R v Watson

THE INVESTIGATION AND PROSECUTION

1. The prosecution arose from events on 20 June 2020. The Crown provided a Crown case statement which fairly summarises the case it would present at trial. There is nothing said to suggest that the summary thus provided is inaccurate or not a fair representation of what the evidence would establish if accepted in the prosecution.
2. On 2 October 2020 the accused was convicted and sentenced in the District Court of New South Wales for two offences. The first of those was using a carriage service to access child pornography material contrary to s 474.19(1) Criminal Code (Cth) and secondly using a carriage service to transmit child pornography material contrary to s 474.19(1) Criminal Code (Cth). A sentence of imprisonment was imposed including a non-parole period.
3. On 12 March 2020 the accused was released to parole. At the same time the accused was served with a notice regarding her status as a registerable person, a Form 3 document. This was provided by her Community Corrections Officer. The accused did not sign the document.
4. A copy of the document is included in a bundle tendered on behalf of the accused behind tab DE-2 item 2. The copy of the document provided has a signature in the place where the registerable person would sign but it does not appear to be her signature, or at least in words that would reflect the accused's name. However, the document was completed by the person giving notice of the Form and providing the copy at 12.18pm on that day at the Merrylands Police Station. The Form is the document that is employed for the purposes of the Child Protection (Offenders Registration) Act 2000. It is styled Notice Issued to Registerable Person. It is of seven pages with information as to the notice, what the notice means, what the notice informs. There is the acknowledgement to which I have referred.
5. There is notice of the reporting period, the obligation to attend the police station, the obligation to bring certain documents, the obligation to tell police certain information, the obligation to provide additional information in some instances which does not appear to be the case for this accused, the opportunity for appeals, the effect of s 16C Child Protection (Offenders Registration) Act 2000, the consequences of failure to comply with the notice or reporting obligations. the importance of reading the information and understanding it or having it explained by the police officer or other suitable person, what to do if information is the subject of change, effect of consequences of leaving the State of New South Wales and what to do if there was a lack of understanding of the document or a wish to query some aspect of the notice.
6. It is not suggested that the accused was not a registrable person. Indeed, that concession is made in written submissions that were presented on her behalf. There was some issue about certain events prior to the events of 20 June 2020 that may have impacted upon the accused's circumstances in that earlier period but it is acknowledged that as of 20 June 2020, the accused was the subject of such obligations and was a registrable person under the Act.

The Police Attendance on June 20, 2020

1. On 20 June 2020 around 9.30pm, two officers attended the accused's home address in Northmead to conduct a home visit for the purpose of monitoring compliance with the child protection register. At that point, the accused was under an OSAN Ability Assist funded by the National Disability Insurance Scheme. A carer, Ms Sunita Singh, admitted the two police officers, Detective Senior Constable Anderson and Constable Francis and they entered the accused's home.
2. There is an electronic recording of what occurred for most of the time the police officers were there. Some of that information is included in the Crown case statement but it is appropriate in my judgement to go to the entire transcript for the purposes of this judgement and I shall do so.
3. During the interaction the accused provided the police with her mobile telephone and the password which permitted the police to perform a manual examination of the device. The internet browser history of the mobile phone revealed that between 14 June 2020 and 20 June 2020 the accused accessed internet web pages suggestive of violent graphic and highly sexualised content. There are examples described in the Crown case statement; I need not articulate what is there recorded. It is material that I have been able to read. When video recording what occurred in the home the police took the step of filming the screen of the phone as they looked through these entries. One can see on the recording images consistent with what is set forth in para [10] through to [18] of the Crown case statement. However, although the recording includes aspects as described in para [18], and what was ultimately found on the phone after a Cellebrite examination, some images are not readily visible or not visible at all on the recording made of the interaction at the home at the time the phone was seized.
4. On 3 September 2020 the accused was arrested and conveyed to Parramatta Police Station. She then participated in an electronically recorded interview during which she made admissions to using her mobile phone to access material because she had been feeling lonely and had no-one to talk to. She told the police that she viewed the material to seek attention from everyone. She further admitted that she knew viewing the material was wrong and that she was viewing persons aged 14 to 15 years engaged in sexual activity.
5. The Crown case statement includes a description of further conduct.
6. On 9 July 2020 police attended the home to execute a revocation of parole warrant. Upon being arrested she accused people identified as Kuljit and Kamal as having "did the Internet stuff". She asserted that she had not done so. These people were employed as her support workers at the time. She claimed that they had been looking at child abuse material about three to four weeks prior and that she had caught them "red handed". She claimed that she had seen them watching child abuse material on the kitchen bench and that she had seen it was child abuse material because she "saw their age and I said to them, 'no, it's wrong'". She claimed that they had been looking at images and videos of girls of the age "between 5 and 9" for about half an hour.
7. She claimed that her carer's access to her mobile phone was documented in her case notes. The case notes that were obtained by the investigator did not make any mention of the carer accessing the accused's mobile phone. The images that were recorded at the time the police attended on 20 June 2020 included those recorded by leafing through what, as I understand it, was the diary of case notes enabling the police later if they wished to examine that material.
8. The case notes documented the accused using her phone to access the internet on 14 June 2020 and 18 June 2020, and documented the accused being inside her room with the door closed on various dates. The accused was in possession of a second mobile phone which was seized and manually examined by New South Wales Police. The phone's internet browser was logged into the email account in the accused's name between 29 June 2020 and 8 July 2020. The accused accessed material on her second mobile phone including the Best and Less website with photographs of pre-pubescent girls posing in swimming attire with a search for skirts for girls 7 to 16 and kid's underwear and socks.
9. On the Cotton On website the accused searched for clothing under the category of "Teen 10 16", "Kid's Fashion", and "Huggie's Tights". On the Seek website the accused viewed posting for a Christian Childcare Worker. She had also accessed the Northmead High School website. She had accessed numerous pornographic websites and searched various categories of pornography relating to incest, schoolgirls, kidnapping and rape. She accessed a stock photo website and accessed images entitled "Portrait of a teenage girl in th..." "Girl Nude Water Stock Pictures" and "Toddler Girl in Bathroom Smiling."

