Director of Public Prosecutions (NSW) v Robert Keith Tilley

Supreme Court of NSW|2016-07-12|Before: Bellew J, Mr J

INTRODUCTION

On 20 October 2014 Robert Keith Tilley ("the defendant") was charged with an offence contrary to s. 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) ("the Act") in the following terms: "That between 8:00am on 6 September 2014 and 5:00pm on 11 October 2014, at Wallamore, did, without reasonable excuse, fail to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000."
The defendant entered a plea of not guilty to the charge and the matter proceeded to hearing in the Tamworth Local Court over a period of 3 days, namely 28 May 2015, 29 May 2015 and 14 August 2015. Having heard evidence and submissions, the learned Magistrate dismissed the charge against the defendant.
By summons filed on 4 December 2015, the Director of Public Prosecutions (NSW) brought an appeal, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) ("the Review Act"), against the Magistrate's determination. The Director seeks orders: 1. allowing the appeal; 2. setting aside, pursuant to s. 59(2) of the Review Act, the determination of the Magistrate; 3. remitting the matter to the Local Court of NSW to be dealt with according to law; and 4. requiring the defendant pay the Director's costs of, and incidental to, these proceedings.
The summons was supported by an affidavit of Graham Hazlitt, solicitor, sworn on 7 April 2016. That affidavit was contained in a Court Book containing all of the relevant evidentiary material which was tendered with the consent of both parties and marked exhibit A.
The Director relies upon two grounds of appeal, namely that the Magistrate erred in law in: 1. failing to provide adequate reasons; and 2. dismissing the proceedings.
The focus of the respective submissions was upon the first of those grounds.

The relevant legislation

Section 3A(1) of the Act is in the following terms: 3A Registrable persons (1) A "registrable person" is a person whom a court has at any time (whether before, on or after the commencement of this section) sentenced in respect of a registrable offence, and includes a corresponding registrable person.
There was no dispute in the present case that the defendant had been a registrable person since November 2008 as a consequence of being convicted, in 1997, of having sexual intercourse with a child under his authority. As a consequence of the commission of that offence, a 15 year old girl (RG) fell pregnant to him and gave birth to their daughter (KG) on 28 June 1998.
Section 9 of the Act prescribes relevant personal information which must be reported by a registrable person. For the purposes of the present case it is relevant to note that s. 9(1)(e) is in the following terms: 9 Relevant personal information to be reported (1) For the purposes of this Act, the "relevant personal information" to be reported by a registrable person consists of the following information: …. (e) the name and date of birth of each child who generally resides in the same household as that in which the person generally resides; …"
Section 11 of the Act imposes an obligation upon on a registrable person to report any changes to relevant personal information, and is in the following terms: 11 Registrable person must report changes to relevant personal information (1) A registrable person must report to the Commissioner of Police any change in the person's relevant personal information: (a) in the case of a change in the information referred to in section 9 (1) (e)-within 24 hours after the change occurs, and (b) in any other case-within 7 days after the change occurs. (2) For the purposes of subsection (1), a change occurs in the place where the registrable person or a child generally resides, or in the place where the registrable person is generally employed, or the motor vehicle that the person generally drives, only on the expiry of the relevant 3-day or 14-day period referred to in section 9 (2). (3) If the relevant personal information for a registrable person (other than one to whom Division 5 applies) changes while the person is not in New South Wales, the person must report the change to the Commissioner of Police within 7 days after entering and remaining in New South Wales for 14 or more consecutive days, not counting any days spent in government custody. (4) A registrable person who is in government custody for 14 or more consecutive days must report the person's relevant personal information to the Commissioner of Police: (a) within 7 days after the person ceases to be in government custody, or (b) before leaving New South Wales, whichever is the sooner.
Section 17 of the Act creates the offence with which the defendant was charged and is in the following terms: 17 Offence of failing to comply with reporting obligations (1) A registrable person must not fail to comply with any of the person's reporting obligations without reasonable excuse. Maximum penalty: 500 penalty units or imprisonment for 5 years, or both. (2) In determining whether a registrable person had a reasonable excuse for failing to comply with the person's reporting obligations, the court before which the proceedings are being heard is to have regard to the following matters: (a) the person's age, (b) whether the person has a disability that affects the person's ability to understand, or to comply with, those obligations, (b1) whether the form of the notification given to the person as to the person's obligations was adequate to inform the person of those obligations, having regard to the person's circumstances, (c) any matter prescribed by the regulations, (d) any other matter the court considers appropriate. (3) It is a defence to proceedings for an offence arising under this section if it is established by or on behalf of the registrable person charged with the offence that, at the time the offence is alleged to have occurred, the person had not received notice, and was otherwise unaware, of the person's reporting obligations.
Section 21A of the Act facilitates evidence by way of the tender of a certificate and is in the following terms: 21A Certificate evidence (1) In proceedings under this Act, a certificate signed by the Commissioner of Police, or a member of the NSW Police Force holding a position designated in writing by the Commissioner of Police for the purposes of this section, certifying that the Register: (a) at any particular date contained information specified in the certificate, or (b) indicated that, during any particular period, a specified person failed to notify information as required by this Act, is evidence (unless evidence to the contrary is adduced) of the particulars certified in the certificate. (2) Not more than 3 positions are to be designated at any one time under subsection (1). (3) For the purposes of this Act, a certificate that would be evidence under a corresponding Act that at a specified time, or during a specified period, a person was required to report to a corresponding registrar under that Act is evidence, and in the absence of evidence to the contrary is proof, of the facts stated in the certificate.

