Local Court of New South Wales CITATION: P v Anthony Reid [2010] NSWLC 16 JURISDICTION: Criminal PARTIES: NSW Police Mr Anthony Reid FILE NUMBER: PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 03/23/2010 MAGISTRATE: Magistrate Huber CATCHWORDS: convicted child sexual offender, without reasonable excuse, definition of 'loiter', in or near public place regularly frequented by children. LEGISLATION CITED: Summary Offences Act 1988 CASES CITED: TEXTS CITED: Prosecution: Sgt Carlon REPRESENTATION: For and with the Accused: Mr Hamil ORDERS: 1 The Accused faces two charges pursuant to section 11G of the Summary Offences Act. ie he, being … a convicted child sexual offender and who loiters, without reasonable excuse in or near … a public place regularly frequented by children and in which children are present at the time of the loitering … is guilty of an offence 2 The Accused concedes that he is a "convicted child sexual offender" as defined by the section; the areas where the Accused was seen to be at the time of the alleged offences were public places regularly frequented by children; and that children were present at the time of the alleged offence. 3 The primary issue is whether or not the actions of the Accused amount to "loitering" and if they did, whether he had a reasonable excuse. 4 It is not an offence for a convicted child sexual offender to merely be in or near a public place that is regularly frequented by children and where children are present. He must be there loitering without a reasonable excuse. Facts 5 Identification is not an issue save for the evidence given by Mr Grainger. 6 The Accused did not give evidence. 7 The Accused participated in an electronically recorded interview. However when questioned about his movements on the days in question he chose to exercise his right to silence. 8 The allegations are essentially that: 9 On 23 January 2009 the Accused was in the water off Long Reef Beach Collaroy. At the time he was in the water he was on a body board and was seen by Robert Hazelwood (a person known to the Accused) to "float" through a surf school of 30 – 100 children. 10 He was seen to be kicking his legs drifting with the current away from the crowd. He was "generally just looking around looking at the children". 11 There was no evidence as to where or when the Accused entered the water. 12 Grainger (a stranger to the Accused) gave evidence that on 23 January 2009 he saw a man he believed to be the Accused standing on the waters-edge staring out to sea in the direction of school children in the water. He watched the Accused for 15 – 20 minutes. The man would walk off and return, watch the children for about 7 minutes, walk off, return and watch for 7 minutes and then walk off again. 13 On 18 February 2009 the Accused was seen again by Hazelwood to be standing on the water's edge on the north side of the pool at Collaroy. There were children going in and out of the water within metres of the Accused. 14 The Accused was seen to remain there for about 5 minutes. 15 Hazelwood lost sight of him. Shortly after he saw the Accused walking towards the amenities building. The Accused was seen to take the most direct route to the building which was via the carpark where a large group of school children were gathered waiting to get into their buses. 16 Hazelwood was aware that the Accused was a convicted child sexual offender. He co-opted a fellow instructor to confront the Accused. Together they entered the amenities building and saw the Accused using the urinal which was adjacent to the change rooms where a number of children were getting changed. The Accused was seen to have his head turned towards the change rooms. 17 Hazelwood told the Accused to "piss off" and the Accused then left the building and went directly to his car and left. Loiter 18 Loiter is not defined in the Act. 19 Butterworths Australian Legal Dictionary defines "loiter" as "To idle or linger". 20 The Macquarie Dictionary defines "loiter" as: "to linger idly or aimlessly in or about a place; to move or go in a slow or lagging manner; to waste time or dawdle" The Charges 23 January 2009 21 Hazelwood gave evidence that he did not see the Accused do anything that would cause him to "remain in the area" or to linger. He moved with the current straight through the school. There was no evidence that what he was doing: ie the floating with the current was aimless, slow or lagging in manner. 22 Absent any evidence as to where and when he entered the water and that he did anything which caused him to "linger idly or aimlessly in or about a place; or to move or go in a slow or lagging manner", I could not be satisfied that floating with the current on a body board falls within the definition of "loiter" 23 The fact that his path took him through a school of children even though evidence was given that most people in the water avoided large groups of children is insufficient to ground the offence: he must also be found to be loitering. 24 Grainger's description of the man standing on the water's edge staring out to sea does fall squarely within the definition of "loiter". The issue, however, is whether or not I could be satisfied beyond reasonable doubt as to his identification of the Accused. 25 Identification is a notoriously difficult area of evidence and I am required to give myself a number of warnings, which I do. 26 Grainger and the Accused are strangers to each other. 27 On 27 February (five weeks after the alleged offence) the police showed Grainger a photograph of the Accused. They asked Grainger to let them know if he sees him. 28 Grainger told the police he did not recall seeing him on that day. He did not tell the police that he had seen the Accused on previous occasions. 29 Grainger had been made aware by Hazelwood that the man in the photograph was a child sexual offender and had also been told by Hazelwood of the circumstances of the recent sightings. 30 At court he gave evidence that he recognized the Accused as soon as he was shown the photograph. His evidence was that he had seen the man at the beach in and out of the water on 23 January, 10 February and 13 February. He also gave evidence that he had seen the Accused in the water on 18 February (the day he was shown the photograph). 31 On 23 January the closest Grainger got to the man was 20 metres. At no time did he see the Accused in the water on 23 January. 32 It was put to Grainger in cross-examination that the man he saw on 23 January was not the Accused. Grainger was adamant that he was able to discern his facial features and recognized his wetsuit although he conceded that apart from the white stripe there was nothing remarkable about the wetsuit. 33 Having regard to all the evidence surrounding the manner of identification I could not be satisfied beyond reasonable doubt that the man Grainger saw on 23 January standing in the one place for 7 minutes looking at the water was the Accused. 34 The Charge is dismissed. 18 February 2009 35 There is no evidence that the Accused walked through the car park at anything less than a normal pace. The evidence was that he took the most direct route from the beach to the amenities block and that his car was parked on the other side of the block: ie he had to pass the block to get to his car. The fact that the path he chose took him through a crowd of children and that most people do not like to go through a crowd of children, absent "loitering" does not amount to an offence under the Act. 36 There is no evidence before the Court that the Accused remained at the amenities block other than to use the urinal. The fact that whilst using the urinal he was able to see children and was in the vicinity of children getting changed, absent "loitering" does not amount to an offence under the Act. 37 The Defence submitted that to simply stand on the water's edge for 5 minutes does not amount to "loiter". I disagree. Clearly it falls within the definition of to "linger idly or aimlessly in or about a place" 38 The Accused does not offer an excuse (let alone a reasonable one) for his actions. 39 Mr Coyne, the Accused's solicitor, gave evidence that the Accused had asked him on his release from custody whether or not it was all right for him to go to the beach to surf. Mr Coyne had advised him that it was all right for him to surf, however he recommended that he stay away from Narrabeen where the original offending had taken place. 40 The arresting police also gave evidence that they had had the Accused under surveillance for some time leading up to the date of arrest. They had seen him jog on the beach and surf: ie not loiter. 41 The fact that the Accused had from time to time been to the beach and not loitered does not provide a reasonable excuse for him to loiter on 18 February. 42 I find the offence proved. ……………………………………. J.A. Huber Magistrate Local Court of NSW DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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