The Police Attendance on April 8, 2020

1. Before the police attended on 20 June 2020 another team including one of the officers attending on 20 June 2020 visited the accused's home. This was on 8 April 2020, a Wednesday; the particulars of this are recorded in a COPS entry, event number E72634010 included in the material tendered on behalf of the accused. This record includes an entry in the following terms. "Parramatta child pro-lister, Stephanie, 16C verification and inspection Arthur Foster aka Jessica WATSON first 16C within 28 days of registration".
2. Upon this occasion, on 8 April 2020, the police were given access when greeted at the door by Sunita Singh and Kuljit Karou. I pause to note that Ms Singh was the person who gave access on 20 June 2020.
3. They were day carers at the time for the accused, a registrable person at that time. The police entered the kitchen. Ms Singh spoke to the accused who was in her room. The accused was heard to say that she was scared of the police. The police approached the bedroom and introduced themselves and explained why they were at the location. The accused agreed to the s 16C verification and inspection and all consent forms were signed by the accused and the carer.
4. The police went through the Form 4 with which they were armed to confirm her details and noted that the email address was incorrectly recorded and that was adjusted. An appointment was made for her to attend Parramatta Police Station on 14 April 2020 to update her Form 4. They were given unrestricted access to her personal mobile phone and Smart TV. They observed that her history had been deleted regularly but they observed, also, online shopping from Big W and Best and Less websites where she had searched for girl's school wear and uniforms and primary school clothes and girl's bikinis. The police took photographs of the websites and uploaded them. There were no offences detected on this occasion.

The Accused is Interviewed and Charged

1. In due course, the accused was interviewed and charged with the present offence and another offence which is an allegation that she failed to comply with reporting obligations under the Child Protection Register contrary to s 17(1) Child Protection (Offenders Registration) Act 2000.
2. During the proceedings in the Local Court, on 25 June 2021, her legal representatives raised the issue of fitness to be tried and the magistrate referred the matter to the District Court in accordance with s 20B(1) Crimes Act 1914 (Cth).
3. At this point I will note that the parties are ad idem upon the question of fitness. The material that was assembled in the investigation of fitness to continue in the proceedings is all to the same effect. I shall refer to it in due course, but I will note at this stage that the evidence is that she is unfit and will not be fit within the next 12 months whereupon the Court is required to exercise the function it has by force of provisions including s 20B Crimes Act 1914.
4. The Crown position is that at the conclusion of this matter the appropriate course upon findings that the accused is unfit should be that a prima facie case is established by the evidence, that it is not appropriate to dismiss the charge, and that in light of the accused unlikely to become fit within the next 12 months that the Court order the release of the accused on conditions pursuant to s 20BC(5) Crimes Act (Cth).
5. There remains a question about what should happen with the summary charge that is purportedly before this Court in accordance with s 166 Criminal Procedure Act 1986 and I will need to come to that.
6. It would be sensible, if I have the power to deal with the matter, to resolve it in accordance with the mental health legislation in this State, redirecting the accused from the criminal justice process into circumstances where she can be provided with adequate care and treatment. I have not heard argument upon that point, as to whether I have the power to take that course. It was a subject of some discussion when the matter was before me on the last occasion when evidence was presented and it was at that point acknowledged, at least at that stage of the proceedings, that I had no power to exercise the arrangements that would otherwise be available under s 166 Criminal Procedure Act.
7. The position taken by the accused is that the course the Court should take is to find that there is no prima facie case, a decision which would be reached upon the exclusion of the evidence harvested by the police on 20 June 2020. Her argument is that the evidence ought to be excluded as having been obtained because of illegality or impropriety in accordance with s 138 Evidence Act 1995 (Cth). It is, thus, necessary to consider what occurred during the investigation leading to this prosecution.

Should the Evidence be Excluded?