The proceedings before the Magistrate

KG, KT and BT are the defendant's children. The prosecution case before the Magistrate was that the defendant had permitted three children who were each under the age of 18 years, namely KG, BT and KG's friend (SS), to reside with him for a period or periods of more than three days, and that he failed to report that fact to police, contrary to the obligation to do so which was imposed upon him under the Act. Before the Magistrate, the case against the defendant proceeded by way of the tender of a large volume of documentary material, supplemented by oral evidence from a number of police officers, and from DM, who was the father of SS. For present purposes, the relevant evidence may be summarised as follows.
A certificate issued under s. 21A of the Act which was tendered before the Magistrate established that the defendant was a registrable person under the Act, and had been since November 2008 (CB227). On 20 August 2010 the defendant acknowledged, in writing, that he had been given a Form 3 Notice issued under the Act (CB110 and following) which informed him of various reporting obligations. That Notice included the following provisions: "6. You must tell police certain personal information At the Police Station, you must give your photo and documents to a police officer and tell him/her: … (d) the names and ages of any children who generally reside in the same household as you for at least 3 days (whether consecutive or not) in any 12 month period, or with whom you have regular unsupervised contact for at least 3 days (whether consecutive or not) in any 12 month period. … 7. IMPORTANT - What to do if information changes You must report to police in person during your reporting period: a) Any change in your residence you generally reside at or the localities in which you can generally be found; b) Any change, move or acquisition of any tattoo or distinguishing mark within 14 days of the change occurring. It is important that you phone the Crime Manager responsible for the Police Station or their delegate before you report to the station. You must report the following to police during your reporting period either in person or by way of a telephone call to the Crime Manager responsible for the Police Station within the location you reside or any other way permitted by the Commissioner: a) If information relating to 6(d) changes you must report them (sic) within 3 days of the change occurring; …."
On 1 September 2014 KG, who was a friend of SS, commenced living with SS and her family at their home. KG and SS were best friends and attended the same school: statement of DM at [4]; CB375.
On 6 September 2014, KG told DM that she wanted "to go into town and meet her Dad as this was the first time": statement of DM at [5]; CB375. On that day, KG, SS and DM travelled to Tamworth where they met the defendant. They all remained in each other's company for approximately an hour before going shopping, following which DM allowed KG to "spend a bit of time with her Dad so she could get to know him": statement of DM at [6]; CB375; CB91 L32-40).
Prior to this meeting taking place, the defendant had telephoned Detective Senior Constable Wallace. In a statement of 23 November 2014 (CB163 and following) Detective Wallace stated (at [6]): "About Monday 8 September 2014, the accused contacted me by telephone to advise that he was going to meet with his daughter (KG). He indicated (KG) would be in the presence of her adult sister. I indicated to the accused that the meeting was permissible but the meeting should occur in a public place and the adult sister should be present during the meeting at all times. The accused indicated he understood the information I had given him.
Detective Wallace was one of the witnesses called to give evidence before the Magistrate. In the course of cross-examination he was asked the following (commencing at CB50 L21): Q: Sorry 8 September you had a conversation? A: 8 September. Q: You had a conversation with Mr Tilley? A: Yes. Q: What was that conversation about? A: Mr Tilley rung me and advised me that he was wishing to have a meeting with (KG) and that his elder daughter would be present at the meeting and I recommended to him that it probably best he do it out in a public place and that the older daughter be there with him at all occasions. Q: Is that all you recommended? A: I can't recall any thing further that - - Q: Just that he was to have that meeting in a public place and that - - A: Well it was a recommendation. I can't tell him what to do, I mean because he expressed concerns - - Q: - - You can - - A: - - He expressed concerns to me before when I'd spoken to him before about meeting his daughter in the street or something and he had to cross the other side of the street. So he avoided the contact or something so. Q: Well you didn't tell him for example that he needed to have that recorded on his Form 4 did you? A: Well I didn't no - - Q: Thank you Detective - - A: - - No I didn't, correct.
After asking questions of Detective Wallace in relation to other subject matter (including the defendant's reading skills) the cross-examination returned to the conversation between the defendant and Detective Wallace on 8 September 2014 (commencing at CB54 L37): Q: Now detective you say that Mr Tilley first contacted you in relation to (KG) on or about 8 September, do you agree with that? A: Yes Q: That if I was to suggest to you that he was going to meet or that KG had contacted him by telephone would you agree that that was what he informed you? A: That could've been the case yes. Q: He said look words along the lines of "I've had a" - - "KG had contacted me and she wants to meet with me"? A: Yes. Q: That KG had asked to meet him at a shopping centre. A: No Q: Or that there was a discussion that it had to be in a shopping centre? A: No Q: You don't recall this first meeting between him and (KG) to be at a shopping centre is that what you're saying? A: My only recollection of that discussion was that he was, he was in, had a, intending on to meet her and he was ringing to let me know about that, that that was going to occur and it was simply I recommended to him do it in a public place and you know with the adult daughter being present. Q: Sorry I missed that little bit? A: That the meeting to occur in a public place and I didn't suggest a shopping centre or café - - Q: You didn't suggest a shopping centre? A: No, no and that the adult sister should be there throughout that meeting. Q: So if I suggest to you that he did tell you it was going to be a shopping centre and you said words to the effect that yeah that'll be alright do you agree or disagree with that? A: Look if that was his recollection of the conversation I can't agree or disagree, that may have been the case. Q: Rather than telling you, but certainly you didn't take any issue with him meeting KG on that occasion did you, being the early September? A: No."
