JUDGE1 LEGOE J This is a Crown appeal from an order dismissing a complaint that the respondent behaved in a disorderly manner in a public place, namely John Martins Retailers Ltd, Rundle Mall, contrary to section 7 of the Summary Offences Act 1953. The facts which form the basis of the decision are not in dispute. The prosecution called several witnesses, in particular, the two "young ladies" as they were described by the learned Special Magistrate, plus two employees of John Martins, including a security officer and finally the police officer who stopped and questioned the respondent in Rundle Mall and subsequently arrested him. When questioned by the police officer the respondent consistently maintained that he had done nothing wrong. At the hearing the respondent elected not to give evidence and his counsel submitted that there was no case to answer. THE BASIC FACTS 2. The two young ladies went to John Martins store on the day in question. They visited three sections of the store, namely, the shoe section, Miss J.M.'s and Eliza's Restaurant. While they were in the shoe section one of the girl's said that she observed the respondent staring at both herself and her friend. Apparently the other girl (who appears from the learned Special Magistrate's remarks to be the main one that the respondent was looking at), did not notice the respondent staring at them while they were in the shoe store. The girls then moved to Miss J.M.'s. The respondent followed them. They were in Miss J.M.'s for three or four minutes. They were looking at tops and skirts in Miss J.M.'s. The respondent walked up and down the aisle about 5 metres past them to within about 1 metre. The girls both said in their evidence that at some stage they were scared. As they were unsure what to do, they took a bundle of clothing and went into a change-room. They were there for quite some minutes. When they came out the respondent was still in the area. The girls then quickly ran up the escalators two floors to Eliza's restaurant where they ordered a drink. They spoke to a member of staff there and asked that Security be contacted. The girls said in evidence they had no idea why the respondent was following them. He did not handle any clothing. He did not speak to anyone else. He never spoke to either girl. He made no provocative gestures. Although he came within a metre or so of them, he never blocked their path. As the learned Special Magistrate found:- "He did not do anything to them at all, except to look at them." 3. When the girls went to Eliza Restaurant, the respondent found his way to the coffee place. He stood there and stared at the girls again for a number of minutes and then simply walked off. The girls were then taken by a member of staff and shown the back elevator. While they were leaving the store they saw the respondent walk out with his head down. 4. The learned Special Magistrate clearly based his findings on the evidence of the two girls and said in his ex tempore reasons:- "I watched the girls give evidence and I accept only two readily that these two young ladies on their own in town minding their own business did become scared, not knowing what the defendant was going to do, but it is important that I keep in mind that he didn't do anything except look at them." 5. The fact that the girls were scared was confirmed by the evidence of Miss Holmes, an employee of John Martins. She said the girls were shaking and one of them began to cry. Miss Holmes spoke to a senior member of staff and reported the matter. He described Miss Holmes as a very reliable witness in whom he had confidence. Miss Holmes told the learned Special Magistrate she was terrified as well and the basis of her terror was what she had been told by the girls for whom she felt sympathy. She described how she took the girls to the lift. She said that the respondent left Eliza's Restaurant on one occasion, and then walked off to the walkway to the end lift, paused for a moment, and then walked back to restaurant. After a very short time he left again. It was while he was walking away the second time that she got the girls to the back lift. Miss Holmes did not see the respondent again. 6. On this evidence the learned Special Magistrate was asked by the prosecutor to infer that the respondent was aware that Miss Holmes had gone to report the matter to somebody. The learned Special Magistrate said:- "I simply can't draw that inference from the evidence. That was the second time he left and the second time he simply

wandered outside the store." The evidence of the other witness, the security officer, confirmed that the girls were nervous and scared. 7. After directing himself accurately on the onus of proof, and referring to some cases on disorderly behaviour, in particular, Ellis v. Fingleton (1972) 3 SASR 437 at 440 per Mitchell J the learned Special Magistrate turned to the application of the law to the facts of the case. He said:- "What has the defendant done here on the facts before me to constitute disorderly conduct? He apparently only had his eyes for one girl, I believe it was Janine. She wasn't even aware of that until it was drawn to her attention by her girlfriend, Kerina. So there is no disorderly conduct by the defendant in standing and looking at the girls in the shoe section. He then went to the Miss J.M. section. He saw the girls collect a number of articles and go to the change-room. Some ten or twelve minutes passed before they came out. I am asked to make a finding that he knew that they were already terrified of him. I am unable to make that finding; - simply two girls going to a change-room and trying on clothing - as father of two girls I can say it is not an excessive time. The girls then left quickly and ran up the escalators. The defendant also went up to Eliza's and stood behind them whilst they were seated. He had no idea, notwithstanding what Mr Hills has urged

