Roberts v Police
[2015] SASC 151
•29 September 2015
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 151Magistrates 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 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.
Constable Merritt gave evidence that at about 6.30 pm on 13 March 2014, he approached the appellant who was seated in his car with the front of the car facing the library, with an uninterrupted view of the entrance and inside of the library. There were approximately 15 children, aged between about 5 and 12 years of age, inside the library. The appellant’s vehicle was parked so that he could see into the library.
The paedophile restraining order to which the appellant was subject had been imposed pursuant to s 99AA of the Summary Procedure Act 1921 (SA) (“SPA”) which provides:
99AA—Paedophile restraining orders
(a1) A complaint may be made under this section by a police officer.
(1) On a complaint, the Court may make a restraining order against the defendant if—
(a) the defendant—
(i)is required to comply with the reporting obligations imposed by Part 3 of the Child Sex Offenders Registration Act 2006 ; or
(ii) has been found—
(A) loitering near children; or
(B)using the internet to communicate with children or persons whom the defendant believed to be children (other than children or persons with whom the defendant has some good reason to communicate),
on at least 2 occasions and there is reason to think that the defendant may, unless restrained, again so loiter or so use the internet; and
(c) the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) A restraining order under this section may restrain the defendant from 1 or more of the following:
(a) loitering—
(i) near children at or in the vicinity of a specified place or class of places or in specified circumstances; or
(ii) near children in any circumstances;
(b)using the internet or using the internet in a manner specified in the order;
(c)owning, possessing or using a computer or other device that is capable of being used to gain access to the internet.
(3)In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Court must have regard to the following:
(a)whether the defendant's behaviour has aroused, or may arouse, reasonable apprehension or fear in a child or other person;
(b)whether there is reason to think that the defendant may, unless restrained, commit a sexual offence against a child or otherwise act inappropriately in relation to a child;
(c) the prior criminal record (if any) of the defendant;
(d) any evidence of sexual dysfunction suffered by the defendant;
(e)any apparent pattern in the defendant's behaviour, any apparent connection between the defendant's behaviour and the presence of children and any apparent justification for the defendant's behaviour;
(ea)any apparent pattern in the defendant's use of the internet (if any) to contact children;
(f)any other matter that, in the circumstances of the case, the Court considers relevant.
(4)For the purposes of this section, a defendant "loiters near children if the defendant loiters, without reasonable excuse, at or in the vicinity of a school, public toilet or place at which children are regularly present, whether or not children are actually present at the school, public toilet or place.
The condition in the paedophile restraining order the subject of the alleged breach was imposed pursuant to s 99AA(2).
The appellant submitted to the Magistrate that the requirement that the appellant was not to loiter or remain within the vicinity of children was invalid on the ground of uncertainty. He relied upon a decision of Peek J in Police v Siaosi.[2] In Siaosi, the appellant was subject to an intervention order made pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA). That Act provided that an intervention order may require a defendant to do certain specified acts or prohibit the defendant from doing specified acts. Peek J concluded that each mandatory item in an intervention order must be clearly and specifically authorised by the words of the Act. He noted that the word “vicinity” does not appear in the Act. He concluded that the words “a prohibition against entering or remaining in the vicinity of specified premises” did not engage the wording of the Act. Section 99AA(2)(a)(i) of the SPA specifically provides that a defendant may be restrained from “loitering near children at or in the vicinity of a specified place or class of places or in specified circumstances”.
[2] (2014) 120 SASR 308.
In considering the appellant’s submission, the Magistrate observed:
I take into account the observations made by Justice Peek in Siaosi as regards the vagueness of the word “vicinity”, however, I note in the current case the defendant was in a carpark where there were only few other vehicles. There was no physical obstacle between him and the library and children were milling around the area. In particular, some children were playing on a grassed area. In those circumstances, I am satisfied beyond reasonable doubt the defendant was in the “vicinity of children”.
The appellant had remained in his car in the car park for over three hours. The Magistrate concluded that the appellant was loitering or remaining in the library car park in the vicinity of children.
The appellant submitted that he had a reasonable excuse for being in the car park and lacked the requisite intent to commit the offence. He said he needed to calm down after an argument with his partner and check Facebook on his phone. The Magistrate rejected the submission that the prosecution was obliged to prove that the appellant had the intention to loiter near children or the knowledge that children were in the vicinity. The Magistrate concluded:
The defendant sat in the carpark in excess of three hours. He said that whilst he was there he was looking at his Facebook. He said he had been driving around for about the same time prior to arriving at the carpark. I accept the agreed fact the defendant had an argument with his wife and was upset. By the time the police spoke to him it was about six hours since he left home. I reject the defendant’s evidence given in court. I was not impressed with him as a witness. I reject the evidence he has given for his reason for remaining in the carpark.