In about 2012, the defendant had commenced employment as a farm hand. As part of his remuneration package, he was provided with rental accommodation at the property at which he worked, which was owned by Peter and Denise Klasen ("the property"). The defendant was living at the property in September 2014: statement of Peter Klasen at [3], [6]; CB129. In that statement Mr Klasen also said the following (commencing at [9]):: "9. I can't remember exactly the date but sometime toward the beginning of the September 2014 school holidays I know Rob had his daughters (KG, BT and KT) staying there at his place. Also staying there was (KG's) friend (SS). I think (SS's) father had to go away to see a sick relative and (SS) needed somewhere to stay while he was away. 10. I think all the girls stayed there around five or six nights, I can't be certain. Before they arrived, Rob spoke to me about them coming and I lent him my portable air compressor to blow up an air mattress for Rob to sleep on while the girls were there. 11. During those days when they were there visiting, I would go up to Rob's place every day just to speak to Rob to let him know what was going on. I would pull up out the front of his place and would also see his girls. In general conversation I would just ask the girls how they were going and they all seemed pretty happy and they were all taking turns cooking each night, that type of thing. There was never anything to cause me any concern. 12. While the girls were staying there, Rob asked me if (my wife and I) could drop the kids to the school and to the shops when needed. I do remember picking both (KG) and (SS) up from (school) and bringing them back to Rob's place. KT was with me that day when I picked them up as well. Again there were no problems or issues disclosed to me by KG or SS while in the car and away from Rob. 13. I know my wife dropped the girls off at school a couple of times as well around that same time. I have since spoken to my wife about this matter and she has told me that (KG) and (SS) never raised any issue or concern with her whilst away from Rob."
The statement of DM tendered before the Magistrate (CB375 - 377), along with his evidence at CB92 L25 and following, supported the fact that KG, BT, SS and KT stayed with the defendant at his residence for some days on and from about 17 September 2014. DM stated (commencing at [8]): "8. On the 17 September 2014, (KG), (SS) and I picked up Rob's two daughters (BT) and (KT) from the Tamworth Train Station and all five of us went out to Rob's farm in my car which is a gun metal grey Toyota Camry. I know that one of the girls in nearly eighteen and the other one is nearly twenty years old. I left the four girls there at the farm at Rob's house. It is Rob's boss's farm. 9. I returned home and the next (sic) and went up to Brisbane on the 18th September. I stayed up there and came back home on Thursday 25 September 2014. 10. The arrangements were for the girls to stay at Robert's place for the week. Both girls had to go to school on the Thursday and Friday before the holidays. Rob's boss's wife took the girls into school. 11. I went back out to the farm the same day and picked (KG) and (SS) up and everything was fine and they said they had a good time riding the bike around the farm and had enjoyed themselves. I had not had any concerns about the girls being out there with Rob."
KT made a statement to the police which was also tendered before the Magistrate (CB126 - 128) in which she said the following (commencing at [6]): 6. Around early September 2014, Dad received a phone call from (KG) wanting to see Dad. Dad blankly refused sometimes. On the 18 September 2014, Dad rang me asking if me and (BT) would like to come up and see him for a holiday. 7. Later that night Dad has called me back and said he had got a phone call from (DM) asking if he could look after (KG) and (SS). Dad said that that could possibly be alright, he just had to make a phone call to the Police. He rang me back again and said that (KG) was coming out with us and that (DM) was picking us up from the train station and that he was going to have the girls with him and he would take us all out together. 8. On the 19 September 2014, (BT) and I caught the train from Wingham to Broadmeadow and then up to Tamworth. We arrived at Tamworth around 3:40pm. (DM) and (KG) was (sic) there to meet us. (DM) also had his daughter (SS) there as well. I had not met (DM) or (SS) prior to that day. 9. (DM) drove (BT), (KG), (SS) and I all out to Dad's farm at Wallamore Road. When we got there Dad was there and greeted us. (DM) stayed for a while and then he took all four of us girls back into town to do some shopping. (DM) drove us back out to Dad's farm and (DM) left. 10. We all stayed together with Dad in his little house. (KG) and (SS) slept in the double bed which is normally Dad's bed. (BT) and I slept in the bunks and Dad slept out on the lounge." 11. During the days we were there visiting we were just there chilling out talking to Dad and riding the quad about the farm. 12. On Saturday the 20 September 2014 (KG) went back into town as (KG) had to go to the TAFE opening day. Denise Klasen drove (SS) and (KG) in for that. 13. We continued to stay at the farm and on the 24 September 2014 all of us four girls went into town and we went to the movies for (SS's) birthday. We all went back home again to Dad's. 14. The next day on the 25 September 2014, (KG) and (SS) went home. (DM) came by and picked them up when he came back from Queensland. 15. On the 26 September 2014, (BT) and I went back home. Denise and Peter Klasen drove us to the Railway Station. 16. While we were staying out at Dad's farm we did not have any issues with Dad at all. (KG) or (SS) never once complained to me about anything, in fact I have never seen two girls as happy as they were. 17. The only thing that happened was that the Police did come to check on (KG) to see if she was okay as the school or someone had complained and had rung the Police. The Police just asked our names, how old we were and where we lived. It was mainly Dad that was speaking to the Police."
On the afternoon of 18 September 2014, Senior Constable O'Brien attended the property with Constable Wade. Senior Constable O'Brien's statement was before the Magistrate (CB120-121) and recorded (at [4]) that she had attended the property "in relation to a concern for (the) welfare of (KG) who was staying with her father Robert Tilley". The statement continued (commencing at [6]): "6. Constable Wade walked with the accused a short distance away and I spoke to the females on the front veranda. 7. I do not remember the exact conversation but three of the females were the daughters of Robert Tilley and the other female was a friend of his daughter (KG) who was present. I had a short conversation with Constable Wade in which she stated that he had spoken to Detective Wallace by phone and that he wished for details of the people staying with (KG) to be recorded. I returned to the veranda and recorded details of the females present in my notebook. I was told by (KT) who is (KG's) sister that she would be staying with her father for a number of days, possible up to a week. She informed me that she would be present at the location as long as (KG) was there. 8. I spoke to (KG) who stated that she had been staying with her friend (SS) for some time as she had had an argument with her mother. 9. Following this I joined in the conversation with the accused and Constable Wade. I heard the accused saying that (KG) had been kicked out of home by her mother about two weeks prior to police arriving."
A statement of Constable Wade was also tendered before the Magistrate (CB161 - 162). Commencing at [5] Constable Wade stated: 5. When we arrived I saw a group of girls and the accused sitting on the porch of a demountable house on the property. SC O'Brien spoke with the girls while I spoke with the accused. He told me that (KG) was his daughter with (RH) and she was there because (RH) had kicked her out of the house that day. He further stated that he had spoken to his Case Officer Detective Les Wallace in relation to (KG) staying at the location while her older sister was there. 6. I contacted Detective Wallace and made inquiries with him to verify what the accused had said. Detective Wallace said that the accused had contacted him in regards to (KG) being at the location. He said the accused had spoken to him about (KG) visiting and had to be in company with her older sister if she was staying the night, he requested we obtain the details of the other girls present at the location and he would follow up with the accused in regards to his Child Protection Register conditions."
