Police v SIAOSI

[2014] SASC 131

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v SIAOSI

[2014] SASC 131

Judgment of The Honourable Justice Peek

5 September 2014

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - APPREHENDED VIOLENCE ORDERS

Appeal against conviction and sentence. 

Ms S, formerly the wife of the appellant, commenced to live separately from him at the subject property. She later complained to police about alleged conduct by the appellant when he attended there.   Police issued and served an interim intervention order, the fifth term of which purported to prohibit the appellant from entering or remaining “in the vicinity of” the subject property.

The appellant was subsequently introduced to a Ms B who lived in the general area of the subject property. He later visited Ms B at her property to help put up outdoor party lights in her front yard. It was only when he went to her backyard that he saw that there was a line of sight between that backyard and the kitchen window on the second floor of the subject property. However, the respective frontages of the two properties faced opposite directions and were not addresses on the same street; there was no direct route from the premises to Ms B’s backyard; and the two properties were separated by high fences and by a third property. The distance on a diagonal between that kitchen window and the nearest point of Ms B’s property as measured by police using an electronic measuring device was about 26 metres. Ms S later learned of the appellant’s visit to Ms B’s premises and complained to police who charged the appellant with contravening the intervention order contrary to s 31(2), Intervention Orders (Prevention of Abuse) Act 2009 (the Act).

After a trial, the appellant was found guilty of contravening the fifth term of the intervention order and appealed against that decision on the basis that the making of a prohibition couched in terms of “in the vicinity” was not within the powers conferred by s 12(1) of the Act and that such a term was void for uncertainty.   

Held (per Peek J):

1.  Section 12(1) of the Act creates and delineates the power to specify valid mandatory terms of intervention orders.  A prohibition against entering or remaining “in the vicinity of” specified premises does not expressly engage the wording of any of the placita (a) to (l) in s 12(1). The validity of such a term depends upon whether any of those placita authorises the specification of a mandatory term by the use of the word “vicinity”. (at [16])

2.  None of the placita in s 12(1) of the Act authorises such a term; each placitum in s 12(1) of the Act requires that the terms of intervention orders be expressed in highly specific and certain language. The word “vicinity” and the phrase “in the vicinity of” are inherently imprecise and the fifth term is void for uncertainty. (at [27], [30]) 

3.  Although unnecessary to decide, it may not have been proven beyond reasonable doubt that the appellant entered or remained “in the vicinity of” the subject property even if the term had been valid. (at [31]-[33])

4.  The appeal is allowed and the finding of guilt made by the Magistrate is set aside. The appellant is found not guilty and the complaint is dismissed.

Fringe Benefits Tax Assessment Act 1986 (Cth) s 29A(1)(f); Gaming and Betting Act 1912 (NSW) s 17(4); Intervention Orders (Prevention of Abuse) Act 2009 ss 12(1), 18, 31(2), referred to.
Abley v Yankalilla District Council; Abley v Director of Planning (1979) 22 SASR 147; Adler v George [1964] 2 QB 7; Pollock v Ciccone & Ors (1988) 34 A Crim R 257; Virgin Blue Airlines Pty Ltd v Federal Commissioner of Taxation (2010) 190 FLR 150, discussed.
Starczowski v Police [2000] SASC 350, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"vicinity", "in the vicinity of", "intervention order", "prohibition"

POLICE v SIAOSI
[2014] SASC 131

Magistrates Appeal

1. PEEK J.   Appeal against finding of guilt and sentence.

2. The appellant was found guilty of a charge of contravening the fifth term of an intervention order contrary to s 31(2), Intervention Orders (Prevention of Abuse) Act 2009 (the Act) after a trial before a Magistrate.  Despite finding the contravention to be “technical”, her Honour declined to exercise her discretion not to record a conviction and proceeded to formally record a conviction.  Her Honour imposed no further penalty apart from substantial court fees, levies and prosecution costs.[1]  The appellant appealed, initially against sentence only.

   [1]    Criminal Law (Sentencing) Act 1988, s 15, s 16 or s 39.

