Plaintiff v Defendants

Supreme Court of Victoria|2016-09-13|Before: Zammit J

[2016] VSC 548 First Revision, 27 September 2016, [100].

ADMINISTRATIVE LAW - Judicial review - Application for order in the nature of certiorari quashing orders made by the Magistrates' Court of Victoria sentencing the plaintiff as a Registrable Offender - meaning of 'offending' - meaning of 'sexual safety' - whether the evidence allowed the first defendant to make a finding against the plaintiff beyond reasonable doubt - whether the first defendant's finding was illogical, irrational and not based on findings or inferences of fact supported by logical grounds - Sex Offenders Registration Act 2004 s 11, s 34(4) - Supreme Court (General Civil Procedure) Rules 2005, Order 56 - - - .

1 This matter concerns judicial review of the orders of the Magistrates' Court of Victoria. The plaintiff by his originating motion filed 19 August 2015 is seeking relief in the nature of certiorari quashing the orders of the Magistrates' Court of Victoria made on 26 July 2011 and on 3 March 2015.

2 The plaintiff requires an extension of time because orders complained of were made on 26 July 2011 and on 3 March 2015, and the application for review was filed on 17 July 2015. The plaintiff has subsequently filed and served a further amended originating motion dated 23 May 2016 ('FAOM').

3 Pursuant to r 56.3(2) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') an extension of time may only be granted where the court is satisfied that there are special circumstances.

4 The plaintiff's application for an extension of time is intertwined with the grounds of review in his FAOM. That is, the likelihood of success, whilst not determinative, is significant in considering if the extension should be granted.[1]

5 Accordingly, I will at the outset consider the six grounds of review in the FAOM. In summary, I have found that the plaintiff's grounds would fail and therefore even if an extension of time was granted, the plaintiff's application would be dismissed. In any event, I do not consider that the plaintiff has established that special circumstances exist justifying the granting of an extension of time.

6 On 26 July 2011 the Magistrates' Court of Victoria sitting at Shepparton made orders convicting the plaintiff of Wilful and Obscene Exposure in Public ('the first hearing'). The plaintiff was sentenced to an imprisonment term of 4 months to be served by way of an Intensive Correction Order ('ICO') and was ordered to comply with the reporting obligations in the Sex Offenders Registration Act 2004 (Vic) ('the Act').

7 The offence for which the plaintiff was convicted at the first hearing took place on 28 April 2011. I will summarise the facts as contained in the Summary of Charges in the Police Brief. On the said date, the plaintiff was sitting in the driver's seat of his vehicle in Corio Street Shepparton with the passenger seat wound down. As a female witness walked passed his vehicle the plaintiff, having his pants around his knees, masturbated his erect penis whilst looking directly at her.

8 The plaintiff deposes that since 1988 he has been found guilty on five occasions of charges relating to obscene exposure. He deposes that at the first hearing he pleaded guilty to the charge made against him. Further he deposes that although he was legally represented, his then solicitor made no objection, nor did he consult him, in relation to the police application that he be sentenced as a registrable offender. The plaintiff deposes that he was unaware of his rights, specifically in relation to the sentence insofar as it related to being sentenced as a registrable offender. He further states that had he known the nature of the Act and what a Registrable Offence was for the purposes of the Act he would have objected to the Sex Offender Registration Order being made or sought legal advice about it and sought an appeal against the conviction and the sentence insofar as it related to the Act .

9 The evidence of the plaintiff in respect of the events that transpired at the first hearing contradicts the evidence of Mr Marshall Richards, the solicitor acting for the plaintiff, on the day. In his affidavit Mr Richards summarises the events that took place on the day based on his own recollections and on his handwritten notes made during and in connection with the proceedings at the first hearing. A copy of the 7 pages of handwritten notes are exhibited to Mr Richard's affidavit.

10 Mr Richards deposes that the fifth page of his notes relates to events that took place from 9:00am. He notes that the plaintiff had previously attended a sex offender's program in Melbourne in 2006, which he noted as being 'very good' and that the plaintiff did not have a certificate of completion.

11 Mr Richards deposes that the plaintiff's matter was called at 10:15am before Magistrate Murphy and that the plaintiff pleaded guilty. Further he deposes that the prosecution had applied, at the sentencing, for the plaintiff to be placed on the Sex Offenders Register for life and that this was the first mention of the Sex Offenders Register. Mr Richards provides that he was not put on notice about the application. Relevantly, Mr Richards deposes that 'nevertheless it is noted that I quickly explained this to the client who indicated that he had no objections'.

12 Further Mr Richards deposes that at this stage of the proceeding Magistrate Murphy indicated that the plaintiff would be sentenced to a custodial sentence. Mr Richards pleaded for an ICO. Magistrate Murphy said that he was ordering gaol but that the plaintiff would be assessed for an ICO. For this reason the matter was adjourned until 10:45am.

13 On the return of the matter at 12:56pm, Mr Richards deposes that the plaintiff was sentenced as a reportable offender for eight years. Mr Richards does not believe or recall that the prosecution made submissions about their application to place the plaintiff on the Sex Offenders Register, nor that he himself had made submissions about the application, otherwise his notes would have indicated this. Further Mr Richards deposes that the issue of the applicability of the Act was not raised in Court on the day.