Constable Wade gave evidence before the Magistrate and was cross-examined about his attendance at the property (commencing at CB18 L34). Having confirmed those persons who were present at the time, the cross-examination continued (commencing at CB19 L4): Q: You had a conversation with Mr Tilley whilst you were out there did you not? A: Yes I did. Q: Mr Tilley told you that he was on the Child Protection Register did he not? A: Yes he did. Q: Mr Tilley told you that he had contacted his case officer, Detective Wallace sometime prior to you coming out, correct? A: That's correct. Q: He told you, did he not, that he had informed Detective Wallace that these girls or these ladies, females, were going to be present at his property isn't that correct? A: He told me that he told Detective Wallace he had informed him that (KG) would be staying and that Detective Wallace told him that as long as the older sister was present with (KG) it wasn't an issue at this time and he would follow up with him at a later date in regard to these other people. Sorry - - Q: Just take you back - - A: - - I'll go back a bit sorry. Q: If you could thank you? A: He told me he told Detective Wallace that (KG) would be staying and as long as the older sister was present that was fine at that stage but then I called Detective Wallace to confirm it. Q: Stop there then. We'll get onto what the conversation between you and Detective Wallace was in a minute. A: Yeah Q: Just want to focus on what Mr Tilley told you, that is that he had spoken to Detective Wallace? A: Yes. Q: Correct? A: Yes. Q: And told Detective Wallace that (KG) would be staying. He told you that? A: Yes. Q: That Detective Wallace told him that that would be okay provided there was another adult person? A: The older sister present. Q: The older sister and you understand the older sister to be (KT) do you not? A: That's correct. Q: That is the conversation that you, Mr Tilley relayed to you about a telephone conversation he had with Mr Wallace, Detective Wallace? A: About the conversation yes."
The cross-examination then turned to the conversation between Constable Wade and Detective Wallace (commencing at CB20 L30): Q: Now after you've had that conversation with Mr Tilley you then have a telephone conversation with Detective Wallace is that correct? A: That's correct. Q: What do you tell Detective Wallace? A: I relayed to him what the accused Robert Tilley told me. Q: Can you tell us what you said to Detective Wallace? A: I told him that we were out (sic) the property 720 Wollamor (sic) Road, that we were speaking to Robert Tilley in regards to his daughter (KG) being at the location after her mother (RH) kicked her out of the house. I told, asked Detective Wallace if it was okay that (KG) was staying at that address and he said as long as the older sister was there that would be alright for the night and that he would follow up with Robert at a later date. I also told him that there were other girls present at the demountable house that Robert Tilley was staying at and he asked me to get their names so that he could follow up with the conditions of Robert Tilley's CPR. … Q: When you're having a conversation with Detective Wallace on the phone? A: Yeah. Q: Did you tell him the young girl (SS) was there? A: Not at the time, I was speaking to Robert while my off sider Senior Constable O'Brien was getting all the details of the girls there. Q: But did you inform me that there was another girl? A: I told him that there were all four of them there. That there were four, sorry there were four girls there."
Constable Wade was then asked (commencing at CB23 L32): Q: After a very short conversation with Mr Tilley you and your colleague Constable O'Brien left? A: That's right. Q: You didn't give any directions or anything other than a very short conversation after Mr, you spoke to Detective Wallace did you? A: I believe I told him to go see Detective Wallace as early as he could the next day in regards to what his conditions were and if anything needed changing. That's at the point, that's all. HIS HONOUR: Q: So you just told him to see him the next day, Detective Wallace, because you were there at about 4:30pm in the afternoon, weren't you. A: Yeah. Q: Detective Wallace was about to go off duty wasn't he? A: About to leave. BIRTLES Q: Constable I suggest to you that you didn't tell Mr Tilley to go and check with Les Wallace the following day about his reporting conditions? A: I disagree. Q: Just for clarity I suggest the only conversation you had with him is following the conversation with Detective Wallace, that is, is the words "Les Wallace said just be careful"? A: I disagree."
Also before the Magistrate were transcripts of interviews conducted with KG (commencing at CB134) and SS (commencing at CB149). Both recounted occasions on which they had attended, and stayed at, the defendant's premises.
At the conclusion of the evidence for the prosecution the solicitor for the defendant submitted to the Magistrate that there was no evidence to establish the fact that the defendant had failed to comply with the reporting requirements imposed upon him. In particular, the defendant's solicitor submitted (commencing at CB73): "Your Honour I say there is no evidence before the Court that he has ever had any unsupervised contact. That is the first point. My friend seeks to rely on the fact, true it is your Honour, that evidence taken at its highest by the prosecution case is that two children under the age of, well around 16 or one under the age of 16, did reside or did go to his place and stay there. At all times there was supervision. That is the Crown's case. My friend would seek to rely on the fact well it doesn't matter whether we're supervised or not because it is more than three days. I say "generally" should be interpreted as an ongoing thing anyway, not a one off event which is all the Crown relies upon. I say there is no evidence that generally these children reside there for any three days and no evidence of lack of supervision. That is it in a nutshell. I say that there is no evidence to suggest that he has not complied with his requirements to report."
In reply, the prosecutor (at CB74) drew the Magistrate's attention to condition 6(d) (set out at [14] above) as well as to the provisions of s. 9(1)(e) of the Act: "There are two segments of that particular part and it's an "or" not an "and" your Honour is respect of that. In respect of that particular obligation, a reporting obligation, it doesn't fall alone. It falls with the obligation under s. 9 of the Child Protection (Offenders' Registration) Act that Mr Tilley, the defendant, must, to comply with his reporting obligations, report relevant personal information and that relevant personal information under 9(1)(e) is: "The name and date of birth of each child who generally resides in the same household in that in which the person generally resides". … Never ever on any occasion has Mr Tilley reported the relevant information, the relevant personal information required under his reporting obligations of (SS) residing or generally residing at that address or with Mr Tilley and his other child who is over 18, or Mr Tilley or any other person."
The Magistrate found that there was a prima facie case. The defendant was not called to give evidence and the solicitor for the defendant and the prosecutor addressed the Magistrate further (although those submissions have not been transcribed). The Magistrate then dismissed the charge.

