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EX TEmpore Judgment

1. THE COURT: Mr Adam Geoffrey Hansell lived in Cammeray, in multi-story residential premises in which he had rented out rooms to various people over time. On 22 April 2014, one tenant was sitting on the ground floor toilet, and noticed a small black USB camera hidden in a pot plant pointing to the toilet. He examined the USB device on his computer and found video files of various people, including himself, other men and women, and at least one boy and one girl. The video files showed persons urinating, vomiting and in one case removing a tampon. The tenant took the USB device to police who attended the premises and arrested Mr Hansell. He declined to participate in an interview. Police also seized a number of recording devices from Mr Hansell's bedroom and study.
2. Police issued a series of court attendance notices on that day charging Mr Hansell with seven counts of filming a person engaged in a private act contrary to s 91K(1) of the Crimes Act 1900 (NSW), and two counts of the aggravated form of that offence contrary to s 91K(3), the circumstances of aggravation being that the person filmed was a child under the age of 16 years. He pleaded not guilty to all counts. Following a contested hearing, he was convicted in the Local Court on three of the s 91K(1) counts and the two s 91K(3) counts. Various sentences of imprisonment for 9, 12 and 18 months were imposed, all of which were suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
3. Before the Magistrate, three USB devices appear to have been tendered. However, the tender was expressly limited to the video files which related to each charge. The USB devices also contained other video files, including footage from a public toilet in licensed premises.
4. Mr Hansell appealed from his convictions pursuant to s 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW). The primary judge heard the appeal on 15 March 2016 and, by reserved judgment delivered on 1 April 2016, ordered that it be dismissed: Adam Geoffrey Hansell v R [2016] NSWDC 35. There was no application to tender fresh evidence, as was authorised by s 18(2) of that Act. However, it is plain from the reasons for judgment that the primary judge had regard to video files other than those which had been tendered in the Local Court. The largest section of his Honour's reasons analyses the footage in the public toilet, in order to buttress the inference that the filming was done for the purpose of obtaining sexual arousal or sexual gratification, and to rebut a submission made on behalf of Mr Hansell that it was done in order to monitor drug use.
5. No further appeal lies from the District Court in the exercise of its appellate jurisdiction. The appeal under s 127 of the District Court Act 1973 (NSW) is confined to actions in that court's civil jurisdiction, and the appeal to the District Court under s 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is neither an action (see Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [8]) nor is it in the exercise of that court's civil jurisdiction.
6. For that reason, Mr Hansell has invoked this Court's supervisory jurisdiction, which is regulated by s 69 of the Supreme Court Act 1970 (NSW), by summons filed on 23 June 2016 seeking orders quashing the District Court judgment, allowing the appeal and setting aside the convictions, or alternatively an order in the nature of mandamus directing the District Court to determine his appeal according to law. Mr Hansell accepts that it is necessary to establish jurisdictional error. Section 176 of the District Court Act 1973 provides, "No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court". The effect is to exclude judicial review of decisions on appeal save where there is jurisdictional error: see the decisions collected in Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [10].
7. The summons contained 9 grounds. Ground 1 was the reliance on the "public toilet footage". The other grounds challenged various aspects of the reasoning process of the primary judge and maintained that there was no evidence capable of sustaining the convictions.
8. Mr Hansell's written submissions in this Court were filed on 19 July 2016. They addressed all the grounds in the summons. The majority of the document (pages 5-13) addressed grounds 2-9.
9. However, Mr Hansell moves today on an amended summons filed on 22 August 2016. He no longer seeks an order that this Court itself allow the appeal from the Local Court and quash the convictions. He has abandoned grounds 2-9. The amended summons now seeks orders that he be paid his costs in this Court and in the District Court.
10. The Crown conceded in its submissions filed 24 August 2016 that ground 1 is established and that Mr Hansell is entitled to orders quashing the orders of the District Court dismissing the appeal and directing the District Court, constituted by a different judge (one who has not seen the "public toilet footage") to determine the appeal according to law. The concession was properly made. It was procedurally unfair to Mr Hansell for his appeal to be determined on the basis of material to which he had objected in the Local Court and on which he was unaware that the District Court judge would rely. It is to be regretted that neither party told the District Court that only some of the files on the USB drives tendered in that Court had been tendered in the Local Court.
11. The only outstanding issues relate to costs. At the outset of the hearing today, Mr Hansell advised that his claim that this Court should order that the Crown pay his costs in the District Court was not pressed. That abandonment was properly made.
12. In this Court, in the exercise of its civil supervisory jurisdiction, costs will ordinarily follow the event. There is an argument, advanced by Mr Boland when the matter was heard, that given the way the appeal proceeded in the District Court, Mr Hansell should have at least a portion of his costs in this Court. However, there is in the present case good reason for some other costs order to be made when the matter is viewed overall. First, Mr Hansell has abandoned grounds 2-9 of his summons, and a deal of the costs in this Court would have been directed to those grounds. Secondly, the Crown has conceded the jurisdictional error identified in the only ground which was pressed. It did so promptly, months in advance of the hearing. Thirdly, the error by the primary judge came about because neither party directed his Honour to the fact that the USB drives contained video files not in evidence. Fourthly, Mr Hansell could have obtained the entirety of the relief to which he was entitled, all of which was consented to, months ago but for his application for costs orders. Noting that the Crown does not seek costs, the appropriate order is that there be no order as to costs in this Court, with the intention that the parties bear their own costs.
13. Accordingly, the orders are: 1. An order quashing the judgment of the District Court given on 1 April 2016. 2. An order that the District Court, constituted by a different judge, determine the plaintiff's appeal according to law.