Samuels v Stokes [1973] HCA 62; (1973) 130 CLR 490 (21 December 1973)

HIGH COURT OF AUSTRALIA

SAMUELS v. STOKES. [1973] HCA 62; (1973) 130 CLR 490

Criminal Law - Police Offences (S.A.)

High Court of Australia.
Barwick C.J.(1), McTiernan(2), Menzies(3), Walsh and Gibbs(4) JJ.
(THE RIGHT HONOURABLE MR. JUSTICE WALSH died before the delivery of judgment in this case.)

CATCHWORDS

Criminal Law - Defence - Affirmative defence that act unlawful under one statute made lawful under another - Onus of proof. Police Offences (S.A.) - Loitering in public place - Person participating in demonstration procession &which had become stationary and disordered - "Loitering" - Whether public assembly conducted in conformity with approved principles - Onus of proof - Police Offences Act, 1953-1972 (S.A.), s. 18 - Public Assemblies Act, 1972 (S.A.), s. 6.

HEARING

Adelaide, 1973, September 25,26;
Sydney, 1973, December 21. 21:12:1973
APPEAL from the Supreme Court of South Australia.

DECISION

December 21.
The following written judgments were delivered :-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons 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. (at p492)

2. 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. (at p492)

3. 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 [1935] UKHL 1; (1935) AC 462 and the cases which have followed it require a contrary conclusion. (at p492)

4. Otherwise I agree with my brother Menzies' reasons for the conclusions he expresses. I would allow the appeal. (at p492)

McTIERNAN J. A complaint was made under the Justices Act, 1921-1972 (S.A.), by L.E. Samuels, a sergeant of police against Miss J.B. Stokes, a young school teacher alleging that she did not cease loitering in Hyde Street, Adelaide, when requested to do so by a policeman who purported to be acting under s. 18 (2) of the Police Offences Act, 1953-1972. Section 18 (3) provides that : "A person of whom a request is made under subsection (2) of this section shall cease loitering and shall leave the place in which he was loitering and the area in the vicinity thereof". The complaint was tried by a special magistrate in a court of summary jurisdiction at Adelaide and he found the offence proved. In the exercise of powers conferred by the Justices Act and the Offenders Probation Act of the State, the special magistrate refrained from recording a conviction. However the defendant appealed against the determination and order of the special magistrate to the Supreme Court of South Australia. The appeal was heard by the Full Court. A majority of the Court considered that the determination on the issue of guilty was erroneous. The Court made an order reversing the determination and setting aside the order of the special magistrate (1973) 5 SASR 18 . The complainant made an application to the High Court of Australia for special leave to appeal against the order of the Supreme Court. The application was granted. (at p493)

2. The first question for decision is whether the defendant was loitering within the meaning of s. 18 (2) of the Police Offences Act, 1953-1972, when a policeman requested her to cease loitering. The interpretation clause of the Act says nothing about "loiter" or "loitering". Section 18 (2) is as follows :

"Where a person is loitering in a public place and a member
of the police force believes or apprehends on reasonable grounds
- (a) that an offence has been or is about to be committed by
that person or by others in the vicinity ; (b) that a breach
of the peace has occurred, is occurring or is about to occur
in the vicinity of that person ; (c) that the movement of
pedestrians or vehicular traffic is obstructed, or is about to be
obstructed, by the presence of that person or of others in the
vicinity ; or (d) that the safety of that person or of others in
the vicinity is in danger, the member of the police force may
request that person to cease loitering." (at p493)

3. The term "public place" is defined in s. 4. It includes any street or footway which the public are allowed to use. It is clear that the object of s. 18 (2) is to empower a policeman, in the circumstances mentioned in this subsection to give an order, backed by a legal sanction, to a person who is loitering in a "public place", as defined, to leave the place in which the person is present. A sense of the word "loiter", appropriate to the context, is that a person is seen to be unnecessarily slow in leaving or is staying around without real necessity. The latter description of loitering, if not the former, was applicable to the defendant's behaviour when the policeman requested her to "cease loitering". The particulars of the complaint, furnished by the complainant, include the following :