THE MAGISTRATE'S REASONS

The reasons given by the Magistrate (at CB105-106) were brief. In view of the fact that those reasons are the focus of the principal ground of appeal it is appropriate that I set them out in full: "This is the second limb application. In this case the Crown has established a prima facie case and the evidence has (sic) not sufficiently lacking in cogency or reliability as to warrant an invitation for an application of a Prasad. There is evidence, which is arguably capable of excluding reasonable doubt and there is no need to go into the evidence supporting a finding of reasonable doubt. The court has regard to the decision of May v O'Sullivan and when at the close of the case for the prosecution's submission is made that there is no case to answer, the question to be decided is whether or not on the evidence as it stands the defendant ought to be convicted, but whether on the evidence (sic) it stands he could lawfully be convicted. This is really a question of law, unless there is some special statutory provision on the subject, a ruling that there is a case to answer has no effect whatever on the onus of proof which rests upon the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not the question to be decided in the end by the tribunal is whether the whole of the evidence before it, and that is on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. Now, the evidence before the court is this. The prosecution has called police in relation to their investigations of the matter. Senior Constable Wallace is the detective sergeant in charge of the matter. He was the second prosecution witness called and he tendered a large quantity of documentation in relation to the matter. The prosecution had tendered exhibit (1) and exhibit (2), exhibit (3), exhibit (4), exhibit (5), exhibit (6) and exhibit (7), an interview, exhibit (8), a further document in relation to the matter which as an ERISP interview with (SS) and exhibit (7) an ERISP interview with (KG). The Court also has had before it and was called today the evidence of Sergeant Klavell. His statement was originally tendered into evidence. His statement, and he admitted today, did not go far enough and it had a number of mistakes in the statement including where the material was served, whether it was served at the police station or at his residence. The officer stated it was served at the police station. There is no doubt that the material is complex and the officer could not remember whether he had fully read the material and fully explained the material to the accused person at the time of serving the material. He was not certain, and again it is no criticism, it was some years ago also tendered were notes that he had in (sic) entered into the computer system which assisted him but he had no real independent recollection of what occurred. There is no doubt that the signatures of the accused person as signed on these documents (sic). Again, I must say that the documentation is lengthy and it is an area where one needs to understand clearly the responsibilities. The issue regarding supervision also raise (sic) there was a supervisor, a person over the age of 18 years, and again the issue of the evidence given today does not generally identify in detail any potential breaches. There was a concession by the senior constable that there was one issue regarding the unsupervised conduct, but that was on the basis of the age of the young person whom he was not certain whether he was 17 or 18 at the time. An admission statement was made upon resumption and the prosecutor accepted that the age of the supervisor was over 18. The court at the end of the day needs to be satisfied beyond a reasonable doubt and the Court must say that the importance in these types of matters and particularly in the management and supervision of sex offenders are of paramount importance to the community, to the individual concerned and also to the victims both former or potential. Supervision is a very important role and very important understanding that needs to be adopted. The Court is concerned that in this matter there seems to be to some extent and ad hoc degree of supervision and that the evidence has been presented before the Court has been less than satisfactory. I am not criticising the police for all of the mannery (as said) of investigation but at the end of the day I have to be satisfied beyond a reasonable doubt, and in this matter, whilst there may be some suspicion, I cannot be satisfied for (sic) the requisite extent of being satisfied beyond a reasonable doubt that the prosecution has managed to prove to me beyond a reasonable doubt that each and every element of the charges have been established and accordingly THE CHARGE IS DISMISSED. No doubt, Mr Birtles, your client has learnt a very valuable lesson and it would be prudent for the prosecuting authority also to have a review of practices and ensure that this is properly attended to in the future, so there can be no misunderstandings."