upon me, that security had been called. He left once to walk up past the lifts and back again, and he left a second time not to return. In these days different people have different ways of showing their pleasure in meeting other people. These girls apparently did not like the look of this defendant. I am no authority on looks. I mentioned to Mr Lempens, counsel for the defendant, and Mr Hills had this fellow been someone well known like Tom Cruise or Jason Donovan might the reaction of the girls been different. One does not know the answer to that question. The girls had the opportunity at Miss J.M.'s to go to the counter. They had the opportunity to speak to somebody there and then. They had the opportunity to catch the lift downstairs into the Mall and speak to a police officer. They chose to go upstairs and order a drink. It is not to say for a moment that the girls were not upset and scared and whilst they are young they did things they might have cause to think they should not have done. I am satisfied they were upset. But the defendant has not done anything either. He hasn't approached them. He hasn't spoken to them. He hasn't interrupted them. He hasn't made any gestures to them. He has walked passed them as close as a metre, and he has looked at them. I can't for the life of me, bearing in mind the test proposed by the learned Judge in Ellis' case, that that is disorderly. It might well be that he was simply plucking up enough courage to speak to them. Maybe the defendant got sick and tired of it. Maybe he was embarrassed. I don't know, but I don't think that his conduct constituted disorderly behaviour, nor do I think for a moment that he should have been arrested and taken off to gaol." THE GROUND OF APPEAL 8. The sole ground of appeal is:- "1. The learned Stipendiary Magistrate erred in holding that the defendant's conduct did not amount to, 'behaving in a disorderly manner' and consequently erred in dismissing the complaint." Counsel for the appellant emphasised that on the facts as found by the learned Special Magistrate the respondent did more than merely "look at" the girls. He adopted an expression that I used in argument, namely the conduct of the respondent was more in the nature of "ocular pestering." Counsel referred to an answer of one of the girls in evidence before the learned Magistrate where she described the respondent as "eyeing off". He referred to the passage in the evidence where she described the respondent as "looking her up and down." She thought the respondent was looking through her clothing. As counsel submitted, it was more than "just staring." Counsel described staring as too lenient a word for this conduct. 9. The classic judicial pronouncement as to what amounts to the offence of disorderly behaviour appears in the time honoured words of Napier J (as he then was) in Barrington v. Austin [1939] SAStRp 38; (1939) SASR 130 where His Honour said:- "I have no doubt that these words, 'disorderly behaviour', refer to any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort other people who may be in, or in the vicinity of, the street or public place." This proposition was approved by the Full Court in Rice v. Hudson [1940] SAStRp 37; (1940) SASR 290 and has been followed in the more recent cases referred to in this appeal of Kruger v. Humphries (1968) SASR 75; Grivelis v. Horsnell (1974) 8 SASR 43 and Ellis v. Fingleton supra. As counsel for the appellant observed, Grivelis v. Horsnell which has some similar features to the present case, was a case where the defendant had been charged with offensive behaviour as opposed to disorderly behaviour. These are two alternative branches of section 7 of the Summary Offences Act. 10. It seems to me that the prosecution established the conduct of a person which frequently occurs in many different types of situations. As the learned Special Magistrate had to determine the degree of that conduct, such as to constitute the criminal offence of disorderly behaviour whereby it could be said that the breach of decorum was such that it tended to interfere with the comfort of other people who may be in or in the vicinity of the public place; see Barrington v. Austin supra. This conduct must be tested objectively, see Ellis v. Fingleton supra. Nevertheless the prosecution must prove beyond reasonable doubt that there is a conscious and deliberate course of conduct by the accused person which constitutes this interference with the comfort of other people such as to leave the tribunal of fact with no reasonable doubt that the conduct of the accused person was intentionally done to bring about such an interference. In my opinion that is important in this case because the reported cases on disorderly behaviour have by and large disclosed some extra element of contact or verbal statement indicating the conduct is directed towards the victim, eg. Grivelis v. Horsnell where words were spoken. This case contains no such element and the facts merely disclose the persistent visual conduct of the respondent without any indication of the purpose or intention of that respondent. Although I do not accept totally the submissions put before me by counsel for the respondent, namely, that the girls could have made some complaint to somebody either in John Martins or to a police officer outside, or left John Martins altogether, I do accept that this was a charge of a criminal offence which imposed upon the person convicted criminal sanctions. Clearly, the facts had to be assessed by the tribunal of fact in order to determine the degree of conduct said to amount to disorderly behaviour. 11. In my judgment the prosecution did not establish that this conduct even taken at its highest amounted to disorderly behaviour within the terms of section 7 of the Summary Offences Act. I agree that this was not a case which could like Ellis v. Fingleton supra, be "laughed off", nor was there any element of amusement as in Ellis' case. Clearly it was a course of serious conduct which gave rise to distress in the young ladies and concern to other employees in John Martins. But it was not sufficiently serious as a course of conduct to warrant the application and conviction of a criminal offence for this conduct; cf. Melser v. police (1967) NZLR 437. I accept that a "breach of decorum" was established, but not that this breach of decorum interfered with the comfort of the girls in such a way as to constitute a criminal offence. It is a borderline case, but the circumstances as to the degree of that interference are equivocal and fall short of proving beyond reasonable doubt that the conduct was clearly within section 7 of the Summary Offences Act. 12. The appeal should be dismissed.