14 On 3 March 2015 the Magistrates' Court sitting at Benalla made orders convicting the plaintiff of failing to comply with his reporting obligations on 10 July 2014 ('the second hearing'). The plaintiff deposes that on or about this date he was apprehended by police in relation to having acquired a new vehicle and failing to report the fact to the police pursuant to his reporting obligations. The plaintiff deposes that it was only then that he realized the consequences of the reporting obligations pursuant to the Act. At the second hearing the plaintiff pleaded guilty to the offence and was convicted and fined $500.00 and $75.50 statutory costs. He deposes that the solicitor he engaged to represent him on the day advised him that the Sex Offender Registration order made at the first hearing was most likely made in error.

15 The plaintiff deposes that it was only at this point in time that he understood that he should not have been paced on the Sex Offenders Register and decided to take steps to address the issue. He deposes that he instructed his solicitor to write to the Chief Commissioner of Police ('CCP') requesting that the CCP apply to suspend the plaintiff's reporting obligations.

16 By letter dated 9 July 2015 the delegate for the CCP rejected the plaintiff's application to the CCP to suspend the plaintiff's reporting obligations substantially on the grounds that the plaintiff poses a risk to the sexual safety of one or more persons or to the community. The plaintiff deposes that the said letter fails to identify on what grounds the plaintiff was deemed to pose the above mentioned risk. Further the plaintiff deposes that although there may be a risk of the plaintiff reoffending, such reoffending should not be elevated to the nature of an offence that requires the supervision of the Act.

17 The plaintiff deposes that only at the second hearing of the matter he became aware that he may have a remedy available to him and for this reason he has applied to this Court seeking judicial review of the orders of the Magistrates' Court of Victoria made on 26 July 2011 and 3 March 2015.

18 In his FAOM the plaintiff advanced the following six grounds of review:

(a) Ground 1 - the offending for which the plaintiff was found guilty and sentenced by the first defendant sitting at Shepparton on 26 July 2011 was not offending within the contemplation of the discretionary power to order compliance with the reporting conditions in the Act.

(b) Ground 2 - such evidence as was available to the first defendant on 26 July 2011 about the offending for which the plaintiff was found guilty and sentenced by the first defendant sitting at Shepparton, Wangaratta and Benalla since 1988 did not or was insufficient to permit the first defendant to conclude that the plaintiff posed a risk to the sexual safety of one or more persons in the community.

(c) Ground 3 - the Act was made for the purposes of protecting the community, children and other vulnerable persons from sexual harm. The Act is directed to persons committing acts of sexual assault and the recidivist risks posed by such sexual offenders.

(d) Ground 4 - the plaintiff did not and does not pose a threat to the sexual safety of any person or to the community as contemplated under s 11(3) of the said Act. The plaintiff has not harmed nor threatened any person in a manner within the scope of the Act nor committed any offence being a Class 1 or 2 or 3 or 4 Offence as defined in the Schedules to the said Act, his offences relating to obscene exposure in public, such being more in the nature of a nuisance than the posing of a sexual threat or sexual harm.

(e) Ground 5 - the first defendant sitting at Shepparton on 26 July 2011 made an order that the plaintiff comply with the reporting obligations of the Act without taking any or any proper account of the purpose and scope of the said Act. The reporting obligations imposed upon the plaintiff pursuant to his sentence and the order made by the first defendant on 26 July 2011 were onerous, unnecessary, unsupported by any or sufficient evidence, and not permitted at law.

(f) Ground 6 - the first defendant sitting at Benalla on 3 March 2015 imposed a fine of $500 and costs of $75 after it had been made clear by the plaintiff's counsel in Court that the plaintiff ought not to have been made a registrable offender and as to the reasons why, under the circumstances such fine and costs ought to have been nominal if at all and made without the imposition of a conviction.

19 At trial it became clear that the six grounds of review may be consolidated into three grounds:

(a) the offence of wilful and obscene exposure under s 19 of the Summary Offences Act 1966 does not fall within the meaning of 'an offence' in s 11(1) of the Act, and therefore on 26 July 2011 the Magistrates' Court lacked jurisdiction to make an order under s 11 of the Act;

(b) there was no evidence before the Magistrates' Court on 26 July 2011 on the basis of which the Court could be satisfied, beyond reasonable doubt, that the plaintiff posed a risk to the sexual safety of one or more persons or of the community, as required by s 11(3) of the Act. Alternatively the Court's finding under s 11(3) was illogical, irrational and not based on findings or inferences of fact supported by logical grounds; and

(c) the Magistrates' Court order on 26 July 2011 does not state that the Court was satisfied beyond reasonable doubt that the plaintiff posed a risk to the sexual safety of one or more persons or of the community, for the purposes of s 11(3) of the Act, nor does it disclose a basis for such a finding. There is therefore an error of law on the face of the record. Alternatively, the Magistrate failed to make the finding required by s 11(3), which finding was a jurisdictional fact.

20 In the event that any of those three grounds succeeds, the plaintiff contends that the conviction and sentence on 3 March 2015 should be quashed. I will now consider the prospects of success of the plaintiff's grounds of review.

21 The difficulty the plaintiff faces in this matter is the limited evidence available about the events that occurred at the first hearing. The transcript of the proceeding does not form part of the evidence before this Court as it is typically discarded, along with the court file, one year after the hearing.

22 The plaintiff claims that he was not aware of the nature of the Sex Offender Register and the consequent obligations imposed on persons placed on the Register, when he consented to the relevant order being made. This evidentiary factor is primary in considering the plaintiff's application seeking an extension of time for judicial review under r 56.02(3) of the Supreme Court (General Civil Procedure) Rules ('the Rules').

