 On 23 August 2011 the respondent was acquitted of a charge of failing to comply with a move-on order contrary to s 153(1) of the Criminal Investigation Act 2006 (WA). That acquittal followed a hearing over two days in the Magistrates Court. The basis for the acquittal was that the magistrate found that the move-on order was invalid.
2 The prosecution has appealed the order acquitting the respondent. There is one ground of appeal. It is that the magistrate erred in concluding that the move-on notice was invalid because that conclusion was based on a finding that an order by a police officer to go beyond an area bounded by certain streets was not an order within the terms of s 27(2)(a) of the Criminal Investigation Act.
3 On 22 December 2011 I granted leave to appeal on the ground contained in the appeal notice: s 9(1) Criminal Appeals Act 2004 (WA).
Factual background
4 The facts were not in dispute.
5 At 12.15 am on 8 May 2011 two police officers were on a bike patrol in the vicinity of the Elephant and Wheelbarrow Bar in Northbridge. They observed a crowd controller from the bar requesting the respondent to get off a vehicle. The respondent was lying across the bonnet and front windscreen of a silver Audi sedan in front of the bar. He did not react to the requests to move and appeared to be asleep. The crowd controller told the officers that the respondent had earlier been ejected from the bar.
6 One of the police officers, Constable Caitlin Bearman, requested the respondent to get off the vehicle. There was no response and Constable Bearman took hold of the respondent's arm in an attempt to rouse him. The respondent then complied with the request. He told the police that the vehicle was not his but that he wanted to sleep there and did not see a problem doing so. Constable Bearman said that the respondent was argumentative and appeared to be intoxicated. She said that he was having difficulty standing upright and smelt strongly of alcohol.
7 Constable Bearman then issued the respondent with a move-on order under s 27 of the Criminal Investigation Act. The order was in writing and in the prescribed form. During the process of completing the order the respondent gave Constable Bearman an address in Bulwer Street,
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- Perth as being his current residence. After completing the notice, Constable Bearman gave a copy to the respondent and told him that he was now required to leave the area stipulated in the notice and not allowed to re-enter that area until after 8.00 am that day. She also told him that if he was found in breach of the order he would be arrested. She said in evidence that the purpose of the order was to ensure that the respondent did not attend any other licensed premises given that his level of intoxication was high. The respondent told Constable Bearman that he intended getting a taxi and going home; he did not.
8 The respondent was located inside Rosie O'Grady's Bar approximately half an hour after the move-on notice was issued. This was an admitted fact at the trial.
9 The move-on order was in the prescribed form: see reg 4 and Form 1A Criminal Investigation Regulations 2007 (WA). The material part of the order stated as follows:
Under the Criminal Investigation Act 2006 s 27 I order you to leave outside the Elephant and Wheelbarrow, Lake Street, Northbridge. In addition I order you to go beyond the area bounded by Stirling Street, Fitzgerald Street, Newcastle Street and Roe Street, Northbridge. I order you to obey the above orders until 8.00 am on 8/5/2011.
10 There was no dispute either at the trial or on the appeal that both the Elephant and Wheelbarrow and Rosie O'Grady's are within the area specified in the move-on order.
Proceedings in the Magistrates Court
11 At the commencement of the trial in the Magistrates Court counsel for the respondent stated that the only issue would be the validity of the move-on order. At the completion of the prosecution case defence counsel submitted that the move-on order was invalid because it referred to an area rather than a distance specified in units of measurement. It was submitted that the only power under the legislation is to order a person to leave a place and then, in addition, to order the person to move a distance from that place for a nominated period of time. Because the order did not refer to any measurement of distance from the Elephant and Wheelbarrow it was said to be invalid.
12 In response the prosecutor submitted that the order did specify an area which constituted a distance from the place at which it was issued. It was submitted that the purpose of a move-on order is to give the police a broad power to require people to leave an area to prevent possible
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- unlawful conduct continuing or occurring. It was submitted that this purpose should be taken into account in interpreting the Act.
