Patel v DPP

District Court of NSW|2023-03-03

Judgment on Conviction Appeal Introduction

By way of notice of appeal to the District Court the appellant appeals against a conviction recorded at the Wagga Wagga Local Court on 8 December 2022. The Court attendance notice contains the following under the heading "details of offence": Child Protection (Offenders Registration) Act, 2000, Section 17(1) Fail to Comply with Reporting Obligations Between 11:45 am and 12:10 pm on 18/08/2022 at Glenfield Park did without reasonable excuse, fail to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000.
As I understand the submissions the matter relates to the appellant failing to give to the relevant authorities an email address. There does not appear to be any real dispute that the appellant did not disclose that email address. The appellant's case is the relevant email address is one that he has had for many years and indeed one he has had since he was a student. 18 August 2022 was the date on which police attended the appellant's residence to conduct checks in accordance with the Child Protection (Offenders Registration) Act, 2000.
Again, as I understand the submissions, it is put on behalf of the appellant that he cannot be guilty of the charge as it is pleaded on the Court attendance notice. Essentially this is because of the averment that the offence occurred on 18 August 2022. It occurs to me the outcome of this appeal is dependent on whether the date of the offence, or at least the date of the alleged offence is an essential ingredient rather than a particular.
The appellant was originally charged with two counts of Failure to Comply with Reporting Obligations. The transcript of the proceedings before the learned Magistrate indicates (p 1:36) that the prosecution particularised sequence 1 (of H90754054) as not reporting an email address, being wash1202202131035@gmail.com, and sequence 2 as not reporting an internet username "skyyash".

Evidence upon which the prosecution relies

It seems that there is little if any factual dispute to be determined in this matter. The matter proceeded before the learned magistrate as what is referred to as a "hand up brief". The prosecution case is tendered in the form of statements and submissions made by the parties. The brief of evidence became Exhibit 1 before the learned magistrate. That brief contained the following:

Statement by Detective Senior Constable Scott McFarland of 20 October 2022;
Transcript of a conversation recorded by that officer's body worn camera between the officer and the appellant;
Quick guide for reporting changes to information;
Notice issued to registrable person - Form 3;
Extracts of ss 9A, 9, 11, 17, of the Child Protection (Offenders Registration) Act; and
Photographs and screen shots of the appellant's mobile phone.

