COMMISSIONER OF POLICE v MAURIZIO IERACE [2025] SASCA 107

Appellant: COMMISSIONER OF POLICE Counsel: MR M WAIT SC WITH MR A THOMAS - Solicitor: CROWN SOLICITOR (SA) First Respondent: MAURIZIO IERACE Counsel: MR D O’LEARY SC WITH MR B LODGE - Solicitor: PATSOURIS & ASSOCIATES Second Respondent: MATTHEW PEPPER Counsel: MR D O’LEARY SC WITH MR B LODGE - Solicitor: PATSOURIS & ASSOCIATES Third Respondent: JORDAN MACKIE Counsel: MR D O’LEARY SC WITH MR B LODGE - Solicitor: PATSOURIS & ASSOCIATES Fourth Respondent: DYLAN MACKIE Counsel: MR D O’LEARY SC WITH MR B LODGE - Solicitor: PATSOURIS & ASSOCIATES Hearing Date/s: 15/09/2025 File No/s: SCCRM-24-047113 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. QUESTION OF LAW RESERVED (NO 1 OF 2024) [2025] SASCA 107 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Auxiliary Justice Lovell and the Honourable Auxiliary Justice Mullins) 25 September 2025 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENCES AND OTHER MATTERS RELATING TO CRIMINAL ORGANISATIONS Questions of law referred to the Court of Appeal. Two questions of law were reserved by a magistrate to a single judge of this Court, and then referred to the Court of Appeal for consideration: 1. Does the phrase ‘[a]ny person who is … present in a public place’ in s 83GC(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) encompass a person who is in a motor vehicle on a public road? 2. On the facts stated, were the respondents ‘in a public place’ for the purposes of an offence against s 83GC(1)? The respondents were members of a declared criminal organisation for the purposes of s 83GA of the CLCA. On 7 October 2023, the respondents were travelling in a motor vehicle on a public road when police directed the vehicle to stop. Each of the respondents was charged with being knowingly present in a public place with two or more other participants in a criminal organisation, contrary to -- 1 of 22 -- s 83GC(1) of the CLCA. The respondents disputed that they were ‘in a public place’ for the purposes of s 83GC(1). Held, per the Court, the questions of law reserved should be answered: 1. Yes. 2. Yes. Acts Interpretation Act 1901 (Cth) s 15AA; Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld); Criminal Law Consolidation Act 1935 (SA) ss 83GA, 83GC(1), 83GD(1), 83GD(2); Legislation Interpretation Act 2021 (SA) s 14(1); Serious and Organised Crime (Control) (Miscellaneous) Amendment Act 2012 (SA), referred to. Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Allan v Quinlan; Ex parte Allan [1987] 1 Qd R 213; Barker v The Queen (1983) 153 CLR 338; Beckwith v The Queen (1976) 135 CLR 569; Bropho v Western Australia (1990) 171 CLR 1; Carr v Western Australia (2007) 232 CLR 138; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Chew v The Queen (1992) 173 CLR 626 at 632; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 (1997) 187 CLR 384; Coco v The Queen (1994) 179 CLR 427; Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129; Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; Fernando v Commissioner for Police (1995) 36 NSWLR 567; Flori v Winter [2019] QSC 106; Forte v Sweeney [1982] Qd R 127; Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; Hardman v Minehan (2003) 57 NSWLR 390; Hurt v The King (2024) 98 ALJR 485; Kuczborski v Queensland (2014) 254 CLR 51; Lee v New South Wales Crime Commission (2013) 251 CLR 196; Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; Mansfield v Kelly [1972] VR 744; McKenzie v Stratton [1971] VR 848; Milne v The Queen (2014) 252 CLR 149; Nan v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687; NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137; Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35; Potter v Minahan (1908) 7 CLR 277; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Public Trustee v O’Donnell (2008) 101 SASR 228; R v A2 (2019) 269 CLR 507; R v Ellis [2010] EWCA Crim 163; State of South Australia v Totani (2010) 242 CLR 1; Stephens v The Queen (2022) 273 CLR 635; Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Thiess v Collector of Customs (2014) 250 CLR 664; Wainohu v New South Wales (2011) 243 CLR 181; Walker v Crawshaw [1924] NZLR 93; Waugh v Kippen (1986) 160 CLR 156 (1986) 160 CLR 156; Wright v McMurchy (2011) 42 WAR 113; YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 1, considered. -- 2 of 22 -- QUESTION OF LAW RESERVED (NO 1 OF 2024) [2025] SASCA 107 Court of Appeal – Criminal: S Doyle JA, Lovell and Mullins AJJA 1 THE COURT: These reasons address two questions of law reserved on a case stated: 1. Does the phrase ‘[a]ny person who is … present in a public place’ in s 83GC(1) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) encompass a person who is in a motor vehicle on a public road? 2. On the facts stated, were the respondents ‘in a public place’ for the purposes of an offence against s 83GC(1)? Background 2 The respondents (Maurizio Ierace, Matthew Pepper, Jordan Mackie and Dylan Mackie) were members of the Descendents Motorcycle Club, a declared criminal organisation for the purposes of s 83GA of the CLCA. Accordingly, each of the respondents was a ‘participant in a criminal organisation’ for the purposes of s 83GC(1) of that Act. 3 On 7 October 2023, the respondents were travelling in a motor vehicle on Vicks Road, a public road, in Cherry Gardens. Mr Pepper was the driver of the car. Police directed the car to stop and for Mr Pepper to produce his driver’s licence. Police spoke with the occupants of the car. 4 At the time police observed the car and directed it to stop (being the time of the alleged offence), the windows of the car were up and there was no noise or movement coming from the cabin of the car which drew police attention. 5 The appellant, the Commissioner of Police, laid an information in the Magistrates Court, charging each of the respondents with offences against s 83GC(1) of the CLCA. That section makes it an offence for a person who is a participant in a criminal organisation to be knowingly present in a public place with two or more other people who are participants in a criminal organisation. 6 Upon the respondents disputing that they were ‘in a public place’ for the purposes of s 83GC(1), the magistrate stated a case to the Supreme Court. A single judge of this Court then referred the two questions posed by this case stated for the Court of Appeal’s consideration. 7 The appellant contends that both questions should be answered ‘yes’, and the respondents contend that they should be answered ‘no’. 8 For the reasons which follow, the questions should both be answered ‘yes’. When travelling along Vicks Road in a motor vehicle, the respondents were in a public place for the purposes of s 83GC(1) of the CLCA. -- 3 of 22 -- [2025] SASCA 107 The Court 2 The legislation 9 Part 3B of the CLCA is headed ‘Offences relating to criminal organisations’. Division 1 of that Part is headed ‘Participation in criminal organisation’, and Division 2 is headed ‘Public places, prescribed places and prescribed events’. The latter includes the s 83GC(1) offence the subject of the case stated: 83GC—Participants in criminal organisation being knowingly present in public places (1) Any person who is a participant in a criminal organisation and is knowingly present in a public place with 2 or more other persons who are participants in a criminal organisation commits an offence. Maximum penalty: Imprisonment for 3 years. 10 Section 83GA contains a number of definitions applicable to the provisions within Division 2. The terms ‘participant’ and ‘criminal organisation’ are both defined, and it is accepted that the respondents were ‘participants’ in a ‘criminal organisation’. The concept of a ‘public place’ is also defined: public place means— (a) a place, or part of a place, that the public is entitled to use, is open to members of the public or is used by the public, whether or not on payment of money; or (b) a place, or part of a place, the occupier of which allows, whether or not on payment of money, members of the public to enter; 11 The Part 3B, Division 2 provisions including s 83GC(1) were inserted into the CLCA by the Statutes Amendment (Serious and Organised Crime) Act 2015 (SA). The relevant legislative history is addressed later in these reasons. 