Samuels v Stokes [1973] HCA 62

High Court of Australia Barwick C.J. McTiernan, Menzies, Walsh and Gibbs JJ. Samuels v Stokes [1973] HCA 62

ORDER Appeal allowed. Order of the Full Court of the Supreme Court of South Australia set aside and in lieu thereof order that the appeal to that Court be dismissed with costs. Pursuant to the undertaking given on the application for special leave the appellant will pay the respondent's costs of this appeal.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Menzies. I am in substantial agreement with my brother's construction of s. 18 of the Police Offences Act, 1953-1972 S.A., and his conclusion that the respondent's remaining in the intersection of Pirie and Hyde Streets, Adelaide, on the occasion and in the circumstances detailed by him amounted to loitering in a public place within the meaning and operation of s. 18. I do not desire to express any concluded view as to the meaning of the verb "to loiter" or the word "loiters", as either may be found in some context other than that of s. 18 or in some substantially identical context.

As I agree that merely to remain as the respondent did in the intersection of Pirie and Hyde Streets was to loiter there within the meaning of s. 18, the offence constituted by s. 18 (2) was fully made out upon proof of the police officer's request to desist from loitering and of the respondent's failure to move away. I agree with my brother Menzies' conclusion that s. 6 of the Public Assemblies Act, 1972 S.A., did no more than afford the respondent a defence to the charge under s. 18 (2) of the Police Offences Act. Such a defence was not raised.

As, in my opinion, proof of unlawfulness in the purpose of the respondent's remaining in the intersection of Pirie and Hyde Streets was no necessary part of the proof of an offence under s. 18 (2), I do not consider that this was a case in which, if evidence had been given which did no more than raise the possibility of the existence of a defence under s. 6 of the Public Assemblies Act, it would have rested on the Crown to negative such a matter of defence. In other words, it would not have rested on the Crown to disprove the existence of any approved proposal or that the terms of any approval which did exist had not been complied with. Nothing, in my opinion, in Woolmington v. Director of Public Prosecutions [1] and the cases which have followed it require a contrary conclusion.