13 On 23 August 2011 the magistrate delivered his decision. His Honour said:
While the intent of the legislation is clear section 27 is a penal provision which interferes with fundamental common law rights and should be strictly construed. In my view this means unless the requirements of the section are complied with the notice will be invalid and an offence is not committed. It is significant in my view section 27(2A) refers to distance not area.
It is fair to say that a reasonable person would be aware of distance, albeit without precision. To suggest that a person unfamiliar with the area would be in a position to know which street was which and where they were located in Northbridge in my view simply would not be plausible and leaves me to conclude that it couldn't have been the draft intention to specify areas whereas distance requires no particular knowledge of the area and leaves open to honest and reasonable mistake in the case of somebody being 900 metres away as opposed to 1000.
I draw the distinction between distance and the area by the form the commissioner has sought to in this case hedge his bets and that is reflected in the notes and instructions associated with the form as contained in the government gazette of 13 June 2008. Item 3 on that document says, 'Distance or area must be reasonable.' The act makes no reference to area. To take the issue of interpretation to the extreme one could argue that what point of Stirling Street does the accused have to be beyond, the side, the road closest to the place or the far side or in the middle? It is not clear.
The purpose of the act is to get the accused a distance away from a place. In other words, if he playing up outside the Elephant and Wheelbarrow they want him to be 200 metres, 400 metres, 500 metres away from that location to prevent offence or a breach of the peace. The requirement is set to a distance as per the first part of the order and that must be reasonable. This is different to the terminology used when issuing - sorry. It is not that different to terminology when issuing restraining orders where restrictive distances are involved. By reason of my comments I find that the order is invalid and the charge is not proven. The charge will be dismissed (23/8/11, ts 3).
Relevant statutory provisions
14 Section 3 of the Criminal Investigation Act defines a number of terms. The word 'distance' and the phrase 'reasonable distance' are not defined. The word 'place' and the phrase 'public place' are defined in the following way:
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- place means any land, building, structure, tent or mobile home or a part of any land, building, structure, tent or mobile home;
public place includes -
(a) a place to which the public, or any section of the public, has or is permitted to have access, whether on payment or not; and
(b) a place to which the public has access with the express or implied approval of, or without interference from, the occupier of the place; and
(c) a school, university or other place of education, other than a part of it to which neither students nor the public usually has access;
15 Section 27 of the Criminal Investigation Act provides as follows:
Suspects and others may be ordered to move on
(1) A police officer may order a person who is in a public place, or in a vehicle used for public transport, to leave it, or a part of it specified by the officer, if the officer reasonably suspects that the person -
(a) is doing an act -
(i) that involves the use of violence against a person; or
(ii) that will cause a person to use violence against another person; or
(iii) that will cause a person to fear violence will be used by a person against another person;
or
(b) is just about to do an act that is likely to -
(i) involve the use of violence against a person; or
(ii) cause a person to use violence against another person; or
(iii) cause a person to fear violence will be used by a person against another person;
or
(c) is committing any other breach of the peace; or
- (d) is hindering, obstructing or preventing any lawful activity that is being, or is about to be, carried out by another person; or
(e) intends to commit an offence; or
(f) has just committed or is committing an offence.
- (2) A police officer giving an order under subsection (1) may in addition do either or both of the following -
(a) order the person to go beyond a reasonable distance from the place, or the part of the place, set by the officer;
(b) order the person to obey the order or orders for a reasonable period set by the officer; but the period must not be longer than 24 hours.
(3) When giving a person an order under subsection (1), a police officer must take into account the likely effect of the order on the person, including but not limited to the effect on the person’s access to the places where he or she usually resides, shops and works, and to transport, health, education or other essential services.
(4) For the purpose of giving an order under this section to a person whose personal details (as that term is defined in the Criminal Investigation (Identifying People) Act 2002 section 16) are unknown to the officer, a police officer may request the person to give the officer any or all of the person’s personal details.
(5) If a request is made under subsection (4), the Criminal Investigation (Identifying People) Act 2002 section 16 applies to and in relation to the request in the same way as it applies to a request made under subsection (2) of that section.