12 Determination of whether a participant in a criminal organisation is ‘in a public place’ when travelling in a private car on a public road for the purposes of s 83GC(1) of the CLCA involves an issue of statutory construction. It requires consideration of the statutory text, understood within its statutory context and having regard to the purpose of the provision.1 13 As the High Court recently reiterated in Palmanova Pty Ltd v Commonwealth of Australia:2 Statutory construction is the process of attributing meaning to statutory text.3 The construction of a statutory provision begins and ends with the statutory text understood in 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 (McHugh, Gummow, Kirby and Hayne JJ); SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at 368 (Kiefel CJ, Nettle and Gordon JJ); Legislation Interpretation Act 2021 (SA), s 14(1), which is in equivalent terms to s 15AA of the Acts Interpretation Act 1901 (Cth). 2 Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 at [4] (Gageler CJ, Gordon, Jagot and Beech-Jones JJ). 3 Thiess v Collector of Customs (2014) 250 CLR 664 at 671 [22]. -- 4 of 22 -- [2025] SASCA 107 The Court 3 context4 and in light of the statutory purpose – being what the provision is designed to achieve in fact5 – insofar as that purpose is discernible from the statutory text and context.6 In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.7 14 Consistently with this so-called ‘modern approach’ to statutory construction, the task involves consideration of context in its widest sense, and is informed throughout by the purpose of the relevant provision.8 15 There is no authority directly addressing the construction of ‘public place’ for the purposes of s 83GC(1) of the CLCA. 16 A number of authorities have, in the context of other statutory provisions, addressed the issue of whether a person is in a public place when within a motor vehicle located in that public place. Whilst the answer given has generally been ‘yes’, the answer may differ, depending upon the relevant statutory text, context and purpose. 17 Mindful of the limited assistance that can therefore be gained from the exercise, it is nevertheless useful to commence by addressing some of these authorities before coming to address the text, context and purpose of the provision under consideration in the present case. The relevant authorities 18 In Walker v Crawshaw,9 the appellant was convicted of the offence of wilfully committing a grossly indecent act in a public place, namely in Vogel Street, Dunedin. The appellant was observed by police having sexual intercourse in the back seat of his motor vehicle, which was parked at night in Vogel Street. Reasoning quite simply, Sim J held that the appellant was in a public place despite being inside a motor vehicle:10 In my opinion the parties were still in Vogel Street, although inside a motor-car on that street, and the act was properly treated by the Magistrate as having been done in Vogel Street. 19 In McKenzie v Stratton,11 the defendant was found in a taxi cab in the carpark of the Brunswick police station, and was charged with being drunk and disorderly in a public place. Adopting similar reasoning, and focussing upon the physical location of the defendant, Nelson J held that the defendant was in a public place. 4 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 at [39]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47]. 5 NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 at [40]. 6 YBFZ v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 99 ALJR 1 at [16]. 7 Section 15AA of the Acts Interpretation Act 1901 (Cth). 8 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ). 9 Walker v Crawshaw [1924] NZLR 93. 10 Walker v Crawshaw [1924] NZLR 93 at 95 (Sim J). 11 McKenzie v Stratton [1971] VR 848. -- 5 of 22 -- [2025] SASCA 107 The Court 4 Whilst recognising that resolution of the issue may depend upon ‘the nature and subject-matter of the particular enactment and the evil which it was intended to restrain’, the nature of the offence in that case was such that a person was in a public place despite being in the front seat of a motor vehicle:12 Looking at the matter physically there is only one answer to that question. He is physically within the confines of such public place and he is in that sense in that place. The fact that he is in or on a vehicle in that place does not affect his physical presence within it. Whether, however, for the purposes of certain statutory offences he should be held to have done a certain act in that place or to be found in a certain condition in that place may require a consideration of something more than the fact that the act was done or that he was found in the required condition while he was within the physical confines of that place. It may and probably does involve a consideration of the nature and subject-matter of the particular enactment and the evil which it was intended to restrain … Generally when an offence is defined in terms of a public place, it is the public nature of the offence which is the evil which the legislature is designed to restrain. In the case of a man in or on a vehicle in a public place, if he exposed himself while riding on a bicycle, he would, I think, in each case have exposed himself in a public place. On the other hand, if he were in a fully enclosed caravan and exposed himself only to someone therein the necessary public element may be lacking and he may well be held not to have exposed himself in a public place. In the case of a man who is found drunk and disorderly in the front seat of a motor car in a public place I can see no reason to doubt that he is found in the public place. Whether the motor car is itself a public place is in those circumstances immaterial. 20 In Mansfield v Kelly,13 the defendant was found drunk in the front seat of a motor vehicle in Inkerman Street, Maryborough. He was charged with being drunk in a public place. In upholding this charge, Newton J (Winneke CJ and Adam J agreeing), referred to and applied the above decisions. His Honour was satisfied that Parliament intended that an occupant of a private motor car in a public place would be treated as being in a public place for the purposes of the relevant offence provision. His Honour explained:14 When the defendants were ‘found’ they were in the motor car, and we agree with the stipendiary magistrate that the motor car was not in itself a public place. But the motor car was then in Inkerman Street, so that, in our opinion, the defendants themselves were in Inkerman Street. Where the motor car was, there were the defendants also … The word ‘in’ in the expression ‘in a public place’ in s 13 means or includes, in our opinion, ‘within the limits or bounds of’; see the Shorter Oxford English Dictionary. 21 A similar issue arose in Wright v McMurchy.15 The defendant taxi driver was charged with committing an indecent act in a public place by reason of his conduct in taking several ‘up-skirt’ photographs of a passenger while she was in his taxi. After surveying the authorities, including those mentioned above, Commissioner Sleight observed that ‘it is clear that generally it has been held that a person in a motor vehicle located in a public place is treated as being in a public place’.16 12 McKenzie v Stratton [1971] VR 848 at 851 (Nelson J). 13 Mansfield v Kelly [1972] VR 744. 14 Mansfield v Kelly [1972] VR 744 at 745 (Newton J, Winneke CJ and Adams J agreeing). 15 Wright v McMurchy (2011) 42 WAR 113. 