Submissions on behalf of the Director of Public Prosecutions

Mr Kell, the Acting Crown Advocate who appeared with Ms Baker of counsel for the Director, noted that the appeal had been brought pursuant to s. 56 of the Review Act which confers a right upon the prosecution to appeal against an order made by the Local Court dismissing any summary proceedings, on a ground that involves a question of law alone. It was submitted, and it was not disputed by counsel for the defendant, that a judicial officer is obliged to provide adequate reasons for a decision, and that a failure to do so constitutes an error of law: Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 at [43]; Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 at [44]; Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713 at [56].
Mr Kell submitted that the reasons for a judicial officer's decision must be such as to permit the persons affected by that decision, any court to which an appeal may lie, and the community in general, to be aware of the essential chain of reasoning which had been followed: Wong v R [2001] HCA 64; 207 CLR 584 at [116] per Kirby J; Stoker v Adecco Gemvale Constructions Pty Limited and Anors [2004] NSWCA 449 at [41] per Santow JA (Mason P and Sheller JA agreeing). It was submitted that even when full weight was given to the fact that the Magistrate's reasons were delivered ex tempore, and in a busy Local Court, they were entirely inadequate.
It was submitted that the reasons given in the present case amounted to little more than his Honour making passing reference to some (but not all) of the evidence and some (but not all) of the witnesses, before concluding that the prosecution had not established, beyond reasonable doubt, the elements of the offence. Mr Kell submitted that this had occurred in circumstances where: 1. the elements of the offence themselves had not been identified; 2. no finding had been made by the Magistrate as to which of those elements had not been established; and 3. no reasons had been expressed as to why that was so.
It was submitted that as a consequence, the reasons did not reveal, be it adequately or at all, the basis on which the Magistrate had concluded that the charge should be dismissed, nor did they express any of the specific findings which were critical to that determination. It was submitted, in particular, that it was not possible to discern from the Magistrate's reasons the essential chain of reasoning that had brought about the decision.
It was also pointed out that issues of supervision and residence had been squarely raised before the Magistrate in submissions made on behalf of the defendant, to which the prosecutor had responded. It was submitted that in these circumstances, it was significant that the Magistrate had made no reference at all to those matters in his reasons and, in particular, had expressed no finding as to whether or not the children had in fact "resided" with the defendant in the sense contemplated by clause (6)(d) of the relevant condition (at [14] above) and s. 9(1)(e) of the Act. It was submitted that the absence of any such reference inexorably led to the conclusion that Magistrate had failed to engage with, and properly consider, submissions made to him about a material issue, and had given no indication of the acceptance or rejection of those submissions.
Mr Kell submitted that in all of these circumstances the relief sought should be allowed. He submitted that in the event that error was established, the proceedings should be remitted to the Magistrate and that, in particular, there was no warrant for this Court to determine the ultimate question as to whether or not the elements of the offence were established.

Submissions on behalf of the defendant

Counsel for the defendant expressly conceded, both in his written submissions and in oral submissions before this court, that the Magistrate's reasons were brief. However, he submitted that in the context of a consideration of reasons given by a judicial officer, brevity was not to be equated with inadequacy.
Counsel emphasised, in particular, those authorities which make it clear that proper allowances must be made when assessing the adequacy of ex tempore reasons given in a busy Local Court, where the pressures imposed upon a Magistrate are significant. It was submitted that once such allowances were made, the reasons given by the Magistrate in the present case satisfied the test of adequacy. In particular, it was submitted that the reasons given were sufficient to appraise the parties of "the broad outline and constituent facts of the reasoning on which (the Magistrate) acted". In this regard, it was submitted that the Magistrate had outlined the facts, correctly identified the witnesses and their evidence, and had set out, in a reasoned way, the basis of this decision.
In the event that I came to the view that that the Magistrate's reasons were inadequate, and that the error of law relied upon by the Director had been established, counsel for the defendant submitted that I should not remit the matter to the Local Court. He submitted that this Court retained a discretion as to whether or not to remit the matter and that having considered all of the evidence, I would be satisfied that the elements of the offence charged were not supported, and that I would conclude that the Magistrate's determination that the charge should be dismissed was in fact correct.