(a) affidavit of David Joseph sworn 28 February 2016 (exhibiting the Police Brief in the matter heard on 23 May 2011);

(b) affidavit of David Joseph sworn 4 December 2016 (exhibiting copies of the orders and decisions in respect of which relief is sought);

(c) affidavit of Raymond William Blyss sworn 17 August 2015 (exhibiting the plaintiff's letter to the CCP dated 8 April )2015 and the letter in response from the CCP dated 9 July 2015); and

(d) affidavit of Marshall Richards sworn 3 June 2016 (exhibiting the solicitor's handwritten notes from the first hearing).

Submissions in relation to the Magistrates' Court procedure

24 In summary, Counsel for the plaintiff submitted that the typical procedure in the Magistrates' Court, where the accused pleads guilty to charges, is that the summary of charges is read out by the Police Prosecutor and the accused is asked whether they accept the summary as it was read out. The Magistrate will have the charge, summons and the police record of the accused before him as part of the court file. Counsel submitted that the other parts of the Police Brief will not typically be in front of the Magistrate but they will be available in Court. In addition the Magistrate would have heard the oral submissions from the parties.

25 Counsel for the second and third defendants submitted that:

the Act at the time (Sex Offenders Registration Act 2004), contains in s.50 a requirement that registrable offenders are to be given written notice of their recording obligations and the consequences of non-compliance as soon as practicable after they are sentenced for a registrable offence.

The regulations in place as at 2011, which have since been replaced, but at the time it was the Sex Offenders Registration regulations 204, regulation 15 contains a list of the information that's required to be given in a notice under s.50. It includes their name, a statement setting out their obligations to make an initial report, their obligations to make an annual report, their obligations to report changes of personal details and what the details are, the circumstances in which they have to report in person, forms of identification, documentation.

So that's what the legislation at the time required. My learned friend invites you to draw the inference that because his client and his client's lawyer's affidavit is silent on the matter, it must not have happened.

Your Honour is not in a position in my submission to draw any such inference. That's what the law says and to the extent that Your Honour felt able to draw any inference, in my submission Your Honour could draw an inference that the law was followed. But in fact the evidence doesn't permit you to do anything more than find, as I've said, there was consent to the order'

26 In written submissions the plaintiff submitted that Parliament's intent was that the Act would concern two types of offenders; those sentenced for offences specified in Schedules 1 to 4, and those ordered to comply with reporting obligations after being sentenced for sexual offences against victims. Either way, there must be proof of sexual offending against victims, as a historical fact or future risk. Obscene behaviour, no matter how lewd or outrageous, is not sufficient to justify an order under s 11(1). The offence does not fall within s 11(1). The plaintiff argued that this was the only construction available on the ordinary meaning of the provision.

27 Were there any ambiguity in s 11, the provision would be construed in favour of the plaintiff.[2] He submitted that the Act 'must be construed according to its context, and applying the principle of legality, interpreted in accordance with the fundamental principle of the common law that the legislature does not intend to affect common law rights or freedoms unless expressly stated'.[3]

28 The plaintiff also relied on the purposes and outline of the Act to support his construction. The purposes in s 1 of the Act refer to 'certain offenders' and 'certain sexual offences'. The use of 'certain' indicates that Parliament intended to limit the class of offenders and offences subject to s 11. He said that the type and character of the offences in the Schedules to the Act should influence or colour the interpretation of 'an offence' in s 11(1). He conceded that 'an offence' in s 11(1) can include offences other than those listed in Classes 1, 2, 3 or 4. However, as the plaintiff's offending 'was not in the nature of sexual assaults', it was not within the purposes of the Act.[4]

29 In oral submissions the plaintiff argued that 'an offence' must be read with the requirement in s 11(3) that the person pose a risk to sexual safety. Subsection 11(1) contemplates offences that admit a finding that the person poses a risk to the sexual safety of any members of the community. To fall within s 11(1) it is not enough for the offence 'to have that sort of flavour of something sexual about it'.[5] Rather, there must be a risk to the sexual safety of a person.[6] The plaintiff then cited several cases that considered the meaning of 'sexual safety', and submitted that the notion of safety entails considerations of bodily integrity.[7]

30 In the absence of evidence, psychological distress or seeing something disturbing should not be equated to a risk to the safety of a person. The plaintiff drew a distinction between sexual offending and sexual harm. He said that offending may be sexual in nature, but the ensuing risk of psychological harm is not necessarily a risk to the person's sexual safety. The nature of the cause of the harm and the nature of the harm may be different. The Act focuses on protecting people's sexual safety, not their safety from offences that have a sexual character.[8] If a person is outraged or shocked by wilful and obscene exposure, there might be a risk to their psychological safety, but not to their sexual safety, unless there is evidence to support that conclusion.

31 The second and third defendants (the defendants) submitted that the ordinary meaning of s 11(1) is that offences that are not Class 1, 2, 3 or 4 offences may result in a sex offender registration order if the requirements of s 11(3) are met. The defendants relied on Director of Public Prosecutions v Cartwright for this construction.[9] Based on that case, it is not possible to say with absolute certainty that any offence is entirely outside the discretionary power in s 11(1).

32 In oral submissions the defendants initially suggested that any offence can fall within s 11(1), and that as long as the requirements of s 11(3) are met, the Court can make an order under subsection (1).[10] They then submitted that offending with a sexual flavour can come within s 11(1), and that assuming the link can be made to a risk to sexual safety, any offence is capable of being 'an offence' under s 11(1). There will be cases where it would be illogical and irrational to try to draw a link between the offence and a risk to sexual safety, but it is not possible to 'say on the simple face of any particular offence that it is wholly incapable of falling within the section'.[11] This case is not at the outer limits of the offences that can fall within s 11(1), if there is such an outer limit.[12]

33 As to the plaintiff's arguments that 'safety' in s 11(3) refers to bodily integrity, the defendants noted the definition of injury in the Crimes Act 1958, which includes harm to mental health as well as physical harm. It is well established in criminal law that one can be injured in non-physical ways. The defendants submitted that 'it would be an odd construction...if a term like, "sexual safety" was going to be confined in this age of child pornography and sexting and all of those matters'.[13] Further, construing sexual safety as being limited to risks of contact offending would be inconsistent with the Act.