I am satisfied beyond reasonable doubt the defendant was aware he was parked in front of a library. I am satisfied beyond reasonable doubt he was aware there were children close to where he was. Whilst it may be at the time he pulled into the carpark and sat there to have his drink, he had a reasonable excuse for so stopping; but I am satisfied that three hours later, he was loitering without reasonable excuse and was in breach of the paedophile restraint order.
The Magistrate convicted the defendant of contravening the paedophile restraining order.
The appeal
Validity of the term ‘vicinity’
Counsel for the appellant contends that the term “vicinity” is so inherently imprecise that any order which speaks of loitering in the vicinity of children without defining the parameters of the vicinity is so uncertain that it is void or, if not void, it is unenforceable. It is submitted that notwithstanding the explicit references to vicinity in s 99AA(2) and s 99AA(4) of the SPA the Court should find the term void for uncertainty. The appellant relies upon the decision in Siaosi v Police.[3] Counsel submits that Peek J’s analysis of the term renders its use inherently uncertain beyond its application under the Intervention Orders (Prevention of Abuse) Act 2009 (SA) (“Intervention Orders Act”). The use of specifically delineated exclusion zones is consistent with the purpose and provisions of the SPA and is commonly included as a term in intervention orders. Counsel does not challenge the Magistrate’s finding that the defendant was loitering in the car park.
[3] (2014) 120 SASR 308.
Counsel for the respondent submits that the meaning of the term is centred on physical proximity but is applied flexibly depending on the circumstances, without being uncertain. Counsel contends that Siaosi is distinguishable from the present case because that matter was specifically concerned with the terms of an intervention order made under the Intervention Orders Act. It is submitted that a greater level of specificity is required when imposing terms to prohibit the conduct of a defendant with respect to a protected individual as opposed to a class of persons.
Siaosi concerned an appeal against a conviction for contravening an intervention order. Justice Peek held that the term prohibiting the defendant from entering or remaining in the vicinity of specified premises was void for uncertainty and not within the powers conferred by s 12(1) of the Intervention Orders Act.[4]
[4] (2014) 120 SASR 308 at [30].
Peek J referred to the relevant statutory regime. He observed:[5]
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).
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.
[5] (2014) 120 SASR 308 at [18]-[20].
It is important to contrast the purpose of the provisions in the SPA relating to the imposition of paedophile restraining orders on the one hand with the purpose of the Intervention Orders Act on the other. The scope of the Intervention Orders Act is ‘to assist in preventing domestic and non-domestic abuse, and the exposure of children to the effects of domestic and non-domestic abuse.’[6] It achieves this by protecting specified individuals from proscribed conduct by a nominated defendant.[7]
[6] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 5(a).
[7] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 12.
By contrast the purpose of the provisions relating to paedophile restraining orders is to protect a class of persons, namely children, from harm by persons who have a history of offending against children. Both statutes concern the restriction of individual liberty in order to address legitimate public policy concerns. Such measures should demand a degree of specificity in the orders restricting the freedoms of a particular defendant. Nevertheless the terms of a paedophile restraining order must be afforded flexibility so as not to frustrate the protective purpose of the relevant provisions in the SPA. Fairness to a defendant is safeguarded in the provisions which require that the Court must be satisfied in the circumstances that making a paedophile restraining order is appropriate.[8]
[8] Summary Procedure Act 1921 (SA) s 99AA(1)(c).
Counsel for the appellant advanced a hypothetical scenario where a defendant might be separated from a child by a physical barrier while located within close proximity to the child, resulting in uncertainty when considering whether the defendant is in the vicinity of that child. Counsel conceded that the term ‘vicinity’ must be read in light of s 99AA(2) of the SPA which provides the prerequisite that the defendant is found to have been loitering, before establishing whether they were in the vicinity of the protected class of persons. If a defendant has an objectively identifiable purpose for being in a particular location, which may happen to be in the vicinity of children, then they cannot be said to be loitering or remaining in a location without a reasonable excuse.