Detective McFarland is a Child Protection Registry Officer for the Riverina Police District. In that role he oversees the monitoring and management of registrable persons who have reporting conditions in accordance with the child protection register and reside within the Riverina Police District.
It is not controversial that the appellant is a registrable person pursuant to the Child Protection (Offenders Registration) Act, 2000. On 31 January 2022 Detective McFarland met with the appellant and provided him with another copy of the form 3, which is a notice issued to a registrable person. That form details the personal information and the rights and obligations of that person. It also is used to provide the personal information a registrable person is required to provide in compliance with the legislation. It also sets out the timeframes in which that information is to be provided.
Detective McFarland also gave the appellant a quick guide to reporting changes to information. As is obvious from even a quick perusal of that document it is a simplified document using diagrams which again covers information that is required to be supplied as well as the timeframes for the reporting of any changes. That document also contains the direct contact details of the Riverina Police District Child Protection Registry Officers.
While speaking to the appellant on 31 January 2022 Detective McFarland generated a Form 4 and requested the appellant to check that document and sign it as been correct, which the appellant did. The process was captured on body worn video.
On 18 February 2022 detective McFarland attended the appellant's nominated primary residential address which was at a unit in Docker Street, Wagga Wagga. The appellant verified information and several changes were made. No search was requested or conducted on that occasion. Between the initial registration in January 2022 and August 2022 the appellant contacted the Riverina Police District to provide updates or changes to his personal information. The most recent change was made on 8 August 2022.
On 18 August 2022 Detective McFarland with another officer went to the appellant's primary residence at an address in Glenfield Park, a suburb to the south-west of the CBD of Wagga Wagga. The detective was wearing a body worn camera and the interaction between himself and the occupants of the premises was recorded by that device. The officer requested the appellant to consent to perform a search on computers and electronic equipment. The consent was given and the appellant was advised that he could withdraw consent at any time.
While the officers were making an examination of the appellant's mobile phone it was noted there were usernames and an email address that had not been declared as required. The appellant said, "Okay so my University email address, in India. So, this one is my enrolment number." While the other officer was verifying a username attached to an Instagram account it was noted that the username was different to the one that had been recorded. The appellant said, "Oh yes that's like my… My main name is Yash". The officer with detective McFarland noted there was another undeclared username attached to a Twitter account "Skyyash".
The appellant was then cautioned and was asked was there any reason why he did not tell the police about the Gmail account. An explanation was given. The appellant was asked about the Twitter account and again an explanation was given. In respect of the email address the appellant said, "It's my University email address. Yeah, I'm not using any more. And this one. Even on not using any more. It was just like when you use the Google product like kind of Gmail, YouTube. It needs like a Gmail address that we have put this one otherwise my primary addresses like that".
Going to the transcript of the conversation between the officer and the appellant, at p 6 of the transcript the appellant says, "Oh, that I can tell you can check everything from the last six months. When I tell you. This is thing. I actually like it. My email University email address and I think one of my University email address still maybe there, Yep, yep thank you. That's also not. I'm not using that one but no I already removed then maybe. I don't know no longer live there. Know already made its name is like one too. I can write it for you."
The officer told the appellant that he needed to tell the police that information. The appellant indicated he did not realise that he had to. He also said that he did not hide information intentionally. The officer informed the appellant that he would have to go to court.
The prosecutor before the Magistrate set out what was relied upon in respect of each of the charges. At p 4:43 and continuing the following appears: "Your Honour has the prosecution brief. In that your Honour has the s 21A certificate which confirms Mr Patel is a registrable person for the purposes of that Act. Your Honour that also particularises two pieces of information making up the charges before the Court that were not declared as part of his obligations under s 9A of the Act and 11 of the Act and consequently has become a breach of s 17 of the Act. Your Honour has the transcript of the conversation interview undertaken by Detective McFarlane and Mr Patel on that day. Your Honour, it's the prosecution submission that with regards to s 17 he has failed to report that email address and that username and with regards to s 17(2)(a) no evidence of a reasonable excuse has been provided to the Court."

Reasons of the learned Magistrate

The learned Magistrate observed that the charges were brought contrary to s 17 of the Child Protection (Offender's Registration) Act 2000 and that is simply an offence provision. The Magistrate also noted that for the purposes of the matter s 9(1)(p) of the Act provides that personal information includes email addresses and internet user names.
His Honour went on to say (p 7:29): "Section 9A indicates that a registrable person must report the person's relevant information to the Commissioner of Police within the period specified in relation to the person and so there was a requirement that he report the relevant information and as I understand the chronology the first report was on 31 January this year and s 11 requires that, "A registrable person must report to the Commissioner of Police any change in the person's relevant personal information' in the case of the two matters within seven days of the change occurring. The first of the offences relates to an email address There is a transcript of the interview and he had that email address for about ten years It was his old university email address and clearly he ought to have disclosed that on 31 January and every other time he was asked to disclose it leading up to 18 August and he failed to do so and that is a breach of the Act. Mr Groch [solicitor for the appellant in the Local Court and on the appeal] says well, it has to be change and there is no evidence that there was any change and I must say that has initial attraction to it but that would be to entirely defeat the purposes of the legislation. I would simply mean anyone could simply not disclose something that they had and then could never really be charged for it, I suppose, unless the charge was particularised at the time but it just does not sit the purpose of the legislation. It is clearly an ongoing obligation on people to report the relevant personal information. It is an ongoing obligation. The defendant failed to do it. He had a number of opportunities to do it and it has been particularised, at the time, that the police are there investigating and he failed to do it then it was found by police and in my view, bearing in mind that I have to be satisfied beyond reasonable doubt and those words beyond reasonable doubt are ordinary English words and should be given their ordinary English meaning. NO further elaboration is required or indeed desirable, however, I direct myself that suspicion and not even grave suspicion can be a substitute for proof beyond reasonable doubt. I am satisfied beyond reasonable doubt that the offence is made out with (respect) to sequence 1."

