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…

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.

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Details

Case: [2014] SASC 131
Decision Date

CaseChat Overview and Summary

The case of Police v Siasi involved a dispute over the validity of a term in an interim intervention order. The appellant challenged the validity of term 5, which required him to refrain from entering or remaining “in the vicinity of” Ms S’s place of residence. The legal issue before the court was whether this term was sufficiently specific to comply with section 12(1) of the Act. The court was required to determine if the term met the high level of specificity required by the Act and if it fell within any of the permitted terms outlined in section 12(1). The court concluded that the term did not meet the required level of specificity and was therefore invalid. The appellant could not be found guilty of breaching term 5 as it did not conform with any of the terms permitted by the Act.

The court held that the term lacked the requisite specificity to fall within any of the terms in section 12(1) of the Act. It was imperative that any restraint upon a defendant was in clear, unambiguous terms. Section 12(1) is expressed in exclusive language, leaving no scope for flexibility in the wording of terms of intervention orders. The court agreed with the respondent that term 5 of the interim intervention order did not expressly conform with any of the terms permitted by the Act and was therefore invalid. The appellant could not be found guilty of an offence contrary to section 31(2) of the Act for having breached that term. The court emphasised the importance of specificity in intervention orders to ensure compliance and enforcement. The use of broad and vague terms was not permitted, and police constables did not have the power to use their individual opinions to determine whether a contravention of such a term had occurred.

In conclusion, the court found that term 5 of the interim intervention order was invalid as it did not meet the required level of specificity. The appellant could not be found guilty of breaching this term as it did not conform with any of the terms permitted by the Act. The court emphasised the importance of specificity in intervention orders to ensure compliance and enforcement, and the use of broad and vague terms was not permitted. The court agreed with the respondent that the term could have been formulated in accordance with section 12(1)(c) of the Act by delineating specific parameters around Ms S’s residence. The court’s decision highlights the importance of drafting intervention orders with precision and clarity to ensure their validity and enforceability.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

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 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.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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