34 The defendants contended that if the plaintiff is to succeed, it must be on the basis that the Magistrate made a finding that was so illogical and irrational that it could not have been made on the material before the Court. That is the substance of the next ground of review.

11 Sex offender registration order

(1) If a court finds a person guilty of an offence committed as an adult that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.

...

(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.

(4) For the purposes of subsection (3), it is not necessary that the court be able to identify a risk to particular people, or a particular class of people.

(5) The court may only make an order under this section if it has imposed a sentence in relation to the offence...

36 On its face, the only limitation on 'an offence' in s 11(1) appears to be that it may not be 'a Class 1 or Class 2 offence'. It appears that any offence other than a Class 1 or Class 2 offence can fall within subsection (1), but the court may only make the order if the other requirements of s 11 are met.

37 This construction, based on the ordinary meaning of subsection (1), is supported by Director of Public Prosecutions v Cartwright, on which the plaintiff relies. In that case the respondent had argued that the particular species of aggravated burglary of which he was convicted did not fall within any class of offence which was amenable to the provisions of the Act. Priest JA, with whom Weinberg and Beach JJA agreed, said:

In my opinion, the appellant's submissions [one of which was that a court has a discretionary power to make a registration order with respect to any offence not being a Class 1 or Class 2 offence (including a Class 3 or 4 offence), so long as s 11(3) is engaged] must be upheld. On its ordinary reading, s 11(1) makes offences which are not classified as Class 1 or Class 2 offences (including Class 3 or 4 offences) subject to registration under the SORA. The power to do so is discretionary - the court "may order" - and is subject to the court being satisfied, beyond reasonable doubt, that the relevant person "poses a risk to the sexual safety of one or more persons or of the community". That interpretation is, in my view, buoyed by the terms of s 34(4)(b) which, by their reference to "any other offence", support the contention that the reporting obligations of the Act may extend to offences not specifically falling within the classes of offences provided for.

For these reasons, the judge was empowered to make a registration order...[14]

38 Section 34(4) of the Act provides:

For the purposes of this Division, a person subject to a sex offender registration order -

(a) if found guilty of a Class 3 offence is deemed to have been found guilty of a Class 1 offence; and

(b) if found guilty of a Class 4 offence or any other offence other than a Class 3 offence is deemed to have been found guilty of a Class 2 offence.[15]

39 It is clear then, that 'an offence' in s 11(1) includes offences other than Class 3 and Class 4 offences. Looking only at the ordinary meaning of the subsection, it seems that any offence qualifies, as long as it is not a Class 1 or Class 2 offence.

40 However, when interpreting s 11, the Court must also consider context. This means 'an offence' in s 11(1) should be read in the broader context of the Act and its purposes. The purposes of the Act are set out in s 1:

(1) The purpose of this Act is -

(a) to require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time -

(i) to reduce the likelihood that they will re-offend; and

(ii) to facilitate the investigation and prosecution of any future offences that they may commit;

(b) to prevent registered sex offenders working in child-related employment;

(c) to empower the IBAC to monitor compliance with Part 4 of this Act.

41 In Bowden v R the Court of Appeal described the Act's purposes as follows:

The mischief at which the Act is aimed is evident from its purposes, stated above. The primary purpose of the Act is to enhance community protection by reducing the likelihood of the person re-offending, to facilitate the investigation and prosecution of any future offences that the person may commit, and protecting potential victims, particularly children. This purpose is achieved through registration and reporting obligations, and ancillary matters, that are imposed on persons who are "registrable offenders".[16]

42 The Court also discussed the risk of re-offending:

When determining whether to make a registration order, it is proper to give consideration to the magnitude and the nature of the risk (re-offending by commission of sexual offences with serious consequences for the victim). Both the gravity of the harm and the degree of likelihood of the risk eventuating will be components of the assessment, although the primary question will be the degree to which the risk may materialise.[17]

43 The main purposes of registration appear to be protection of the community, reducing the likelihood of re-offending, and facilitating the investigation and prosecution of future offences. In my view, likelihood of re-offending refers to re-offending in the same or similar circumstances, and future offences refers to offences of the same or similar type. The Act does not aim to reduce the risk of registered sex offenders committing unrelated 'non-sexual' offences, such as drink driving. Nor does it aim to facilitate the investigation and prosecution of unrelated 'non-sexual' offences committed by registered sex offenders, such as drink driving.

44 Given the Act's purposes concern re-offending, and the risk to sexual safety refers to the risk of re-offending, the initial offence that triggers the operation of s 11 must be related to the re-offending. The re-offending with which the Act is concerned is re-offending of a sexual nature, therefore the initial offending must also be of a sexual nature. If the initial offence were non-sexual, such as a plain vanilla drink driving offence, then re-offending would not be a concern of the Act, and the initial offence would not fall within the Act's purposes.

45 It is unnecessary in this case to define the 'outer limits' of 'an offence' in s 11(1). In my view, it is sufficient to note that if re-offending in the same circumstances would fall within the Act's purposes, then the initial offending qualifies as 'an offence' under s 11(1) (as long as it is not a Class 1 or Class 2 offence). An offence would also qualify as 'an offence' under s 11(1) if it harms the sexual safety of one or more persons or of the community, because a risk of committing that offence again in the future would be a risk to sexual safety.