1. The Crown case statement, as I said, is a fair reflection of the evidence that the Crown would rely upon should the matter proceed to trial.
2. Helpfully the accused, through her representatives, has provided material including the statement by Detective Senior Constable Ryan Anderson of 23 September 2020, the transcript of a body-worn video captured on that day, and the COPS entry regarding the inspection on 20 June 2020, amongst other documents. Also tendered in the hearing was the electronic recording of the images captured on the body-worn device; that was played in court and I have since reviewed that recording to see the way the police conducted themselves, to observe the response by the accused as the matter unfolded, and to assess whether there was any evidence of any distress in the accused, and if so, at what point. The transcript is a fair reproduction of what is to be heard on the electronic recording.
3. Detective Senior Constable Anderson asserted in his statement that at 9.30pm on 20 June 2020, with Constable Francis, he attended the home at Northmead to conduct a home visit. He knocked at the door and was invited inside by Ms Singh. He had met the accused and Ms Singh on multiple occasions and notified them that he was the accused's case officer. He had police identification in the form of the badge which police now carry displayed on a lanyard around his neck.
4. He described what occurred in the exchange, including what he said to the accused, that Constable Francis started to record what was taking place, his review of open internet pages as well as the internet history on the phone and what he found, that he returned to Parramatta police station where he copied the limited accessible content of the mobile phone onto the police computer to review it, and that there was a full forensic download of the mobile phone after which on 25 June 2020 he reviewed the download.
5. He prepared annexure C to his statement containing all text messages and emails that were copied in summary form, he conducted a manual review of the internet history and opened the internet pages. The majority of the open web pages, and those in the internet history related to rape, incest, and kidnapping.
6. The phone revealed that it had been used by way of Google to search the phrase "brother rapes their sister". It had been used to access numerous pornographic videos purporting to depict brothers raping sisters. There had been access to several news articles relating to convicted sex offenders, child sex offenders, and baby deaths, and there was a history of shopping for clothing for eight- to 16-year-old girls and children's toys.
7. There were 17 open internet browser windows including to the website rapenow.com which depicted a child engaged in sexual acts with two grown men, a woman being held down while having her nipple cut off with a blade, and numerous other videos which purport to depict rape, incest, and others which appear to depict children engaged in sexual acts. The police officer took 106 photographs and one video recording of the internet usage on the mobile phone.
8. On 9 July 2020 he was notified by Senior Constable Stephanie Lister that a revocation of parole warrant had been issued. The constable attended the home and arrested the accused, the occasion of which was recorded with body-worn camera. It was on this occasion described in para [13] and following in the statement that the accused attributed blame to her carers for the material accessed on the phone.
9. The second mobile to which I earlier referred to when describing the Crown case statement was seized; this is the subject of para [14] in the statement and at para 16 he describes having conveyed the accused to Parramatta Police Station on 3 December 2020, the possession of child abuse material relating to the second telephone, the decision the accused made that she wanted to be interviewed by the police, and the interview in which she participated thereafter.
10. The transcript of what occurred on 20 June 2020 extends to some nine pages which are included in the defence material. It begins with the Senior Constable stating: "It's 9:30pm on 20 June 2020. I'm Detective Senior Constable Ryan Anderson. I'm just here with Jessica Watson at [XX - - - ]Northmead in relation to a home visit for the Child Protection Register. I've Constable Kathleen Francis video recording, this is Jessica here. Sorry ma'am, what is your name?".
11. This question was addressed to the carer Ms Singh and another carer whose name was inaudible. At question 5: "I've just spoken to Jessica and explained that we want to do a home visit by consent, this isn't a 16C, and like I said before this is purely up to you. If at any point you want us to stop or leave, we can do that. I'm going to read through this form though. Um, so, we're here for the purpose of a home visit to confirm details provided by you for your reporting obligations". A. Mmhmm. "Q.6. While we're here, I'm just going to again on video ask for your consent to do an examination. A. Yes. Q 7. … of any of your devices. So, you don't have a computer, do you? A. No. Q 8. It's just the phone and the PlayStation? A. Yep. Q 9. Is the PlayStation connected to the internet? A. No. Q 10. Alright, well we might just go and check that once I've had look at your phone. So, we're asking you for your consent, like I said. You're not required to, to allow us to do this, under the act. But if you do give us consent you can also withdraw it at any time, which means we will leave. Okay? A. Mmhmm. Q 11. So, given all of that, are you happy to let me go through your devices? A. Yes. Q 12. Okay. If we find anything during this search that might be an offence, so if we find anything that might be illegal, or might be a breach, something like that, the devices may be seized by a warrant or evidence obtained from the devices might later be used in Court, do you understand that? A. Mmhmm. Q 13. I'm not going to get you to sign this form, but as you are aware this is all being video recorded. Have you got any questions for me before we get started? A. No".
12. As this exchange occurred the accused was sitting at the kitchen bench. She had a device on her wrist. It was not possible to discern whether it was a wristwatch or device such as a Fitbit device. At one point she was manipulating the device as if scrolling through it. While the police officer was addressing her as I've quoted and she was responding, she had her phone in front of her in her hands and was looking at it.
13. The police officer continued at Q 14: "Q 14. Okay. Alright, I'm going to have a quick look at your phone. Is there a,- what's the password? Can you just bring the video over here for me? This is just the internet history. I'll start from the top. This is all from today".
14. The transcript at this point reveals the police officer speaking to the accused and calling his companion to come closer to video record what he had.
15. The accused responded to Q 14: "Call the boss. I need her here. Call the boss, please".