" . . . on 10/5/72 Miss Stokes was a participant in a march
through Adelaide streets in the form of a demonstration.
At about 2.45 p.m. she was one of a large group of
demonstrators who had been stationary for about fifteen minutes at
the intersection of Pirie Street and Hyde Street. The group
was requested several times over the police amplification
system to cease loitering. The loitering alleged is the
remaining stationary at this location during that period of
approximately fifteen minutes in the circumstances that are further
particularised herein. (ii) All vehicular traffic travelling in
all directions at the intersection was brought to a standstill
by the group of demonstrators on the carriageways. Miss
Stokes was a participant with the group in this obstruction.
(iii & iv) She did not cease loitering and leave the intersection
and its vicinity, despite five requests directed personally to
her by Constables Wyatt and Paxon, but remained until she
was arrested. She waved a flag and defied them."

The learned special magistrate found that these particulars and the averments in the complaints were proved by the evidence adduced for the complainant. In my opinion the decision of the special magistrate is correct. (at p494)

4. A second point put forward in argument on behalf of the defendant is based upon the Public Assemblies Act, 1972. This Act and the Police Offences Act Amendment Act, 1972, were assented to on 6th April 1972. Section 3 of the latter Act amended the Police Offences Act, 1953-1967, by adding to s. 18 of that Act the provisions which are s. 18 (2) and (3) of the Police Offences Act, 1953-1972. The Police Offences Act Amendment Act, 1972, and the Public Assemblies Act, 1972, were in force on 10th May 1972, the date of the alleged offence. The Public Assemblies Act, 1972, has a long title which reads "An Act to provide for the orderly conduct of assemblies and processions in public places ; and to make various provisions incidental thereto." (at p494)

5. The interpretation clause, s. 3, says- " 'assembly' means any assembly, convention, gathering or procession" ; and that "public place" includes "(b) any road, street, footway, court, alley or thoroughfare to which free access is permitted to the public whether or not the road, street, footway, court, alley or thoroughfare is on private property". This definition follows s. 4 (1) (c) of the Police Offences Act, 1953-1972. Section (6) of the Public Assemblies Act, 1972, provides :

"(1) Where the conduct of an assembly conforms with
approved proposals, a person participating in the assembly -
(a) may, in accordance with the proposals, position himself,
or proceed over, any portion of a public place defined or
described in the proposals ; and (b) in acting in conformity
with the proposals does not incur any civil or criminal
liability by reason of the obstruction of a public place.
(2) An act permitted by this section is lawful notwithstanding
the provisions of any other Act or law regulating the
movement of traffic or pedestrians, or relating to the use or
obstruction of a public place."

The point raised in respect of this Act is that the complainant had the onus of proving that notice had not been given pursuant to s. 4 of the last-mentioned Act of the march on 10th May 1972, and the march had not been approved. (at p495)

6. Section 56 of the Justices Act, 1921-1972 (S.A.), provides :

"(1) No exception, exemption, proviso, excuse, or
qualification (whether it does or does not accompany in the same
section the description of the offence in the Special Act or
other document creating the offence) need be specified or
negatived in the complaint. (2) Any such exception,
exemption, proviso, excuse, or qualification as aforesaid may be
proved by the defendant, but, whether it is or is not specified
or negatived in the complaint, no proof in relation to it shall
be required on the part of the complainant."

(at p495)
7. "Special Act" is a term mentioned in the interpretation clause of this Act. The "Special Act" applicable to the present case is the Police Offences Act, 1953-1972. In my opinion the complaint was not insufficient against the defendant for want of an averment that she was not entitled to the exemption from liability provided by s. 6 of the Public Assemblies Act, 1972. This Act and the Police Offences Act Amendment Act, 1972, do not depend upon each other. If the exemption enacted by s. 6 of the Public Assemblies Act is relevant it is relevant only if alleged by the defendant as a ground of defence (R. v. James (1902) 1 KB 540, at p 545 ), and it was not so alleged. There was no evidence upon which the special magistrate could find that the defendant was entitled to the benefit of s. 6.
(at p495)