46 Applying that construction of 'an offence' to the present case, I find that the offence of wilful and obscene exposure, as committed by the plaintiff on 28 April 2011 and 3 May 2011, is a qualifying offence. It had a 'sexual flavour', as submitted by the defendants. While in his car in a public place he had pulled his pants down and masturbated. At least two passers-by saw him, and he looked directly at one of them. Such offending put children and other vulnerable people passing by the car at risk of seeing him. Reducing the likelihood of further offending in similar circumstances falls within the purposes of the Act, as does facilitating the investigation and prosecution of further offending by the plaintiff in similar circumstances.

47 This conclusion is consistent with the decision in Znotins v Harvey.[18] In Znotins the appellant had been convicted for four offences of committing an act of indecency without consent, each of which involved him standing naked in his backyard and masturbating in view of the neighbouring family. The Magistrate made a child sex offender registration order. In Znotins, as here, the appellant was not automatically a registrable offender. The court was only able to make the order 'if, after taking into account anything the court considers appropriate, the court is satisfied that the person poses a risk to the sexual safety of 1 or more people or of the community'. On appeal Murrell CJ decided that the child sex offender registration order was not justified. Her Honour was satisfied that the appellant posed the relevant risk, but declined to exercise the court's discretion to make an order. There was no question that the offence of indecent exposure fell within the meaning of 'an offence' in s 15 of the Crime (Child Sex Offenders) Act 2005 (ACT).

48 I reject the plaintiff's submissions that only offences posing a risk to bodily integrity or physical safety can fall within s 11(1), and that Znotins should not be followed.

49 Section 11 is not expressed to be limited to contact offending or offending that poses a risk to physical safety or bodily integrity. It is true that the purposes of the Act and s 11(3) influence the interpretation of 'an offence' in s 11(1), as submitted by the plaintiff. However, neither the Act's purposes nor s 11(3) refers to contact offending, physical safety, or bodily integrity. On its ordinary meaning, the expression 'sexual safety' in s 11(3) is not limited to physical safety. Looking at the purposes of the Act and the range of offences listed in Schedules 1 to 4 of the Act, there is no reason to limit the words 'sexual safety' to physical safety or bodily integrity. Those Schedules include offences such as transmitting indecent communications to minors, possessing child pornography, administering a child pornography website, assisting a person to avoid apprehension (in respect of child pornography offences), and loitering near schools.

50 Of particular interest is the loitering near schools offence, which is included in Schedule 2 as a Class 2 offence. Under s 60B of the Crimes Act 1958, it is not an offence for just anybody to loiter near a school. Rather, the person must have been found guilty of a predicate offence listed in s 60B(2)(a), and must be found loitering without reasonable excuse in or near a school. One of the predicate offences is wilful and obscene exposure (s 60B(2)(a)(iii)). Several of the other predicate offences listed in s 60B(2)(a) are included in the Schedules to the Act. In my view, the fact that wilful and obscene exposure can trigger the offence of loitering near schools supports the conclusion that wilful and obscene exposure qualifies as 'an offence' under s 11(1) of the Act.

51 As the offence of wilful and obscene exposure comes within the meaning of 'an offence' in s 11(1), the plaintiff's first ground of review would fail.

Was there no evidence before the Magistrates' Court

52 The plaintiff submitted that the Magistrate was only permitted to make the order he made if he was satisfied beyond reasonable doubt that the plaintiff posed a risk to the sexual safety of one or more persons or of the community. That is the finding of fact under challenge in this ground of review. The plaintiff argued that that finding of fact was either unsupported by any probative evidence, or it was illogical, irrational and not based on findings or inferences of fact supported by logical grounds. That amounts to jurisdictional error.

53 The plaintiff asked this Court not to follow Znotins. In that case the Supreme Court of the ACT did not refer to any evidence that psychological distress upon witnessing indecent exposure could equate to a risk to the sexual safety of one or more persons or of the community. At best, the court in Znotins identified a risk to psychological safety, which is not the same thing as a risk to sexual safety.

54 Rather, the reference to sexual safety must incorporate consideration of the bodily integrity of any person, and it must relate to actual or potential interference with their body in a sexual manner. It contemplates sexual assaults and cognate offences. This is clear from the purpose of the Act, the scope and content of registrable offences and the clear words of s 11.[19]

55 The plaintiff relied on Bowden and Director of Public Prosecutions v Malapanis.[20] In Bowden the Court of Appeal said:

...No issue is raised on this appeal that requires consideration of the term "sexual safety". For present purposes, it suffices to say that a risk that a person may re-offend by committing an offence of a type described in a schedule to the Act would be a risk to the sexual safety of one or more persons or of the community.[21]

56 In Director of Public Prosecutions v Malapanis Judge Sexton treated risk to sexual safety as a risk of committing a sexual offence.

57 The plaintiff said that based on those cases, it is clear that the risk of re-offending contemplated by s 11(3) is a real risk of some form of sexual assault, and courts must have regard to the types of offences as set out in the Schedules to the Act. There was simply no evidence before the Magistrate that the plaintiff posed a risk to the sexual safety of one or more persons or of the community. Alternatively, if there was any such evidence, it was not enough to satisfy the Magistrate beyond reasonable doubt that the plaintiff posed the relevant risk.