CONSIDERATION

In Director of Public Prosecutions v Sadler [2013] NSWSC 718 I made a number of observations, by reference to various authorities, regarding the obligation imposed upon a judicial officer to provide adequate reasons for his or her decision. In particular, I said (at [77] - [78]): "77. When a Magistrate determines to dismiss a charge, whether on the ground that there is no prima facie case, or because on all of the evidence the Magistrate is not satisfied beyond reasonable doubt of the guilt of the accused person, there is an obligation, which Judges of this Court have emphasised, to give reasons for that decision (see Wililo (supra) at [54]; (see for example Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; (2006) 67 NSWLR 402 at 408 per Johnson J). 78. Some allowance must, of course, be made for the circumstances in which ex tempore reasons are delivered (see Acuthan v Coates (1986) 6 NSWLR 472 at 485 per Mahoney JA). The Court of Criminal Appeal has consistently said that an overly critical approach should not be taken where ex tempore reasons are given in a busy list, immediately following submissions (see for example Rose v R [2013] NSWCCA 71 at [41] citing Gommesen v R [2012] NSWCCA 226 per Garling J at [37] - [38], McClellan CJ at CL and McCallum J agreeing; see also Warner (aka Jeremy Pachenko) v R [2013] NSWCCA 10 per S Campbell J at [33], Hoeben CJ at CL and Davies J agreeing). Whilst such observations have generally been made in the context of appeals following sentencing proceedings in the District Court, I accept that they are no less applicable when considering ex tempore reasons delivered in a busy list in the Local Court."
I also said (at [81]): "In respect of the submission made by counsel for the defendant that extensive reasons were not necessary I accept, as a general proposition, that the extent of the duty to give reasons depends upon a number of factors including the nature of the decision, the circumstances in which it is made, and the purpose that the statement of reasons is intended to serve (see Mifsud v Campbell (1990) 21 NSWLR 725). However, at the very least, reasons must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached (see Pettitt v Dunkley [1971] 1NSWLR 376 per Asprey JA at 382, cited in Soulmezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257)."
In Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; (2006) 67 NSWLR 402, Johnson J said at 408; [18]-[19]: "18 One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision: Pettitt v Dunkley (1971) 1 NSWLR 376, 387, 388; Donges v Ratcliffe (1975) 1 NSWLR 501 at 507; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 386. The defendant and the prosecutor have a statutory right of appeal to this Court under the Appeal and Review Act arising from the determination of criminal proceedings in the Local Court. 19 It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at paragraph 11; R v Thompson [2005] NSWCCA 340; (2005) 156 A Crim R 467 at 474-5 (paragraph 32). The provision of concise reasons as required by law will avoid this circumstance occurring. It is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s.202 Criminal Procedure Act 1986.'"
Subsequently, in Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713 Johnson J said (at [56] and following): "56. There is no provision applicable to Magistrates such as s.133 Criminal Procedure Act 1986, which applies to trial by Judge alone on indictment. Nevertheless, it is part of the Magistrate's duty to state the facts found and the legal principles applied to those facts, for the purpose of reaching a verdict: Donges v Ratcliffe [1975] 1 NSWLR 501 at 507. In Moloney v Collins [2011] NSWSC 628, the Court said at [63]-[65] (in the context of a civil hearing in the Local Court): '63 Failure to give reasons as required by law may itself disclose error of law: Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279. However, the extent and content of the reasons required will depend upon the particular case and the issues under consideration. 64 The duty does not require the trial Judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings: Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at 41. It is essential to expose the reasoning on a point critical to the contest between the parties: Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 at [58]. 65 Appropriate allowance should be made for the pressures under which Magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at 407-408 [15]- [18].' 57. Judges of this Court have emphasised repeatedly the obligation upon a Magistrate to give reasons for a decision in criminal proceedings in discharge of the Magistrate's judicial duties, whilst keeping in mind the practical reality of delivery of ex tempore reasons in a busy court: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited at 407-408 [15]-[19]; Munro v ACP [2012] NSWSC 100 at [21]- [23]; Director of Public Prosecutions v Sukhera [2012] NSWSC 311 at [16]- [17] and Director of Public Prosecutions v Langford [2012] NSWSC 310 at [33].
Bearing in mind the principles set out in these cases, and even when full weight is given to the fact that the Magistrate's reasons in the present case were delivered ex tempore in a busy Local Court, I have come to the view that they were inadequate.
The charge required the prosecution to establish, beyond reasonable doubt, that the defendant: 1. was subject to reporting obligations under the Act; 2. failed to comply with those obligations; and 3. did so without reasonable excuse.
The Magistrate's ultimate conclusion was that he was not satisfied beyond reasonable doubt that "each and every element of the charges (sic) had been established". He reached that conclusion in the absence of: 1. identifying those elements; 2. making any findings of fact, 3. articulating, and applying, the relevant legal principles to the facts; 4. specifying the particular element(s) about which he was not satisfied beyond reasonable doubt; and 5. exposing his reasoning process, and explaining why he had come to the view that he was not so satisfied.
For a number of reasons, I am unable to accept the submission of counsel for the defendant that the Magistrate outlined the facts, correctly identified the witnesses and their evidence, and set out in a reasoned way the basis of his decision. There was, in reality, no outline of the facts at all, much less any expression of findings of fact. Rather, there were passing references to some (but not all) of the witnesses, along with a passing references to some (but not all) of the evidence. As Johnson J stated in Wililo (supra), it is part of a Magistrate's duty to state the facts found, and the legal principles which apply to those facts, for the purposes of reaching a verdict. Nowhere in the Magistrate's reasons is there any indication at all of what factual findings he made.
Further, specific submissions were made to the Magistrate on behalf of the defendant regarding whether or not it could be said that the children in question "generally resided" with the defendant during the relevant period. Submissions were also made to the Magistrate regarding the extent of the defendant's unsupervised contact of the children. The prosecutor joined issue with those submissions and put a contrary position. The submissions made on behalf of the parties in this regard were germane to the terms of paragraph 6(d) of the relevant notice, and the provisions of s. 9(1)(e) of the Act. They were thus germane to the issue of whether or not there had, in fact, been a failure on the part of the defendant to comply with his obligations. The Magistrate made no reference at all to the submissions of either party. That, in my view, reflects a failure on the part of the Magistrate to engage with, and properly determine, the issues which were before him. That failure is reflected in the inadequate reasons which were given.
For all of these reasons, the error asserted by the Director has been made out.