8. I would allow the appeal and restore the adjudication and order of the special magistrate.

MENZIES J. The respondent was found guilty by a magistrate of an offence against s. 18 of the Police Offences Act, 1953-1972 (S.A.), in that she did not cease loitering in a public place when requested so to do by a police officer. The public place was the intersection of two Adelaide streets - Pirie and Hyde Streets. At this intersection a demonstrating procession, in which the respondent was a participant, had stopped for some five to ten minutes prior to the request in question being made by a police officer then and there on duty. By a majority the Full Court of the Supreme Court of South Australia decided that, because of the provisions of the Public Assemblies Act, 1972 (S.A.), it had not been proved that the respondent was loitering when the request to cease loitering was made and that the charge should therefore have been dismissed. The Chief Justice said :

"Apart from the question of the Public Assemblies Act I
think there was evidence on which the learned special
magistrate could conclude as he did that there was no apparent and
lawful purpose for her remaining in the intersection after the
forward movement of the march had ceased and the marchers
remained in possession of the intersection. As I have said,
I think she had an apparent purpose for so lingering, but not
a lawful one in the absence of some special justification. I
say that because I think that there is evidence that in
remaining where she was, despite injunctions to move on, she
was both appreciably and unreasonably diminishing the space
available for passing and repassing, and aiding and abetting
others to do the same. She was, I think, proving her unity
with what the demonstrators in Hyde Street as a whole were
doing in remaining there, though not, I repeat, in indulging
in acts of violence or disorder." (1973) 5 SASR, at pp 32-33 . (at

p496)

2. The Public Assemblies Act provides a procedure whereby a
proposal for an assembly - which includes a procession - that is to be held in or to proceed through a public place, may become an approved proposal. Section 6 is as follows :

"6. (1) Where the conduct of an assembly conforms with
approved proposals, a person participating in the assembly -
(a) may, in accordance with the proposals, position himself,
or proceed over, any portion of a public place defined or
described in the proposals ; and (b) in acting in conformity
with the proposals does not incur any civil or criminal
liability by reason of the obstruction of a public place.

(2) An act permitted by this section is lawful
notwithstanding the provisions of any other Act or law regulating the
movement of traffic or pedestrians, or relating to the use or
obstruction of a public place." (at p496)

3. The learned Chief Justice said :

"It may, of course, be readily conceded that it is unlikely
that anyone engaging in acts of violence and disorder in
Hyde Street was acting in conformity with approved proposals.
But that is not the point. Section 6 says that a person acting
in conformity with the proposals does not incur any civil or
criminal liability by reason of the obstruction of a public
place and if there were any approved proposals the appellant
might have been acting in conformity with them, even if
other people were not. I concede again that it is unlikely
that any approved proposals would include the occupation of
Hyde Street and here there is evidence that those at the head
of the march were exhorting the marchers to move on. But
the unlikelihood of a proposition is not equivalent to its
exclusion beyond reasonable doubt. It is more important to
preserve the general rule about the onus on the prosecution
to prove every ingredient of its case and to negative any
defence reasonably open to the defence beyond reasonable
doubt, statutory exceptions and the defence of insanity apart,
than it is to prevent a person with a defence, reasonably
suspected but not proved to be unfounded, from escaping on
a charge of a technical offence." (1973) 5 SASR, at pp 36-37

(at p497)

4. In effect the decision of the Full Court was that a person loiters in a public place only if he lingers there either idly or for an unlawful purpose and that, as the respondent did not linger in Hyde Street idly, it was for the prosecution to prove that she lingered there for an unlawful purpose and it was therefore for the prosecution to negative the application of s. 6 of the Public Assemblies Act, and this had not been done.