In McIntosh v Police,[9] Anderson J considered whether a condition that the defendant be restrained from loitering at or in the vicinity of and being within 200 metres of a school, playground, public toilet or other public place frequented by children was a valid condition. It was submitted that the condition was invalid because it specified a geographical boundary and failed to specify that children actually were required to be present when the alleged breach occurred. Anderson J observed that the intention of Parliament was to prevent paedophiles from loitering near children in such a way and in such a manner as to make it likely that at some stage a further offence will be committed.[10] Mr McIntosh had been observed continuously hanging around a school when children arrived and left. He was also observed watching children in the school grounds. Anderson J concluded that condition 5 of the order should be read as prohibiting Mr McIntosh from loitering near children.[11] He said:[12]
It can thus be inferred that the word loitering in condition 5 should be interpreted consistently with s 99 AA to mean that the appellant is prohibited from loitering near children.
[9] [2007] SASC 24.
[10] [2007] SASC 24 at [26].
[11] I note that s 99AA(4) has been subsequently amended to not require the actual presence of children.
[12] McIntosh v Police [2007] SASC 24 at [27].
In Coulters v Police,[13] I agreed with Anderson J that the SPA was limited to restraining a defendant from loitering near children. I observed:[14]
The court has a discretion to impose geographical restraints or restraints by reference to circumstances in setting a condition to a PRO. For a condition of a PRO to be valid, it must expressly or implicitly restrain the defendant from loitering near children. The term “loitering” in a PRO is to be used to mean “loitering near children”. The term “loitering near children” is defined in s 99AA(4)(a) of the Act. Consequently, the defendant is restrained from loitering without reasonable excuse at or in the vicinity of place in which children are regularly present, when children are present. Section 99AA(4)(a) deems a school or public toilet to be a place at which children are regularly present.
These decisions did not consider the validity of the term ‘vicinity’.
[13] (2007) 98 SASR 561.
[14] (2007) 98 SASR 561 at [26].
In my view, use of the term ‘vicinity’ in a condition of the impugned order is valid. Section 99AA(2) specifically authorises the imposition of a condition that a defendant is not to loiter near children, or in the vicinity of a specified place. “In the vicinity of” can otherwise be described as “in the proximity”. The word is flexible. The flexibility in the word does not mean it is unclear or ambiguous. It should be interpreted according to its accepted wording and practical meaning, having regard to the legislation and context in which the term is used. Accordingly, the term is to be interpreted having regard to the objects of the SPA, being the protection of children from the unwanted attention of adults who have demonstrated a sexual attraction to children. I reject the submission that prohibiting a defendant from loitering or remaining in the vicinity of children without a reasonable excuse is too imprecise or uncertain. The condition appropriately limits the liberty of a defendant to remain in the proximity of children in order to protect this vulnerable class of persons in the community.
Proof of intention or knowledge
Counsel for the appellant contends that the Magistrate erred in finding that the prosecution was not required to prove that the defendant either intended to loiter in the vicinity of children, or had knowledge of the presence or likely presence of children in the vicinity. Counsel referred to the decision of the High Court (Gibbs CJ, Mason, Brennan and Dawson JJ, Wilson J dissenting) in He Kaw Teh v The Queen[15] in submitting that there is a presumption that an essential element of a serious criminal offence is the mental state of the defendant accompanying the physical conduct.
[15] (1985) 157 CLR 523.
Counsel contends that the prosecution must prove that the appellant intended to breach the order or, in the alternative, establish that the appellant had knowledge of the presence or likely presence of children.
Counsel refers to the decision of Coulters which identifies the following elements the prosecution must prove to establish the offence of contravening a paedophile restraining order:[16]
·That the defendant was loitering.
·That he had no reasonable excuse.
·That it was in the vicinity of a school, public toilet or a place at which children are regularly present.
·That children were present at the place specified.
[16] [2007] 98 SASR 561 at [37].
Counsel submits that Parliament intended for the offence to contain an additional element requiring proof that the defendant intended to loiter in the vicinity of children, or had knowledge of a child or the likely presence of child at a location which is in the vicinity of the defendant.
Counsel for the respondent contends that an application of the principles for determining whether a statutory offence contains a mental element, as established in He Kaw Teh, leads to the conclusion that the offence is one of strict liability. It is submitted that a requirement of proving intent or knowledge would undermine the protective purposes of the statutory framework. Counsel further contends that the requirement of personal service on the defendant before a paedophile restraining order becomes binding,[17] the availability of an application to vary or revoke a paedophile restraining order by the defendant,[18] and the defence of reasonable excuse support the offence being one of strict liability.