(6) Any order given under this section must be in writing on a prescribed form.
(7) A person is not in breach of the move on order if the person is taking reasonable steps to comply with the order and move out of the area.
(8) This section does not prevent a police officer from charging a person with an offence without having exercised a power in this section.
(Page 8)
16 Section 153 of the Criminal Investigation Act provides as follows:
Order by officer, offence to not obey
(1) A person who, without reasonable excuse, does not comply with an order given by an officer under this Act commits an offence.
Penalty: a fine of $12 000 and imprisonment for 12 months.
(2) It is not a defence to a charge of an offence under subsection (1) that information required to be given under the order would or may have incriminated the accused.
Merits of the appeal
17 Section 27(1)(a) of the Criminal Investigation Act gives police officers the power to order a person in a public place to leave the place or a part of that place. Section 27(2) provides that additional orders may also be given. Those additional orders are that the person go beyond a reasonable distance from the place and for the order to continue to apply for up to 24 hours.
18 The evident purpose of the provision for additional orders is to allow police officers to make orders that will ensure that a person does not return to a place for some reasonable time. The ability to prescribe a distance has the effect of creating an exclusion zone around the place at which the move-on order is issued.
19 Distance is not a concept that necessarily implies a unit of measurement. The word 'distance' can have a number of meanings but where used as a noun, as here, its meanings include 'the extent of space; line between two points; the space to be passed over before reaching an object; an intervening space' (Shorter Oxford English Dictionary). The Macquarie Dictionary includes the following similar definition: 'the extent of space intervening between things or points'.
20 There is a difference between setting a distance and determining the extent of a distance. A move-on order is necessarily concerned with the former. The purpose is to set a distance from the place at which the move-on order is issued beyond which the person must move and not return to for a specified period of time. In order to be meaningful, the distance must be clearly ascertainable. It must also be reasonable.
21 A distance can be ascertainable without being expressed in units of measurements. Examples can easily be thought of. A person asked to leave a place and to go beyond a particular landmark such as a tree or a
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- rock is asked to move a distance notwithstanding that it is not known how many metres away the landmark is. Such a request is clear and readily capable of compliance even though the distance is not expressed in terms of any unit of measurement. Distance may also be specified by reference to landmarks in a two dimensional form, for example, a request to leave a place and move beyond a surrounding fence. The fence may not be a uniform number of metres from the place at all points. It is, nonetheless, at all of those points a distance from the place. What is important in the examples I have given is that an intervening space is nominated.
22 The respondent sought to rely on s 65 of the Interpretation Act 1984 (WA). That section provides that in the measurement of distance for the purposes of a written law, the distance shall be measured in a straight line on a horizontal plane. The argument was that this section has the effect of requiring any expression of distance to be in units of measurement. This is plainly wrong. The section merely sets out how distance is to be measured if there is a requirement to do so. Section 27 does not require any distance to be measured. Section 65 of the Interpretation Act has no application to the circumstances of this case.
23 For the purposes of s 27 it is unnecessary for a distance to be expressed in terms of a unit of measurement. What is necessary is that any distance nominated has a reasonable degree of certainty. Certainty can be achieved in a number of different ways. One way is to nominate a distance in terms of units of measurement, for example, by requiring a person to go beyond a number of metres from the place. This would in effect create an exclusion zone measured by a circle with a radius of the number of metres specified. However, the alternative is to nominate a distance by reference to landmarks, in this case, streets. This too would create an exclusion area around the place, though not one of which the boundary would necessarily be a uniform distance from that place. This would be no more problematic than the fence example given earlier.
24 In the present case, an order that the respondent go beyond an area bounded by Stirling Street, Fitzgerald Street, Newcastle Street and Roe Street was an order that required the respondent to go beyond a reasonable distance from the place at which the order issued. That order set a distance between the place and the boundary, and the boundary itself was reasonably clear.