5.Before this Court it was contended that, contrary to the conclusions of the Full Court, the evidence did not show that the respondent was loitering without having resort to the provisions of the Public Assemblies Act and, alternatively - and here I adopt a summary from the judgment of Wells J. of the contentions in the Full Court -
"(1) It is for the prosecution to prove the case beyond reasonable doubt and, in particular, to disprove any defence fairly open.
(2) Section 6 of the Public Assemblies Act would provide a defence if it appeared that the defendant was acting in accordance with approved proposals.
(3) For all that appears from the evidence in the case, the march may have taken place under and pursuant to approved proposals, and the defendant may have been 'acting in conformity with (those) proposals'.
(4) The defendant may, therefore, have 'not incur(red) a civil or criminal liability by reason of the obstruction of the public place'.
(5) Section 6 of the Public Assemblies Act therefore provided a defence fairly open to the defendant and it had not been disproved ; and, therefore,
(6) The defendant is not guilty of the offence charged." (1973) 5 SASR, at p 62
(at p497)

6. The first question is, therefore, if there was evidence warranting the conclusion of the magistrate that, independently of s. 6 of the Public Assemblies Act, the respondent was loitering in Hyde Street.
(at p497)

7. The evidence was that she, with other participants in the procession held in Hyde Street, had occupied the intersection and that, when requested to cease loitering, she had been standing where she was for from five to ten minutes, outside the Combined Services Recruiting Office, waving a flag, but that she herself did not take part in the violence that then and there ensued and which consisted in the throwing of fruit and tomatoes at the office, the setting off of smoke cannisters among the police and assaults upon the police. (at p498)

7. Whether the action of the respondent in standing as she did at the intersection amounted to loitering there depends upon the meaning to be given to the word "loitering" in s. 18 of the Police Offences Act. That section is as follows :

"18. (1) Any person who lies or loiters in any public
place and who, upon request by a member of the police force,
does not give a satisfactory reason for so lying or loitering shall
be guilty of an offence.
(2) Where a person is loitering in a public place and a
member of the police force believes or apprehends on
reasonable grounds - (a) that an offence has been or is about to be
committed by that person or by others in the vicinity ;
(b) that a breach of the peace has occurred, is occurring or
is about to occur in the vicinity of that person ; (c) that the
movement of pedestrians or vehicular traffic is obstructed or
is about to be obstructed, by the presence of that person or
of others in the vicinity ; or (d) that the safety of that
person or of others in the vicinity is in danger, the member
of the police force may request that person to cease loitering."

(at p498)

8. The context of the word "loiters" in this section is important. It is used in conjunction with the word "lies" and I can find no reason for treating that word as denoting anything more than a particular physical act. Furthermore, the section contemplates that the person who lies or loiters, and to whom a request for his reason for doing so is made, may or may not "give a satisfactory reason" for his so doing. A person may therefore loiter for a satisfactory reason. A person may therefore loiter for a purpose. Moreover, from another section of the Police Offences Act it is apparent that a person may loiter otherwise than idly or aimlessly. Thus, by s. 25, it is an offence to loiter in a public place for the purposes of prostitution. (at p498)

9. In this setting it seems to me that the word "loiter" means no more than "tarrying", or, to use a phrase that has received judicial recognition, "hanging about". A person may loiter who has a reason, lawful or unlawful, for standing sitting or sauntering in a public place. It is to be observed that merely to loiter in a public place is not made an offence and there is, therefore, no compelling reason for reading the word in a narrow sense. The offence created by s. 18 (1) is failing to give a satisfactory reason for loitering and I am not greatly impressed by the suggestion that to read the word "loiters" in s. 18 as I am disposed to do would constitute a serious infringement of individual liberty. Furthermore, s. 18 (2), by reason of the strict limitation of the power of a member of the police force to request that a person should cease loitering, is consonant with attributing to the word "loiters" a meaning which would cover remaining stationary for some reason which was in no way unlawful. The conditions stipulated for the making of a request are consistent with obliging a person to move on, notwithstanding that otherwise he is committing no offence in remaining where he is. (at p499)