The legislation

Section 9 of the Act sets out the personal information to be reported. The section provides: 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 - (a) the person's name, together with any other name by which the person is or has previously been known, (b) in respect of each name other than the person's current name, the period during which the person was known by that other name, (c) the person's date of birth, (d) the address of each of the premises at which the person generally resides or, if the person does not generally reside at any particular premises, the name of each of the localities in which the person can generally be found, (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, (f) if the person is a worker - (i) the nature of the person's work, and (ii) the name of the person's employer (if any), and (iii) the address of each of the premises at which the person generally works or, if the person does not generally work at any particular premises, the name of each of the localities in which the person generally works, (g) details of the person's affiliation with any club or organisation that has child membership or child participation in its activities, (h) the make, model, colour and registration number of any motor vehicle owned or hired by, or generally driven by, the person, (i) details of any tattoos or permanent distinguishing marks that the person has (including details of any tattoo or mark that has been removed), (j) whether the person has ever been found guilty in any foreign jurisdiction of a registrable offence or of an offence that required the person to report to a corresponding registrar or been subject to a corresponding child protection registration order and, if so, where that finding occurred or that order was made, (k) if the person has been in government custody since the person was sentenced or released from government custody (as the case may be) in respect of a registrable offence or corresponding registrable offence, details of when or where that government custody occurred, (l) if, at the time of making a report under this Division, the person leaves, or intends to leave, New South Wales to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence) - (i) in general terms, the reason for travelling, and (ii) in general terms, the frequency and destinations of the travel, (m) details of any carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the person including any phone numbers used, or intended to be used, by the person, (n) details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the person, (o) details of the type of any internet connection used, or intended to be used, by the person, including whether the connection is a wireless, broadband, ADSL or dial-up connection, (p) details of any email addresses, internet user names, instant messaging user names, chat room user names or any other user name or identity used, or intended to be used, by the person through the internet or other electronic communication service, (q) any other information prescribed by the regulations. (1A) For the purposes of this Act, the "relevant personal information" to be reported by a registrable person also includes the name, date of birth and address of each child (or other means of contacting each child) with whom the person has had contact, but only if the registrable person was - (a) supervising or caring for the child, or (b) visiting or staying at a household where the child is present, or (c) exchanging contact details with the child (including providing the person's contact details to the child), or (d) attempting to befriend the child. (1B) For the purposes of subsection (1A), "contact" with a child, includes the registrable person having - (a) physical contact with the child (including by touching the child or being in very close physical proximity to the child), or (b) oral communication with the child (including communication that takes place in person, by telephone or by electronic means such as via the internet), or (c) written communication with the child (including communication that takes place by mail, by telephone or by electronic means such as email). (1C) The "sentencing court" (being the court that sentences a person in respect of a registrable offence or that imposes a child protection registration order on the person) may order that the person's reporting obligations in respect of contacts occurring before the person reaches 18 years of age be modified as set out in the order, if - (a) the person is under 18 years of age, and (b) the court is of the view that the modification is appropriate in the circumstances taking into account the educational and other needs of the person. (1D) A person who, because of a modification under subsection (1C), was not required to report a contact occurring before the person was 18 years of age is not subsequently required to report that contact unless the person's reporting obligations are further modified so as to require the contact to be reported. (1E) Any such further modification may be made by the sentencing court, the Local Court or the Children's Court on the application of the Commissioner of Police. (2) For the purposes of this section - (a) a registrable person does not generally reside at any particular premises unless the person resides at those premises for at least 14 days (whether consecutive or not) in any period of 12 months, and (b) a child does not generally reside in the same household as a registrable person unless they reside together in that household for at least 3 days (whether consecutive or not) in any period of 12 months, and (c) (Repealed) (d) a registrable person is not generally employed at any particular premises unless the person is employed at those premises for at least 14 days (whether consecutive or not) in any period of 12 months, and (e) a registrable person does not generally drive a particular motor vehicle unless the person drives that motor vehicle on at least 14 days (whether consecutive or not) in any period of 12 months. (3) In this section, "employer" and "worker" have the same meanings as they have in the Child Protection (Working with Children) Act 2012. Section 9A of the Act sets out the time in which the person must report, namely: 9A When initial report must be (1) A registrable person of a kind referred to in Column 1 of the Table to this subsection must report the person's relevant personal information to the Commissioner of Police within the period specified in relation to the person in Column 2 of the Table. Table Column 1 Column 2 Registrable person Period for initial report A registrable person (other than a corresponding registrable person) who enters government custody in New South Wales before, on or after the commencement of this section as a consequence of having being sentenced for a registrable offence and who ceases to be in government custody while in New South Wales Within 7 days after the registrable person ceases to be in government custody Any other registrable person who is sentenced for a registrable offence in New South Wales Within 7 days after the registrable person is sentenced for the registrable offence A registrable person who enters New South Wales from a foreign jurisdiction and who has not previously been required under this Act to report his or her relevant personal information 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