58 It was submitted that the plaintiff has not committed any of the offences listed in the Schedules to the Act. He has only been convicted of wilful and obscene exposure, which offence is concerned with conduct injurious to public morals, rather than the sexual safety of the public. To justify the finding under s 11(3), his offending needed to be in the nature of a sexual assault or a threat of sexual assault, not of moral turpitude.

59 The plaintiff conceded that if the Court finds that wilful and obscene exposure comes within 'an offence' in s 11(1), then he cannot argue the Magistrate had no evidence before him to justify the finding that he posed a risk. That is because the Magistrate had evidence of the wilful and obscene exposure being prosecuted before him, and evidence of previous offending.[22] The question then becomes whether the Magistrate's finding under s 11(3) was illogical or irrational.

60 The plaintiff cited Rees v County Court[23] and Minister for Immigration and Citizenship v SZMDS[24] in support of the next ground of review, however I think they are most relevant to this ground of review. He relied on those cases for the proposition that the Magistrate's finding under s 11(3) will be infected with jurisdictional error if it was unsupported by any probative evidence, or it was illogical or irrational.[25]

61 In oral submissions the plaintiff also emphasised that the s 11(3) inquiry is concerned with future behaviour.[26] If the Magistrate made his finding under s 11(3) simply on the basis of past offending, he would have considered an irrelevant consideration.[27]

62 The defendants conceded that being satisfied beyond reasonable doubt that the plaintiff posed a risk to the sexual safety of one or more persons or of the community, was a jurisdictional fact.[28] If the plaintiff can demonstrate that the Magistrate's finding was simply not open or was one that no rational or logical decision-maker could have reached on the same evidence, then the decision may be quashed. The level at which a court exercising judicial review power will interfere with a finding of fact, such as the Magistrate's finding under s 11(3), is a very high level.[29]

63 The defendant submitted that the Court should not embark on the task of interfering with the Magistrate's finding of fact because without absolute clarity about what material was before the Magistrate, it is not possible to assess whether his decision was irrational or illogical.[30] Not knowing exactly what was before the Magistrate weighs against the plaintiff's case.

64 On the ambit of the expression 'sexual safety', the defendants asked the Court to follow Znotins. A risk to psychological wellbeing caused by offences of indecency can amount to a risk to sexual safety. There is no warrant to interpret 'risk to sexual safety' as being confined to cases where there is a risk of Class 1, 2, 3 or 4 offences being committed. By using the expression 'sexual safety' Parliament intended that the inquiry be of a broader nature. That the inquiry is broad means it is more difficult to say the Magistrate's finding was irrational or illogical.

65 The Magistrate had before him the following material to support the finding beyond reasonable doubt that the plaintiff posed the relevant risk:

(a) evidence from two witnesses who saw the plaintiff masturbating;

(b) details of the plaintiff's prior convictions, including past convictions for wilful and obscene exposure;

(c) a submission that the plaintiff had previously attended a sex offender program in 2006; and

(d) the indication that the plaintiff did not oppose the order.

66 The Magistrate was also entitled to take into account any other material he considered appropriate. In the absence of transcript it is not possible to know what, if any, other matters were considered by the Magistrate.

67 Based on the material that was before the Magistrate, and the absence of transcript, it is not possible for this Court to find that the Magistrate's decision was not open to him. The defendant submitted that it was open to the Magistrate to be satisfied beyond reasonable doubt that the plaintiff posed the relevant risk, and he therefore had jurisdiction to make the order he did.

68 As I have found that the offence of wilful and obscene exposure falls within the scope of s 11(1), it is unnecessary to consider the plaintiff's argument that there was no evidence before the Magistrate to support the finding of fact under s 11(3). I must now consider whether, based on the material that was before him, the Magistrate's finding was unreasonable, irrational or illogical in the necessary sense.

69 On 26 July 2011 the Magistrate had available to him the following:

(a) the charge sheets and summons, which alleged two counts of wilful and obscene exposure;

(b) the police brief (I accept the plaintiff's submissions that the police brief would have been in court, but not necessarily in front of the Magistrate);

(c) the evidence of witnesses to the plaintiff's offending, which was contained in the police brief;

(d) the plaintiff's criminal record, which disclosed that the plaintiff had been convicted multiple times of wilful and obscene exposure, and that several of those convictions were on multiple counts;

(e) information that the plaintiff had attended a sex offender program before offending on 28 April 2011 and 3 May 2011; and

(f) knowledge of the plaintiff's plea of guilty and his consent to being placed on the sex offender register.

70 In addition, the police prosecutor would likely have read out a summary of the charges. The summary in the police brief states that on 28 April 2011 the plaintiff's offending was observed by a female witness, and the plaintiff looked directly at her. The summary says that on 3 May 2011 two female witnesses walked past the plaintiff's car, but only one witness observed the plaintiff's offending. On both occasions the offending occurred in a public place.

71 The parties may also have made oral submissions to the Magistrate. It is not clear what, if any, submissions were made as the transcript of the proceedings is no longer available. I note that Mr Richards deposed on the basis of his recollections and his notes of the hearing on 26 July 2011 that 'no submissions were made on either side as to the applicability of the Sex Offenders Registration Act', and he was not invited to make any such submissions.[31]

72 I find that based on the material available to him it was open to the Magistrate to be satisfied beyond reasonable doubt that there was a real risk[32] of the plaintiff committing further wilful and obscene exposures. Neither his previous convictions nor his sex offender program had prevented him from offending on 28 April 2011 and 3 May 2011. The question then is whether committing further wilful and obscene exposures in similar circumstances would harm the sexual safety of one or more persons or of the community. If it would, it was open to the Magistrate to be satisfied beyond reasonable doubt that the plaintiff posed a risk to the sexual safety of one or more persons or of the community.