16 Wright v McMurchy (2011) 42 WAR 113 at 120 (Commissioner Sleight). -- 6 of 22 -- [2025] SASCA 107 The Court 5 22 In reaching the same conclusion in that case, the Commissioner rejected the defendant’s argument that the conduct did not occur in a public place because the interior of the taxi was isolated from the view of the public. He pointed out that ‘persons outside a motor vehicle can normally see inside the interior (at least in part) as the vehicle is not an opaque cocoon totally blocking out visibility’. The Commissioner considered that the wording of the relevant offence provision revealed a legislative intent to criminalise an indecent act in circumstances ‘where it may be exposed to members of the public’. The conduct fell within that legislative purpose of protecting the public from being exposed to indecent acts. The Commissioner also had regard to the fact that the taxi was a vehicle to which the public had access on payment of a fee, and was being used at the relevant time to convey a member of the public on a public road.17 23 In Forte v Sweeney,18 the defendant was found with a loaded firearm in his motor vehicle whilst on a public road in Brisbane and was charged with possession of a firearm in a public place. The Full Court of the Supreme Court of Queensland held that the defendant was in a public place at the relevant time. Referring to the decisions in Mansfield v Kelly and McKenzie v Stratton, WB Campbell J (Douglas J and DM Campbell J agreeing) held that the defendant was in a public place:19 Whether the motor car was in itself a public place is in my opinion immaterial in this case. The question here is whether the respondent himself was in a public place, and in my opinion the respondent was at the material time in a public place. He was physically within the confines of the public place and whether he was at that time in a motor vehicle does not seem to me to matter. 24 A majority of the New South Wales Court of Appeal reached a different conclusion in relation to a similar provision in Hardman v Minehan.20 Having been found with a loaded firearm inside a vehicle, the defendant was charged with possession of a loaded firearm in a public place. The relevant legislation included a definition of ‘public place’ which, amongst things, deemed a vehicle to be a public place if certain conditions were satisfied (essentially, that it was being used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise). 25 A magistrate dismissed the case on the basis that the defendant was not shown to have possessed the firearm in a public place. On appeal to a single judge of the Supreme Court, Simpson J allowed the appeal, holding that the defendant had been shown to have possessed the firearm in a public place. In her Honour’s view, it could not be said that a motor vehicle on a public road was ordinarily a 17 Wright v McMurchy (2011) 42 WAR 113 at 120 (Commissioner Sleight). 18 Forte v Sweeney [1982] Qd R 127. See also R v Ellis [2010] EWCA Crim 163 at [16]-[17] (Dyson LJ, Swift and Sweeney JJ), where it was held that possession of a baton in a motor vehicle on a public road involved possession of a weapon in a public place. 19 Forte v Sweeney [1982] Qd R 127 at 129 (WB Campbell J, Douglas and DM Campbell JJ agreeing). 20 Hardman v Minehan (2003) 57 NSWLR 390. -- 7 of 22 -- [2025] SASCA 107 The Court 6 private place. Its occupants were not removed from the public place in which the vehicle was located by reason of the ‘insulation’ or structure of the vehicle. 26 On a further appeal to the Court of Appeal, the majority allowed the appeal, and restored the magistrate’s decision dismissing the case. McColl JA commenced her analysis by referring to the decisions in Walker v Crawshaw, Mansfield v Kelly, McKenzie v Stratton and Forte v Sweeney mentioned above. Her Honour then addressed various matters of principle governing statutory construction, as well as making several observations in relation to the legislative history and purpose of the relevant offence provision. 27 McColl JA was influenced by the contextual consideration that the offence provision was accompanied by other provisions regulating not only different activities (such as possession of a firearm in a manner likely to endanger life, and discharging a firearm), but also activities in non-public places (‘any other place’). Her Honour concluded that this demonstrated that the purpose of the provisions was to guard against the risk posed by the possession of a loaded firearm, but to weigh this risk by reference to the place in which the firearm was possessed and by reference to the activity being undertaken.21 It was in this context that her Honour considered that it was significant that the loaded firearm was, by reason of it being within the body of a motor vehicle, behind ‘an intervening barrier’:22 Once, however, the legislature is seen to have turned its ‘mind’ to the different locations referred to in the various sub-sections of s 93G(1), then those distinctions must be given significance. It cannot be said for example, that the possession of a loaded firearm in a public place where there is an intervening barrier, such as the body of a motor vehicle or, to revert to the distinction which did not impress Simpson J, a caravan, tent or the like located in such a place, poses the same risk as possession of a weapon in a public place without such an intervening barrier. It cannot invariably be said that possession of a loaded firearm where there is such an intervening barrier demonstrates an intention to cause harm. In cases where the loaded firearm is possessed in a place such as a vehicle, caravan, tent or the like, albeit in a public place, regulation of the possession of the weapon is accommodated, in appropriate circumstances by invoking the offence created by s 93G(1)(a)(ii). In other words, in those circumstances it is an offence if the loaded firearm is possessed ‘in any other place’ (which would include possession of that firearm within a private motor vehicle) in a manner likely to endanger another. This conclusion is reinforced by the fact that if the legislature had intended that possession of a loaded weapon within a motor vehicle in a public place was to be proscribed, it would have been perfectly simple for it to have achieved its purpose directly by so providing … 28 McColl JA proceeded to explain that the respondent’s argument, which focussed upon the appellant being ‘in’ a public place, even though he was separated from it by his motor vehicle, did not give sufficient weight to the context 21 Hardman v Minehan (2003) 57 NSWLR 390 at [90]-[94] (McColl JA). 22 Hardman v Minehan (2003) 57 NSWLR 390 at [96]-[98] (McColl JA). -- 8 of 22 -- [2025] SASCA 107 The Court 7 in which the provision was found; it suffered from ‘the vice of literality which the modern approach to statutory construction eschews’.23 29 McColl JA also considered that it was significant that the s 8 definition of a public place included words deeming a vehicle to be a public place if certain conditions were met. In her Honour’s view, this indicated that the legislature did not consider that the interior of a motor vehicle would otherwise be a public place.24 The starting point was therefore that a private vehicle was not a public place.25 30 McColl JA also rejected the respondent’s submission that the purpose of the offence provision extended to preventing the risk arising from transporting loaded firearms through public thoroughfares, and to preventing a member of the public becoming fearful upon seeing a loaded firearm in such a vehicle. Her Honour considered that the risks associated with a firearm insulated from the public by a motor vehicle was adequately addressed by the provision prohibiting loaded firearms ‘in any other place’. Her Honour also considered that the risk of a member of the public becoming fearful of a loaded firearm in a vehicle was