   The course of the appeal

3. The appeal was initially listed for hearing on 21 July 2014 as an appeal against sentence only (on the basis that a conviction should not have been recorded).  On that day I requested submissions from the parties on the question of whether the finding of guilt itself could stand, having regard to certain matters, including the question of whether the fifth term of the intervention order was void for uncertainty.  I indicated that I would be prepared to grant leave to amend the notice of appeal so as to add grounds of appeal against conviction (in the sense of the finding of guilt) and the appeal was adjourned to 31 July 2014 for full argument with a prior schedule for the filing of documents.  At the appropriate time prior to 31 July 2014, counsel for the respondent filed her outline of argument in which she conceded the appeal against the finding of guilt.  There is no doubt that she was correct in doing so.

4. On 31 July 2014 the appeal was again called on.  I made a number of orders in relation to amending the notice of appeal, allowing the appeal, and as to costs.  Some only of those orders are repeated below.  I indicated that I would later publish my reasons for allowing the appeal and I now do so.

   The amended grounds of appeal

5. The additional grounds of appeal as to the finding of guilt were as follows:

   3.The prohibiting of a person from entering or remaining “in the vicinity of” specified premises is not within the powers conferred by s 12(1), (Prevention of Abuse) Act 2009.

   4.It was not proven beyond reasonable doubt that the appellant entered or remained “in the vicinity of” the protected person’s residence on the occasion the subject of the charge. 

   The history of the proceedings

6. The circumstances in which the appellant came to be charged with the contravention were briefly as follows.  In about February 2011, the appellant and his then wife (Ms S), separated.  The matrimonial home was sold and the proceeds were used largely to pay down the mortgage on a two storey townhouse they owned together as an investment rental property (the subject property).  Ms S moved into the subject property with their six-year old daughter (J) and the appellant sought rental accommodation elsewhere.  There was an agreement that the appellant could store some of his possessions including clothing at the subject property.

7. In February/March 2012 Ms S alleged that the appellant had “trespassed” at the subject property and had assaulted her.  Pursuant to s 18 of the Act, police issued an interim intervention order on 3 March 2012, which was served on the appellant later that day.  This was the order alleged to have been contravened in the proceedings the subject of this appeal and will be referred to as the “intervention order”.[2]

   [2]    There is real doubt as to whether it in fact was the operative order at the time of the occasion the subject of the charge.  As circumstances have developed, it is not necessary to resolve that matter.   

   The terms of the intervention order

8. The terms of the intervention order were chosen by a police constable by him completing a pro-forma document.[3]  In doing so, he wrote Ms S’s allegations of assault and trespass (later to be rejected by a Magistrate at the appellant’s trial in relation thereto) at the top, and, almost entirely by placing crosses in the relevant boxes, selected pre-typed prohibition terms to be imposed upon the appellant.  The appellant has here been convicted of contravening the fifth of those terms, which appeared as follows:[4]

   The defendant must not: enter or remain in the vicinity of the protected person(s) place of residence, place of employment, or any other place at which the protected person(s) is staying or working.   (Emphasis added)

   [3]    This was Form 29 of the Magistrates Court Criminal Forms which had been in use since 17 November 2011 when the Act was proclaimed.

   [4]    The “defendant” being the appellant, and the “protected person” being Ms S.

   The alleged contravention of the intervention order

9. Sometime after the separation, the appellant was introduced to Ms B by a mutual friend.  A friendship developed between the appellant and Ms B who unfortunately happened to live in a house in the general area in which the subject property was located.

10. The appellant stated (in his interview and in his evidence in court) that he was not fully aware of the geography of the environs until he was invited to visit Ms B at her home for the first time, for the purpose of helping in hanging outdoor party lights at the front of Ms B’s property.  It was only when he later went to the rear of her property that he came to appreciate that there was a line of sight between the backyard of Ms B’s home and the kitchen window on the second floor of the subject property.  However, despite that line of sight, the respective frontages of the two properties faced opposite directions and were not addresses on the same street; there was no direct route from Ms B’s backyard to the subject premises, which were separated by high fences and by a third property.  The distance on a diagonal between that kitchen window and the nearest point of Ms B’s property as measured by police using an electronic measuring device was about 26 metres.