[17] Summary Procedure Act 1921 (SA) s 99E.
[18] Summary Procedure Act 1921 (SA) s 99F.
In Police v Beukes[19] Vanstone J considered whether the offence of contravening a domestic violence order required proof of intention or knowledge that the defendant’s conduct was in breach of the order. A Magistrate revoked an intervention order after finding no case to answer on the basis of the defendant’s lack of intention to commit the offence. The police appealed. Vanstone J referred to the remarks of Gibbs CJ in He Kaw Teh. She said:[20]
In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203 there was reference to the common law presumption that mens rea – sometimes called an evil intention or knowledge of the wrongfulness of the act – is an essential element in every offence. At 529-530; 206-607 Gibbs CJ, with whom Mason J agreed, explained the approach to determining whether in creating a statutory offence the parliament intended that mens rea need not be proved. The Chief Justice said that first, regard must be had to the words of the statute creating the offence. Next, the subject matter with which the statute dealt needed to be considered. Finally, consideration needed to be given to the question of whether imposing strict liability upon a defendant would promote the observance of the provision. That is, was there some means available to a defendant to help him avoid contravention.
[19] (2011) 205 A Crim R 406.
[20] (2011) 205 A Crim R 406 at [8].
Vanstone J applied the principles identified by the former Chief Justice of the High Court to the particular offence and concluded:[21]
Therefore, I agree with the submission by the appellant that the offence created is one of strict liability. The only intention which must be proved by the prosecution is an intention to do the acts which constitute the breach of the order. The prosecution must prove that those acts were intentional or reckless. It is not necessary to prove that the defendant intended by those acts to contravene the order, or that he knew that his actions amounted to a contravention of the order. That leaves the prosecution with the task of excluding the defence of honest and reasonable mistake of fact, if it is raised.
[21] (2011) 205 A Crim R 406 at [10].
Counsel for the appellant sought to distinguish the present case from Beukes on the basis that the earlier decision dealt with a domestic violence intervention order imposed to protect an individual while the present case concerns the protection of a class of persons. This submission misses the point. What is required is an application of the principles established in He Kaw Teh to determine whether the offence is one of strict liability.
In considering the wording of the statute, there is nothing in the provision which implies any form of mental element. Section 99I of the SPA provides:
99I—Offence to contravene or fail to comply with restraining order
(1)A person who contravenes or fails to comply with a restraining order or a registered foreign restraining order is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
A plain English interpretation of the words suggests that Parliament did not intend to import a mental element in the offence. The wording of the provision is in similar terms to that considered by Vanstone J in Beukes.
The subject matter of the provision and its associated statutory framework concerns the protection of a vulnerable class of persons in the community, namely children. The purpose of such a provision, along with s 99AA, is to deter a defendant with a history of offending against children from reoffending by removing the opportunity of having contact with children. This tends to support the offence being one of strict liability since strict compliance with the conditions of a paedophile restraining order is essential for the provisions to achieve their purpose.
Finally, whether imposing strict liability has the effect of promoting compliance with the statutory regime is a pertinent consideration. It would be nearly impossible to enforce breaches of this provision if the prosecution were required to obtain evidence of the defendant’s intention or knowledge of loitering in the vicinity of children. In many cases a defendant would not necessarily have in their possession binoculars or a camera from which to infer intention or knowledge. As pointed out by Vanstone J in Beukes in relation to domestic violence orders, a paedophile restraining order becomes binding on the defendant only once it has been personally served.[22] While the defendant is subject to a paedophile restraining order they are deemed to be aware of its conditions and the penalties which accompany any breach of those conditions. Further the defendant has the defence of reasonable excuse available.
[22] Summary Procedure Act 1921 (SA) s 99E.
Counsel for the appellant referred the Court to the second reading of the Statutes Amendment (Paedophiles) Act 1995 (SA) which introduced the provisions relating to paedophile restraining orders into the SPA.[23] It is submitted that the Attorney-General’s emphasis on the need to balance giving police the power to adequately protect children with ensuring that individual liberties are not unfairly eroded supports the contention that the offence contrary to s 99I contains a mental element.[24] In my view there is nothing in the Attorney‑General’s explanation which sheds any light on whether breaching a paedophile restraining order is an offence of strict liability or requires proof of a mental element. The wording of the statute is unambiguous.
[23] Summary Procedure Act 1921 (SA) Part 4 Division 7.
[24] Hansard, House of Assembly 01/06/95, p. 2500.
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.
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