10. I consider that, without any context, the word "loiters" does ordinarily carry the meaning lingering idly or aimlessly, and not merely lingering, but the context to which reference has been made suggests that here a person who merely lingers is a person who loiters, regardless of his reason for so lingering. Moreover, it does not seem to me oppressive, and therefore unlikely, that authority should be given to a member of the police force to ask a person lingering in a public place why he is doing so, or to authorize a member of the police force to request a person so lingering to stop doing so in any of the circumstances stated in s. 18 (2) (a), (b), (c) and (d). It must also be remembered that, although, without some context, the word "loiter" would carry the suggestion of idling or lack of purpose, there are many decided cases which establish that to hang about with an unlawful purpose is to loiter. See, e.g., Olholm v. Eagles (1914) VLR 379 ; Milne v. Mutch (1927) VLR 190 ; Rawlings v. Smith (1938) 1 KB 675 . In s. 18 of the Police Offences Act the context to which I have referred seems to me to deny that either lack of purpose or an unlawful purpose is a necessary element of loitering. (at p499)

11. To support the appellant's contention that loitering meant no more than lingering, with or without a purpose, reference was made to the circumstance that the Police Offences Act, 1972, was one of three contemporaneous enactments, and it was suggested that one of them, namely the Public Assemblies Act, 1972, would be ineffective if loitering were to be regarded as not comprehending lingering with the purpose of demonstrating. However, the three enactments do not form part of any relevant legislative scheme and there is no legislative direction that they should be read together. In these circumstances I derive little assistance in interpreting the Police Offences Act, 1972, from the fact that it was enacted contemporaneously with the Public Assemblies Act, 1972, although the fact that the interpretation which I have adopted of the word "loiters" in the Police Offences Act is one that is consistent with attributing to the Public Assemblies Act an effective operation is a consideration that certainly does not militate against the adoption of that interpretation. (at p500)

12. Accordingly, I consider that the magistrate was not in error in his ultimate conclusion that the respondent was loitering in the intersection when she was requested to cease loitering and that the Full Court was in error in deciding that a person who was not shown to be lingering either aimlessly or with an unlawful purpose could not be found to have been loitering for the purpose of s. 18 of the Police Offences Act. (at p500)

13. The effect of s. 6 of the Public Assemblies Act remains for consideration. (at p500)

14. To bring this section into operation would require proof that a proposal for an assembly had been approved ; that the conduct of the assembly conformed with the approved proposal ; that the respondent, in accordance with the proposal, had positioned herself, as she did, in the intersection being a public place defined in the proposal. Upon proof of these matters the section would protect the respondent from any liability by reason of the obstruction of the public place in which she stood, namely an intersection. The section also provides that, in the circumstances stated, her act of so positioning herself would be lawful. It remains a question whether a person who has positioned herself as aforesaid and is requested by a member of the police force to cease loitering, could refuse to comply with that request without committing an offence against s. 18 (3). Section 18 imposes no liability "by reason of the obstruction of a public place". Moreover, s. 18 operates in respect of a loitering that is lawful. However, s. 18 is a law relating to the use of a public place and, accordingly, I think that to continue to loiter in a public place after a police request to cease loitering would be an act permitted by s. 6 of the Public Assemblies Act and would be lawful notwithstanding s. 18 of the Police Offences Act. (at p500)

15. It is, however, quite another problem whether, upon a charge for breach of s. 18 (3) of the Police Act, it is for the prosecution to negative the operation of s. 6 of the Public Assemblies Act. In my opinion, upon a charge laid under s. 18 of the Police Offences Act, it is not for the prosecution to disprove that s. 6 of the Public Assemblies Act made lawful a continued loitering after a police request, made under s. 18 of the Police Offences Act, to cease loitering. It would be for the person charged to show that, notwithstanding non-compliance with s. 18, the continued loitering was lawful by virtue of compliance with s. 6 of the Public Assemblies Act, or, at least, at the end of the case to have raised a reasonable doubt about that matter. That a person charged with an offence under s. 18 of the Police Offences Act is not within the terms of s. 6 of the Public Assemblies Act is not in any way an element of the offence charged. A person so charged may, however, say that his not ceasing to loiter is lawful, notwithstanding s. 18 of the Police Offences Act, because it is an act permitted by s. 6 of the Public Assemblies Act. This would be a positive defence which it would be for the person charged to raise although if raised and supported by evidence which left the unlawfulness of continued loitering in doubt the prosecution would fail, for not only must the prosecution prove every ingredient in an offence charged, it must also satisfy the tribunal beyond reasonable doubt that a defence open upon the evidence should be rejected : Mancini v. Director of Public Prosecutions (1942) AC 1, at pp 7-8, 11-13 . The case most nearly in point is R. v. Hall (1786) 1 TR 320 (99 ER 1117) , where it was decided that, upon a charge for an offence under one Act, it is for the defendant to show by way of defence that he falls within the provisions of another Act, which, if applicable, would make lawful what is alleged as the offence. In Roberts v. Humphreys (1873) LR 8 QB 483 , where an offence was created in one section of an Act and a ground of defence was given in a later section, Blackburn J. said (1873) LR 8 QB, at p 489 : "Thus the offence is created by the one part, and a ground of defence is given by the subsequent part, which according to all rules of pleading must be pleaded by the defendant." Where a defence is given in a different Act the same would seem to be the case a fortiori. (at p501)