11. On this occasion, the appellant had with him J, his six year old daughter, with whom he was having regular court ordered access that day.  Before the appellant visited Ms B, J had told the appellant that her mother was not at home that morning.

12. Not unnaturally, J subsequently mentioned in conversation with her mother the circumstances of her day with her father, including about having visited Ms B.  Ms S later complained to Holden Hill police that the appellant had thus contravened the intervention order.  The police did not attempt to approach the appellant about this complaint for nearly two months, and not until 1 February 2013 when the appellant was standing trial at Holden Hill Magistrates Court on the original assault and trespass charges.  It was only at the conclusion of the hearing on that day (the Magistrate having reserved judgment[5]), that officers approached the appellant to interview him in relation to the present matter.  During the course of that interview, the appellant said inter alia in relation to the circumstances of him attending at Ms B’s property:

    I had nothing to do with [Ms S] once as soon as I finished what I needed to do I left I’ve never been to [Ms S]’ property.  Do you know what I mean I keep away from there you know I keep away from her … Because of situations like this you know this is a pretty I went around to help had stuff there to help a friend put up, I had no idea that she was, she was so close you know so what I’m trying to say is that it’s not you know I certainly don’t have any intention of seeing [Ms S]. …  When I was putting up the lights and all that at the front I had no idea that the property went so deep I mean I had to go around the back and then I could see the back of, the back of [Ms S].

    [5]    On 31 May 2013 the Magistrate delivered judgment acquitting the appellant of all charges and finding that she was unable to accept the evidence of Ms S.  The prosecution appeal to the Supreme Court was dismissed in an ex tempore judgment on 11 September 2013.

13. He further observed on a more general note:

    I like the girl that I went and dropped the lights off I met her a couple of times I liked her you know she’s obviously been telephoned by the police.  Great way for me to meet someone and start something so it’s certainly not a big thrill for me.  …  We’re a year on from the incident when it happened okay and I’m $60,000 on lawyers to say my wife lied okay said she lied about the assault and she lied about everything else.

14. The police then laid the charge the subject of these proceedings.  The prosecution case against the appellant at this trial on this charge was put to him in cross-examination thus: 

    QI am not suggesting that you were going to jump over any fences.  I am not suggesting that you were going to climb over those fences into your ex-partner’s address.  The question I am asking you was that in terms of distance, proximity, 26 metres is quite close; isn’t it.

    A     Yes, but I did not know it was 26 metres.  I thought it was further. 

    Ground 3 of appeal:  Uncertainty of the term “vicinity”

15. Ground 3 of appeal raises an important question, apparently not previously determined by this Court,[6] as to whether a term purporting to prohibit a person from being “in the vicinity of” specified premises is a valid exercise of the power conferred by s 12(1) of the Act or whether it is void for uncertainty.

    [6]    The issue was addressed in oral submissions in Starczowski v Police [2000] SASC 350 but it was not there necessary to determine the matter.

16. Section 12(1) of the Act creates and delineates the power to specify valid mandatory terms of an intervention order.  It is important to note that the word “vicinity” does not appear in s 12(1) (or anywhere else in the Act) and a prohibition against entering or remaining “in the vicinity of” specified premises does not expressly engage the wording of any of the placita (a) to (l) in s 12(1).  That being so, the critical question is whether any one of those placita authorises the specification of a mandatory term by the use of the word “vicinity”.

17. I conclude that this question must be answered in the negative and that the fifth term of the intervention order was void for uncertainty.  My reasons follow.

    The terms of any intervention order must be specific and certain

18. It is axiomatic that in providing that “an intervention order may do any one or more of the following”, s 12(1) both creates and delineates a statutory power.  The exercise of such a statutory power has severe effects on the liberty of the individual subject to it.  It follows that each mandatory term in an intervention order must be clearly and specifically authorised by the words of s 12(1).