unrealistic. In her Honour’s view the risk addressed by the offence provision was the danger posed by possession of the loaded weapon, rather than the reaction that possession might provoke in a member of the public.26 31 McColl JA considered that this last matter was a basis for distinguishing the offence in that case from the public decency offences in Walker v Crawshaw, Mansfield v Kelly and McKenzie v Stratton.27 The offence provisions in those cases were directed at different evils. They were directed towards avoiding offence to the public, and ‘the ability to observe the conduct in question … was not inhibited by the illusory interposition of a windscreen’. The ability of the conduct in the vehicle to nevertheless offend passers-by led to the conclusion that it was committed in a public place.28 McColl JA accepted that Forte v Sweeney could not be distinguished on this basis, but suggested that the offence provision in that case was not accompanied by the contextual considerations mentioned above. The differences between the provisions were such that judicial comity did not require that she follow the interpretation placed on similar words by this decision of another intermediate appellate court.29 32 In McColl JA’s view, the authorities demonstrated that the question whether an act was relevantly committed ‘in a public place’ must ultimately turn on the terms of the particular legislation under consideration, and not by reference to 23 Hardman v Minehan (2003) 57 NSWLR 390 at [99]-[101] (McColl JA). 24 Hardman v Minehan (2003) 57 NSWLR 390 at [110]-[112] (McColl JA). 25 Hardman v Minehan (2003) 57 NSWLR 390 at [119] (McColl JA). 26 Hardman v Minehan (2003) 57 NSWLR 390 at [102]-[103] (McColl JA). 27 Hardman v Minehan (2003) 57 NSWLR 390 at [104] (McColl JA). 28 Hardman v Minehan (2003) 57 NSWLR 390 at [115]-[122] (McColl JA). 29 Hardman v Minehan (2003) 57 NSWLR 390 at [116], [123] (McColl JA). -- 9 of 22 -- [2025] SASCA 107 The Court 8 authorities decided in different statutory contexts and directed to regulating different conduct.30 33 Her Honour ultimately concluded that possession of a loaded firearm in a motor vehicle on a public road did not constitute possession of the firearm in a public place for the purposes of the offence provision in that case.31 34 Tobias JA agreed with McColl JA. In addition to expressing substantial agreement with McColl JA’s reasons, he added some observations of his own. Like McColl JA, he attached significance to the context and purpose of the relevant provision. As to the latter, he considered it significant that the purpose of the provision was to protect members of the public from the dangers associated with loaded firearms, and that possession within an enclosed motor vehicle involved a lesser risk of this danger:32 In this context, I am of the view that s 93G(1)(a)(i) requires that the person charged with possession of a loaded firearm is in a public place in the sense that his presence therein in those circumstances is, of its very nature, likely to endanger persons within that place. In other words, the provision assumes that others will be endangered by the mere fact that the person charged possesses a loaded firearm in the public place. In the foregoing circumstances, I am of the opinion that the purpose or object of the provision in question is not achieved where the person charged is in possession of a loaded firearm not in the public place itself but within the confines of such a motor vehicle standing in a public place. It is one thing to be in possession of a loaded firearm within the confines of such a motor vehicle standing in a public place: it is quite another to be in possession of such a firearm when standing in a public place outside the confines of such a vehicle. Accordingly, I would construe s 93G(1)(a)(i) as requiring the person charged to be directly within the public place rather than sheltered therefrom by being, at the time of the offence, located in an enclosed motor vehicle or some other form of enclosure. 35 Having emphasised the enclosed nature of the defendant’s vehicle, his Honour accepted that whether a person was in a public place was ultimately a question of fact, and may depend upon the type and nature of the vehicle in which he or she is located. His Honour acknowledged that a person astride a bicycle or motorbike on a public road may well be in a public place.33 36 Tobias JA also emphasised the provision deeming a vehicle to be a public place in certain circumstances, indicating that it would not otherwise, or ordinarily, be a public place.34 37 His Honour considered that the other cases referred to by McColl JA could be distinguished on the basis they involved quite different legislation. Whilst acknowledging that the legislation in Forte v Sweeney was ‘not remarkably 30 Hardman v Minehan (2003) 57 NSWLR 390 at [124]-[125] (McColl JA). 31 Hardman v Minehan (2003) 57 NSWLR 390 at [126] (McColl JA). 32 Hardman v Minehan (2003) 57 NSWLR 390 at [16]-[17] (Tobias JA). 33 Hardman v Minehan (2003) 57 NSWLR 390 at [19] (Tobias JA). 34 Hardman v Minehan (2003) 57 NSWLR 390 at [20] (Tobias JA). -- 10 of 22 -- [2025] SASCA 107 The Court 9 different’, there were nevertheless some textual and contextual differences of significance. 38 Meagher JA dissented. His Honour considered it appropriate to apply an approach consistent with that taken in the cases mentioned above:35 Maybe for some purposes a loaded firearm held inside a vehicle is not ‘possessed’ in a ‘public’ place. For example, if a man who lives in a caravan which is permanently situated in a caravan park has a firearm in his caravan, arguably he may be said not to possess it in a ‘public’ place, even if the land on which the caravan stands is itself a public place. In these circumstances, the firearm could possibly be said to be sufficiently insulated from contact with the public to be said not to be possessed in a ‘public’ place. One will have to wait until that case arises. If and when it does arise, perhaps the scope of s 8 will be relevant. But it has nothing to do with the present case. Whether or not Mr Hardman’s motor car taken in isolation can be considered a ‘public’ place … it was situated at the relevant time in Watercourse Road, which was admittedly a ‘public’ place, and where the car was there also was the appellant. A similar conclusion has been reached in interstate cases dealing with the same problem: see McKenzie v Stratton [1971] VR 848, Mansfield v Kelly [1972] VR 744 and Forte v Sweeney; Ex parte Forte [1982] Qd R 127. Whilst each case deals with legislation which is different from the New South Wales legislation, it is sufficiently in point to afford useful guidance; this is particularly so of the Queensland decision, where the legislation approximates to the New South Wales legislation. All these cases demonstrate that the provisions of s 8 are simply irrelevant in the present case. That section tells us when the expression ‘public place’ can be extended, not what is the core meaning of that expression. 39 Several observations may be made following this survey of the key authorities. The first is that judges who have considered the issue have generally held that a person is in a public place when within a motor vehicle located in a public place. In so holding, they have tended to emphasise that the person remains physically within the public place, despite the interposition of the physical barrier constituted by the body of the motor vehicle. 40 However, perhaps more significantly, and consistently with the submissions advanced by the parties in the present case, some authorities have recognised that the answer may depend upon ‘the nature and subject-matter of the particular enactment and the evil which it was intended to restrain’.36 Put in terms of the modern approach to statutory interpretation, the answer may depend upon the text, context and purpose of the relevant offence provision. 