16. In reaching the conclusion which I have expressed I do not rely upon either s. 56 of the Justices Act, 1921-1960 (S.A.), nor upon the common law principle that it is for a defendant to prove facts peculiarly within his own knowledge. My decision rests upon the simple proposition that s. 6 does no more than provide a person with an answer to a charge of breach of a provision of the Police Offences Act relating to the use of a public place. (at p501)

17. In this case it was not until the informant's case was closed that reliance was placed upon s. 6 of the Public Assemblies Act and then without more than the submission that it was for the prosection to prove that it did not provide the respondent with a defence. No defence based upon s. 6 of the Public Assemblies Act was attempted. The defence now relied upon was not open on the evidence. (at p501)

18. Accordingly, in my opinion, the decision of the majority of the Full Court, based upon s. 6 of the Public Assemblies Act, was incorrect. (at p502)

19. Other matters were raised by counsel for the respondent, but were disposed of at the hearing and, in my opinion, require no further mention. (at p502)

20. I would allow the appeal and restore the order of the magistrate. (at p502)

GIBBS J. The facts of this case and the relevant statutory provisions are set out in the judgment of my brother Menzies which I have had the advantage of reading. (at p502)

2. To establish the commission of an offence against s. 18 (2) of the Police Offences Act, 1953-1972 (S.A.), the prosecution must prove the existence of the following elements of the offence - (1) that the defendant was loitering in a public place ; (2) that a member of the police force had the relevant belief or apprehension on reasonable grounds ; (3) that the member of the police force requested the defendant to cease loitering ; and (4) that the defendant did not leave the place in which he was loitering and the area in the vicinity thereof. Before the Full Court of the Supreme Court counsel for the present respondent (the defendant) submitted that the magistrate was wrong in finding that the second and third of these elements had been proved, and before us repeated the submission in relation to the second element, but the Full Court satisfactorily disposed of these arguments, in which there was no substance. It was not in contest that the fourth element was established. The question for decision, therefore, is whether the majority of the Full Court were right in holding that it had not been proved that the respondent was "loitering" within the meaning of s. 18 (2). (at p502)

3. The learned judges who constituted the majority of the Full Court held that to establish that the respondent was loitering it was necessary to prove that she lingered or remained in the area in question without any apparent and lawful reason. They said that she had an apparent reason - to take part in a public demonstration against the war in Vietnam - and that it was therefore necessary to prove that her reason was not legitimate. This, it was said, involved proof that she was not acting in conformity with approved proposals for an assembly under the Public Assemblies Act, 1972 (S.A.), and since that proof was wanting it was not shown that she was loitering. (at p502)