THE APPROPRIATE ORDERS

As I have previously indicated, counsel for the defendant submitted that even if I came to the view that the error asserted by the Director had been established I should not remit the matter to the Magistrate. Counsel submitted that it remained open to me to undertake a full assessment of the evidence, and come to the conclusion that the Magistrate's dismissal of the charge was correct in any event. Such a course was opposed by the Acting Crown Advocate, who maintained that the appropriate order was to remit the matter to the Local Court.
In Sadler (supra) I made reference to a number of authorities which had considered the question of whether this Court, on a statutory appeal, has a discretion not to remit the matter to the Local Court where error is found (commencing at [101]): "101. In Director of Public Prosecutions v Wunderwauld [2004] NSWSC 182 Sully J (at [36]), without deciding the point, was not persuaded that s. 59(2) of the Review Act conferred an overriding discretion not to remit the matter in the event that error was made out. In Roads and Traffic Authority of NSW v Bourke [2010] NSWSC 559, Rothman J concluded (at [28]) that it may be the case that the court did have such a discretion but that in the circumstances of that case he was not minded to exercise it. 102. In Wililo (supra) Johnson J (at [139] and following) dealt with a submission that there was no discretion and that if error were found, the matter must be remitted. In the circumstances of that case, his Honour determined that the appropriate course was to remit the matter and that it was not necessary to decide the question of discretion as no basis for the exercise of any discretion had been demonstrated (at [147]). 103. For the reasons I have set out, I am satisfied that the Magistrate erred in the present case. It has been observed on several occasions that in such circumstances, the making of an order for the matter to the remitted to the Local Court is an approach consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters (see for example Wililo (supra); Council of the City of Lake Macquarie v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263; Director of Public Prosecutions v Belani [2005] NSWSC 1013; (2005) 64 NSWLR 319; Mitchell v Nestle Australia Limited (1988) 36 A Crim R 199; Downes v Director of Public Prosecutions [2000] NSWSC 1054). … 105. It is not necessary for me to determine whether, having found error, I have a discretion not to remit the matter to the Local Court. This is because in the circumstances of the present case, I do not regard the course which was urged by counsel for the plaintiff to be appropriate. Whether the evidence is sufficient to establish a prima facie case against the defendant will be a matter for the Magistrate to determine, on the application of the proper principles, at the resumed hearing. If the Magistrate concludes that a prima facie case is made out, it will then be a matter for him to determine whether he is satisfied beyond reasonable doubt of the guilt of the defendant in respect of any of the charges having regard to all of the evidence, including any evidence the defendant himself may choose to give. These are not, in my view, matters for this court to determine on a limited statutory appeal (see Council for the City of Lake Macquarie v Morris (supra) at [61])."
In Council for the City of Lake Macquarie v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263, Johnson J said (at [61]): "61 It is a matter for the Local Court to determine whether a s.16(1)(a) offence involving the American pit bull terrier is proved beyond reasonable doubt. No doubt, the Defendant will rely upon the presence of the Rottweiler to submit that the Local Court should not be satisfied beyond reasonable doubt that all injuries sustained by the Staffordshire terrier were attributable to the American pit bull terrier. Of course, the inflicting of injury is not required to prove a s.16(1) offence. If the Local Court found a s.16(1) offence proved solely upon the basis of the actions of the American pit bull terrier as observed by the Council Rangers, that factor would be highly relevant to penalty: Kingswell, above, at 274; The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 at 281; Mikhael v Conroy, above. However, all of these matters are for the Local Court, and not for this Court to determine on a limited statutory appeal".
For the same reasons as those given in Sadler (supra) and Wililo (supra), the appropriate course in the present case is to remit the matter to the Magistrate. The question of whether the offence alleged is established, and the acceptance or rejection of the submissions made on behalf of the defendant at first instance, are matters properly resolved in the Local Court, not by this Court in the context of a limited statutory appeal.

COSTS

The Director has sought costs but the defendant's submissions do not canvass that issue. I will give the defendant an opportunity to make any submissions in this regard that he may wish to make.

ORDERS

For the foregoing reasons I make the following orders: 1. the appeal is allowed. 2. the order of Magistrate Holmes, made on 14 August 2015 at the Tamworth Local Court dismissing the charge brought against the defendant alleging an offence of failing to comply with his reporting obligations contrary to s. 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) is set aside. 3. The matter is remitted to the Local Court to be dealt with according to law. 4. Absent agreement in relation to costs, the parties are to provide written submissions, not exceeding one page, by 5.00 pm on 27 July 2016.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 July 2016

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (33)

Cited By (2)