41 In the case of offences, such as public decency offences, where their purpose is to avoid the public observing, or being exposed to, the relevant type of behaviour, the intervening barrier of the body of a motor vehicle may be quite meaningless, given the usual ability for members of the public to see through the 35 Hardman v Minehan (2003) 57 NSWLR 390 at [7]-[10] (Meagher JA). 36 McKenzie v Stratton [1971] VR 848 at 851 (Nelson J). -- 11 of 22 -- [2025] SASCA 107 The Court 10 windscreen and windows of the motor vehicle. On the other hand, the majority in Hardman v Minehan considered that the intervening barrier of a body of a motor vehicle was meaningful in circumstances where the evil intended to be addressed by the offence provision was the danger presented by a loaded firearm, rather than any fear that it might engender in members of the public.37 42 As developed later in these reasons, whilst at times criticising the decision of the majority in Hardman v Minehan, the appellant stopped short of directly challenging its correctness. As the appellant recognised, it was not necessary to do so, given the definitional, contextual and purposive considerations emphasised in the reasons of the majority in that case. Not only did these considerations provide the majority in that case with a basis for distinguishing the earlier decision of the Supreme Court of Queensland in Forte v Sweeney, but they also provide a basis for distinguishing the present case. As will be explained, the offence provision in the present case is more akin to the public decency offences in the other authorities surveyed above. Legislative history 43 In turning to address the offence provision in the present case, it is convenient to commence by recounting some aspects of its legislative history. 44 The relevant legislative history commenced with the enactment of the Serious and Organised Crime (Control) Act 2008 (SA) (‘SOCC Act’). The SOCC Act was described in the second reading speech as ‘aimed at tackling the menace of outlaw motorcycle gangs and other criminal associations’.38 Its objects were said to be ‘to disrupt and restrict the activities of organisations involved in serious crime and the members and associates of such organisations and to protect members of the public from violence associated with these criminal organisations’.39 The SOCC Act included a provision which prohibited a member of a declared organisation subject to a control order from associating with other persons who were members of declared organisations.40 45 In State of South Australia v Totani,41 the High Court held that the SOCC Act was partially invalid and infringed constitutional principles. Shortly afterwards, in Wainohu v New South Wales,42 the High Court invalidated corresponding New South Wales legislation in its entirety. 46 Following these decisions, a series of amendments were made to the SOCC Act in an attempt to address the constitutional flaws that had formed the basis for 37 See, for example, Flori v Winter [2019] QSC 106 at [54]-[59] (Bowskill J), relying upon these different underlying purposes in holding that sexual activity in a police vehicle on a public road was capable of constituting an indecent act in a public place. 38 Second reading speech to the SOCC Act (House of Assembly, 21 November 2007), p 1806. 39 Second reading speech to the SOCC Act (House of Assembly, 21 November 2007), p 1806. 40 SOCC Act (as enacted), s 14(5)(b). 41 State of South Australia v Totani (2010) 242 CLR 1. 42 Wainohu v New South Wales (2011) 243 CLR 181. -- 12 of 22 -- [2025] SASCA 107 The Court 11 the High Court decisions. The second reading speech for the Serious and Organised Crime (Control) (Miscellaneous) Amendment Act 2012 (SA) (‘the SOCC Amendment Act’) reiterated the need to:43 respond decisively to the High Court decisions and do so comprehensively … That imperative … acquired an additional urgency and seriousness by reason of the recent outbreak of gun violence between individuals who clearly belong to groups and care nothing for civilised society nor the safety of the public. 47 The second reading speech further highlighted the determination of the government to legislate so that ‘the effectiveness of the Government policy to harass and disrupt criminal gangs’ and ‘the intent of the Government’s policy is not thwarted by constitutional flaws’.44 Pursuant to the amendments, the Court retained a power to prohibit participants in criminal organisations from ‘associating with a specified person or persons of a specified class’.45 48 In the meantime, significant legislative reform in Queensland led to the enactment of the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 (Qld) (‘the Queensland Act’), which created offences in almost identical terms to the provisions that are the subject of the present proceedings.46 These provisions were unsuccessfully challenged before the High Court in Kuczborski v Queensland.47 49 Shortly thereafter, the South Australian Parliament enacted the Statutes Amendment (Serious and Organised Crime) Act 2015 (SA) (‘the CLCA Amendment Act’) which inserted Division 2, Part 3B into the CLCA, comprising ss 83GA to 83GG. These provisions mirrored the provisions that had been enacted in Queensland, and in New South Wales, and are largely unchanged in the CLCA in its present form. 50 The second reading speech for the CLCA Amendment Act commenced with reference to the new offence provisions ‘mirroring those enacted in Queensland’,48 and included several references to the legislative history of the Queensland Act. The CLCA Amendment Act was referred to as ‘another step forward in the fight against organised crime’.49 43 Second reading speech to the SOCC Amendment Act (House of Assembly, 15 February 2012), p 97. 44 Second reading speech to the SOCC Amendment Act (House of Assembly, 15 February 2012), p 98. 45 SOCC Act, s 22(5)(a) (as amended by the SOCC Amendment Act). 46 The practice of drawing upon relevant extraneous materials from other jurisdictions is not novel (noting here that the Queensland legislative history was expressly relied upon by the Attorney-General for South Australia in the second reading speech for the legislation through which s 83GC(1) was inserted into the CLCA): Fernando v Commissioner for Police (1995) 36 NSWLR 567 at 577-579 (Priestley JA); Public Trustee v O’Donnell (2008) 101 SASR 228 at 249-251 (Gray J); Nan v Kemp & Associates Pty Ltd (2010) 77 NSWLR 687 at [161], [220] (Campbell JA); Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 at [31]-[40] (McColl JA, Beazley and Giles JJA agreeing). 47 Kuczborski v Queensland (2014) 254 CLR 51. 48 Second reading speech to the CLCA Amendment Act (House of Assembly, 3 June 2015), p 1476. 49 Second reading speech to the CLCA Amendment Act (House of Assembly, 3 June 2015), p 1482. -- 13 of 22 -- [2025] SASCA 107 The Court 12 51 As elaborated upon below, the appellant contends that these extrinsic materials support a contention that the broad purposes underpinning each of the SOCC Act in 2008, the SOCC Amendment Act in 2012 and the CLCA Amendment Act in 2015 encompass both disrupting the activities of outlaw motorcycle gangs, and protecting the community from their criminal violence and other activities. 52 In relation to the latter, the appellant emphasised other references in the extrinsic materials to the broad purpose of protecting the community including a focus upon protecting members of the public, particularly innocent bystanders, from violence, fear and intimidation. 