16. My understanding of that and what I saw was that it was directed to the carers who were present when all these events were unfolding. "Q 15. Are you okay Jessica? A. This is overwhelming. Q 16. What, what's overwhelming about it? Is there, if you are, if you are concerned about something just let me know. A. Um, I'm meant to have someone before, instead of these two, I'm supposed to have a PRS person here. Q 17. When's that? A. Every time yous come visit. Q 18. Okay. Well obviously when we do the 16C it's unannounced and I remember coming here for that and there was no other person here, just the carers. A. Mmhmm. Q 19. Yep. So has something changed? A. Under the, um, the National Disability, um, thing, I'm supposed to have one here at all times. Q 20. At all times … A. Yep. Q 21. … or just when we're here? A. All times. Q 22. Uh-huh. Now, you mentioned to me that, um-- A. Sorry?". Constable Francis then spoke: "Q 23. Does someone want to go with her? Is there someone else here?".
17. Ms Singh said no to this. At this point the accused left the kitchen bench and retreated to a place to the right of the screen. The carer continued, "She was just finding some documents or something. Q 25. Oh, okay. Okay".
18. Then the accused returned and spoke, "I'm supposed to have one". Detective Senior Constable Anderson said, "Q 26. What's the password for your phone? A. Ah, Jessica, ah, tigers two thirty two". Q 27. Is that just to just to get into it when it's locked? A. Ah, no, twenty three twenty three. Q 28. 2-3-2-3? A. Yep. Q 29. Okay. Okay. I might be mistaken, but I was under the impression that you weren't allowed to have internet access. Is that right?"
19. The carer spoke and repeated that the accused was not to have internet access but all mobile phones come with it. The accused then spoke, "There's no, there's none that haven't anymore". The carer said, "So she's just using it off the data". The police officer then asked at Q 32: "Where's that card gone? Look, given your disability I don't think I'm going to ask you too many questions while we're here tonight, but I'm a bit concerned about some of the stuff on the phone"
20. At that point the accused presented a card to the police officer which had particulars of a point of call for someone to assist the accused in circumstances where she might be interviewed by the police. The police officers took an image of that card and returned it to her. "Q 33. So I'm going to have to seize this as an exhibit and we're going have to analyse it? A. Can I have the sim card please?"
21. I note at this point the accused appeared to become distressed. Her distress appeared to increase but did not result in any uncontrolled behaviour. It, I believe, would be best described as a sequence of vigorous responses by the accused as the exchange continued. After asking for the sim card she said: "Call the boss please. I think they should go. Q 35. If that's how you feel, I think we'll leave. Um, but given what's on the phone, I've got some concerns. I think we're going to have to take it. A. What do you mean? Q 36. As an exhibit. A. What for? Q 37. Like I said, my understanding was you weren't allowed to have access to the internet and some of the things you've, you've been looking at on the internet here I find pretty concerning. A. Well I need the SIM card. Q 38. I don't know if I can really take that out. I don't know if it affects the Cellebrite. I think we're going to have to hold onto it. I don't, my concern is that, as well, you can save data to SIM cards and I don't know what's on the SIM card either. I'll tell you what I'll do though. The people that analyse the phones, I'm going to make sure they do it as soon as possible so that we can get the phone back to you, but we're going to have to speak to you about this formally. So, I think you need to speak to whoever it is you need to speak to from um, is this a disability service? Yeah. You might need to speak to them. To get some legal advice before we speak to you formally, okay? Because I'm concerned that you may have committed an offence but I'll need to speak to, do you know Senior Constable Lister? She, she's come out here a few times to speak to you. I'll need to speak to her and I'll have to get the phone examined, um before we speak to you, okay? Do you have any questions? A. How am I supposed to call my mum now? Q 39. I'll tell you what I'll do. I'll leave you a card. I think you need to speak to the service and get some legal advice, and you can give them my name, they can get in touch with me. But there's a couple of things I need to do and them (sic) I'm going to need you to come to the police station and speak to us formally okay? Maybe this week. A. I haven't done nothing wrong. Q 40. Well my concern is that you're not meant to be accessing the internet and you've been looking up some, some pretty questionable stuff? A. No I haven't. Q 41. What have you been looking up? A. What I've been bloody ordering food. And going bloody clothes shopping online. Q 42. There's a lot of other stuff too. A. And bloody over eighteen people, stuff."
22. That has some significance because it is consistent with the accused understanding the difficulty that might present from accessing material that depicts children and not those who are of or above the age of 18. "Q. 43. Okay, look I think we're going to leave now. A. Aw that's bloody bullshit. I need my, can I please have my SIM card so… Q. 44. I don't know what's saved to the SIM card? A. If ya's, if ya's don't give me it. Q. 45. Yes? A. I'm. Can you put your managers name on a contact please? And your-- Q. 46. My details are on the front. You can contact my office okay? A. Can I at least get my mum's contact."
23. She said that she didn't know her mother's phone number.
24. It is also noteworthy that the police officer provided his card to her after he took it from a folder. The accused pushed the card back toward him when asking for the manager's name and contact; the police officer turned the card over and told her that the details on the front would enable her to contact the office.
25. It was confirmed that there was no phone connected to the house or landline. There was no work phone. Senior Constable Anderson at Q 56 asked her to pass him the card and he would write their contact down. With reference to what was said at page seven of the transcript this was to do with her mother's contact number
26. The recording was continued, required by Senior Constable Anderson until the officers had left.
27. At Q 65 and following the accused referred to the diary and handwriting that the police officers examined and recorded page by page. The carer, Ms Singh, referred to another book that was full and was in the office. All records she said were kept in the office. The detective noted that he would have to read through this later.
28. The carer invited the police to especially read the afternoon when "we take her out." I am not quite sure what that is intended to imply other than it was to the mind of the carer significant. That information is not part of the material upon which I have come to my decision. I need not refer to any other part of the transcript; I have referred to most of it.

