Roberts v Police - [2015] SASC 151

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
ROBERTS v POLICE
[2015] SASC 151
Judgment of The Honourable Justice Sulan
29 September 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - OTHER OFFENCES
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - STATUTORY OFFENCES - DISPLACEMENT OF THE PRESUMPTION
Appeal against conviction. Appellant convicted of contravening a paedophile restraining order. Appellant contends that the Magistrate erred in finding a term of the paedophile restraining order prohibiting the defendant from loitering in the vicinity of children valid. Appellant further contends that the Magistrate erred in finding that the prosecution was not required to prove that the defendant possessed the requisite mental element.
The use of the term 'vicinity' is sufficiently clear and consistent with the purpose of the statutory framework. The offence of contravening a paedophile restraining order does not require the prosecution to prove intent or knowledge to commit the offence.
Appeal dismissed.
Summary Procedure Act 1921 (SA) s 99I(1), s 99AA, s 99E, s 99F; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5, s 12; Statutes Amendment (Paedophiles) Act 1995 (SA), referred to.
Police v Siaosi (2014) 120 SASR 308; McIntosh v Police [2007] SASC 24; Coulters v Police (2007) 98 SASR 561; He Kaw Teh v The Queen (1985) 157 CLR 523; Police v Beukes (2011) 205 A Crim R 406, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"in the vicinity"

ROBERTS v POLICE
[2015] SASC 151
Magistrates Appeal: Criminal

SULAN J:             This is an appeal against conviction. The appellant, Timothy James Roberts, was found guilty by a Magistrate of contravening a paedophile restraining order.[1] The maximum penalty for the offence is two years’ imprisonment. On 14 December 2010, a Magistrate had imposed a paedophile restraining order upon the appellant. The order as varied contained the following provisions:
The defendant is restrained in the following terms:
1.   The defendant is not to approach, follow or communicate, either directly or indirectly, with children without a reasonable excuse.
2.   The defendant is not to loiter or remain in the vicinity of children without a reasonable excuse.
[1]    Summary Procedure Act 1921 (SA) s 99I(1).
The grounds of appeal are:
1. The Magistrate erred in finding a term of a paedophile restraining order prohibiting a defendant from loitering in the vicinity of children as being valid.
2. The Magistrate erred in finding that the offence of contravening a paedophile restraining order does not require proof of intention to loiter in the vicinity of children, or knowledge of the presence, or likely presence, of children within the vicinity of the defendant.
Background
At around noon on 13 March 2014, after an argument with his partner, the appellant left his home in Elizabeth South. He gave evidence that he went for a drive in order to relieve his anger. The appellant drove to a service station on Main North Road in Enfield and purchased a drink. At around…

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.

Continue reading Roberts v Police

Details

AGLC: Roberts v Police [2015] SASC 151
Case: [2015] SASC 151
Decision Date: 29 September 2015

CaseChat Overview and Summary

Roberts v Police is a criminal case concerning the validity of a term in a paedophile restraining order and the mens rea required for a contravention of such an order. The appellant was subject to a paedophile restraining order prohibiting him from loitering in the vicinity of children. He was found to be in breach of the order while parked in a car park outside the Enfield library, from which he had a view into the library. The appeal against his conviction was based on two grounds: the Magistrate was said to have erred in finding the term of the restraining order prohibiting loitering in the vicinity of children to be valid, and in finding that the offence of contravening a paedophile restraining order does not require proof of intention to loiter in the vicinity of children, or knowledge of the presence, or likely presence, of children within the vicinity of the defendant.

The court held that the use of the term ‘vicinity’ in a paedophile restraining order is valid and consistent with the purpose of the relevant provisions of the Sex Offenders Registration Act 2004 (SA). The court reasoned that the wording of s 99I of the Act, the subject matter of the relevant provisions, and the need to ensure compliance with the statutory framework support the conclusion that the offence is one of strict liability. The court found that the offence of contravening a paedophile restraining order does not require proof of intention to loiter in the vicinity of children, or knowledge of the presence, or likely presence, of children within the vicinity of the defendant. The appeal was dismissed.

The final orders of the court were that the appeal against the conviction and sentence of the appellant be dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal are:1. The Magistrate erred in finding a term of a paedophile restraining order prohibiting a defendant from loitering in the vicinity of children as being valid. 2. The Magistrate erred in finding that the offence of contravening a paedophile restraining order does not require proof of intention to loiter in the vicinity of children, or knowledge of the presence, or likely presence, of children within the vicinity of the defendant.Background At around noon on 13 March 2014, after an argument with his partner, the appellant left his home in Elizabeth South. He gave evidence that he went for a drive in order to relieve his anger. The appellant drove to a service station on Main North Road in Enfield and purchased a drink. At around 3 pm he parked his car in a car park outside the Enfield library, located behind the service station, facing the entrance of the library. There were other cars in the car park. After about 30 minutes the appellant reversed his car and parked against the wall of the service station with the front of the car still facing the entrance to the library. He stated the reason for doing this was to avoid the sun shining in his face. The distance between the appellant’s car and the library entrance was approximately 25-30 metres. The appellant had a view into the library from both positions in the car park. Whilst he was parked, there were adults, children with adults and children without adults in the car park, library and lawn area. Adults and children were entering and exiting the library. At around 6.30 pm, Constable Merritt, who was on uniform patrol, was alerted by a motorist to the appellant’s conduct. He drove to the car park and approached the appellant who was seated in his car. After he had identified the appellant, he became aware that the appellant was subject to a paedophile restraining order. There were two or three other cars in the car park at the time which did not obstruct the appellant’s view of the library entrance. The police officer entered the library. He observed 15 young children on the premises. He could see the appellant sitting in his car from the inner doors as he walked out of the library. The officer did not see a camera, binoculars or anything suggesting activity of a sexual nature in the car. Magistrate’s findings At the conclusion of the prosecution case, defence counsel submitted that there was no case to answer. It was submitted that the paedophile restraining order, the subject of the alleged offending, was invalid because of the uncertainty and imprecision in using the term ‘vicinity’. The Magistrate refused the application. The matter proceeded. The defendant gave evidence. He stated that he had argued with his wife and that his strategy to deal with the situation, having undertaken anger management counselling, was to physically remove himself from the dispute. Eventually, he parked in the car park of a service station. He purchased a drink. He remained in one spot for about 30 minutes, and then moved his car to another area where he remained for over three hours until he was approached by the police.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view the wording of s 99I, the subject matter of the relevant provisions and the need to ensure compliance with the statutory framework supports the conclusion that the offence is one of strict liability. Conclusion The use of the term ‘vicinity’ in a paedophile restraining order is valid and consistent with the purpose of the relevant provisions of the SPA. The offence of contravening a paedophile restraining order contrary to s 99I of the SPA does not require proof of intention to loiter in the vicinity of children or knowledge of the presence or likely presence of children in the vicinity of the defendant. The appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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