19. This is a matter of elementary law.  It also conforms with elementary fairness to a person the subject of an intervention order.  It is highly important that the terms of such intervention orders are specific and certain so that the persons subject to them can be in no doubt as to the meaning and extent of the mandatory orders that are applicable.  It may be added that it should also be of commensurate importance to persons who create, administer or enforce intervention orders to be sure as to the precise ambit, and limit, of their terms.

    Prohibitions delineated in terms such as “vicinity” are necessarily uncertain

20. The lack of clarity and specificity inherent in the word “vicinity” and the expression “in the vicinity of” has been emphasised in many contexts.  In Adler v George, Lord Parker CJ suggested that the natural meaning of “vicinity” is “…quite generally, the state of being near in space”.[7]  However, as Jacobs J pointed out in Abley v Yankalilla District Council; Abley v Director of Planning: [8]

    Indeed, merely to pose “proximity” or “nearness in space” as the test only prompts the further questions “how proximate?” or “how near?”, the answer to which must depend upon the circumstances of each case.

    [7]    Adler v George [1964] 2 QB 7, 10.

    [8]    Abley v Yankalilla District Council; Abley v Director of Planning (1979) 22 SASR 147, 152.

21. Jessup J in Virgin Blue Airlines Pty Ltd v Federal Commissioner of Taxation succinctly explained why the use of the word vicinity is problematic:[9]

    The present controversy arises from the … adoption of the imprecise term “vicinity”… . Because the term is inherently imprecise, recourse to dictionary definitions takes the debate nowhere.  At base, the sense in which “vicinity” is used in text or conversation depends entirely on context.   (Emphasis added)

    [9] (2010) 190 FCR 150, 164 [64].

22. Further, a number of judgments have emphasised that, in addition to the unanswerable questions “how proximate?” or “how near?”, there are other imponderables quite apart from the question of straight line distance.  Thus Jacobs J pointed out in Abley v Yankalilla District Council; Abley v Director of Planning: [10]

    One can imagine cases in which the land proposed to be subdivided is quite close to existing subdivided land in terms of distance, but if there is no access from the one parcel to the other ─ if, for example, they are separated by a river or a deep gully ─ the proximity of the subdivided land may have little bearing in deciding whether the new subdivision is premature.

    [10]   Abley v Yankalilla District Council; Abley v Director of Planning (1979) 22 SASR 147, 152.

23. In Pollock v Ciccone & Ors[11] Giles J was concerned with whether particular card games were being played illegally. Section 17(4) of the Gaming and Betting Act 1912 (NSW) created a presumption that card games were not of either a “social” or “non-commercial” character if not less than nine persons (including participants) were “in the vicinity” of the game being played. His Honour held that “vicinity” was not here used to express a simple concept of physical proximity and that to establish that the requisite number of persons were “in the vicinity” there had to be some relationship between the physical proximity of the persons and the card game being played. His Honour stated:[12] 

    I do not think that in s 17(4) of the Act the word is used to express the simple concept of physical proximity. Assume that a game is being played in a room at a table closer to an outer wall, with onlookers and would-be players in the room standing three metres away from the table. On the footpath on the other side of the outer wall is a stranger waiting for the bus, standing as a matter of physical proximity two metres from the table. The purpose of s 17(4) would in my view mean that the onlookers and would-be players may be in the vicinity of the game where the stranger would not, although the stranger is physically closer to the game than many of the onlookers or would-be players. It is necessary to add to the simple concept of physical proximity something additional to the simple concept of physical proximity something additional to reflect that the person whose physical proximity is in question and the playing of the game. Although in a different context, a similar view was taken by Jacobs J in Abley v Yankalilla District Council (1979) 22 SASR 147 at 152, where it was said that in determining whether certain land was “in the vicinity” of other land for planning purposes factors other than mere proximity may well be relevant.

    [11] (1988) 34 A Crim R 257.

    [12] (1988) 34 A Crim R 257, 265.