THE ARGUMENT

1. The position advanced on behalf of the accused is that the police had not acted appropriately in the way they conducted themselves on this occasion in the role they performed, purporting to attend the home not in the exercise of powers given them by s 16C of the Act.
2. There was a debate between the Crown and the accused as to whether there was needed an examination of this evidence and a finding about its admissibility for the purposes of determining whether there was a prima facie case.
3. The Crown advanced the argument that it was not appropriate to consider the admissibility of the evidence in determining whether there was a prima facie case and invited attention to R v Sharrouf [No 2] [2008] NSWSC 1450 particularly from para [26] where Whealy J made observations regarding the meaning of a term "prima facie" as used in respect of the test that the Court is required to examine. His Honour made the following points: 1. The suggestion that the language of s 20B(6) extends the application of the "prima facie" test unjustifiably distorts and extends the language of the relevant subsection: at [36] 2. The language of s 20B(6) does not require the Court to determine "whether the evidence would justify committal for trial." There is a considerable difference between the exercise of a prima facie case and whether there is a reasonable prospect that a reasonable jury would convict the person: at [37] 3. A committing magistrate "is required to make a forecast prediction of some kind of the outcome of the trial. This he or she must do upon all the evidence and must give attention of the weight and acceptability of evidence in relation to the character of the evidence, itself, and the credibility of the witnesses who gave it: Saffron v DPP [1989] 16 NSWLR 397:" at [38] 4. The statutory position to determine fitness under Commonwealth legislation is different to that of a committing magistrate - the precise task is to find whether a prima facie case is established: at [39] 5. The prima facie test, in effect, requires the Court to identify evidence that would provide "sufficient grounds" to put the person on trial. It is not to commit the person for trial. The evidence must be identifiable and must provide, in terms of its capacity, to put the person on trial for the offence: at [39] 6. The prima facie test does not require the Court to assess credibility or reliability of any witness. The evidence is taken at its highest: at [39] 7. By way of contrast, if the superior court finds the accused fit to be tried, the matter reverts to the committing magistrate for a full and proper committal hearing. However, in the superior court because there has been a finding of fitness, the second stage requires the Court to dismiss the charge unless evidence to be relied upon by the prosecution has the capacity to establish a prima facie case: at [40] 8. Section 20B(7) sits oddly within the concept of a prima facie case. However, it does not require the Court to anything other than determine whether there is a prima facie case against the accused. This seems to make clear that what is occurring when process is something that is not a trial for the offence, nor is it a committal for trial for the offence. It stops well short of that requirement notwithstanding the presence of s 20B(7): at [41]
4. His Honour concluded at paras [49] to [51]; "[49] Overall, it seems to me that it cannot remotely be said that the determination of a prima facie case issue is, in any sense, a trial of the accused for the offence charged. Nor can it be said to be a committal procedure. For that reason, it does not seem to me that the Crown must bring forward "evidence" to establish a prima facie case, as if a trial were in progress. " "[50] What has to be shown is that there is evidence that would provide sufficient grounds to put the person on trial in relation to the offence. It is the capacity of that evidence to do so that is an issue. …" "[51] …. Whether there is a prima facie case is a question of law and the question is whether there is sufficient evidence upon which the accused may be convicted...that is whether there is evidence capable of proving each of the elements of the offence beyond reasonable doubt."
5. The Crown submits that in making the assessment the evidence must be taken at its highest. The determination of that question is the responsibility of the judge and not the jury. The procedure followed in Sharrouf was that the Crown was not required to lead evidence in the normal way of calling witnesses. The Crown tendered a statement of facts and a brief of evidence to rely upon a trial unassisted in the process of providing the Court with an analysis of the evidence.
6. The Crown referred to para [68] of Whealy J's judgement: "[68] … There are a number of unresolved arguments relating to these issues in which the defence and Crown submissions have not been completed. There are others where argument has not been heard. In addition, the determination as to whether actions are capable of being regarded as acts done in furtherance of the conspiracy of awaits decision at a later time. For those reasons, reference to any of those matters in the following summary is not to be taken as an acceptance or rejection of the unresolved arguments. Nor is it a determination of the question as to whether the acts were done in furtherance of the conspiracy. Indeed, this is not a fact-finding exercise at all. For that reason, the following narrative is not intended to reflect any factual findings as to the activities of the various accused. It is not intended to reflect any view of the evidence. All the accused have, as does Sharrouf, the presumption of innocence is in their favour. The present exercise is confined to an examination of the statements and evidence in the Crown brief, against the background of the Crown case statement, to identify the evidence capable of establishing the prima facie case against Sharrouf. …"
7. Ultimately the Crown submits that the decision stands for the proposition that the determination of a prima facie case pursuant to s 20B(3) Crimes Act 1914 does not extend to considerations of discretionary or mandatory exclusions of evidence. The Crown further submits that the determination of a prima facie case does not extend to examining witnesses to assess their credibility or reliability and finally it is submitted that the determination of a prima facie case is not a trial or a committal procedure. The argument ultimately put is that the Court would not seek to hear evidence orally or in writing but enacts upon the issue of the legality or otherwise of the police conduct.
8. The proceedings were facilitated though, notwithstanding the Crown submission, by having the Detective Senior Constable Ryan Anderson, now Sergeant Ryan Anderson, attend Court on 20 June 2022 to be cross-examined upon his work when he attended the accused's home. The police officer was not moved from the position he took that he was there for only so long as the accused consented to his presence and that of his partner, and that he was not exercising and did not purport to exercise the power given by s 16C Child Protection (Offenders Registration) Act 2000. He maintained that position in the face of various propositions advanced by counsel on behalf of the accused which I need not rehearse for the purposes of this judgement.
9. The submissions advanced on behalf of the accused came in two iterations, the first prepared by counsel and the instructing solicitor who were engaged as of 9 May 2022 when the document was prepared. I note that Ms Elston was the solicitor who appears today and counsel who appears to have settled, if not participating in the drafting of submissions, was in due course replaced by Mr Nash who provided further submissions subsequently written on 18 May 2022.
10. It was the subsequent submissions that Mr Nash offered in support of a proposition that the Court should embark upon the inquiry as to the prima facie case including assessment of the conduct of the police on 20 June 2020. His submissions resorted to cases to which the Court does not often have exposure in modern times, including Wentworth v Rogers [1984] 2 NSWLR 422 and May v O'Sullivan (1995) 92 CLR 654, particularly at p 658.
11. The submissions made are in terms that subject to explicit statutory provisions to the contrary, it has never been the law that determining the existence or otherwise of a prima facie case is conducted without a court being able to consider the discretionary or mandatory exclusion of evidence. The submission is that what was drawn from the guidance provided by Whealy J does not suggest that the evidence is admitted without the need to consider questions of mandatory or discretionary exclusion.
12. May v O'Sullivan was concerned with a summary hearing, not a committal proceeding. The High Court dismissed the application for special leave, addressing the question what was to be decided at the close of the case for the prosecution, whether on the evidence as it stood the defendant could be convicted.
13. The passage in the judgement to which I have been taken draws a distinction between the question whether on the evidence as it stands the defendant ought to be convicted, which is not the question to be asked, and the question whether on the evidence as it stands he could lawfully be convicted, which is the question to be asked.
14. The High Court said correctly and clearly that this was a question of law, the case to answer argument has nothing to do with the onus of proof which rests with the prosecution from beginning to end, though it may be a legitimate consideration in some cases as pointed out in Wilson v Buttery [1926] SASR 150. It is in some instances permissible to consider the fact that a defendant has not given evidence in considering whether to draw an inference of guilt from the evidence and whether to do so is unsafe.
15. There is discussion upon this point found in the High Court decisions of Azzopardi v The Queen [2001] HCA 25 and Weissensteiner v The Queen (1993) 178 CLR 217.
16. It was noted by the High Court in May v O'Sullivan ibid that a magistrate who decides that there is a case to answer may quite consistently in the absence of evidence from the defendant refuse to convict on the evidence if there was a prima facie case but the evidence did not reach the standard sufficient to prove as a question of fact beyond reasonable doubt.
17. The argument submitted on behalf of the accused is that the assessment to be made is regarding evidence properly admitted, from which it would follow that mandatory or discretionary exclusion are considerations that should be brought to account to determine whether a prima facie case is established.
18. In the submissions there is reference to legislation provided in the Criminal Procedure Act and the early appropriate guilty plea reforms, and the judgement of Deane J in Grassby v R [1989] HCA 45 where his Honour spoke of the resolution of the question for a magistrate hearing committal proceedings under s 41 Justices Act 1902 as it was. His Honour said: "The resolution of that question will necessarily involve, in many cases, an assessment of the likely rulings which would be made by a trial judge (if a committal order were made) about whether particular evidence is admissible or should be received."