(2) Despite subsection (1), a registrable person must report the person's relevant personal information to the Commissioner of Police before leaving New South Wales unless the person entered New South Wales from a foreign jurisdiction and remained in New South Wales for less than 14 consecutive days, not counting any days spent in government custody.

Division 3 of the Act sets out a registrable person's ongoing obligations Sections 10 and 11 provide:

10 Registrable person must report annually (1) A registrable person must report the person's relevant personal information to the Commissioner of Police each year. (2) The registrable person must make the report by the end of the calendar month in which the anniversary of the date on which the person first reported in accordance with this Act or a corresponding Act falls. (3) If the registrable person has been in government custody since the person last reported the person's relevant personal information under this section, the information the person must report must include details of when and where that custody occurred. (4) If a registrable person's reporting period expires, but the person is then required to report again under section 9A, the reference to the date on which the person first reported is to be read as a reference to the date on which the person first reported in respect of the current reporting period. 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 of Failing to Comply with Reporting Obligations, and provides: 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. (2A) In proceedings for an offence under this section, the onus of proving that a registrable person had a reasonable excuse lies with the person and must be proved on the balance of probabilities. (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.

Consideration

It appears plain enough from what the prosecutor said in the Local Court at p 4:43 and continuing that the prosecution was relying on breaches of sections 9A and 11 of the Act to ground the offence of Failure to Comply with Reporting Obligations. Section 9A deals with the initial report and section 11 deals with changes to relevant personal information. I understand the reasoning of the learned Magistrate so far as the Act providing for a continuing obligation. However, the appellant had the email address for some years before the offending and certainly before the appellant became a registrable person. In those circumstances the fact that the appellant had that email address was not a change in circumstances. In those circumstances I am of the opinion that the prosecution cannot rely on section 11 of the Act to ground a prosecution for failure to comply with reporting obligations
Clearly enough the appellant should have reported the email address that had been his university email address at the time of the initial reporting. If criminal liability attaches for the appellant not disclosing that address it must attach, it seems to me, by virtue of s 9A. Essentially, as I read s 9A of the Act a registrable person has 7 days from the date of sentence to provide the information as set out in s 9 of the Act. Clearly, the email address is caught by the provisions of s 9 of the Act.
Mr Groch on behalf of the appellant argues that the initial reporting obligation ceased 7 days after the sentencing, which 11 January 2022. The appellant had until 18 January 2022 to comply with his obligations pursuant to s 9 of the Act. Mr Groch also argues that the offences provided for by the Act are "time sensitive" or to put it another way, the date of the offence is an essential element of the offence which the prosecution must prove beyond reasonable doubt before the defendant (or appellant) can be found guilty. It is argued on behalf of the appellant that the charge should reflect the date on which the alleged offence occurred rather than on the date on which it was detected. As a general proposition that is undoubtedly correct.
Division 3 of the Act is headed "Ongoing Reporting Obligations". Sections 10 and 11 have been extracted earlier in these reasons. The appellant would have been obliged to report the email address in question at the annual review in January 2023 but the particulars relied upon by the prosecution do not relate to this.