53 In particular, the parliamentary debates in relation to the Queensland Act made reference to a violent confrontation between two criminal motorcycle gangs that had occurred in Broadbeach. The Attorney-General for Queensland referred to an intention to ‘rid the state of criminal motorcycle gangs’ so that Queenslanders ‘can go to a shopping mall without fear of being shot, so Queenslanders can have a cup of coffee at Broadbeach or anywhere in Queensland without the fear of retribution from these criminal motorcycle gang members’.50 The Attorney- General also referred to the fear and intimidation of the public by members of outlaw motorcycle gangs, including through the motorbikes they ride, the colours they wear and their tattoos.51 54 In the context of the CLCA Amendment Act, the Attorney-General for South Australia also referred to violent incidents between rival outlaw motorcycle gangs, and the risks posed by such events occurring in public places:52 [I]n those instances of affray and whatever, which are in many instances between group A and group B on our list … [t]he problem is that they do not go to some remote spot and just bash it out; they often do it in a café or in a busy street or somewhere else, and completely innocent people are at risk of being injured or caught up in this thing and, at the very least, traumatised by it if not permanently scarred or worse. The mere fact of their interaction with each other being limited, and the affray and all that sort of stuff disappearing, is actually good in the sense of making our streets safe and stopping innocent people being unwittingly drawn into these situations. 55 The Attorney-General referred to intimidation by gang members when accompanied by others in their club uniforms.53 Other participants in the debate mentioned intimidation by criminal organisations when they gathered in public.54 56 During subsequent debates in the Legislative Council, reference was made to two separate drive-by shootings involving outlaw motorcycle gang members that 50 Hansard debates to the Queensland Act, p 3254. 51 Hansard debates to the Queensland Act, p 3161. 52 Hansard debates to the CLCA Amendment Act (House of Assembly, 17 June 2015), p 1705. 53 Hansard debates to the CLCA Amendment Act (House of Assembly, 17 June 2015), p 1705. 54 For example, Hansard debates to the CLCA Amendment Act (House of Assembly, 2 July 2015), p 1152 per the Hon RL Brokenshire. -- 14 of 22 -- [2025] SASCA 107 The Court 13 had taken place just that week; one at the Smithfield Hotel and the other in a carpark of some retail shops in Blakeview.55 Text 57 Both the appellant and the respondents sought to draw support for their competing constructions of s 83CG(1) of the CLCA from its text. 58 Relying upon the authorities surveyed above (other than Hardman v Minehan), the appellant argued that because Vicks Road was a public place, the respondents were ‘in’ a public place. The respondents were physically within the area or confines of that public place, regardless of the fact that they were in a motor vehicle. Just as a person who enters a public place on foot or on a bicycle is ‘in’ that public place, so too a person who enters in a motor vehicle is ‘in’ that public place. 59 The respondents, on the other hand, argued that the ‘place’ in which the respondents were located was the motor vehicle in which they were travelling. This was a private place. It was not a public place within the definition of a public place in s 83GA. It was not a place the public were entitled to use. The respondents commenced their journey in their private motor vehicle, and remained in that private place as they travelled along Vicks Road. 60 Although acknowledging that a motor vehicle may be a private place, the appellant argued that the respondents’ construction introduced a false dichotomy between public and private places. On the appellant’s construction of s 83GC(1), there is no textual or other foothold for this dichotomy. The respondents were in a public place even though they were also in a private vehicle. 61 Whilst each of these competing arguments has some textual basis, or literal force, they tend to highlight the real issue to be determined. They tend to highlight the need to determine the significance of the fact that the respondents, although within a public place, were also within a motor vehicle. In other words, was their location within a motor vehicle a circumstance that was relevant or determinative? Was it a circumstance that meant they were not ‘in a public place’? Was the body of the vehicle a meaningful barrier or boundary? Did the respondents’ presence within the body of the vehicle mean they were not relevantly in a public place? 62 On the appellant’s construction, the barrier presented by the body of the vehicle was essentially meaningless; the respondents remained located on Vicks Road, which was a public place. On the respondents’ construction, the barrier was meaningful. It meant that the respondents were located in a private motor vehicle, and separated from the public place through which they were driving. 63 Resolution of this issue presented by these competing constructions is not straightforward. Consistently with the modern approach to statutory construction, 55 Hansard debates to the CLCA Amendment Act (Legislative Council, 29 July 2015), p 1223. -- 15 of 22 -- [2025] SASCA 107 The Court 14 and the approach indicated by some of the authorities above, it requires consideration of the relevant context and purpose. Whilst the appellant’s construction of s 83GC(1) of the CLCA has a sound basis in its text, and is supported by the weight of authority, its force becomes clear when considered in light of the purpose of that provision. Context 64 The broader statutory context within which s 83GC(1) appears is of little assistance in resolving the issue presented by this case stated. 65 Noting that s 83GC is found within Part 3B ‘Offences relating to criminal organisations’, Division 2 ‘Public places, prescribed places, prescribed events’ of the CLCA, the appellant drew attention to two contextual features. 66 The first is that ‘criminal organisation’ is defined in s 83GA(1) in terms of an organisation which has a purpose of engaging in serious criminal activity, and which represents ‘an unacceptable risk to the safety, welfare or order of the community’. This was said to support a construction of the subject provision which would be consonant with protection of the safety, welfare and order of the community. 67 The second is the related offence provisions in ss 83GD(1) and (2); s 83GD(1) makes it an offence for a person who is a participant in a criminal organisation to enter a ‘prescribed place’, and s 83GD(2) makes it an offence for such a person to attend a ‘prescribed event’. As the legislation permits regulations prescribing a private place or event, these related offence provisions are not confined to public places or events. They were therefore said to support the view that Parliament was not so concerned with the preservation of private rights of participants in criminal organisations as to avoid any intrusion upon those rights. They were said to point against a narrow or technical approach to s 83GC(1) which would seek to avoid or minimise any intrusion upon private rights; for example, by assuming a dichotomy between a public place and a private place. On the appellant’s argument, they support a construction which would permit a person to be in a public place whilst also within a private motor vehicle, and hence which would encompass some intrusion upon private rights. 68 Whilst relevant considerations, neither of these contextual considerations is of much assistance. Certainly neither is decisive. 69 The respondents, on the other hand, sought to draw some support for their construction from the principle of legality, and the penal nature of s 83GC(1). 70 As to the principle of legality, the respondents emphasised that s 83GC(1) involves an infringement upon common law rights insofar as it encroaches upon the freedom of association. They argued that the legislature should not be taken to have infringed common law rights without expressing that intention with -- 16 of 22 -- [2025] SASCA 107 The Court 15 ‘irresistible clearness’.56 They also contrasted this case with the cases surveyed earlier in these reasons, which did not involve any intrusion upon equivalent common law rights. 