CONSIDERATION

1. I confess that I find the question is not without its difficulty. However, bringing to bear what was said by Whealy J in Sharrouf ibid, the view I have is that the decision as to whether there is a prima facie case must depend upon whether the evidence is admissible. I find that it is.
2. The attack upon the evidence is not about admissibility but regarding the discretion of the Court to exclude the evidence as improperly or illegally obtained. My decision upon the material before me is that the Court ought to examine the conduct of the police officers to determine whether the evidence, which I find to be admissible, ought to be excluded as improperly or illegally obtained.
3. I do not hold the view that the determination of the ultimate question before the court should be made upon the admission of the evidence, regardless of any attack that might have been made upon it and found to have merit. I take this view considering the legislative structure in which these proceedings are conducted and the consequences that will flow for the offender if the evidence is not excluded.
4. The legislation with which I am concerned for the determination of fitness in the Crimes Act (Cth) is set forth in Part 1B Division 6 and following. For the questions I must resolve I need refer to only some sections.
5. S 20BA provides, "(1) Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody. (2) Where the court determines that there has been established a prima facie case that the person committed the offence, but the court is of the opinion, having regard to: (a) the character, antecedents, age, health or mental condition of the person; or (b) the extent (if any) to which the offence is of a trivial nature; or (c) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody. (3) Where the court orders that the person be released from custody, the person must be released accordingly. (4) Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried. (5) A court must not make a determination under subsection (4) unless the court has obtained, and considered, written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner. (6) Nothing in subsection (5) prevents a court from obtaining written or oral evidence from such other persons, bodies or organisations as the court considers appropriate".
6. S 20BC provides, "(1) Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine: (a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and (b) if so - whether the person objects to being detained in a hospital. (2) Where a court has made a determination under subsection (1), the court must: (a) if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital - order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or (b) otherwise - order that the person be detained in a place other than a hospital, including a prison; for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged. (3) The Attorney-General may, at any time, by order in writing, vary the hospital or other place of detention at which a person is detained under this section. (4) Where, for urgent medical or security reasons, it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the hospital or other place of detention of that person but, where the officer does so, the officer must forthwith notify the Attorney-General, in writing, of the variation and of the reasons for the variation. (5) Despite subsection (2), the court may, if in the court's opinion it is more appropriate to do so than to make an order under subsection (2), order the person's release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years. (6) The conditions may include: (a) a condition that the person remain in the care of a responsible person nominated in the order; and (b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person's mental illness, mental condition or intellectual disability and, where appropriate, for treatment; and (c) any other condition that the court thinks fit. (7) Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions. (8) Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will not become fit to be tried, within 12 months after the finding, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person, in respect of the offence".
7. Section 138 Evidence Act (Cth) provides for the discretionary exclusion of improperly or illegally obtained evidence. Whether or not the evidence was illegally obtained depends upon the assessment one should make of the conduct of the police. I find that there was no impropriety in the police officers in the task they performed.
8. The objects of the Child Protection (Offenders Registration) Act 2000 are found in s 2A, The objects of this Act are - (a) to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and (b) to ensure the early detection of offences by recidivist child sex offenders, and (c) to monitor persons who are registrable persons, and (d) to ensure that registrable persons comply with this Act.
9. The Act provides at s 9(1) for relevant personal information that is to be reported by a registrable person, (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.
10. It is noteworthy that the objects of the Act provide not only for the protection of children from serious harm and the early detection of offences by recidivist child sex offenders; it also provides for the monitoring of registrable persons and to ensure that they comply with the Act which provides a measure of protection for the registrable person against the risk that they might not be able to control their behaviour and put them at further risk of offending.
11. Section 16C of the Act deals with the entry by police to residential premises, it provides relevantly at subs (1): "One or more police officers may, without prior notice, enter and inspect any residential premises of a registrable person for the purpose of verifying any relevant personal information reported by the registrable person under section 9".
12. Beneath that subsection it is noted, "Safeguards relating to the exercise of power under this section are set out in Part 15 of the Law Enforcement (Powers and Responsibilities) Act 2002".
13. Subsection (2) provides for the power of entry to be exercised twice during the first 12-month period and once during the following 12-month period, and subs (3) provides, "A power may not be exercised under this section if the relevant reporting period of the registrable person has expired".
14. It was conceded by counsel during oral submissions on 20 June 2022 that it could not be sensibly argued that the police could not attend the premises as they did on this occasion, performing the function other than in the exercise of the power given in s 16C. The power given in that section is to attend the premises without prior notice and to inspect those premises and to verify any relevant personal information reported under s 9.
15. There is no provision of which I am aware that would proscribe the police officers from performing a proactive role attending the premises to speak with the registrable person with their consent, which I find occurred in this case.
16. The argument advanced on behalf of the accused was that by reason of the limitations with which the accused is burdened the police ought not to have attended the premises and conduct themselves as they did without having beforehand arranged to make sure that she had legal advice upon what her rights and obligations might have been.
17. I do not agree with that submission, to have given notice before attending the premises would have been in my view counterintuitive. If the accused gave consent, which she clearly did as was recorded, both to the presence of the police officers and access to the telephone, there was no impropriety or illegality in my assessment of the matter. Moreover, I have brought to account her limitations, including those that are apparent on the screen in the exchange, and as are recorded in the documents that are available to establish that she is unfit for the purposes of her trial.
18. I have considered the evidence which leads inevitably to the conclusion that she accessed the internet using that phone and to those sites, and she had the presence of mind to demand the return of a SIM card from the police officers as they were about to leave the premises. all of which in my view is inconsistent with the proposition that she did not understand what was going on. She had the presence to require the carers to call their boss, to use her words. She had the presence to retrieve the card which she produced and present it to the police officers at the point when the phone was being seized, whereby information was available to her to make contact for legal advice if it was required.
19. The police officers did not attempt to interview her. All that they did was within the scope of the consent that she gave. I find were assiduous in their actions so as not to compromise her rights once they realised that there was material on the phone that ought not to have been there, and hence the process that followed with them taking the phone, continuing the investigations, and then bringing her back to the police station in due course for the purposes of the interview in which she admitted the wrongdoing as I described it from the Crown case statement.
20. Counsel invited me to a decision in New South Wales in support of the proposition that she could not be found in the circumstances to have given informed consent when the police attended. This was The Hunter and New England Area Health Service v A by his Tutor T [2009] NSWC 761, a decision by McDougall J. There were two passages to which I was taken in the judgement, one at para [15] and para [16] and more relevantly at para [25] where his Honour wrote; "[25] As Butler-Sloss LJ said in Re MB at 553 - 554, in deciding whether a person has capacity to make a particular decision, the ultimate question is whether that person suffers from some impairment or disturbance of mental functioning so as to render him or her incapable of making the decision. That will occur if the person:

(1) is unable to comprehend and retain the information which is material to the decision, in particular as to the consequences of the decision; or

(2) is unable to use and weigh the information as part of the process of making the decision.

1. I do not find that the accused was impaired to the extent that she was unable to comprehend and retain information that was communicated to her by the police officer and unable to use and weigh the information as part of the process of making her decision to give the consent that she gave expressly. A contrary finding would be inconsistent in my opinion with the objective facts revealed in her response to the police as recorded in the exchange and in the way she was able to access the material that was in due course found on her phone.
2. Those passages aside, the decision does not provide any binding authority, bearing in mind the contrast between the issues that were alive in that case and the subject matter and what is before this Court.
3. I have taken care to read the submissions provided by counsel orally during the presentation of the matter on 20 June 2022. I have noted his observations regarding what occurred as revealed in the recording. I do not accept that it could be said that the accused did not understand the ramifications of the consent she gave and that a sensible person would never have given consent in the first place. It might be so but bearing in mind that the accused did not give evidence upon this point as to admissibility or exclusion the evidence, I am left with the direct evidence of what occurred and the inferences available from what that direct evidence establishes.
4. I am not persuaded that the police acted improperly or illegally, but if I am found to not be correct in coming to that decision, it remains that the exercise required by s 138 is discretionary informed by a non-exhaustive list of matters specified in s 138(3).
5. I have noted the probative value of the evidence, which is high, the importance of the evidence in the proceedings, which is substantial. I have noted the nature of the offence within the context of the history which is known of the accused. I have considered the extent to which there might be seen to be impropriety or contravention which, in the circumstances if, there was impropriety or illegality, I find it to be of limited significance.
6. I do not believe that any such impropriety or contravention, found to have occurred in the circumstances was deliberate or reckless. The police officers made clear that they were not exercising powers under s 16C Child Protection (Offenders Registration) Act 2000 which in any event did not proscribe them from performing the function upon which they were engaged on that day, looking to visit the accused to engage with her only in circumstances where she gave her consent that they could do so.
7. I have had access to the International Covenant on Civil and Political Rights. I do not see that there is any conduct upon which they engaged which might be in breach of the covenant.
8. Article 17 provides: "1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks."
9. I am not persuaded that there was any conduct by the police officers on this occasion caught by that Article in that covenant.
10. There could be no other proceedings taken in respect of the conduct of the police in my view. The evidence would not have been known but for the access to the phone allowed by the accused.
11. There was some discussion during the exchange that the behaviour of the accused that led to the COPS entry in April, including the removal of information from the phone, might have given rise to suspicion or some level of reasonable cause. It was not advanced in any way to justify why the police were there on 20 June 2020, which was months after the April occasion in any event.
12. For those reasons that I have said I find that there is a prima facie case that the Crown has available against the accused.