In Environment Protection Agency v Sydney Water Corporation [2021] NSWLEC 4 Pepper J referred to (at [133]) to the earlier decision of Sloggett v Adams (1953) 70 WN (NSW) 206 where Street CJ said at 208: "Sydney Water refuted the proposition that the clean-up notice offence was a continuing offence attracting a daily penalty. It relied for support upon the decision of Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130 where Foster AJA applied Sloggett v Adams (1953) 70 WN (NSW) 206 as "sound both in policy and logic" (at [11]) and said that (at [9]-[10]): '[9] Street CJ said (at 208): "The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences The test, it seems to me, is one which was prescribed in Ellis v Ellis (1896) P 251 at 254 (1), by Sir Francis Jeune, who said: "The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue." Applying that test to the section now under consideration, the legislature has made it clear that the offence is the failure to comply with the requirements of the notice. It is true that the notice deals with the eradication of noxious plants from the land, and one thing which must be done in order to comply with the notice is to eradicate. But the offence here was not a mere failure to eradicate generally, such as would be included under s 472 of the Local Government Act 1919 (NSW); it was a failure to eradicate within the prescribed time, that is, within the twenty-eight days which expired on 2nd July, 1951. At that moment the offence was complete and concluded, and thereafter it existed only in the past. If the offence were a continuing one, it would be one which could be remedied after 2nd July, 1951, but, on the language of the Act, once 2nd July, 1951, had passed the offence was complete, and that offence could never be remedied in the future…Section 473 places a specific burden upon a specific owner or occupier of land to comply with a specific notice which constitutes the offence. In my view, it was not a continuing offence. It was an offence which was committed, finally and conclusively, when 2nd July, 1951, arrived…' [10] Owen J (at 208) said: "Section 473 of the Local Government Act, imposes on the landholder the obligation to comply with the terms of a notice given to him under that section, and sub-s (5) makes it an offence not to comply with it." Where, as here, the notice sets a time for the doing of the act which is required to be done, the offence is, in my opinion, committed once and for all if that act is not done within the time set…I would only add that if the present case is one of a continuing offence, then the offence is one which the landholder could never stop committing. Nothing he could do after the twenty-eight days had expired could ever be a compliance with the notice.'"
Following her Honour's reasoning (noting her Honour was following the earlier decision in Sloggett v Adams) the offence of Failing to Comply with Reporting Obligations by not disclosing the email address in question was complete at the expiration of 7 days from the date of sentencing. Therefore, it is not a continuing offence. The offence was complete on the eighth day following sentence. The date of the offence is an essential element or ingredient of the charge that must be proved beyond reasonable doubt and is not a mere particular.
There is nothing within the Act beyond the provisions of Division 3 that deal with ongoing obligations by a registrable person or that in my view overcomes the difficulty highlighted by Mr Groch.
I note that Mr Groch put towards the end of his submissions that his client may be guilty if the prosecution amended the date in the averment in the Court Attendance Notice. It was not for the Court to suggest the representative of the Director of Public Prosecutions do that. However, if that application had been made by the respondent to the appeal, I would have granted that application without hesitation, given the purposes of the legislation.
The appellant in my view is guilty of failing to report with his obligations by not disclosing that email address within 7 days of sentencing. Given the provisions of s 10(1) of the Act the appellant could potentially have been guilty of failing to comply with reporting obligations at the annual review. However, as indicated above the date of the offence is an element that must be proved beyond reasonable doubt. Given the manner in which the offence is pleaded on the Court Attendance Notice the conviction recorded cannot stand.
Accordingly, the appeal is upheld and the conviction set aside.

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: 14 April 2023

Local Government Act 1919(NSW)

(2000) 113 LGERA 130

At a glance

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Decision date

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Judgment (8 paragraphs)

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Legislation Cited (1)

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