73 Subsection 11(3) uses the expression 'sexual safety'. It does not say physical safety or bodily integrity. I accept the defendants' submission that by using the phrase 'sexual safety', Parliament intended a broad inquiry. The range of offences included in the Schedules to the Act also suggests that 'sexual safety' provides for a broad inquiry.

74 In Znotins it was found that the risk of committing indecent exposure in the future amounted to a risk to sexual safety. Murrell CJ said:

I am satisfied that the appellant poses a risk to the future sexual safety of one or more people in the community. His record for offences of indecent exposure means that there is a real risk of future, similar behaviour. Primarily, the risk relates to indecent exposure directed towards adult women. Although the appellant's offending conduct does not usually involve physical contact, it can be very psychologically distressing for adults (let alone children) to witness sexually confronting conduct to which they have not consented. In a psychological sense, the appellant does pose a risk to the sexual safety of both adults and children. To the extent that there may also be physical risk, that risk is relatively remote...

... The psychological risk to children arises not because it is likely that the appellant will consciously target them with his behaviour, but because he may misconduct himself in or within view of a public place where children are present.[33]

75 I agree with her Honour's reasoning. No evidence is needed to connect the psychological harm to 'sexual safety'. Masturbating is a sexual act, and engaging in it in public harms the sexual safety of the community, at the very least. It will also harm the sexual safety of people who witness it, if those people are psychologically distressed by what they see.

76 Further, a risk of committing any of the offences in the Schedules to the Act amounts to a risk to the sexual safety of one or more persons or of the community.[34] I take it from this that commission of the offences in the Schedules to the Act harms the sexual safety of one or more persons or of the community. The offence of transmitting indecent communications to minors appears in one of the Schedules to the Act. If transmitting indecent communications to minors harms sexual safety, it is difficult to see how masturbating in public where minors might see would not harm sexual safety.

77 Accordingly, it was open for the Magistrate to be satisfied beyond reasonable doubt that there was a real risk that the plaintiff would re-offend by committing wilful and obscene exposure, and that the plaintiff therefore posed a risk to the sexual safety of one or more persons or of the community. The Magistrate's finding was not unreasonable, irrational or illogical. This ground of review would therefore fail.

78 The plaintiff submitted that this was his strongest ground.[35] In his written submissions the plaintiff submitted that the record of the Magistrate's decision to order him to comply with reporting obligations under the Act does not disclose that the Magistrate was satisfied beyond reasonable doubt that the plaintiff posed a relevant risk. Even if that finding might be inferred from the fact of the order, the record does not disclose the basis or reasons for the finding. The record does not disclose any probative evidence supporting the Magistrate's decision to make the order. Further, there is no evidence the Magistrate considered the scope and purpose of the Act. This amounts to an error of law on the fact of the record.

79 In their written submissions, the defendants sought to hold the plaintiff to his grounds of review as set out in his originating motion, in which he alleged a failure to consider a relevant matter, namely the purpose and scope of the Act. They submitted that it is not apparent on the face of the record that there was any failure to consider the purpose and scope of the Act. The plaintiff's written submissions go well beyond the scope of the ground of review stated in his originating motion.

80 In oral submissions the plaintiff argued that because being satisfied beyond reasonable doubt that the plaintiff posed a relevant risk was a requirement of s 11, it was necessary that the finding and reasons for it be discernible from the record. Failure to include the finding and the basis for it in the order amounts to error on the face of the record.

81 He relied on the judgment of Deane J in Australian Broadcasting Tribunal v Bond, where his Honour said:

If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material considerations and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion. Arguably, it requires a minimum degree of "proportionality" (cf. the C_.C.S.U. Case_ (81)). When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact. Breach of a duty to act judicially constitutes an error of law which will vitiate the decision.[36]

82 The plaintiff also relied on Rees, SZMDS, and Lednar v Magistrates' Court.[37] The plaintiff accepted that there is no requirement in the Act to give reasons for making a decision. An example of such a requirement is in s 464ZF(9) of the Crimes Act 1958, which was considered in Lednar. While as a matter of law there is a distinction between this case and Lednar because there is no requirement to give reasons here, the reasoning in Lednar is still apposite and therefore there should be a record of the reasons of and satisfaction reached by the Magistrate.[38]

83 The plaintiff conceded that the fact that the Magistrate's order says what it says is not conclusive of there being error on the face of the record.[39] The plaintiff then submitted that it is not decisive that there is 'nothing on the record about what the Magistrate relied on', but the fact that the record does not show that the Magistrate was satisfied beyond reasonable doubt that the plaintiff posed a relevant risk, supports the conclusion that there was an error. Here, the error relied on by the plaintiff seems to be that the Magistrate did not reach the required level of satisfaction.

84 At the hearing the defendant submitted that the record of the Magistrate's order does not purport to be an account of the Magistrate's reasons for decision. In circumstances where the record does not purport to disclose the reasoning process, no error of law on the face of the record can be established by the absence of things that one would expect to see in reasons for a decision.[40] The record does not support the conclusion that proper consideration was not given to the scope and purposes of the Act.

85 The plaintiff's argument on this ground of review was by no means clear. In his originating motion he seemed to say that the Magistrate failed to consider a relevant consideration. In his written submissions he seemed to say that there was an error of law on the face of the record because the record did not disclose that the Magistrate reached the required level of satisfaction and did not disclose the basis on which he reached that satisfaction. In oral submissions he at times abandoned the error on the face of the record argument, and then at other times repeated it. He also argued in oral submissions that the Magistrate failed to reach the satisfaction required by s 11(3).