71 Against this, more recent authority suggests that the principle of legality is of limited significance in a case, such as the present, where the legislature plainly intended to intrude upon the relevant common law right. As Edelman, Steward and Gleeson JJ explained in Hurt v The King:57 The principle of legality is a long-established principle of statutory interpretation which generally requires that a court be satisfied of a clear parliamentary intention before concluding that legislation abrogates common law rights, privileges or liberties.58 The principle is one that will "vary with the context in which it is applied".59 The required clarity increases the more that the rights are "fundamental" or "important" and the greater the abrogation of the rights to which the interpretation would lead.60 But the principle of legality is ultimately only a principle of interpretation, concerned with the intention that Parliament is taken to have. It has therefore been said that the principle of legality "at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked".61 72 The respondents argued that, even accepting that s 83GC(1) was intended to infringe upon the common law right to freedom of association insofar as it prohibits relevant association ‘in a public place’, it cannot be said to be irresistibly clear that the legislature intended that this right be infringed to the extent the appellant suggests (that is, to prevent associates from travelling from one private place to another private place in a private car). 73 Turning to the principle that statutes creating offences should be construed strictly, the diminished significance of this principle in modern times was adverted to by Kiefel CJ and Keane J in R v A2:62 A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance63. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any "loose" 56 Bropho v Western Australia (1990) 171 CLR 1 at 18 (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ). 57 Hurt v The King (2024) 98 ALJR 485; [2024] HCA 8 at [106] (Edelman, Steward and Gleeson JJ). 58 Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v Western Australia (1990) 171 CLR 1 at 18; Coco v The Queen (1994) 179 CLR 427 at 437-438. See also Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 307-311 [307]-[314]. 59 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309 at 328 [19], citing Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269 at 284 [36]. See also Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 310 [312]. 60 Stephens v The Queen (2022) 273 CLR 635 at 653 [34]. See also Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 at 623 [159]. 61 Lee v New South Wales Crime Commission (2013) 251 CLR 196 at 310-311 [314]. 62 R v A2 (2019) 269 CLR 507 at [52] (Kiefel CJ and Keane J). 63 Beckwith v The Queen (1976) 135 CLR 569 at 576; [1976] HCA 55. See also Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 145; [1983] HCA 44; Waugh v Kippen (1986) 160 CLR 156 at 164; [1986] HCA 12. -- 17 of 22 -- [2025] SASCA 107 The Court 16 construction of an offence provision64. The language of a penal provision should not be unduly stretched65 or extended66. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction67. 74 The respondents accepted that the principle has lost much of its importance. They nevertheless argued that the rule may still be applied when ‘the language of the statute remains ambiguous or doubtful’; and that, in such cases, ‘the ambiguity or doubt may be resolved in favour of the subject’.68 They argued that, because it is not clear from the legislation in the present case that persons who are in a car which is travelling on a public road are ‘in a public place’, it is appropriate to have regard to this principle. 75 In construing s 83GC(1), we have not overlooked the general relevance of the principle of legality and the penal nature of that provision. However, in circumstances where the legislature has evinced a clear intention to significantly disrupt the activities of participants in criminal organisations, including by directly infringing their freedom of association, they are of limited weight or assistance in determining the issue presented by the case stated. Purpose 76 Consistently with the survey of the authorities earlier in these reasons, it is necessary to consider the purpose of the relevant offence provision. 77 Having regard to the extrinsic materials referred to above,69 the appellant placed significant emphasis upon what he contended was the purpose of s 83GC(1), namely to disrupt the activities of declared criminal organisations, and to protect the community from violence, fear and intimidation. 78 The respondents, on the other hand, argued that this Court should be careful in attaching any significance to the passages from the extrinsic materials relied upon by the appellants. In developing this submission, the respondents argued that care should be taken to avoid attaching too much weight to general statements made in the context of general legislative reform, and to avoid making assumptions about the legislature’s purpose in enacting particular provisions. 64 Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193 at 211 [45]; [2005] HCA 58. 65 Allan v Quinlan; Ex parte Allan [1987] 1 Qd R 213 at 215, referred to in Milne v The Queen (2014) 252 CLR 149 at 164 [38]; [2014] HCA 4. 66 Beckwith v The Queen (1976) 135 CLR 569 at 576. 67 Barker v The Queen (1983) 153 CLR 338 at 355; [1983] HCA 18; Chew v The Queen (1992) 173 CLR 626 at 632; [1992] HCA 18. 68 Beckwith v The Queen (1976) 135 CLR 569 at 576 (Gibbs J). 69 As to the use of extrinsic materials, Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 at [5]-[6] (Gageler CJ, Gordon, Jagot and Beech-Jones), [76]-[79] (Edelman J). -- 18 of 22 -- [2025] SASCA 107 The Court 17 79 Whilst consideration of purpose is important, the respondents are correct to urge caution both in determining the legislature’s purpose and in determining the significance of this purpose when construing a particular provision. 80 As French CJ and Hayne J emphasised in Certain Lloyd’s Underwriters v Cross,70 whilst determination of the purpose of a statute, or of particular provisions within a statute, may involve recourse to extrinsic materials, the purpose must ultimately be derived from, and reside in, what the legislation says. 81 Related to this, it should not be assumed that when the legislature intends to pursue a particular purpose, it necessarily intends to do so to the full extent possible. The construction of a statute should not be approached with any assumption as to the desired reach or operation of the relevant provisions. As Gleeson CJ said in Carr v Western Australia,71 a purposive approach:72 … may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the legislation goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which legislation achieves a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. 82 The respondents also emphasised that it is important not to lose sight of the words used by the legislature. In some cases, identification of a general purpose will assist in determining the meaning of a provision. In other cases, where the terms of the provision are otherwise clear, the purpose may not assist. Certainly the purpose cannot be used to derive a very different meaning from that which could be drawn from the terms of the provision.73 83 All of that said, the legislature’s purpose in the present case is clear, and provides some guidance in determining the issue of construction the subject of the case stated. 