24. More recently, in Virgin Blue Airlines Pty Ltd v Federal Commissioner of Taxation the Federal Court considered a question of whether a car park for airline employees, two kilometres away from the terminal and accessible by a 15-20 minute bus ride, was “in the vicinity of” the terminal, their “primary place of employment”, for the purpose of determining the liability of the airline under s 39A(1)(f) of the Fringe Benefits Tax Assessment Act 1986 (Cth). Edmonds and Gilmour JJ, with whom Jessup J agreed, emphasised that the meaning of such words will depend on the particular factual matrix under consideration: Their Honours observed:[13]

    It is the spatial and geographical separation between them that is important.  To the extent that what lies between them is relevant to the application, as distinct from the meaning, of the statutory test this encompasses geographical features such as rivers, railway lines, freeways and other physical obstacles which might render a car park and an employee’s primary place of employment near or close as the crow flies but not so in terms of the distance of the shortest practicable route between them.  For example where a car park provided by an employer was on the other side of a railway line from the primary place of employment the distance between them might be 100 metres but because the nearest rail crossing was 1km away the actual distance to be travelled to reach one from the other would be 2km.  This is consistent with the observations of Jacobs J in Abley at 152 to which we referred above and which were also referred to by the primary judge. It is in this sense that the expression “in the vicinity of” is flexible.

    [13] (2010) 190 FCR 150, 162 [54].

    Section 12(1) of the Act requires that intervention orders be specific and certain

1. By contrast to terms such as “vicinity”, s 12(1) of the Act requires that intervention orders be specific and certain.  Section 12(1) provides as follows: 

   (1)     An intervention order may do any 1 or more of the following:

   (a)     prohibit the defendant from being on premises at which a protected person resides or works;

   (b)     prohibit the defendant from being on specified premises frequented by a protected person;

   (c)     prohibit the defendant from being in a specified locality;

   (d)     prohibit the defendant from approaching within a specified distance of a protected person;

   (e)     prohibit the defendant from contacting, harassing, threatening or intimidating a protected person or any other person at a place where the protected person resides or works;

   (f)    prohibit the defendant from damaging specified property;

   (g)     prohibit the defendant from taking possession of specified personal property reasonably needed by a protected person;

   (h)     prohibit the defendant from causing or allowing another person to engage in the conduct referred to in any of paragraphs (e) to (g);

   (i)    require the defendant to surrender specified weapons or articles that have been used, or that there is some reason to believe might be used, by the defendant to commit an act of abuse against a protected person;

   (j)    require the defendant to return specified personal property to a protected person;

   (k)     require the defendant to allow a protected person to recover or have access to or make use of specified personal property and to allow the person to be accompanied by a police officer or other specified person while doing so;

   (l)    impose any other requirement on the defendant to take, or to refrain from taking, specified action.

2. It can be seen that the structure of s 12(1) is as follows:

   ·placita (a) to (e) deal with presence or actions at specified places;

   ·placita (f), (g), (i), (j) and (k) deal with actions in relation to specified property;

   ·placitum (l) deals with other specified actions; and,

   ·placitum (h) deals with prohibiting a defendant from causing or allowing another person to engage in the conduct referred to in any of paragraphs (e) to (g).

3. It is to be noted that each of the placita expressly require a high level of specificity.  In the present case, only placita (a) to (e) of s 12(1) could possibly be suggested to authorise the fifth term in the present case but none of them use imprecise language such as “near”, “area”, “proximity” or “vicinity”.  It is not unduly arduous for a person imposing a prohibition to draft it in terms that satisfy the requirements of those placita.  As counsel for the respondent correctly stated, in the present case a term “could have been formulated in accordance with s 12(1)(c) of the Act, by delineating specific parameters around [the subject property], within which [the appellant] was prohibited from being (for example, in the area bordered by Cluny Avenue/Victoria Terrace, Smith Street, North East Road and Stephen Terrace, Walkerville).” [14]

   [14]   I acknowledge the helpful and frank submissions made by counsel for the respondent in her outline of argument.  She there stated inter alia:

   10.Firstly, section 12(1) must be viewed as a whole.  Subsections 12(1)(a)-(d) (inclusive) provide for terms of intervention orders which prohibit defendants from attending at specified locations or premises, or from being within a specified distance of a protected person.  A term designed to prevent the appellant from being in the vicinity of [Ms S’s] residence could have been formulated in accordance with s 12(1)(c) of the Act, by delineating specific parameters around that residence, within which he was prohibited from being (for example, in the area bordered by Cluny Avenue/Victoria Terrace, Smith Street, North East Road and Stephen Terrace, Walkerville).