4. The word "loiter" and its derivatives have been used since the sixteenth century in statutes dealing with vagrancy, as Scott L.J. pointed out in Ledwith v. Roberts (1937) 1 KB 232, at pp 268-277 , and are also to be found in many comparatively modern statutes creating various sorts of police offences. In Ledwith v. Roberts, Scott L.J. said that the word "loiterer" has a "statutory meaning", and indicates that the person to whom it is applied is an "idle and disorderly person" (1937) 1 KB, at p 270 . In the same case Greer L.J. said that the word "loitering" meant "idling in the street for some unlawful purpose" (1937) 1 KB, at p 247 and the same idea appears in other authorities : Milne v. Mutch (1927) VLR, at p 193 ; Reg. v. Andsten and Petrie (1960) 32 WWR 329 . In Hagan v. Ridley (1948) 50 WALR 112, at p 124 , it was said by Dwyer C.J. that loitering means "remaining in or about or in the near vicinity of a restricted but not necessarily defined place without any apparent purpose or reason such as one might be expected to have in the conditions existing", and Wolff J. said that "Its ordinary meaning is to tarry or wait or idle aimlessly about a particular spot . . ." (1948) 50 WALR, at p 125 . In my opinion, it cannot be said that the word "loiter" has acquired a fixed "statutory meaning" to be given to it wherever it appears. The meanings suggested in these cases would be obviously inappropriate in certain contexts - e.g. in the regulation forbidding traffic to loiter which was considered in Fairfoul v. Somerville (1895) 23 R (J) 6 - and there is in any case no justification for treating "loiter" as a technical word to be construed in a technical sense. It ought normally to be understood in its ordinary sense but its meaning may, of course, be controlled by the context in which it appears. (at p503)

5. The word "loiter" in its ordinary sense does not connote remaining without a lawful reason. Dictionary meanings of the word include "to linger idly about a place" and "to hang about in an idle manner" ; it has other senses not relevant in the present content. In its natural meaning the word may suggest indolence or inactivity but it does not connote either legality or illegality ; a person may loiter for a legitimate reason (as s. 18 (1) of the Police Offences Act recognizes) and an unlawful purpose will not cause activity to become "loitering" if it could not otherwise be so described, e.g. a prostitute hastening directly on her way to catch a taxi would not be loitering for the purpose of prostitution within s. 25 (b) of the Police Offences Act, notwithstanding that she was on her way to an assignation. (at p503)

6. In my opinion the context of s. 18 (2) makes it clear that a person may be loitering although he is standing about with a perfectly lawful purpose. The words of the section make it clear that a person may be requested to leave the area, notwithstanding that he is lawfully there and that there is no suggestion that he has done or will do anything wrong. He may be asked to leave in the interests of his own safety, or to enable the police to deal more effectively with the illegal conduct of others, or simply as part of the process of dispersing a crowd. It was therefore not necessary to prove, as part of the prosecution's case, that the respondent had no lawful purpose for remaining in the street or to negative the application of s. 6 of the Public Assemblies Act, 1972. (at p504)

7. However it was said that the fact that the respondent had a purpose to be present - a purpose of supporting the demonstration - meant that she was not loitering. However, in my opinion, as I have already indicated, a person may loiter although he has a purpose in doing so - as is obvious in the case of a prostitute who loiters for the purpose of prostitution. The question whether a person is loitering would seem to me to be in general one that should be answered by an objective consideration of the observable facts rather than by an inquiry into the person's state of mind. The mere fact that a person is standing still in a street will not necessarily mean that he is loitering although when all the circumstances are regarded it may be held that he is. The facts of the present case put shortly were that the procession in which the respondent had been marching had broken up into violence and disorder. The respondent was standing in the street, still holding her flag, but jumping up and down, apparently to see what was happening. There was no suggestion that she was prevented from leaving by the press of the crowd. In these circumstances it was, in my opinion, right to conclude that she was loitering in the street. (at p504)

8. Although, as I have held, s. 6 of the Public Assemblies Act, 1972, is not relevant in deciding whether the respondent was loitering, it would have been material to consider the effect of that section if there had been evidence on which it could reasonably have been found that the conduct of the respondent was rendered lawful by s. 6 of that Act. However, in my opinion, it was not necessary for the prosecution to lead evidence to prove that the conduct of the assembly did not conform with approved proposals or that the respondent was not acting in conformity with those proposals. It was not an element of the offence charged that the conduct of the assembly or of the respondent did not conform with the approved proposals. If, at the conclusion of the evidence, the magistrate had been left in doubt whether the respondent's conduct was rendered lawful by s. 6 he would have been bound to acquit her of the charge, but there was no evidence in the case which raised the issue whether the conditions of s. 6 were satisfied. (at p505)

9. I would allow the appeal. (at p505)

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.