Lyons, Greg --- "Moore v Moulds (Vagrancy conviction- appeal against sentence - desirability of legal representation - proper interpretation of the offence of vagrancy" [1982] AboriginalLawB 7; (1982) 1(3) Aboriginal Law Bulletin 7

• Moore V Moulds
• Vagrancy Conviction – Appeal Against Sentence-Desirability Of Legal Representation-Proper Interpretation Of The Offence Of Vagrancy.

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Moore v Moulds

Vagrancy conviction – appeal against sentence - desirability of legal representation - proper interpretation of the offence of vagrancy.

Moore v Moulds

District Court of Queensland at Rockhampton (Shanahan J)

18 August 1981

Casenote by Greg Lyons

The appellant Joyce Mary Moore, a 21 year-old Aboriginal woman normally resident at the Woorabinda Aboriginal settlement, appealed against a three month term of imprisonment imposed following a conviction for vagrancy. Before the Stipendiary Magistrate, Moore had pleaded guilty - while unrepresented - to an offence against s.4(l)(i) of the Vagrants, Gaming and Other Offences Act 1931-1980. The relevant part of this section states:

Any person who - (i) Having no visible lawful means of support or insufficient lawful means, does not on being charged before a court, give to its satisfaction a good account of his means of support ...

In the Magistrates' Court, Moore had admitted to the facts alleged by the Crown. Those facts were that on 3 July 1981, Moore had attempted to ride away from a store on a bicycle belonging to an employee of the store. Moore was detained, taken to the Rockhampton police station and questioned. She there told Police that she intended to ride the bicycle to the other side of town as she had insufficient money for a taxi. Moore then admitted to the Police that she had no money; that she had been sleeping on the river bank since arriving in Rockhampton on 23 June 1981; that she was receiving meals at the St Vincent de Paul Society; and that she was unemployed, was not looking for work and was not receiving unemployment benefits. When the Magistrate gave Moore an opportunity to give an account of her means of support, she did not do so. It was in these circumstances that a conviction was recorded and a sentence of three months imprisonment imposed.

When the appeal against sentence came before Shanahan J he allowed an affidavit to be presented on behalf of the appellant. The affidavit contained material that had not been put before the Magistrate. Shanahan J stated that the material in the affidavit indicated that –

The appellant had resided with her mother at Woorabinda prior to her arrival in Rockhampton. She was supported by her mother which explains the fact that she was not in employment nor in receipt of unemployment benefits. On the day in question she had boarded a bus for a return trip to Woorabinda. This stopped at a Northside Hotel where the appellant and another Aboriginal woman left the bus to go to the toilet. The bus drove away without them. She has and always had a home at Woorabinda. I feel quite certain that had these allegations been drawn to the attention of the learned Stipendiary Magistrate and proved to be true, I believe that he would have taken a different view of the matter.

On the desirability of legal representation where a prison sentence is likely to be imposed, and where the person before the Court is a member of `the underprivileged classes', Shanahan J stated –

The material in the affidavit was not brought to the Magistrate's attention because the appellant was not legally represented. The learned Stipendiary Magistrate gave the appellant every opportunity to seek an adjournment to obtain legal advice. She did not avail herself of the opportunity.

The courts in this State deal with a large number of unsophisticated persons, who are so, irrespective of their race or ethnic background. Because of this I make it a practice never to suffer an accused person to be unrepresented in my Court. I stand the matter down so that legal representation can be obtained. I believe that at least in cases where a prison sentence is likely to be imposed, legal representation should be obtained particularly where a defendant is a' member of what I call for the want of a better word the under-privileged classes.

I am aware of the practical difficulties which attend such a course, particularly in the light of the large number of defendants who appear before a busy Magistrates Court such as Rockhampton.

However, on the assumption that there is available legal representation in this city for Aboriginals, I believe that it is prudent that such representation be arranged despite the expressed desire of a defendant not to be so represented even when offered an adjournment to obtain such representation.

With regard to the proper interpretation of s.4(1)(i) of the Vagrants, Gaming and Other Offences Act 1931-1980, Shanahan J stated –

I have been concerned for some time by the question as to whether or not this section of the Act is properly used. The correct approach is, I believe, that adopted by Kitto J in Zanetti v Hill [1962] HCA 62; (1962) 108 C.L.R. 433 at 441:

'Clearly the provision is not directed to the punishment of poverty. It does not imply that there is some standard of living to be regarded as the norm and provide for the punishment of a person as idle and disorderly because he is unable to maintain that standard. Provisions in the terms of s.65(l) seem always to have been understood, as far as I can gather from the cases, as taking a person's actual standard of existence and addressing themselves to the means that he has for his support at that standard. If he either has no lawful means of support visible (in the sense of being apparent to a person exercising reasonable means of inquiry . . .) or has some but not sufficient lawful means of support, the section dubs him an idle and disorderly person and provides for his being imprisoned provided that a condition is first fulfilled. The condition is that, after opportunity given, he does not give the justice before whom he comes a good, that is credible, account of his means of support to the satisfaction of the justice. The reason for so treating him is obvious: a person whose means of support so far as they are lawful are insufficient for the way he is living may fairly be regarded as belonging to a class of persons likely to resort for their support to activities from which society needs to protect itself’.

In my opinion, the section [s.4(1)(i) of the Vagrants, Gambling and Other Offences Act) should be used only to deal with persons who fail into that category. It is not or should not be a criminal offence per se to sleep on the river bank nor to adopt a lifestyle which differs from that of the majority. As far as this appellant is concerned there was nothing to indicate on the material before the learned Stipendiary Magistrate that the appellant `was likely to resort for her support to activities from which society has to protect itself.' I do not consider that a drunken attempt to use someone else's bicycle brings her within that category. However, the matter was properly before the learned Stipendiary Magistrate. She failed to give an account of herself. and was properly convicted. The learned Stipendiary Magistrate dealt with the case in his usual meticulous and thorough manner. However, I have come to the conclusion that the sentence was manifestly excessive and for the sake of. convenience reduce it to imprisonment for ten days or the time she actually spent in prison. Therefore she is now free.

The judge made no order as to costs.

He went on to express his general views regarding the use of s.4(1)(i) of the Vagrants, Gaming and Other Offences Act –

I have no doubt that on many occasions Stipendiary Magistrates, moved by Christian charity or humanitarian motive send people to prison 'for their own good'. This applies to men who are addicted to alcohol and who lead a nomadic existence. They do not, as a rule commit criminal offences but are regarded as 'nuisances' and their appearance is an affront to the susceptibilities of those members of the public who do not suffer from their disabilities, whether they are self-inflicted or otherwise ...

I wonder if other processes might not be more appropriate for the type of person I have just referred to rather than prosecution under this section with consequent imprisonment.