THE ACCUSED'S FITNESS

1. I do not intend to rehearse in detail the evidence available to prove that the accused is unfit and will remain unfit for 12 months.
2. The material before me includes the reports from Lisa Zipparo of 21 September 2021. She is a psychologist. I have read that report. There is an extract of email from the psychologist confirming that the accused is unlikely to improve in the next 12 months.
3. There is a report from Dr Adam Martin, forensic psychiatrist, which I have read.
4. There is a report from Dr Dharshini Jeyalingam by way of a letter of 6 May 2022.
5. There is an extract from the St Vincent's Health Service at Parklea specifying her management and the medication prescribed.
6. There is the guardianship order issued on 10 December 2019 appointing the Public Guardian as the accused's guardian extending for a period of 12 months from 10 December 2019 but limited to the arrangement of accommodation and services that the accused needs.
7. There is a functional assessment report of 6 November 2019 which is included in the material, a report by Dr Sally McSwiggan dated 5 August 2018.
8. There is the letter to Parklea Correctional Centre requesting the movement to the female correctional centre on 24 March 2022 and the accused's custodial history.
9. I do not intend to rehearse all that material considering the assessments that are all in the one direction, and the opinion given by Dr Adam Martin upon which the Crown has relied written on 2 February 2022 which is also included in the defence bundle.
10. The Crown submissions have helpfully summarised the position regarding the material provided to the following effect: that the Clinical Neuropsychologist Ms Zipparo notes the history of psychiatric diagnosis, including paranoid disorder, paedophilic disorder, schizophrenia, gender dysphoria, borderline personality disorder and complex posttraumatic stress disorder, general anxiety disorder and major depressive disorder.
11. The opinion given by the neuropsychologist was that she is unfit to stand trial. She might improve with therapy but that would take at least two years of intensive treatment.
12. The Crown referred to the opinions and diagnoses set out in previous reports at para [19] of the submissions, which I will not repeat here.
13. There is reference to the report from Dr Martin who had the benefit of reviewing Ms Zipparo's report in advance of interviewing the accused. He agreed with the assessment of the accused's clinical history and noted the most salient issues to be intellectual disability, the background of emotional dysregulation, and the experience of anxious and depressive symptoms, and self‑harm on a background of adverse childhood experiences.
14. The doctor's opinion is that these would impact on the accused's ability to participate adequately in a legal proceeding and he concurred with the report from Ms Zipparo. The doctor's opinion is that the accused's fitness is borderline but on balance it would be reasonable for the Court to find her unfit.
15. Having reviewed and read all that material I concur with the views expressed on behalf of the parties to these proceedings by both the advocates.
16. in discussion which followed at this point of the judgement the parties were ad idem upon the point that this court has no jurisdiction by way of s 166 Criminal Procedure Act 1986 (NSW) to deal with the further charge of failure to comply with the reporting obligations contrary to s 17(1) Child Protection (Offenders Registration) Act 2000.

FINDINGS

1. I find that the accused is unfit to be tried.
2. I find that there is a prima facie case established that she committed the offence.
3. I am satisfied that she will be unlikely to become fit within the next 12 months. I propose to allow her release to continue with appropriate conditions pursuant to s 20BC(5) Crimes Act 1914.
4. S 166 Criminal Procedure Act 1986 does not provide jurisdiction for this court to deal with the offence of failure to comply with the reporting obligations under the Child Protection (Offenders Registration) Act 2000, s 17(1).

ORDERS

1. The offence of failure to comply with the reporting obligations under the Child Protection (Offenders Registration) Act 2000, s 17(1), purportedly before the court by way of s 166 Criminal Procedure Act 1986 is remitted to the Local Court for disposition. Bail is dispensed with in respect of that matter, listed for mention on 11 August 2022. The accused is excused on that day so long as she is legally represented.
2. In relation to the orders required upon my findings:
3. Pursuant to s 20BC(5) Crimes Act 1914, having found that the accused is unfit to be tried and will not become fit to be tried within 12 months, and having determined that she is suffering from a mental illness or a mental condition, and notwithstanding the terms of s 20BC(2), being of the opinion that it is more appropriate to do so, I order the accused's release subject to conditions to apply for the period of three years in light of the nature of the accused's conduct and history.
4. The conditions to which the accused is subject are as follow.
5. As to residence:

• To reside at [REDACTED].

1. As to healthcare:

• To take all medications as prescribed by medical professionals.
• Attend upon a forensic psychologist or psychiatrist for regular treatment upon referral from a general practitioner. I note that the public guardian has approved the accused to see Dr Carolyne Youseff, forensic psychologist, and that NDIS funding is available to support fortnightly counselling sessions.

1. As to telecommunication services and electronic devices:

• Not to own a mobile phone with internet capability, noting she is permitted to own a phone that cannot connect to the internet.
• Not to have in her possession a device that has internet capability without supervision of a support person. Supervision means being in the immediate company of a support person who knows that the accused is using a device with internet capability and who knows that she must be so supervised.
• Owning a tablet or laptop is permitted but only on the basis that it is stored by Maple Community Services at all times. Owning a device that is connected to the internet will require the accused to notify police of the internet connection being used in accordance her reporting obligations pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW).
• Owning and using a console for gaming without supervision is permitted only if the console is not connected to the internet.
• Owning and using a Fitbit or fitness monitoring device is permitted only if that device has no capability to use an internet browser and cannot be used to communicate with another person.

1. The document specifying the conditions is signed and included on the Court file.
2. The parties have liberty to apply if the need arises to have these conditions revisited due to changes in circumstances of the accused in the period of 3 years from today.

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: 11 October 2022