84 The purpose was identified in the extrinsic materials relied upon by the appellant, but is in any event apparent from the terms of the legislation. The legislation, including s 83GC(1), evinces a two-fold purpose of disrupting the activities of criminal organisations (such as outlaw motorcycle gangs), and of protecting the public from violence, fear and intimidation as a result of their members or participants associating in public. 70 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378 at [25]-[26] (French CJ and Hayne J). 71 Carr v Western Australia (2007) 232 CLR 138. 72 Carr v Western Australia (2007) 232 CLR 138 at [5] (Gleeson CJ). 73 R v A2 (2019) 269 CLR 507 at [34]-[36] (Kiefel CJ and Keane J); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ). -- 19 of 22 -- [2025] SASCA 107 The Court 18 85 An understanding of this purpose informs the proper construction of the intended reach of the s 83GC(1) offence provision, and in particular determination of whether a participant of a criminal organisation is present in a public place when within a motor vehicle. 86 It may be acknowledged that the purpose of disrupting criminal activities does not provide much assistance in this context. It might be said that construing s 83GC(1) as preventing participants of criminal organisations from travelling or otherwise associating in their private vehicles in public places would assist in disrupting their ability to organise, plan, conspire and carry out criminal activities. However, it is to be acknowledged that this would make only a relatively modest contribution to the legislature’s objectives. If the legislature had intended to maximise disruption of this type, then it would have extended its prohibition against associating with other participants to private places as well as public places and, indeed, to being present with any other participant (rather than just two or more other participants). 87 However, the purpose of protecting the community, particularly innocent bystanders, from violence, fear or intimidation is of more assistance in construing s 83GC(1). Accepting that a purpose of s 83GC(1) is to reduce the risk of members of the public being exposed to violence, fear or intimidation, this tends to support a construction which focuses upon the presence of participants within a public place in circumstances which might encourage, or involve a risk of, violence, fear or intimidation. 88 A premise of the s 83GC(1) offence provision is that gatherings of more than two participants of a criminal organisation in a public place involves a risk of violence, fear or intimidation. This is easy to understand. The presence of three or more participants of a criminal organisation might attract participants of a rival organisation in a way that risks an outbreak of violence, and associated danger to the public. But even short of this risk of violence between rival criminal organisations, the presence in a public place of three or more participants of a criminal organisation – particularly when wearing their organisation’s tattoos and other regalia – may result in fear or intimidation among members of the public using that public place. As is well known, engendering fear and intimidation, including through the implicit threat of violence, is the very stuff of outlaw motorcycle gangs. 89 When the s 83GC(1) offence provision is understood in this context, it seems unlikely that the legislature would have intended that participants could avoid being in a public place by being in a motor vehicle. Although the risk of violence, fear or intimidation will be greater when the participants gather outside of a vehicle, some risk exists even if they are in a motor vehicle. Participants may still attract the attention of participants of a rival organisation and so present a risk of violence. But in addition to this, participants of a criminal organisation, even though in a motor vehicle, remain able to generate fear and intimidation through their presence in a public place. -- 20 of 22 -- [2025] SASCA 107 The Court 19 90 Understood in this way, the barrier presented by the body of a motor vehicle is of limited significance. It is of limited significance in reducing the risk of members of the public being exposed to violence, fear or intimidation associated with the presence of participants of a criminal organisation. The presence of participants in a motor vehicle involves a risk of violence, even if they would generally need to leave their vehicle to perpetrate or participate in that violence. And their presence in a motor vehicle may do little to impede their capacity to engender fear and intimidation. 91 Consideration of the nature and subject-matter of the offence provision, and the evil it is intended to address, thus supports the appellant’s construction of s 83GC(1) of the CLCA. It supports a construction that aims to reduce the risk of violence, fear and intimidation by criminalising participants’ presence in a public place, regardless of whether they might also be within a private motor vehicle. It does not support a construction which depends upon a strict dichotomy between public and private places. It is unlikely that the legislature would have intended that large numbers of participants in criminal organisations could gather in a public place, as long as they are within vehicles. 92 The s 83GC(1) prohibition against participants of criminal organisations associating in public is more akin to the public decency offences under consideration in cases such as Walker v Crawshaw, McKenzie v Stratton, Mansfield v Kelly and Wright v McMurchy, than it is to the firearms offences in Forte v Sweeney and Hardman v Minehan. Just as a prohibition against indecent or drunken behaviour in a public place might be undermined by permitting that behaviour to occur within a motor vehicle within a public place, so too a prohibition against participants in a criminal organisation gathering in a public place might be undermined by permitting that gathering to occur within a motor vehicle within a public place. Just as indecent or drunken behaviour within a motor vehicle may still be observed by, and cause offence to, members of the public, so too gatherings of participants of criminal organisations within a motor vehicle may not only involve a risk of violence, but also be observed by, and cause fear and intimidation on the part of, members of the public. 93 Even accepting the correctness of the decision of the majority in Hardman v Minehan, it is readily distinguishable. The majority in Hardman v Minehan relied upon definitional and contextual features of the legislation in that case that have no equivalent in the circumstances of the present case. Importantly, the majority’s reasoning was also predicated upon a view that the relevant offence provision was not intended to address any fear of loaded firearms on the part of members of the public; it was intended only to address the danger posed by the possession of those firearms. It was in this context that their Honours concluded that the ‘intervening barrier’ of a motor vehicle would meaningfully reduce the risk intended to be addressed by the legislation. Given the limited reduction in the risk of the public being exposed to violence, fear or intimidation that might result from participants of a criminal organisation being within a motor vehicle, equivalent reasoning would not carry the same force in the present case. -- 21 of 22 -- [2025] SASCA 107 The Court 20 94 As mentioned earlier, whilst the appellant’s construction of s 83GC(1) of the CLCA has a sound basis in the text of that provision, and is supported by the weight of authority, its force becomes clear when considered in light of the purpose of that provision. Conclusion 95 For the reasons set out above, the appellant’s construction of s 83GC(1) should be preferred. The respondents were in a public place, namely Vicks Road, despite being within a private motor vehicle. The questions of law reserved for this Court’s consideration should both be answered ‘yes’. -- 22 of 22 --