86 In order to ensure that I have addressed the plaintiff's arguments I will consider all those variations of this ground of review.

87 In this judicial review application the plaintiff bears the onus of proof. I am not satisfied that the Magistrate did not consider the purposes and scope of the Act. In circumstances where the order did not purport to set out the Magistrate's reasons for decision, failing to refer to the purposes and scope of the Act in the order does not establish that the Magistrate did not in fact consider those things. The plaintiff has failed to establish that the Magistrate failed to take into account a relevant consideration.

88 It is true that the Magistrate's order on 26 July 2011 does not record that he was satisfied beyond reasonable doubt that the plaintiff posed a risk to the sexual safety of one or more persons or of the community, or the basis on which he was or could have been so satisfied. However, the plaintiff could not point to any requirement in the Act or elsewhere that the Magistrate record those matters in the order. For this reason Lednar may be distinguished. I also note that in Lednar, under the terms of the relevant legislation failure to comply with the requirement to give reasons did not invalidate the Magistrate's decision. Accordingly, the plaintiff has not established that failure to record those things is an error of law on the face of the record.

89 I consider that SZMDS and Rees are more relevant to the second ground of review, and I have discussed them in that context.

90 Finally, the defendants correctly conceded that reaching the satisfaction required under s 11(3) was a jurisdictional fact. Had the Magistrate not reached that satisfaction, his decision would have been infected with jurisdictional error. However in this case I am not satisfied that the Magistrate did not reach the satisfaction required by s 11(3). In circumstances where the order did not purport to set out the Magistrate's reasons for decision, failing to record that he reached the required satisfaction does not establish that the Magistrate did not in fact reach that satisfaction. The plaintiff has failed to establish jurisdictional error in this regard.

91 This ground of review, in the various ways the plaintiff argued it, would therefore fail.

92 As none of the grounds of review would succeed, the plaintiff's challenge to his conviction and sentence on 3 March 2015 would also fail.

93 Given my findings in relation to the plaintiff's grounds of review it follows that the plaintiff should not be granted an extension of time, as it would be futile.

94 Having said that, I will make some observations about the plaintiff's application for an extension of time. The principles governing the question of whether special circumstances exist are uncontroversial. Whether circumstances are special depend upon the context in which they occur and the special circumstances need not be unique but they must have a quality of unusualness which permits them to be described as special.[41]

95 Factors ordinarily considered when determining that special circumstances exist include, the merits of the case;[42] the period of delay; the reasons for delay; issues of justice and prejudice to the parties; and the public interest in the finality of litigation.[43]

96 For the reasons already set out I am not satisfied that the plaintiff was unaware of the SOR order or its potential implications for him. He received advice about those matters and he consented to the order. The plaintiff's consent to the order is relevant to not just the strength of his case but also the strength of his application to extend time.

97 As was noted in Glass (a pseudonym) v The Chief Examiner[44] at [78] litigants are ordinarily bound by the way they conduct their case at first instance and will not be permitted to raise appeal points open, but not taken, below, even if they were not taken through inadvertence. In this case, it means that the plaintiff's consent to the order, after legal advice, weighs strongly against his claim for judicial review; and importantly in the context of the extension for time application, the delay in this case is extensive. The plaintiff knew about the order and its consequences and there is no proper explanation for the delay.

98 As I have already said, I consider that the plaintiff made his decision to consent as part of an overall approach to the proceeding that would ensure he avoided a prison sentence.

99 The plaintiff knew the SOR order had been made but elected not to take action until such time as the order actively affected him, almost four years later.

100 Further, I am not satisfied that even if the plaintiff failed to take in the full seriousness of the matter, or if the legal advice he received was not entirely sufficient, a finding which as I have said is not available on the evidence before the court, those matters make this matter unusual or out of the common way.

101 Further, for the reasons I have already given, I do not consider that the plaintiff's grounds for review are arguable and this weighs heavily against establishing special circumstances.

102 For the reasons set out I do not consider that there is anything special about the circumstances in which the plaintiff failed to commence his review proceeding within time. Accordingly, the application to extend time is refused.

103 For the reasons I have already set out I do not consider the court should exercise its discretion in favour of the plaintiff and accordingly the application for an extension of time is dismissed.

[1] Lazarevic v Victoria Police [2015] VSC 13, [36]-[40].

[2] The plaintiff relied on Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 for this proposition.

[3] Plaintiff's Outline of Submissions in Reply, [15].

[4] Plaintiff's Outline of Submissions, [41].

[16] (2013) 44 VR 229 (Bowden), [36].

[18] [2015] ACTSC 241 (Znotins).

[19] Plaintiff's Outline of Submissions, [28].

[31] Affidavit of Marshall Richards dated 3 June 2016, [11].

[32] Bowden (2013) 44 VR 229, [33].

[34] Bowden (2013) 44 VR 229, [31].

[37] [2000] VSC 549 (Lednar), [439]-[452].

[41] Precipe v Niselle [1998] VSC 137 at [15]; Mann v Medical Practitioners Board of Victoria & Anor [2004] VSCA 148.

[42] Glass (a pseudonym) v The Chief Examiner [2015] VSCA 127, [71]

[43] Lazarevic v Victoria Police [2014] VSC 497, [35].

Crime (Child Sex Offenders) Act 2005(ACT)

Offenders Registration Act 2004

Court (General Civil Procedure) Rules 2005

Supreme Court (General Civil Procedure) Rules 2015

At a glance

Court

Decision date

Before

Source

Judgment (161 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (5)