25 I do note that in the prescribed form alternatives are allowed for in specifying the distance in terms of a measurement or in terms of an area. As I have indicated, both of these methodologies can be used in setting a
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- distance. However, it is important to bear in mind that the distance is one which must be 'from the place' at which the move on order is issued. This would not present a problem in respect of a distance specified as a measurement. However, the form does not require on its face that the area nominated must include the place at which the order was issued. If an order specified an area which did not include the place where the order was issued it would, in my view, be of doubtful validity. That was not an issue in this case. Nonetheless, it may be advisable for the form to be amended to include a note to this effect.
26 The magistrate expressed a view that a distance specified by reference to landmarks such as streets lacked certainty. For this reason he favoured an interpretation that 'distance' in s 27(2) referred to distance expressed in measurable units. With respect, I do not accept that the magistrate's view is well founded.
27 The intention must have been to ensure that move-on notices would have practical efficacy. In many respects a move-on notice which specifies a distance in terms of units of measurement would be very much more difficult to comply with than one that specified landmarks. Unless a person who is the subject of an order has some accurate measuring device that would enable him or her to determine exactly the distance from the place where the order was made, there may be great difficulty in knowing exactly where the boundaries are. This would mean that the person concerned may be unable to tell whether the order has been complied with or whether it is being breached. This might be particularly problematic in urban areas where movement is dictated by roads and paths which are unlikely to conform to any set distance from a particular place. Conversely, landmarks such as streets, may well afford a much clearer boundary. The existence of streets as a visible boundary, with street signs as a means of ready identification, are likely to give a person more clarity than would a measurement of distance. This is particularly so where the person is intoxicated, as was the case here.
28 The magistrate suggested that to set a boundary by reference to street names assumed a familiarity with an area and this detracted from the clarity of such a boundary. That does not seem to me to be a reasonable criticism. The question is not whether the boundary is known, but whether the boundary is reasonably ascertainable by the person who is the subject of the notice.
29 The magistrate also suggested that there would be problems in determining whether such a boundary commenced in the middle of the
(Page 11)
- road or at the kerb. That might be a basis for a reasonable excuse under s 153(1) to any charge of breaching an order: Spatolisano v Hyde [2009] ATCSC 161. However, it does not, in my view, justify the limited interpretation which the magistrate placed on s 27(2). Any boundary may have a grey area; that is not to say that it is not possible to comply with it or that the area which is clearly intended to make up the exclusion zone is not clear. In this case there could be no doubt that the excluded area included Rosie O'Grady's Bar as well as the whole of the Northbridge precinct.
30 The magistrate thought it was significant that s 27(2)(a) referred to distance and not area. It would seem from this that he was drawing a distinction between distance as a one dimensional measurement and area as one encompassing two dimensions. Again however, this distinction does not bear scrutiny. A distance specified in units of measurement from a place would have the effect of prescribing an area. Furthermore, it is clearly contemplated that orders made under s 27 will specify an area. Since the definition of a 'public place' includes a school, university or other place of education it is possible for a police officer to make a move-on order that requires a person to leave, for example, a school. That presumably means the school grounds and thus an area. Furthermore, s 27(7) provides that a person is not in breach of a move-on order if the person is taking reasonable steps to comply with the order and move out of 'the area'. This indicates that it was envisaged that an order would have the effect of specifying an area and not merely a distance.
31 In many cases, particularly in urban areas, it would be quite impractical to issue a move-on order that included an additional order referring to a distance expressed in units of measurement. This is because an officer who gives an order is required to take into account the likely effect of the order on the person, including the necessity for access to their residence, to shops, places of work and to transport, health, education and other essential services: s 27(3) Criminal Investigation Act. This means that in some circumstances it will be necessary to carve out of an exclusion zone areas which address those needs. For example, in a case like the present one a person given a move on order requiring them to leave the Northbridge precinct might need to have access to bus and train facilities. This would be very difficult to achieve in nominating a measurable distance on the order. It would be far easier to achieve by nominating an excluded area by reference to streets.