   11.Section 12(1)(l) also uses the term specified to describe the action (or inaction) required by the term.  Prohibiting the appellant from being in the vicinity of the protected persons’ residence did not sufficiently specify the impugned inaction to satisfy this provision.

   12.There is a strong argument that the wording of term 5, which required the appellant to refrain from entering or remaining “in the vicinity of” [Ms S’s] place of residence, lacked the requisite specificity to fall within any of the terms in s 12(1) of the Act.

   13 Specificity is required to ensure compliance and, if necessary, enforcement: “[i]t is imperative that any restraint upon a defendant is in clear, unambiguous terms.”  Appropriately, s 12(1) is expressed in exclusive language: “[a]n intervention order may do any 1 or more of the following”.  There is no scope for flexibility in the wording of terms of intervention orders.

   14.The respondent concedes that term 5 of the interim intervention order did not expressly conform with any of the terms permitted by s 12(1) of the Act, and, accordingly, that term was invalid. The appellant could not be guilty of an offence contrary to s 31(2) of the Act for having breached that term. [Footnotes omitted]

   Conclusion as to ground 3 of appeal

4. What is definitely not permitted in the creation of intervention orders is a bestowing of power on police constables to insert broad and vague terms and a consequential further bestowing on them of a right to use their individual opinions as to whether it should be declared in a particular case that a contravention of such a term has occurred.

5. It is in fact extremely difficult to think of a better example to illustrate this proposition than the present use of the term “vicinity”.  The pertinent question is: if one takes the protected person (or their home etc) as the centre point, precisely how far out on a radius from that point does one proceed before the area of the circle around the centre point can no longer be termed “in the vicinity” of the centre point?  The answer to that question is that either, there simply is no answer, or, there are as many answers as there are responders to the question.

6. The appellant makes out ground 3 of appeal for all of the above reasons.  The prohibiting of a person from entering or remaining “in the vicinity of” specified premises is not within the powers conferred by s 12(1) of the Act and the fifth term is void for uncertainty.  Accordingly, no contravention of the intervention order is established. 

   Ground 4 of appeal:  Was it proven beyond reasonable doubt that the appellant “entered or remained in the vicinity of” the subject premises? 

7. Ground 4 of appeal raises the question of whether, if the fifth term were valid, it was proven that the appellant contravened it.  In the light of the conclusion on ground 3 of appeal, it is unnecessary to consider ground 4 of appeal in detail.

8. I will simply observe that it may be inferred from the particular geographical features in the present case, and the comments about such matters in various of the authorities, that there is a strong argument that the mere fact that the distance involved here was about 26 metres did not establish that the appellant did “… remain in the vicinity of the protected person(s) place of residence …”.  As noted above, it is pertinent that another townhouse and high fences separated the subject property from Ms B’s backyard; and that aerial photographs indicated that the respective frontages of the properties faced opposite directions, were not addresses on the same street; and there was no direct route between them.

9. In all of the circumstances, I may well have found that if the fifth term were valid, the appellant did not contravene it.  However, I determine the appeal simply on the basis that the fifth term was void for uncertainty and accordingly no contravention of the intervention order is established.  

   Conclusion

10. I quash the verdict of the Magistrate and find the appellant not guilty.  It is therefore unnecessary to consider the appeal against sentence. 

    Orders

    1The appeal is allowed.

    2The finding of guilt, the conviction and all orders made by the Magistrate are set aside.

    3The appellant is found not guilty and the complaint is dismissed.