32 The magistrate referred to the terminology used in the Restraining Orders Act 1997 (WA). Section 13(2) and s 36(2) of the Restraining
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- Orders Act set out the features of violence and misconduct restraining orders. It is true that respondents to restraining orders may be restrained from approaching within a specified distance of a person. Given that people are mobile there is every reason why it would be appropriate in those circumstances to express a distance in measurable units. However, with respect to places, both provisions of the Restraining Orders Act give courts the power to restrain a person from 'being on or near specified premises or in a specified locality'. Accordingly, the Restraining Orders Act offers no support for the construction favoured by the magistrate.
33 In my view, s 27(2) is clear and permits distance to be expressed in the terms used in the notice in question. In these circumstances it is not necessary to refer to extrinsic material. However, for the sake of completeness I note that the extrinsic material supports the conclusion I have reached: s 19 Interpretation Act.
34 A report on the legislation considered the reasonableness of move-on orders that directed persons to leave areas such as Northbridge. The practice of proscribing localities was not questioned: see Report No 4 Standing Committee on Legislation 'Criminal Investigation Bill 2005, Criminal Investigation Consequences Provisions Bill 2005 and Criminal and Found Property Disposal Bill 2005 September 2006 pages 19 to 20'. Furthermore, during the course of debate in the Legislative Council reference was made on a number of occasions to designated areas and the need for any such area to be reasonable in size. Whilst neither of these extrinsic materials referred specifically to the meaning of 'distance' it was clearly assumed that areas could be designated by reference to landmarks and localities.
35 The purpose of the legislation was expressed by the Attorney General during parliamentary debate in the Legislative Assembly on 13 April 2006: Hansard page 1739. During that debate the Attorney General referred to the move-on order provisions 'as allowing for preventative intervention'. It was said that 'prevention is a better option than taking up the time of the police with an arrest' and that it was a power to 'contain a situation that might become a lot worse if someone is not removed from a scene by being arrested or told to move-on'. An interpretation should be favoured which gives effect to the underlying purpose or object of the law: s 18 Interpretation Act. Even if there were ambiguity, which in my view there is not, the purpose of the legislation would favour the conclusion that I have reached.
(Page 13)
36 Counsel for the respondent referred to a number of cases from other jurisdictions in the course of argument. I have not found it necessary to refer to those cases. The legislation in issue in those cases differs, to varying degrees, to that at issue here. In any event, none of them raised the issue under consideration here. There is no utility in considering those cases, particularly in circumstances where the legislation is clear.
Conclusion
37 Section 27(2)(a) of the Criminal Investigation Act permits a distance to be specified by reference to landmarks such as streets. The magistrate's conclusion that the move-on order in this case was invalid because it did not refer to a distance in units of measurement was in error. For these reasons the ground of appeal must succeed.
38 It was submitted at the hearing of the appeal that the acquittal could be upheld in any event on the ground that the distance specified in the move on order was not reasonable. This was a matter referred to in passing in submissions to the magistrate. His Honour did not need to consider it because of the conclusion he reached in respect to the validity of the notice on other grounds. It was accepted that all relevant evidence with respect to the reasonableness of the notice had been submitted on the appeal and that issue could be determined by me. In my view, there are no grounds for suggesting that the distance specified by the move on notice was not reasonable. It did not exclude the respondent's residence. Nor did it exclude access to public transport. It did not exceed the area reasonably necessary to meet the perceived need to move the respondent away from licensed premises.
39 In these circumstances the appeal must be allowed, the acquittal set aside and a verdict of guilty substituted.
40 As regards penalty, the appellant submitted that the purpose in bringing the appeal was to clarify the law and to assist those police officers with responsibility for enforcing it. The appellant accepted that the circumstances, including those personal to the respondent, justified the making of a spent conviction order. I agree, bearing in mind the requirements of s 45 of the Sentencing Act 1995 (WA). Accordingly, I will make such an order. Consistently with the making of a spent conviction order, the respondent will be referred to only by a pseudonym.
41 The orders are:
1. The appeal be allowed.
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- 2. The acquittal be set aside.
3. A verdict of guilty be substituted.
4. The respondent be fined $100.
5. There be a spent conviction order.
6. The respondent be referred to by the initials UJC.